Turner v. Securus Technologies, Inc. et al

Filing 6

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that plaintiff's motion to proceed in forma pauperis [Doc. #2] is GRANTED. IT IS FURTHER ORDERED that the plaintiff shall pay an initial filing fee of $1.00 within thirty (30) days of the date of this Order. Plaintiff is instructed to make his remittancepayable to "Clerk, United States District Court," and to include upon it: (1) his name; (2) his prison registration number; (3) the case number; and (4) that the remittance is for an original proceeding. IT IS FURTHER ORDERED that this action is DISMISSED pursuant to 28 U.S.C. § 1915(e)(2)(B). IT IS FURTHER ORDERED that the Court declines to exercise supplemental jurisdiction over any state law claims, and these claims are DISMISSED WITHOUT PREJUDICE pursuant to 28 U.S.C. § 1367(c). IT IS FURTHER ORDERED that plaintiff's motion for appointment of counsel [Doc. #3] is DENIED AS MOOT. An Order of Dismissal will accompany this Memorandum and Order. Signed by District Judge Ronnie L. White on 8/27/2018. (JMC)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION
DE'QUA TURNER,
Plaintiff,
v.

SECURUS TECHNOLOGIES, et al.,
Defendants.

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No. 1: 18-CV-0092 NCC

MEMORANDUM AND ORDER
This matter is before the Court upon the motion of plaintiff De'Qua Turner, an inmate at
the Cape Girardeau County Jail, for leave to commence this action without payment of the
required filing fee. For the reasons stated below, the Court finds that plaintiff does not have
sufficient funds to pay the entire filing fee and will assess an initial partial filing fee of $1.00.

See 28 U.S.C. § 1915(b)(l). Furthermore, based upon a review of the complaint, the Court finds
that the complaint should be dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B).
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u.s.c. § 1915(b)(l)

Pursuant to 28 U.S.C. § 1915(b)(l), a prisoner bringing a civil action in forma pauperis is
required to pay the full amount of the filing fee. If the prisoner has insufficient funds in his or
her prison account to pay the entire fee, the Court must assess and, when funds exist, collect an
initial partial filing fee of 20 percent of the greater of (1) the average monthly deposits in the
prisoner's account, or (2) the average monthly balance in the prisoner's account for the prior sixmonth period. After payment of the initial partial filing fee, the prisoner is required to make
monthly payments of 20 percent of the preceding month's income credited to the prisoner's
account. 28 U.S.C. § 1915(b)(2). The agency having custody of the prisoner will forward these

monthly payments to the Clerk of Court each time the amount in the prisoner's account exceeds
$10, until the filing fee is fully paid. Id.
Plaintiff states in his motion to proceed in forma pauperis that the Jail has refused to
provide him with a copy of his inmate account statement. As a result, the Court will require
plaintiff to pay an initial partial filing fee of$1.00. See Henderson v. Norris, 129 F.3d 481, 484
(8th Cir. 1997) (when a prisoner is unable to provide the Court with a certified copy of his prison
account statement, the Court should assess an amount "that is reasonable, based on whatever
information the court has about the prisoner's finances."). If plaintiff is unable to pay the initial
partial filing fee, he must submit a copy of his prison account statement in support of his claim.
28 U.S.C. § 1915(e)
Pursuant to 28 U.S.C. § 1915(e)(2)(B), the Court may dismiss a complaint filed in forma
pauperis if the action is frivolous, malicious, fails to state a claim upon which relief can be
granted, or seeks monetary relief against a defendant who is immune from such relief. An action
is frivolous if "it lacks an arguable basis in either law or in fact." Neitzke v. Williams, 490 U.S.
319, 328 (1989). An action is malicious when it is undertaken for the purpose of harassing
litigants and not for the purpose of vindicating a cognizable right. Spencer v. Rhodes, 656 F.
Supp. 458, 461-63 (E.D.N.C. 1987), aff'd 826 F.2d 1059 (4th Cir. 1987).
To determine whether an action fails to state a claim upon which relief can be granted,
the Court must engage in a two-step inquiry. First, the Court must identify the allegations in the
complaint that are not entitled to the assumption of truth. Ashcroft v. Iqbal, 129 S. Ct. 1937,
1950-51 (2009). These include "legal conclusions" and "[t]hreadbare recitals of the elements of
a cause of action [that are] supported by mere conclusory statements." Id. at 1949. Second, the
Court must determine whether the complaint states a plausible claim for relief. Id. at 1950-51.
This is a "context-specific task that requires the reviewing court to draw on its judicial

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experience and common sense." Id. at 1950. The plaintiff is required to plead facts that show
more than the "mere possibility of misconduct."

Id.

The Court must review the factual

allegations in the complaint "to determine if they plausibly suggest an entitlement to relief." Id.
at 1951. When faced with alternative explanations for the alleged misconduct, the Court may
exercise its judgment in determining whether plaintiffs proffered conclusion is the most
plausible or whether it is more likely that no misconduct occurred. Id. at 1950, 1951-52.
The Complaint

Plaintiff, an inmate at the Cape Girardeau County Jail, brings this action pursuant to 42
U.S.C. § 1983. Plaintiff asserts numerous claims under 42 U.S.C. § 1983, the Sherman Act, the
Federal Communications Act, the Racketeering Influenced Corrupt Organizations Act, and
Missouri state law against Securus Technologies, Inc. (a telecommunications company), Cape
Girardeau County, Jackson, Missouri, Sheriff John Jordan and Captain James Mulcahy. 1 Plaintiff
seeks monetary damages and injunctive relief.
Securus Technologies, Inc. allegedly provides telecommunications services to inmates in
state prisons and county jails nationwide. Securus services the majority of state and local
correctional facilities. The telecommunications company has allegedly established itself as a
monopoly by offering "bribes" and "kickbacks"2 to state and local governments. Since doing so,
the company has also increased its rates and surcharges for inmate phone calls. Securus charges
a tax and rates of "at least" $0.21 per minute for every out-of-state call. The company charges
almost 10 times this amount for in-state phone calls.

1

Plaintiff additionally lists five other defendants in the section marked "Parties" of his complaint.
However he has not made specific allegations against the other individuals: Ruth Ann Dickerson
(Captain of Business Operations at the Jail); David James (Captain); Ms. Rhea (Trust Fund
Supervisor); Lieutenant Davis; and Sergeant Anthony Boliva.
2
Plaintiff states that Securus calls these "kickbacks" site commissions.
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Each facility charges different rates and taxes. At the Jail, he pays a $5.00 "intrastate
connect fee" in addition to $0.61 per minute for in-state calls. A 15-minute call from the Jail
costs 14.15.

In contrast, an out-of-state call from the Jail costs $0.21 per minute, and no

"interstate call fee" is charged. With local, state, and federal taxes, the total cost of a 15-minute
telephone call is approximately $3 .15.
Although Securus allows family members to set up prepaid accounts for inmates, the
company charges a fee for doing so. Securus also allows only 20 telephone numbers for each
account per inmate. Once the funds on prepaid accounts run out, a new activation fee is required.
Plaintiff alleges that he has been subject to these calling restrictions, costs, and taxes at
different times since he has been detained at the Jail, since 2016. Sheriff Jordan and James
Mulcahy were responsible for entering into a contract with Securus for calling services at the
Jail. In exchange for the contract, they were allegedly given "kickbacks" and "site commissions,"
which consisted of a percentage of the profits on inmate phone calls. The funds were then used to
pay for local ambulance services, employee pensions, and employee bonuses. To recoup this
amount, Securus implemented the "tax" on outgoing inmate calls, hiked rates, and instituted percall fees.
Sheriff Jordan and James Mulcahy purportedly informed plaintiff that he would be
subject to the taxes on outgoing phone calls. He objects to them as excessive and as limiting his
contact with family and friends.

Discussion
To facilitate the orderly management of future proceedings in this case, and in
accordance with the objectives of Federal Rules of Civil Procedure 8(e) and 1O(b), the Court has
organized the claims in Plaintiffs prose Complaint into the following enumerated counts:

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Count 1: Fourteenth Amendment due process and takings claims against defendants for
overcharging plaintiff for phone services. Count 2: Miscellaneous federal claims against
Defendants for allowing Securus to form a monopoly and overcharge inmates under the Federal
Telecommunications Act, 47 U.S.C. §§ 201(b), 202, and 206, Racketeering Influenced Corrupt
Organizations ("RICO") Act, 18 U.S.C. §§ 1961(5) and 1964(c), and Sherman Antitrust Act, 15
U.S.C. 1, et seq. Count 3: Miscellaneous Missouri state law claims against defendants for unjust
enrichment, fraud, civil conspiracy and unspecified constitutional violations.
The complaint does not survive preliminary review. Prisoners are not entitled to use the
telecommunications company of their choice, and plaintiffs objection to the use of Securus
gives rise to no constitutional claim. Without any infringement on an inmate's constitutional
rights, the courts generally will not interfere with the administration of a correctional facility.

Bell v. Wolfish, 441 U.S. 520, 547 (1979). 3
With that said, "[p]rison walls do not form a barrier separating prison inmates from the
protections of the Constitution." Turner v. Safley, 482 U.S. 78, 84 (1987). Unreasonable
restrictions on a prisoner's telephone access may violate the First and/or Fourteenth Amendment.

Tucker v. Randall, 948 F.2d 388, 391 (7th Cir. 1991). But reasonable access to a telephone does
not mean unlimited telephone use or use of a particular telephone provider at a particular rate.
3

The very issues that plaintiff now raises were raised by prisoners in the Western District of
Arkansas in three class actions, which were recently decertified and dismissed. See Mojica v.
Securus Technologies, No. 5:14CV5258 (W.D. Ark.); In Re Global Tel'Link Corp. JCS Lit., No.
5:14CV5275 (W.D. Ark); Antoon v. Securus Tech., No. 5:17CV5008 (W.D.Ark). The cases
were first certified after, in 2015, the Federal Communications Commission entered a Second
Report and Order and Third Further Notice of Proposed Rulemaking In the Matter of Rates for
Interstate Inmate Calling Services, 30FCC Red. 12763 (2015) ("Second Report and Order"), that
imposed caps on the amounts that ICS providers could charge consumers in calling rates and
ancillary fees. However, after the classes were certified, in the case of Global Tel 'Link v. FCC,
866 F.3d 397 (D.C.Cir 2017), the United States Court of Appeals for the D.C. Circuit reversed
and remanded the Second Report and Order in part on the grounds that site commissions are
legitimate costs of business when they are a condition precedent to obtaining ICS
contracts. Whether the district court erred in decertifying the class is now before the Eighth
Circuit Court of Appeals. See Mojica v. Securus, No. 18-2622 (8th Cir.).
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Benzel v. Grammer, 869 F.2d 1105, 1108 (8th Cir. 1989), cert. denied, 493 U.S. 895 (1989).

Prison administrators are generally free to determine which telephone service to provide, subject
to "court scrutiny for unreasonable restrictions." Washington v. Reno, 35 F.3d 1093, 1100 (6th
Cir. 1994); Strandberg v. City of Helena, 791 F.2d 744, 747 (9th Cir. 1986).
The Seventh Circuit has already considered the claims that plaintiff now raises and
concluded that they lack merit. See Arsberry v. State of Illinois, 244 F.3d 558 (7th Cir. 2001). In
Arsberry, a group of Illinois inmates, their family members, and a public interest law firm

challenged the practice at Illinois prisons and jails of granting one telephone company exclusive
rights to provide inmate phone services in exchange for a percentage of revenues generated. Id.
at 561. Plaintiffs maintained that the rates and taxes charged by the phone company were
exorbitant. Id. They challenged the practice under § 1983, the Sherman Act, and state law. Id.
The Court also considered the application of the Federal Communications Act to their claims. Id.
The Seventh Circuit found no colorable claim for a constitutional violation under§ 1983.
With regard to the Fourteenth Amendment equal protection claim, the Court determined
that plaintiffs were not challenging a tax that was, in some way, discriminatory, but rather a
tariffed phone rate. Id. at 565. Challenges to tariffed phone rates fall within the primary
jurisdiction of the telephone regulators, not the district court. Id. As for any claim that the
plaintiffs were deprived of a liberty interest associated with competition for inmate phone
services or the right to make or receive prison visits with family, the Court found that the claim
lacked "procedural dimension." Id. This is because the defendants did not deprive the inmates of
a means to challenge the inmate telephone rates in the regulatory agencies. Id. The Court went on
to find no substantive due process right. Id. at 566.

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Arsberry also foreclosed relief based on telephone rates under the Takings Clause. Id at
564-66. The Court acknowledged that a First Amendment right may be implicated in the context
of phone conversations, but not as it relates the choice of carrier or related fees and taxes:

It is true that communications the content of which is protected by the First
Amendment are often made over the phone, but no one before these plaintiffs
supposed the telephone excise tax an infringement of free speech ....
Communications protected by the amendment are also frequently made by
printing words on paper, yet no one supposes that the consequence is to bring the
corporate income tax, when imposed on manufacturers of paper, within the
purview of the First Amendment, or even to forbid taxing those manufacturers
more heavily than manufacturers of products of communications media.

Id at 564 (citations omitted). Further, the Court found no suggestion that the scheme was
motivated by any desire to limit free speech. Id As here, the plaintiffs in Arsberry contend that
the scheme was instead motivated by "pure greed," and plaintiff has not even raised a First
Amendment claim in the Complaint. Id;see also, Holloway v. Magness v. 666 F.3d 1076 (8th Cir.
2012).
The Sherman Act claim also failed. The Court pointed out that the claim requires a
showing that the phone companies "worked together to divide the inmate phone market, using
state officials as their cat's paws." Id. at 566 (citations omitted). The officials, not the phone
companies, acted as principals in Arsberry. Id The same is true in the instant case.
In fact, this case appears to be no different than Arsberry, and the Court finds that
dismissal of Counts 1 and 2 is warranted at this time. Count 3 consists entirely of state law
claims, and the Court declines to exercise supplemental jurisdiction over those claims. 28 U.S.C.
§ 1367(c).
Accordingly,

IT IS HEREBY ORDERED that plaintiffs motion to proceed in forma pauperis [Doc.
#2] is GRANTED.

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IT IS FURTHER ORDERED that the plaintiff shall pay an initial filing fee of $1.00
within thirty (30) days of the date of this Order. Plaintiff is instructed to make his remittance
payable to "Clerk, United States District Court," and to include upon it: (1) his name; (2) his
prison registration number; (3) the case number; and (4) that the remittance is for an original
proceeding.

IT IS FURTHER ORDERED that this action is DISMISSED pursuant to 28 U.S.C.
§ 1915(e)(2)(B).

IT IS FURTHER ORDERED that the Court declines to exercise supplemental
jurisdiction over any state law claims, and these claims are DISMISSED WITHOUT

PREJUDICE pursuant to 28 U.S.C. § 1367(c).
IT IS FURTHER ORDERED that plaintiffs motion for appointment of counsel [Doc.
#3] is DENIED AS MOOT.
An Order of Dismissal will accompany this Memorandum and Order.

Datedthi~of

August,2018.

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J,1 ~

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RONNIE L. WHITE
UNITED STATES DISTRICT JUDGE

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