Pearson et al v. Hodgson et al
Filing
45
Judge Indira Talwani: ORDER entered. MEMORANDUM AND ORDER. The court ALLOWS in part and DENIES in part Sheriff Hodgson's 26 Motion to Dismiss and Securus's 28 Motion to Dismiss. (DaSilva, Carolina)
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
KELLIE PEARSON, ROGER
BURRELL, BRIAN GIVENS, and
THE LAW OFFICES OF MARK
BOOKER, on behalf of themselves
and those similarly situated,
Plaintiffs,
v.
THOMAS M. HODGSON, individually
and his official capacity as Sheriff of
Bristol County, and SECURUS
TECHNOLOGIES, INC.,
Defendants.
*
*
*
*
*
*
*
*
*
*
*
*
*
*
*
*
Civil Action No. 18-cv-11130-IT
MEMORANDUM & ORDER
December 20, 2018
TALWANI, D.J.
I.
Introduction
This case challenges costs imposed by a provider of inmate telephone services on the
recipients of telephone calls made by inmates in Bristol County, Massachusetts, and paid by the
provider as commissions to the Bristol County Sheriff’s Office. Before the court is Defendant
Thomas M. Hodgson’s (“Sheriff Hodgson”) Motion to Dismiss [#26] and Defendant Securus
Technologies, Inc.’s (“Securus”) Motion to Dismiss [#28]. Finding that the Complaint [#1-1]
states claims upon which relief may be granted, but that certain matters alleged may not proceed,
the motions are ALLOWED in part and DENIED in part.
II.
Factual Background
The facts alleged in the Complaint [#1-1] are as follows. Thomas M. Hodgson is the
Sheriff and head of the Bristol County Sheriff’s Office (the “Sheriff’s Office”). Compl. ¶ 4 [#11]. In May 2011, the Sheriff’s Office issued a “Request for Responses” seeking bids to operate
the inmate telephone calling services (“Inmate Calling Services”) at the Bristol County Jail,
Bristol County House of Correction, Bristol County Sheriff’s Office Women’s Center, Carlos
Carreiro Immigration Detention Center, and Ash Street Jail and Regional Lock-Up (collectively,
“Bristol County Correctional Facilities”). Id. ¶¶ 18, 28. Section 5.1.21 of the Sheriff Office’s
Request for Responses required each bidder to include in its bid site “commissions” or other
“compensations” that the bidder would pay to the Sheriff’s Office based on gross revenues that
the bidder receives from operating its Inmate Calling Services. Id. ¶¶ 29-30.
On May 23, 2011, Securus responded to the Sheriff Office’s Request for Responses and
offered to pay to the Sheriff’s Office monthly site commission payments in the amount of 48%
of Securus’s gross revenues from the Inmate Calling Services at the Bristol County Correctional
Facilities if Securus was awarded the contract. Id. ¶¶ 31, 34. On August 8, 2011, the Sheriff’s
Office awarded Securus a five-year exclusive contract to operate the Inmate Calling Services at
the Bristol County Correctional Facilities through a Coinless Inmate & Public Telephone
System. Id. ¶ 32. The contract included Securus’s payment of site commissions as one of its
contractual terms and provided options for four additional one-year contract renewals. Id. ¶¶ 2,
33-34.
From August 2011 to June 2013, Securus operated the Inmate Calling Services for the
Bristol County Correctional Facilities and paid the Sheriff’s Office monthly site commissions
totaling $1,172,748.76. Id. ¶ 35. This amounted to nearly half of all gross revenues that Securus
received from collect and debit calls made from the Bristol County Correctional Facilities. Id.
¶ 23. Securus passed on the cost of these site commission payments to the recipients of telephone
2
calls from the Bristol County Correctional Facilities, including inmates’ families, friends,
attorneys, and others, by nearly doubling the cost of receiving credit and debit telephone calls
made from the Bristol County Correctional Facilities. Id. ¶¶ 1-2, 24. The additional charge was
used to pay these site commissions and bears no relationship to the actual cost of providing
Inmate Calling Services or the quality of the Inmate Calling Services. Id. ¶¶ 21-25. This contract
remained in effect for over four years. Id. ¶¶ 32, 41.
In 2013-2014, the Federal Communications Commission (“FCC”) limited interstate site
commissions by requiring that rates for inmates’ interstate telephone calls be based on the cost of
operation, and finding that site commission payments are not a legitimate cost of providing
Inmate Calling Services. See Id. ¶¶ 36-37. In August 2016, the FCC attempted to set rate caps for
local and long-distance inmate calling, but those rates were stayed by a court order. Id. ¶ 40
(citing Order, Securus Techs. v. FCC, No. 16-1321 (D.C. Cir. Nov. 2, 2016)). Thus, the FCC’s
rate caps existed for interstate calling, but not local or intrastate long-distance calling. Id.
On October 21, 2015, the Sheriff’s Office and Securus amended the contract by altering
the form and timing of the site commission payments. Id. ¶ 42. In lieu of monthly site
commission payments, the amendment provided that Securus would pay the Sheriff’s Office a
lump-sum payment of $820,000 for the duration of the contract term, ending June 30, 2020. Id.
¶¶ 42-43. In exchange, Securus retained its exclusive contract with the Sheriff’s office for an
additional four years. Id. ¶ 44. While the form and timing of the site commission payments
differed, Securus continues to increase the cost of calls from Bristol County Correctional
Facilities and uses the additional charge to compensate the payment to the Sheriff’s Office. Id. at
¶ 46. The contract remains in effect today. See id. ¶¶ 42-43, 46.
Up until June 2016, Securus filed a tariff, or a filing of its Inmate Calling Services call
3
rates, with the Massachusetts Department of Telecommunications and Cable (“DTC”). In June
2016, the DTC limited intrastate calling rates to the same rates set by the FCC for interstate
Inmate Calling Services. Id. ¶ 47. On August 1, 2016, Securus withdrew and cancelled its tariff
with the DTC, claiming exemption from regulation under Mass. Gen. Laws c. 25C, § 6A. Id.
¶ 48. Since then, Securus has charged Inmate Calling Service consumers more than the DTC
rates for intrastate calls. Id. ¶ 49.
Plaintiff Kellie Pearson (“Pearson”) received and paid for phone calls from her deceased
fiancé, Michael T. Ray, while he was incarcerated at the Bristol County House of Corrections
from September 2015 to June 2017. Id. ¶ 12. While incarcerated, Mr. Ray regularly called to
speak to Pearson and their daughter. Id. Pearson states that the high cost of Securus phone calls
placed a financial strain on her, forced her to decide whether to pay to receive her fiancé’s calls
or pay other bills, and caused stress to both her and Mr. Ray. Id.
Plaintiff Roger Burrell (“Burrell”) was previously incarcerated at the Bristol County
House of Corrections, where he used the Inmate Calling Services operated by Securus to call his
mother, sister, and legal counsel, all of whom are Massachusetts residents. Id. ¶ 13. Burrell could
not write letters by hand due to a medical issue. Id. The cost of Securus phone calls subjected his
mother and sister to financial hardship and prevented them from having more regular contact
with Burrell. Id.
Plaintiff Brian Givens (“Givens”) was previously incarcerated at the Bristol County
House of Corrections, during which time he called his attorney and his friend to coordinate his
medical, financial, and legal needs. Id. ¶ 14. Both his attorney and his friend were Massachusetts
residents. Id. He also regularly called his grandmother. Id. Givens felt anxious and alone when
he was unable to reach his loved ones, and the cost of the phone calls was a source of hardship
4
for himself and the recipients of his calls. Id.
Plaintiff The Law Offices of Mark Booker is a criminal defense law firm in Boston that
receives and pays for calls from its incarcerated clients. Id. ¶ 15. Those calls include calls from
clients at Bristol County Correctional Facilities. Id.
III.
Procedural History
On May 2, 2018, Plaintiffs filed this putative class action Complaint [#1-1] in the
Massachusetts Superior Court alleging that payments made by Securus to the Sheriff’s Office
violate Massachusetts state law and the Massachusetts Constitution. See Compl. [#1-1].
Defendants removed the case to this court later that month, basing subject matter jurisdiction on
the Class Action Fairness Act, 28 U.S.C. § 1332(d), because minimal diversity exists, the
proposed plaintiff class has more than 100 members, and the amount in controversy exceeds
$5,000,000. See Not. of Removal ¶ 9 [#1].
Plaintiffs seek injunctive relief on their own behalf and on behalf all Massachusetts
residents who reasonably anticipate or expect to use Securus’s Inmate Calling Services to make
or receive phone calls from Bristol County facilities in the future. Id. ¶¶ 52-63. Plaintiffs also
seek monetary relief on their own behalf and on behalf of all Massachusetts residents who have
paid Securus for use of Inmate Calling Services from Bristol County Correctional Facilities
during the time period beginning on the first day permitted by the applicable statute of
limitations and continuing until a judgment or settlement of this case. Id. ¶¶ 64-72.
Counts I through IV of Plaintiffs’ Complaint [#1-1] are brought against Sheriff Hodgson.
Count I seeks a declaratory judgment that the monthly site commissions and lump sum payments
included in Securus’s contract with the Bristol County contract is contrary to Massachusetts
State law and the Supreme Judicial Court’s Decision in Souza v. Sheriff of Bristol County, 455
5
Mass. 573, 918 N.E.2d 823 (2010). Compl. ¶¶ 73-75. Count II seeks a declaratory judgment that
inflated Inmate Calling Services phone charges that Plaintiffs paid are unlawful taxes or
unlawful fees. Id. ¶¶ 76-78. Count III alleges that the Sheriff’s Office engaged in ultra vires
taxation for which it does not have statutory authority, in violation of Part I, Article XXIII of the
Massachusetts Constitution. Id. ¶¶ 79-85. Count IV alleges that, in the alternative to Count III,
the Sheriff’s Office extracted unlawful fees from Plaintiffs for which it has no statutory authority
to charge, in violation of Mass. Gen. Laws ch. 126, § 29. Id. ¶¶ 86-93.
Counts V and VI are brought against Securus. Count V alleges that Securus committed
the tort of conversion by taking the class members’ money through coercion and without legal
authority to do so. Id. ¶¶ 91-93. Count VI alleges that Securus engaged in unfair and deceptive
trade practices, in violation of Mass. Gen. Laws ch. 93A, § 2. Id. ¶¶ 94-101.
Sheriff Hodgson and Securus moved to dismiss. Sheriff Hodgson’s Mot. to Dismiss
(“Sheriff’s MTD”) [#26]; Securus’s Mot. to Dismiss (“Sec. MTD”) [# 28].
IV.
Preliminary Matters
First, a bit of housekeeping. Plaintiffs’ Complaint [#1-1] is unclear as to the relief being
sought against Sheriff Hodgson. Plaintiffs stated in their Opposition to Sheriff [] Hodgson’s
Motion to Dismiss (“Pls.’ Opp’n to Sheriff’s MTD”) [#34] and at the hearing on these motions
that they only seek equitable relief against Sheriff Hodgson. Plaintiffs further stated at the
hearing that, despite naming Sheriff Hodgson in both his individual and official capacity, they do
not object to dismissal of claims against Sheriff Hodgson in his individual capacity. Accordingly,
to the extent that the Plaintiffs assert claims against Sheriff Hodgson in his individual capacity or
seek monetary damages from Sheriff Hodgson in either his individual or official capacity, such
claims are DISMISSED.
6
Next, Plaintiffs Burrell and Givens, two former inmates at Bristol County Correctional
Facilities, seek injunctive relief. Defendants argue that because Plaintiffs Burrell and Givens
were released from custody prior to the filing of this Complaint [#1-1], their claims for injunctive
relief are moot. Therefore, they lack standing to bring these claims. Plaintiffs concede that
Plaintiffs Burrell and Givens were released from custody and that their claims for injunctive
relief are moot. In light of this concession, any claims for injunctive relief on behalf of Plaintiffs
Burrell or Givens are also DISMISSED.
V.
Standard of Review
To survive a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), the Plaintiffs’
Complaint [#1-1] must “state a claim to relief that is plausible on its face.” Bell Atl. Corp. v.
Twombly, 550. U.S. 544, 570 (2007). This court must accept all factual allegations in Plaintiffs’
complaint as true and draw all reasonable inference in favor of the Plaintiff. Ashcroft v. Iqbal,
556 U.S. 662, 678-79 (2009).
VI.
Sheriff Hodgson’s Motion to Dismiss
A.
Count I – Contravenes Souza
In count 1, Plaintiffs contend that Sheriff Hodgson violated state law, as construed by
Souza, 918 N.E.2d 823, by requiring Securus to make payments to the Sheriff’s Office beyond
what the legislature expressly gave the Sheriff authority to charge. Compl. ¶¶ 74-75 [#1-1]; Pls.’
Opp’n to Sheriff’s MTD 10 [#34]. Plaintiffs claim that forcing Securus to collect higher costs
from Inmate Calling Services call recipients to fund the site commissions or lump sum payments
is the functional equivalent to the Sheriff’s Office raising revenue without statutory
authorization. Pls.’ Opp’n to Sheriff’s MTD 10-11 [#34]. And, according to Plaintiffs, because
financial charges imposed by county sheriffs “are invalid” “in the absence of specific legislative
7
authority,” and no such legislative authority exists for a county sheriff to collect these payments,
the site commissions and lump sum payments are unlawful. Id. at 10 (quoting Souza, 918 N.E.2d
at 833).
In Souza, the plaintiffs challenged the imposition of certain fees that the sheriff of Bristol
County imposed on inmates in his custody for their “cost of care,” medical care, haircuts, and
GED testing. 918 N.E.2d at 825-26. The five-dollar daily “cost of care” fees were automatically
deducted or debited from inmates’ account, while the fees for medical care, haircuts, and GED
testing were deducted when an inmate asked for that specific service. Id. The Massachusetts
Supreme Judicial court recognized that “[a]s a general rule[,] the powers, duties, rights, and
liabilities of a sheriff as a jailer are prescribed by statute, and his powers, duties, rights and
liabilities are thus circumscribed by the legislative enactments of the particular jurisdiction.” Id.
at 829 (alterations in original) (quoting 1 W.H. Anderson, Sheriffs, Coroners, and Constables
§ 42, ¶ 266 (1941)). In invalidating the imposed fees, the Supreme Judicial Court held that
“[w]here the Legislature expressly authorized the sheriff to charge certain fees and use inmate
funds in particular ways and only in circumscribed circumstances, . . . we conclude that the broad
authority to have control and custody of county correctional institutions . . . does not confer
authority to impose the challenged fees.” Id. at 833.
Sheriff Hodgson argues that Plaintiffs read Souza too broadly, and that the
comprehensive statutory scheme alleged to have been violated in Souza does not apply to the site
commissions for three reasons. Sheriff Hodgson’s Mem. in Support of its Mot. to Dismiss
(“Sheriff’s Mem.”) 7-8 [#27]. He argues first that unlike the fees at issue in Souza, the Sheriff’s
Office is not deducting money from inmate funds but instead collecting payments contractually
agreed to by Securus. Id. at 8. He also contends that Souza is in applicable because the Sheriff’s
8
Office is not the one charging any fees to Plaintiffs. Id. Third, he argues that the fees at issue in
Souza related to fees that sheriffs could charge “in the performance of their duties,” whereas the
site commissions at issue here are simply a contractual arrangement with a private
telecommunications company. Id.
Sheriff Hodgson’s argument that Souza’s framework does not apply falters for several
reasons. First, while the fees invalidated in Souza were deducted directly from inmates’
accounts, Souza’s holding was not limited to determining what fees sheriffs may deduct from
inmates’ accounts. See 918 N.E.2d at 832 (stating that a sheriff may only charge certain
enumerated fees for service of criminal and civil process); id. at 826 (when an inmate had an
outstanding balance in their account, the amount owed was deducted from funds sent to the
inmates from friends and family). That the Sheriff’s Office received funds that Securus collected
from the recipients of inmates’ calls, rather than requiring those call recipients to deposit the
funds into the inmates’ accounts for collection, is a distinction without a difference.
Second, although it is Securus, and not the Sheriff’s Office, that is collecting telephone
fees from the Inmate Calling Services call recipients, Plaintiffs challenge is to the Sheriff’s
Office’s collection of revenue in the performance of the Sheriff’s duties, see 103 Code Mass.
Regs § 948.10—and not Securus’s collection of the telephone fees that it does not pass back to
the Sheriff. Allowing county correctional facilities to collect fees in excess of those allowed by
the legislature by hiring a third-party vendor to collect those fees runs afoul of Souza. See 918
N.E.2d. at 833 (“[I]n the absence of specific legislative authority for the challenged fees, they are
invalid.”).
Finally, Sheriff Hodgson’s claim that the Sheriff’s Office is not collecting any fees “in
the performance of [its] duties,” but rather that he is exercising his right to enter into a private
9
contract, is to no avail. Providing the Bristol County correctional facility inmates reasonable
access to public telephone calls is one of the sheriff’s duties, see 103 Code Mass. Regs. § 948.10,
and the contract with Securus—including the requirement that Securus make commission
payments to the Sheriff’s Office—was done in executing that duty. “The Legislature has
expressly authorized sheriffs to charge certain fees in the performance of their duties.” Souza,
918 N.E.2d at 832. Without express authority saying otherwise, Sheriff Hodgson may not require
payments to perform his legislatively-assigned obligation. Sheriff Hodgson is not alleviated of
this prohibition simply because he contracted the administration of his responsibility to a third
party. See id. (“[A] government agency or officer does not have the authority to issue
regulations, promulgate rules, or . . . create programs that conflict with or exceed the authority of
the enabling statute.” (emphasis added)). Although Sheriff Hodgson is allowed, and often must,
enter into private contracts to operate the Bristol County Correctional Facilities, see Richardson
v. Knight, 521 U.S. 399, 405-407 (discussing the role of private contractors in prisons), he may
not do so in a manner that conflicts with state law.
Sheriff Hodgson contends that even if the site commission payments fall within the
legislative scheme addressed in Souza, receiving site commissions to fulfill his duty cannot be
inconsistent with that scheme as Massachusetts has indicated a policy choice in favor of site
commissions. Sheriff’s Mem. at 1 [#27]. Sheriff Hodgson notes that there are no Massachusetts
laws, regulations, or rules prohibiting site commissions at the county level, and the
Massachusetts legislature has explicitly approved them in state prisons. Id. at 1, 9 (citing 103
Mass. Code Regs. 482.06(6) (“All Commissions received [by the Department of Corrections]
10
that are derived from inmate calling shall be returned to the General Fund of the
Commonwealth.”)).
But, as the Supreme Judicial Court made clear in Souza, simply because the legislature
has allowed a state-level official to engage in certain actions or collect certain fees does not grant
a county sheriff the same authority. See, e.g., 918 N.E.2d. at 831 (statute giving Commissioner
of Corrections the authority to establish a haircut fee does not allow sheriff to establish a haircut
fee); cf. id. (“Even if the commissioner were to authorize the challenged fees (in the absence of
express regulation), the question . . . [is] whether the sheriff was statutorily authorized to impose
the fees.”). And, as previously noted, the legislature has established a comprehensive framework
of the fees that a county sheriff may charge in the performance of his duties. See id. at 832.
The Sheriff’s reliance on the lack of an express prohibition on his collection of site
commissions is the same argument that was rejected in Souza, where the sheriff argued that he
could collect the challenged fees because “nothing in the statutory scheme proscribes them.” Id.
at 831. But, following the Supreme Judicial Court’s guidance, the court finds that had the
Massachusetts Legislature intended to grant county sheriffs the authority to collect site
commissions derived from inmate calling, it would have stated as much—as it did for the
Department of Corrections. See id. at 833 (“Had the Legislature intended to authorize the sheriff
to impose the challenged fees, it would have said so expressly as it had done with other fees.”).
Accordingly, “in the absence of specific legislative authority for the challenged [site
commissions], they are invalid.” Id. Sheriff Hodgson’s Motion to Dismiss [#26] is DENIED as it
relates to Count 1.
11
B.
Counts II – Improper Collection of Revenue
In counts II, III, and IV, Plaintiffs further challenge the legal status of payments made by
Securus to the Sheriff’s Office, to the extent that they are funded by increasing the cost of Inmate
Calling Services well beyond the true cost of providing the service. Plaintiffs allege that Sheriff
Hodgson is improperly collecting revenue, in the form of an unlawful fee or unlawful tax on the
end users, through a third-party intermediary without having the statutory authority to do so.
Sheriff Hodgson states that these claims must be dismissed because the site commissions
were voluntary payments by Securus not associated with any government benefit and therefore,
because they were not mandatory, are not an unlawful tax. Sheriff’s Mem. 10-11 [#27]. Sheriff
Hodgson further argues that the contractual terms with Securus were not fees because the
payments were not in exchange for a governmental service, and, even if construed as fees, were
not unlawful.1 Id. at 11-16.
Regardless of whether they are considered a fee or a tax, Plaintiffs’ allegations provide
plausible grounds that the site commissions and lump sum payments were unlawful monetary
payments exacted from them and other Inmate Calling Services consumers without legislative
authority. See Bell Atl., 550 U.S. at 555-58. Plaintiffs have alleged, and the court accepts as true
for purposes of this motion, that at the public bidding process, the Sheriff’s Office required
payments from any potential Inmate Calling Services provider beyond any real costs that the
Sheriff’s Office incurs to provide Inmate Calling Services. See Compl. ¶¶ 81, 83, 87. Plaintiffs
1
In his reply, Sheriff Hodgson contends further that Plaintiffs do not have standing to argue that
these were unlawful fees or taxes on Securus. Sheriff’s Rep. 7 [#41]. But Plaintiffs are
contending that this fee or tax is imposed on the end user, and that they are directly affected by
the requirement that Securus make such payments. See Spokeo, Inc. v. Robins, 136 S. Ct. 1540,
1547 (stating that, to have Art. III standing, Plaintiffs must have suffered an injury that is fairly
traceable to the challenged conduct, and can be resolved by the court’s decision).
12
further claim that in doing so, Sheriff Hodgson has forced that Inmate Calling Services provider,
Securus, to pass on their costs to Plaintiffs in the form of inflated call rates for telephone calls
from the Bristol County Correctional Facilities. Id. ¶¶ 80, 81, 87. And, Defendants do not
challenge Plaintiffs assertions that Plaintiffs have no say as to whether Securus—as a result of its
obligation to pay these commissions to the Sheriff’s Office—charges the inflated rate, and that
Plaintiffs receive no additional benefit from increased rate beyond what they would receive if
Plaintiffs were only charged the amounts Securus seeks for itself for providing Inmate Calling
Services.
Given these allegations, in light of the court’s finding as to count 1, see supra Part V (A),
Plaintiffs have complied with Federal Rule of Civil Procedure 8(a)(2)’s pleading requirement
that Plaintiffs plead factual content which “allows the court to draw the reasonable inference that
[D]efendant[s] [are] liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. While Sheriff
Hodgson may disagree that Securus’s payments to the Sheriff’s Office go beyond the Sheriff
Office’s costs associated with providing Inmate Calling Services, that argument is for another
day and is not appropriate at this procedural posture.
For the foregoing reasons, Sheriff Hodgson’s Motion to Dismiss [#26] is also DENIED
as to counts II, III, and IV.
VII.
Securus’s Motion to Dismiss
A. Count V – Conversion
In count V, Plaintiffs allege that Securus coerced or otherwise took Plaintiffs’ money, in
the amount of the inflated cost for the Inmate Calling Services from the Bristol County
Correctional Facilities, without the legal authority to do so. Compl. ¶¶ 91-93 [#1-1]. Securus
argues that count V must be dismissed because Plaintiffs’ allegations do not meet the necessary
13
elements of the tort of conversion. Specifically, Securus argues that their conduct is not wrongful
because Plaintiffs voluntarily accepted and paid for Securus’s Inmate Calling Services without
any misrepresentation or fraud by Securus. Securus’ Memorandum in Support of Mot. to
Dismiss (“Sec. Mem.”) 6-9 [#29].
To prove the tort of conversion under Massachusetts law, Plaintiffs must show that
Securus (1) exercised ownership or control over the plaintiffs’ personal property;
(2) intentionally and wrongfully; and (3) at the time when the Securus had no legal right of
possession over that property. Beliveau v. Ware, 33 N.E.3d 459, 462 (Mass. App. 2015). Put
differently, to survive a motion to dismiss, Plaintiffs must plead sufficient facts to show that
Securus took their money without their consent. See In re TJX Cos. Retail Sec. Breach Litig.,
564 F.3d 489, 499-500 (1st Cir. 2009), as amended on reh’g in part (May 5, 2009) (“Conversion
implies appropriation.”).
Plaintiffs concede that Inmate Calling Services consumers agreed to pay for Inmate
Calling Services phone calls, but cite Commonwealth v. Decotis, 316 N.E.2d 748, 754-55 (Mass.
1974), to support their argument that Securus’s monopoly over the Inmate Calling Services from
the Bristol County Correctional Facilities, and the lack of a viable alternative, make the
transaction coercive and unfair, and thereby negate their voluntariness. Pls.’ Opp’n to Sec. Mot.
to Dismiss (“Pls.’ Opp’n Sec. MTD”) 13-14 [#35].
Plaintiffs citation to Decotis does not stand for the proposition for which they offer it. In
Decotis, the Massachusetts Attorney General brought suit pursuant to M.G.L. ch. 93A, § 4
against defendants that managed a mobile home park and required their tenants to pay the
defendants a resale fee when those tenants sold their mobile homes. 316 N.E.2d at 750. The
Supreme Judicial Court found that the resale fee was unfair for purposes of chapter 93A even
14
though the tenants had voluntarily agreed to that contract term. Id. at 755. The court did not,
however, find that the lack of viable alternatives made the fee involuntary. See id.
Here, while Plaintiffs may, and do, argue that the increased rate was unfair, see infra Part
VI(B), they have failed to sufficiently plead that Securus committed the tort of conversion. The
court need not accept as true Plaintiffs’ charge that Securus coerced them in to paying the
charged fee for Inmate Calling Services without appropriate factual support to establish a
plausible claim of conversion. See Air Sunshine, Inc. v. Carl, 663 F.3d 27, 30 (1st Cir. 2011)
(when considering a motion to dismiss, the court accepts the well-pleaded facts as alleged in the
complaint but does “not accept the complaint’s legal conclusions of naked assertion[s] devoid of
further factual enhancement.” (alteration in original) (internal quotation marks and citation
omitted)). And, because Plaintiffs have conceded that they voluntarily agreed to pay Securus’s
fees, their claim for conversion cannot stand. See Edinburg v. Allen Squire Co., 12 N.E.2d 718,
721 (Mass. 1938) (“[C]onsent by the owner of the property to an act, which otherwise might be
found to amount to conversion, would preclude such a finding.”).
Accordingly, Securus’s Motion to Dismiss [#28] is ALLOWED in regard to count V.
B. Count VI – Chapter 93A
Finally, Plaintiffs claim that Securus engaged in unfair or deceptive acts or practices
including, but not limited to, charging inflated amounts from the putative monetary relief class in
order to make unlawful payments to the Sheriff’s Office, taking Plaintiffs’ money through
coercion, and using funds derived from inmates’ telephone calls to make payments to the
Sheriff’s Office that contravene Massachusetts statutes and regulations. Compl. ¶ 97 [#1-1].
Plaintiffs allege that Securus’s actions violate Mass. Gen. Laws ch. 93A, § 2, and 940 C.M.R.
15
§ 3.16(2), and that Plaintiffs have suffered monetary harm as a result of these unfair and
deceptive practices. Id. ¶¶ 96, 99.
Securus argues that Plaintiffs’ chapter 93A claim must be dismissed as a matter of law.
As reasons therefore, Securus first states that because Plaintiffs’ claim is dependent on their
legally invalid claim for conversion and does not allege that Securus made any
misrepresentations other than those asserted in count V, their chapter 93A claim cannot stand on
its own. Sec. Mem. 10 [#29]. Next, Securus says that Plaintiffs should not be able to allege unfair
or wrongful conduct where Massachusetts has expressly allowed site commission, and where
Plaintiffs admit that Securus was simply passing on its costs of doing business with the Sheriff’s
Office. Id. at 12-14. Finally, Securus states that because it filed tariffs with the DTC from 2011
until it withdrew the tariff in August 2016, the filed rate doctrine bars recovery for any
challenged conduct that occurred prior to August 1, 2016. Id. at 14.
“Although whether a particular set of facts constitutes unfair or deceptive acts or
practices ordinarily is a question of fact, the boundaries of what may qualify for consideration as
a chapter 93A violation is a question of law.” Indus. Gen. Corp. v. Sequoia Pac. Sys. Corp., 44
F.3d 40, 43-44 (1st Cir. 1995) (quoting Shepard’s Pharm., Inc. v. Stop & Shop Cos., 640 N.E.2d
1112, 1115 (Mass. App. Ct. 1994)). “While it is true that an action under Chapter 93A need not
articulate every element of a common law tort claim in order to survive, see Mass. Farm. Bureau
Fed’n, Inc. v. Blue Cross, Inc., 522 N.E.2d 660 (Mass. 1989), a defendant’s allegedly unfair
conduct ‘must at least come within shouting distance of some established concept of unfairness,
Massachusetts School of Law at Andover, Inc. v. Am. Bar Ass’n, 142 F.3d 26, 42 (1st Cir.
1997).’” Cummings v. HPC Intern., Inc., 244 F.3d 16, 25 (1st Cir. 2001).
16
While a chapter 93A claim may fail when the cause of action upon which it is based is
not legally viable, Sec. Mem. 10-11 [#29] (citing cases), the case law makes clear that this need
not be the case. See Mass. Farm Bureau, 403 Mass. at 729 (“[A]] violation of [chapter 93A] need
not be premised on a violation of an independent common law or statutory duty.” (citing
Linthicum v. Archambault, 379 Mass. 381, 383 (1979))); see Cummings, 244 F.3d at 25. Rather,
“[c]hapter 93A liability may exist if the defendant’s conduct falls ‘within at least the penumbra
of some common-law, statutory, or other established concept of unfairness’ or is ‘immoral,
unethical, oppressive, or unscrupulous.’” Cambridge Plating Co., Inc. v. Napco, Inc., 85 F.3d
752, 769 (1st Cir. 1996) (quoting PMP Assoc., Inc. v. Globe Newspaper Co., 321 N.E.2d 915,
917 (Mass. 1975)). “Although the words ‘unfair,’ ‘unreasonable,’ ‘unconscionable,’ and
‘deceptive’ may appear to lack specificity, . . . their meaning may be determined from the
circumstances of each case.” Commonwealth v. Gustafsson, 346 N.E.2d 706, 711 (citing
Decotis, 316 N.E.2d 748).
In Decotis, in finding the resale fees for mobile homes located in the defendants’ mobile
home park to be unfair for purposes of chapter 93A, the Massachusetts Supreme Judicial Court
highlighted the fact that the defendants furnished no goods or services to the plaintiffs in
connection with the resale of the mobile homes located in defendants’ mobile home park, that the
defendants imposed the resale provision on persons of limited means and with limited choices
for housing, and that the defendants were able to enforce the resale fee only because the tenants
had no reasonable alternatives but to agree to pay. 316 N.E.2d at 755. Similarly, here, Securus is
providing no additional benefit to the Inmate Calling Services call recipients for the additional
fee charged, see Compl. ¶ 93 (“Securus has been unjustly enriched . . . .”), is imposing the fee on
people often of limited means, see id. ¶ 6 (“The excessive costs . . . imposed significant financial
17
strain on prisoners and their loved ones . . . .”); ¶ 12 (“That financial strain was a constant source
of stress for [Pearson] and Mr. Ray . . . [because of] the family’s limited ability to pay for
Securus calls); ¶ 24 (“Securus passes on this cost to [Inmate Calling Services] consumers . . .
regardless of indigence.”), and Plaintiffs often have no reasonable alternative to speak to their
loved ones, see id. ¶ 2 (“Prisoners in Bristol County who want to communicate with family,
friends, and legal representatives have only one option available to them . . . .”); id. ¶ 5 (“For
many . . . phone calls are the primary means of maintaining family ties and securing legal
counsel during their incarceration); id. ¶ 18 (“Securus is the exclusive provider of [Inmate
Calling Services] at all correctional facilities operated by the [Sheriff’s Office].”).
Securus’s second argument fairs no better because, even where the Massachusetts has
allowed the Department of Corrections to collect site commissions, no such law expressly allows
county sheriffs to do the same. Therefore, Sheriff Hodgson’s collection of revenue from Securus
in the form of site commissions or lump sum payments violates Massachusetts state law as
construed in Souza. See supra Part V (A). And, while Securus may simply be passing on the cost
of its contractual obligations, Plaintiffs allegations establishing that Securus is doing so in a
manner that helps Sheriff Hodgson circumvent state law is enough to survive a motion to
dismiss.
Finally, at this stage, the filed rate doctrine provides Securus no more protection than the
prior two arguments. The filed rate doctrine “limits attacks outside the regulatory process on
tariffed rates filed with . . . regulatory agencies.” Town of Norwood v. New Eng. Power Co.,
202 F.3d 408, 416 (1st Cir. 2000). “The doctrine ‘is actually a set of rules that have evolved over
time but revolve around the notion that . . . utility filings with the regulatory agency prevail over
unfiled contracts or other claims seeking different rates or terms than those reflected in the
18
filings with the agency.’” Arroyo-Melicio v. Puerto Rican Am. Ins. Co., 398 F.3d 56, 73 (1st Cir.
2005) (quoting Town of Norwood v. Fed. Energy Regulatory Comm’n, 217 F.3d 24, 28 (1st Cir.
2000)). “[T]he fact that a rate claim is susceptible to . . . re-characterization [as a different claim]
does not render the doctrine ineffective.” Stote v. Maloney, No. 03-12067-RWZ, 2006 WL
839497, at *4 (D. Mass. Mar. 31, 2006) (citing Am. Tel. & Telegraph Co. v. Cent. Office Tel.
Inc., 524 U.S. 214, 223 (1998)).
However, this is not a case in which Plaintiffs are alleging that a contractual rate that they
had with Securus differed from the rates that Securus filed with the DTC. While parts of
Plaintiffs’ Complaint [#1-1] may implicate the cost of Inmate Calling Services that Securus
charged Plaintiffs, at least part of Plaintiffs’ chapter 93A claim makes clear that Plaintiffs are
challenging Securus’s act of “using funds derived from the telephone calls [to] pay
‘commissions’ and prearranged lump-sum payments to the [Sheriff’s Office] in violation of
Massachusetts statutes and regulations.” Compl. ¶ 97(c) [#1-1]. Therefore, Plaintiffs’ challenge
to Securus’s payments to the Sheriff’s Office under the contract stands independent of any
challenges to the specific rates charged. See, e.g., Stote, 2006 WL 839497, at *5 (finding that the
plaintiffs’ claim regarding the quality of voice service of telephone calls at Massachusetts state
prisons stood independent of the filed rate). Nothing about Securus’s filed tariffs deals with the
issue of what Securus is doing with the revenue that it receives from the telephone calls, and the
filed rate doctrine does not shield Securus from claims of unfair or deceptive acts relating to their
use of these funds. Cf. Gelb v. Am. Tel. & Tel. Co, 813 F. Supp. 1022, 1030 (S.D.N.Y. 1993)
(finding that nothing about AT&T’s filed rate had anything to do with its advertising practice);
Halloway v. Magness, No 5:07CV00088 JLH-BD, 2011 WL 204891, at *1 (E.D. Ark. Jan. 21,
19
2011) (challenge to site commissions on First Amendment grounds not barred by the filed rate
doctrine).
On the circumstances of this case, the court finds that Plaintiffs have pled sufficient facts
that the additional fees charged by Securus to pay the Sheriff’s Office unlawful site commissions
or lump sum payments violates Mass. Gen. Laws ch. 93A. Securus’s Motion to Dismiss [#28] is
DENIED as to Plaintiff’s chapter 93A claim (count VI).
VIII.
Conclusion
For the foregoing reasons, the court ALLOWS in part and DENIES in part Sheriff
Hodgson’s Motion to Dismiss [#26] and Securus’s Motion to Dismiss [#28].
As the motions pertain to claims for injunctive relief on behalf of Plaintiffs Burrell and
Givens, both motions are ALLOWED. To the extent that Plaintiffs’ Complaint [#1-1] asserts
claims against Sheriff Hodgson in his individual capacity or seeks monetary damages from
Sheriff Hodgson in either his individual or official capacity, Sheriff Hodgson’s motion is
ALLOWED. Sheriff Hodgson’s motion is otherwise DENIED. Securus’s motion is ALLOWED
as it relates to count V for conversion, but is DENIED as it pertains to count VI under Mass.
Gen. Laws ch. 93A.
IT IS SO ORDERED.
Date: December 20, 2018
/s/ Indira Talwani
United States District Judge
20
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?