Jearlean Franklin v. THE CITY OF CHICAGO POLICE DEPARTMENT and SBC AMERITECH INC.

* After an examination of the briefs and the record, we have concluded that
oral argument is unnecessary. Thus, the appeal is submitted on the briefs and the
record. See Fed. R. App. P. 34(a)(2).
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted December 13, 2005*
Decided December 14, 2005
Before
Hon. RICHARD A. POSNER, Circuit Judge
Hon. ANN CLAIRE WILLIAMS, Circuit Judge
Hon. DIANE S. SYKES, Circuit Judge
No. 04-2996
JEARLEAN FRANKLIN,
Plaintiff-Appellant,
v.
THE CITY OF CHICAGO POLICE
DEPARTMENT and SBC
AMERITECH INC.,
Defendants-Appellees.
Appeal from the United States District
Court for the Northern District of
Illinois, Eastern Division
No. 02 C 3354
George M. Marovich,
Judge.
O R D E R
Jearlean Franklin sued the City of Chicago Police Department (“CPD”) and
SBC Ameritech, Inc., under 42 U.S.C. § 1983 and the Federal Wiretapping Act, 18
U.S.C. § 2511, alleging that the CPD harassed her and illegally tapped her phone
and that SBC did not prevent the wiretap. The district court dismissed the
complaint, and we affirm.
UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53

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No. 04-2996 Page 2
Franklin unsuccessfully sued the CPD for false arrest in 1997. As a
consequence of that suit, she says that CPD officers repeatedly harassed her,
tapped her phone, and made harassing calls. In 2000, Franklin returned to state
court and charged the City of Chicago with harassment, and the court dismissed the
complaint. In 2002, Franklin then filed this suit in federal court, alleging that
CPD’s harassment violated her constitutional rights. She also alleges that both
CPD’s wiretap and SBC’s failure to prevent the wiretap violated the Federal
Wiretapping Act, 18 U.S.C. § 2511.
The district court tried, successively, to appoint attorneys to represent
Franklin; two withdrew over disagreements with Franklin regarding “litigation
strategy.” The district court ultimately dismissed Franklin’s pro se complaint. The
court determined that res judicata barred Franklin’s § 1983 claims against the CPD
because the state court in 2000 had entered a final judgment against Franklin
based on the same set of facts, and because both suits had the same parties and
claims. Because Franklin did not allege that any state control was exercised over
SBC’s functions, the district court dismissed the § 1983 claims against SBC.
Finally, the district court dismissed the wiretapping claims because it determined
that municipalities are not considered “persons” under the Federal Wiretapping Act
so the city could not be liable, and SBC did not violate the Act because it did not
intentionally intercept any of Franklin’s communications.
On appeal, Franklin only vaguely challenges the district court’s dismissal of
her § 1983 claims against the CPD on res judicata grounds. Franklin contends in
general terms that she is asserting unspecified constitutional claims that she failed
to present in state court.
Federal courts give state judgments the same preclusive effect that they
would receive under state law, Wilhelm v. County of Milwaukee, 325 F.3d 843, 846
(7th Cir. 2003), and in Illinois, res judicata bars claims that were or could have been
raised in a prior action that reached a final judgment on the merits. Licari v. City
of Chicago, 298 F.3d 664, 666 (7th Cir. 2002) (citing state law). To determine
whether there is an identity between claims for purposes of res judicata, Illinois
uses a “transactional test”; under that test, claims that assert different legal
theories are considered to be identical if they arise from a single set of operative
facts. Licari, 298 F.3d at 667. Franklin’s complaints in state and federal court both
arise from a single set of operative facts: the harassment undertaken by the CPD
against her in retaliation for her 1997 lawsuit. Her federal-court claims were
essentially resolved in the 2000 state court proceeding. She has not tried to
distinguish between the claims, and thus we are precluded from reviewing them
now.

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No. 04-2996 Page 3
Franklin next reasserts that the city violated the Federal Wiretapping Act by
“wiretapping, eavesdropping and interception [sic] of personal conversations”
without a “court order.” As the district court correctly observed, however, a
municipality cannot be held liable under the Federal Wiretapping Act, see Abbott v.
Vill. of Winthrop Harbor, 205 F.3d 976, 980 (7th Cir. 2000); Amati v. City of
Woodstock, 176 F.3d 952, 956 (7th Cir. 1999).
Franklin also argues that the district court should have appointed her new
counsel after her last two attorneys withdrew successively because of “strategic
differences” with Franklin. Generally, litigants do not have a constitutional right to
counsel in a civil lawsuit, Synergy Assoc., Inc. v. Sun Biotechnologies, Inc., 350 F.3d
681, 683 (7th Cir. 2003), but the court may, in its discretion, assign an attorney to
someone who cannot afford counsel, 18 U.S.C. § 1915(e)(1). The district court here
did not abuse its discretion in declining to appoint counsel for Franklin because it
correctly determined that Franklin could not state a claim, and the presence of
counsel would not have “made a difference in the outcome.” See Gil v. Reed, 381
F.3d 649, 656 (7th Cir. 2004).
Finally, Franklin continues to contend that SBC should have prevented the
CPD from using their telephone services to harass her. But she fails to develop the
argument so it is waived. United States v. Washburn, 383 F.3d 638, 643 (7th Cir.
2004).
Accordingly, the district court’s judgment is AFFIRMED.

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