Hernandez v. Securus Technologies, Inc.

Filing 36

Judge Richard G. Stearns: ORDER entered granting in part 28 Motion to Dismiss for Failure to State a Claim. Count V of Hernandez's Amended Complaint is DISMISSED. The clerk will enter the dismissal and remand the case to the Suffolk Superior Court for further proceedings. (RGS, law1)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
CIVIL ACTION NO. 16-12402-RGS
AARON HERNANDEZ
v.
SECURUS TECHNOLOGIES, INC.
MEMORANDUM AND ORDER ON
DEFENDANT’S MOTION TO DISMISS
March 2, 2017
STEARNS, D.J.
Plaintiff Aaron Hernandez brings several claims against defendant
Securus Technologies, Inc., the company that provides telephone services to
inmates at the Suffolk County House of Corrections (Suffolk). Hernandez, a
former inmate at that facility, alleges that Securus recorded some of his
phone calls and stored them on a company server, where they were accessed
by an unauthorized person. The court will dismiss Hernandez’s sole federal
claim and remand the remaining claims to the Superior Court.
BACKGROUND
For purposes of this motion, the facts alleged in the complaint are
taken as true. Hochendoner v. Genzyme Corp., 823 F.3d 724, 730 (1st Cir.
2016). Securus provides telephone services for inmates under a contract

with Suffolk. Am. Compl. ¶ 6. During the summer of 2014, Hernandez was
detained at Suffolk while awaiting trial in Bristol County. Id. ¶ 12. While
there, Hernandez used the Securus system to speak with his family, friends,
and attorneys, paying a fee to place calls through the system and a perminute rate for each call. Id. ¶¶ 7, 12. Pursuant to the jail’s written policy,
Hernandez’s conversations were recorded and stored in a database
maintained by Securus. Id. ¶ 6. At some point that summer, an unidentified
person illicitly accessed the Securus database and listened to recordings of
Hernandez’s phone conversations. Id. ¶ 13. Hernandez was never informed
of the breach, instead learning of it from media reports. Id. ¶ 15. As alleged
in the Complaint, Hernandez has never received any information from
Securus regarding the extent of the breach, which calls were accessed, or the
identity of the hacker.
Hernandez filed this lawsuit against Securus in the Suffolk Superior
Court on November 21, 2016. Securus removed the case to the federal
district court on November 26, 2016. Hernandez then filed this Amended
Complaint on November 28, 2016. The Complaint includes claims for
negligence (Count I), misrepresentation (Count II), breach of contract
(Counts III and IV), violations of the Federal Civil Rights Act (Count V), and

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invasion of privacy (Count VI).1 Most pertinent for present purposes, the
Complaint contends that Hernandez suffered an invasion of privacy when his
otherwise private calls were accessed. Id. ¶¶ 12, 51. In addition, he asserts
that because previous breaches of Securus’s database have demonstrated
“habitual violation of attorney-client privilege . . . the recorded phone calls
accessed during the breach potentially included privileged and confidential
conversations between [Hernandez] and his attorneys.” Am. Compl. ¶ 17.
Securus has moved to dismiss for both lack of subject matter
jurisdiction and failure to state a claim. See Fed. R. Civ. P. 12(b)(1), (6).
DISCUSSION
Securus first contends that Hernandez lacks standing to bring the
claims. Because standing is central to the court’s Article III jurisdiction, the
issue must be resolved before the court can proceed with the merits. Baena
v. KPMG LLP, 453 F.3d 1, 4 (1st Cir. 2006). A motion to dismiss for lack of
standing is decided under the same standard as a Rule 12(b)(6) motion:
“[T]he plaintiff bears the burden of establishing sufficient factual matter to

The Complaint contains a seventh count seeking injunctive relief
requiring Securus to preserve all records related to Hernandez’s phone calls.
That count was resolved by a stipulated preliminary injunction entered on
December 6, 2016. See Dkt #25.
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plausibly demonstrate his standing to bring the action.” Hochendoner, 823
F.3d at 731.
Standing has three elements: injury, causation, and redressability.
Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-561 (1992). Any injury for
standing purposes must be both “concrete” and “particularized.” Spokeo,
Inc. v. Robins, 136 S. Ct. 1540, 1548 (2016). For an injury to be “concrete,”
it must “actually exist.” Id. In other words, the plaintiff must actually suffer
(or be at risk of suffering) some injury; a “bare procedural violation” which
results in no harm to a plaintiff is insufficiently concrete to ground a claim of
standing. Id. at 1549.
Securus argues that Hernandez has failed to plead a concrete injury,
principally on the ground that Hernandez had no reasonable expectation of
privacy in his phone calls and that Securus therefore owed him no duty that
could be breached. This argument ignores the principle that “standing in no
way depends on the merits of the plaintiff's contention that particular
conduct is illegal.” Warth v. Seldin, 422 U.S. 490, 500 (1975). For standing
purposes, Hernandez has alleged a traditional and concrete injury:
embarrassment flowing from the publication of his intimate conversations,

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allegedly caused by Securus’s negligence and breaches of contract.2 Whether
that injury can be translated into a viable action at law is a question to be
decided on the merits. See Chaudhry v. City of Los Angeles, 751 F.3d 1096,
1109 (9th Cir. 2014); Muir v. Navy Fed. Credit Union, 529 F.3d 1100, 1106
(D.C. Cir. 2008); see also Steel Co. v. Citizens for a Better Envt., 523 U.S. 83,
89 (1998) (“[T]he absence of a valid (as opposed to arguable) cause of action
does not implicate subject-matter jurisdiction . . . .”).
Hernandez’s sole federal claim is set out in Count V, which alleges that
Securus is liable under the Federal Civil Rights Act, 42 U.S.C. § 1983, for
violations of Hernandez’s rights under the First, Fifth, Sixth, and Fourteenth
Amendments. This claim fails for two separate and independent reasons.
First, no facts are alleged to support a tangible violation of any of
Hernandez’s constitutional rights. His fundamental premise is that “the
recorded phone calls accessed during the breach potentially included

Securus attempts to analogize this case to cases under the Fair Credit
Reporting Act and the Cable Communications Policy Act in which courts
have concluded that a mere failure to destroy personally identifiable
information or the dissemination of incorrect credit information cannot,
standing alone, constitute an injury for standing purposes. See, e.g., Spokeo,
136 S. Ct. at 1550; Braitberg v. Charter Commc’ns, Inc., 836 F.3d 925, 929931 (8th Cir. 2016). In those cases, the focus is on whether plaintiffs have
alleged that any harm actually resulted from the procedural injuries they
allegedly suffered. By contrast, in an invasion of privacy action, the harm is
synonymous with the dissemination of intimate personal information which
by definition is private.
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privileged and confidential conversations between [Hernandez] and his
attorneys.” Am. Compl. ¶ 17. This allegation is based on information and
belief and references a news article attached to the Complaint reporting an
unrelated breach of Securus’s servers. Id. ¶¶ 9-10, 17. According to the
article, that breach led to the release of the records of roughly 70 million
inmate phone calls, including approximately 14,000 calls between inmates
and their attorneys. Id. ¶¶ 9-10. The fact that an unrelated breach involved
some privileged recorded calls does not plausibly support the suggestion that
Hernandez’s calls with his attorneys were recorded and later compromised.3
Moreover, even if privileged calls were intercepted and recorded, Hernandez
has alleged no facts demonstrating that his constitutional rights were
impaired as a result. The Complaint contains nothing plausibly suggesting
that attorney confidences were ever conveyed to a prosecutor or law
enforcement official so as to show that government misconduct had an
adverse impact (past or potential) on the effectiveness of his counsel’s
representation or otherwise prejudiced his defense.

United States v.

Under Massachusetts regulations, all inmate phone calls are eligible
for recording except those made to pre-designated numbers associated with
attorneys, consular officials, clergy, and certain counseling professionals.
103 Mass. Code Regs. 428.06(3)(d).
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Morrison, 449 U.S. 361, 365 (1981); cf. Weatherford v. Bursey, 429 U.S. 545,
558 (1977).
Moreover, even if a claim of prejudice were made out, a § 1983 claim
can only be prosecuted against a state actor. See Rendell-Baker v. Kohn, 457
U.S. 830, 837-838 (1982). It is true that a private entity may become a state
actor in several ways: if it engages “in a traditionally or exclusive public
function; is ‘entwined’ with the government; is subject to governmental
coercion or encouragement; or is willingly engaged in joint action with the
government.” Logiodice v. Trs. of Me. Cent. Inst., 296 F.3d 22, 26 (1st Cir.
2002). Hernandez rests his argument on the first of these alternatives.
Although prison phone providers generally are not considered state actors,
see Belton v. SecurusTech.net, 2014 WL 524470, at *6 (E.D.N.Y. Feb. 7,
2014) (collecting cases), Hernandez claims that these cases are inapposite
because he targets not the phone services, but “the recording and monitoring
associated with these services on behalf of the Massachusetts Department of
Corrections.” Opp’n at 12. The “[s]urveillance and monitoring of prisoners,”
he contends, is a traditional public function. Id.
This distinction is inconsequential. Securus is a contractor providing
designated services to the government, and the “[a]cts of . . . private
contractors do not become acts of the government by reason of their
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significant or even total engagement in performing public contracts.”
Rendell-Baker, 457 U.S. at 841. The provision of a phone service with
contractually required recording capabilities to a government facility is not a
“traditionally or exclusive public function.” See Evans v. Skolnik, 2009 WL
3763041, at *4-5, *5 n.4 (D. Nev. Nov. 5, 2009), aff’d, 637 Fed. App’x 285,
287 (9th Cir. 2015). Hernandez pleads no facts that establish Securus as a
state actor for purposes of § 1983.
Hernandez’s remaining claims are exclusively state-law causes of
action that do not on the face of the Complaint meet the amount in
controversy requirement for original jurisdiction under 28 U.S.C. § 1332. At
this early stage of the litigation, there is no reason for the court to exercise
supplemental jurisdiction, particularly where the Complaint raises the
unresolved issue of whether a negligent invasion of privacy is a viable cause
of action under Massachusetts law, a matter better addressed in the first
instance by the state court.

Consequently, the court will remand the

remaining claims to the Suffolk Superior Court. See 28 U.S.C. § 1367(c).
ORDER
For the foregoing reasons, Count V of Hernandez’s Amended
Complaint is DISMISSED. The clerk will enter the dismissal and remand the
case to the Suffolk Superior Court for further proceedings.
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SO ORDERED.
/s/ Richard G. Stearns
__________________________
UNITED STATES DISTRICT JUDGE

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