Belton, et al v. SecurusTech.Net, et al
MEMORANDUM & ORDER re: 2 Motion for Leave to Proceed in forma pauperis is GRANTED. However, because Plaintiff has failed to allege a plausible claim against any Defendant, the Complaint is DISMISSED WITH PREJUDICE. This case is CLOSED. The Court certifies that any appeal would not be taken in good faith and in forma pauperis status is DENIED for the purpose of any appeal. Ordered by Judge Joanna Seybert on 2/7/2014. (C/M Plaintiff) (Nohs, Bonnie)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
MEMORANDUM & ORDER
-againstSECURUSTECH.NET, SUFFOLK COUNTY
CORRECTIONAL FACILITY, SHERIFF
VINCENT F. DEMARCO, and
WARDEN CHARLES EWALD,
David Belton, pro se
Suffolk County Correctional Facility
110 Center Drive
Riverhead, NY 11901
SEYBERT, District Judge:
Incarcerated pro se plaintiff David Belton (“Plaintiff”)
filed a civil rights Complaint in this Court pursuant to 28 U.S.C.
DeMarco (“Sheriff DeMarco”), and Suffolk Jail Warden Charles Ewald
(“Warden Ewald” and collectively, “Defendants”).
Complaint is an application to proceed in forma pauperis.
review of Plaintiff’s declaration in support of his application to
financial status qualifies him to commence this action without
prepayment of the Court’s filing fee.
See 28 U.S.C. § 1915(a)(1).
Accordingly, the application to proceed in forma pauperis is
However, for the reasons that follow, the Complaint is
sua sponte DISMISSED for failure to allege a plausible claim
pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(1).
Plaintiff’s brief handwritten Complaint seeks to recover
a damages award totaling $14 million dollars2 for the alleged
denial of adequate access to telephone service during Plaintiff’s
incarceration at the Suffolk Jail as a pre-trial detainee.
entirety, Plaintiff’s “Statement of Claim” alleges the following:3
Statement of Claim:
Eighth Amendment Rights violation in
adequate communication with the outside
world: In that, when using the phone to
contact family, loved ones and to handle
personal affairs, as well as to contact
SecurusTech.Net has many “drop calls;”
where its $1.95 for a connection and $.20
each additional minute; if you spoke to
any attorney for two (2) minute’s and the
call is dropped; that’s $3.55; And
SecuruTech.Net AND Suffolk County Refuse
to Reimburse those funds, Blaming it on
All allegations in Plaintiff’s Complaint are assumed to be true
for purposes of this Memorandum and Order.
The damages award sought by Plaintiff is comprised of
compensatory damages of $5 million, “monetary damages” of $3
million, punitive damages of $3 million and “Constitutional
damage/injury” of $3 million. (Compl. at 6-7.)
The “Statement of Claim” is reproduced here exactly as it
appears in the Complaint. Errors in spelling, grammar, and
punctuation have not been changed or noted.
Pre-Trial Detainee’s, And the like, can
no prepare an adequate defense due to:
the system may hang up due to a noisy
background (stating no 3rd party calls)
when they’re none.
Expenses of striving to buy phone time is
“outrageous” on both ends; It’s $5.00 for
10 or 15 minutes; in the local area,
Attorney’s or family when in the same
state with an areas code outside of 516
or 631, has to pay $10.00 with an account
and $14 to $20.00 with credit cards.
Most Attorney’s don’t write nor visit
pre-trial detainee’s and would rather
speak to the defendant’s by phone yet it
is impossible to do so with such system.
(Compl. at 5-6.) As a result of the foregoing, Plaintiff generally
claims that pre-trial detainees are “[u]nable to fight or defend
there criminal case’s due to malicious intent to keep detainee’s
out of communication” and that he has suffered “psychological
(Compl. at 6.)
In addition to the damages award
Correctional Facility Find and Fund A better; cheaper phone system,
that [is] Affordable for Both inmate’s who choose to buy their own
phone minute’s; and for Family, love ones, and legal counsels to
buy minute’s at their end of the phone. . . .”
(Compl. at 7.)
In Forma Pauperis Applications
Upon review of Plaintiff’s declaration in support of his
application to proceed in forma pauperis, the Court finds that
Plaintiff’s financial status qualifies him to commence this action
without prepayment of the filing fees. See 28 U.S.C. § 1915(a)(1).
Therefore, Plaintiff’s request to proceed in forma pauperis is
Application of 28 U.S.C. § 1915
Section 1915 of Title 28 requires a district court to
dismiss an in forma pauperis complaint if the action is frivolous
or malicious, fails to state a claim on which relief may be
granted, or seeks monetary relief against a defendant who is immune
The Court is required to dismiss the action as soon as
it makes such a determination.
See id. § 1915A(b).
Courts are obliged to construe the pleadings of a pro se
plaintiff liberally, See Sealed Pl. v. Sealed Def., 537 F.3d 185,
191 (2d Cir. 2008), and to interpret pro se papers “‘to raise the
strongest arguments that they suggest.’”
Corcoran v. N.Y. Power
Auth., 202 F.3d 530, 536 (2d Cir. 1999) (quoting McPherson v.
Coombe, 174 F.3d 276, 280 (2d Cir. 1999) (additional citation
Moreover, at the pleadings stage of a proceeding, the
Court must assume the truth of “all well-pleaded, nonconclusory
factual allegations” in the complaint.
Kiobel v. Royal Dutch
Petroleum Co., 621 F.3d 111, 124 (2d Cir. 2010) (citing Ashcroft v.
Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 1949-50, 173 L. Ed. 2d 868
(2009)), aff’d, --- U.S. ----, 133 S. Ct. 1659, 185 L. Ed. 2d 671
(2013). However, a complaint must plead sufficient facts to “state
a claim to relief that is plausible on its face.”
Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 167 L. Ed. 2d 929
(2007). “A claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.”
Iqbal, 556 U.S. at 678.
The plausibility standard requires “more
than a sheer possibility that a defendant has acted unlawfully.”
Id.; accord Wilson v. Merrill Lynch & Co., 671 F.3d 120, 128 (2d
Cir. 2011). While “detailed factual allegations” are not required,
“[a] pleading that offers ‘labels and conclusions’ or ‘a formulaic
recitation of the elements of a cause of action will not do.’”
Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555).
Section 1983 provides that
[e]very person who, under color of any
statute, ordinance, regulation, custom, or
usage, of any State . . . subjects, or causes
to be subjected, any citizen of the United
States . . . to the deprivation of any rights,
privileges, or immunities secured by the
Constitution and laws, shall be liable to the
42 U.S.C. § 1983; accord Rehberg v. Paulk, --- U.S. ----, 132 S.
Ct. 1497, 1501–02, 182 L. Ed. 2d 593 (2012).
To state a claim
challenged conduct was attributable at least in part to a person
who was acting under color of state law and (2) the conduct
deprived the plaintiff of a right guaranteed under the Constitution
of the United States.’”
Rae v. Cnty. of Suffolk, 693 F. Supp. 2d
217, 223 (E.D.N.Y. 2010) (quoting Snider v. Dylag, 188 F.3d 51, 53
(2d Cir. 1999)).
Section 1983 does not create any independent
substantive right; but rather is a vehicle to “redress . . . the
deprivation of [federal] rights established elsewhere.”
Roach, 165 F.3d 137, 142 (2d Cir. 1999); see also Rosa R. v.
Connelly, 889 F.2d 435, 440 (2d Cir. 1989).
Here, Plaintiff seeks to challenge the constitutionality
of the conditions of his confinement.
Though Plaintiff alleges
that his claim arises under the Eighth Amendment, given that he is
alleged to be a pre-trial detainee, his claim would instead arise
under Due Process Clause of the Fourteenth Amendment.
distinction is of no moment for purposes of this Order given that
“the standard for deliberate indifference is the same under the Due
Process Clause of the Fourteenth Amendment [or Fifth Amendment] as
it is under the Eighth Amendment.”
Caiozzo v. Koreman, 581 F.3d
63, 70-71 (2d Cir. 2009); see also Cuoco v. Moritsugu, 222 F.3d 99,
106 (2d Cir. 2000).
In order to state a claim for relief under Section 1983
against an individual defendant, a plaintiff must allege the
personal involvement of the defendant in the alleged constitutional
Farid v. Elle, 593 F.3d 233, 249 (2d Cir. 2010).
Supreme Court held in Iqbal that “[b]ecause vicarious liability is
inapplicable to . . . [section] 1983 suits, a plaintiff must plead
that each Government-official defendant, through the official’s own
individual actions, has violated the Constitution.”
556 U.S. at
Thus, a plaintiff asserting a Section 1983 claim against a
supervisory official in his individual capacity must sufficiently
Rivera v. Fischer, 655 F. Supp. 2d
235, 237 (W.D.N.Y. 2009). A complaint based upon a violation under
Section 1983 that does not allege the personal involvement of a
defendant fails as a matter of law, Johnson v. Barney, 360 F. App’x
199, 201 (2d Cir. 2010), and should be dismissed. See, e.g.,
Hemmings v. Gorczyk, 134 F.3d 104, 109 n. 4 (2d Cir. 1998).
these standards in mind, the Court considers Plaintiff’s claims
against the Defendants.
Claims Against the Suffolk Jail
It is well-established that the Suffolk Jail is merely an
independent legal identity apart from Suffolk County. Accordingly,
the Suffolk Jail lacks the legal capacity to be sued.
Hawkins v. Nassau Cnty. Corr. Fac., 781 F. Supp. 2d 107, 109 at
n. 1 (E.D.N.Y. 2011); see also Trahan v. Suffolk Cnty. Corr. Fac.,
12-CV-4353, 2012 WL 5904730, *3 (E.D.N.Y. Nov. 26, 2012) (applying
Hawkins to dismiss claims against the Suffolk County Jail because
it is an “administrative arm of Suffolk County, without a legal
identity separate and apart from the County.”).
Plaintiff’s claim against the Suffolk Jail is not plausible and is
DISMISSED pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A
Claims Against Sheriff DeMarco and Warden Ewald
As set forth above, a plausible Section 1983 claim must
allege the personal involvement of the defendant in the alleged
See supra 6-7; Rivera, 655 F. Supp. 2d
at 237; see also Warren v. Goord, 476 F. Supp. 2d 407, 413 (S.D.N.Y
involvement of defendants in alleged constitutional deprivations is
a prerequisite to an award of damages under § 1983.’” (quoting
Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995)) aff’d, 368 F.
App’x 161 (2d Cir. 2010)).
A supervisor cannot be liable for
damage under Section 1983 solely by virtue of being a supervisor
because there is no respondeat superior liability under Section
Richardson v. Goord, 347 F.3d 431, 435 (2d Cir. 2003).
As is readily apparent, Plaintiff’s Complaint does not
include any factual allegations sufficient to demonstrate personal
involvement by Sheriff DeMarco and/or Warden Ewald regarding the
cost and operation of the telephone services available at the
Moreover, even if these Defendants were alleged to
be personally involved, the facts set forth in the Complaint do not
allege the deprivation of any constitutional right.
communication with family, loved ones and counsel is hindered by
the quality and expense of the telephone system, such allegations
do not invoke constitutional protection.
See, e.g., Bellamy v.
McMickens, 692 F. Supp. 205, 214 (S.D.N.Y. 1988) (stating that
inmates have no right to unlimited telephone calls and that there
counsel”); Pino v. Dalsheim, 558 F. Supp. 673, 674–75 (S.D.N.Y.
1983) (finding that restrictions on telephone calls were permitted,
because the inmate had unlimited opportunities to communicate with
his attorney by written correspondence and personal visits, even
though the attorney’s office was located 330 miles from the
facility); see also Shariff v. Coombe, 655 F. Supp. 2d 274, 301
inaccessibility of telephones throughout the jail violated the
Eighth Amendment because such deprivation did not deny a basic
human need.). Notably, Plaintiff does not allege that he is unable
to communicate through the mail or during visitation.
Plaintiff has alternate means of communicating with the outside
world, and particularly with counsel, Plaintiff fails to allege a
cognizable constitutional claim.
See Whitenack v. Armor Med., 13-
CV-2071, 2013 WL 2356110, at *4 (E.D.N.Y. May 28, 2013) (sua sponte
dismissing prisoner’s section 1983 suit alleging, inter alia, that
use of the prison telephones is overpriced because inmate had
alternate means of communication with the outside world by mail)
(citing Arsberry v. Illinois, 244 F.3d 558, 565 (7th Cir. 2001)
(holding that claim challenging the cost of telephone service
provided to inmates did not state a constitutional violation); U.S.
v. Footman, 215 F.3d 145, 155 (1st Cir. 2000) (“Prisoners have no
per se constitutional right to use a telephone . . .”); Castillo v.
Hayman, 06-CV-1417, 2006 WL 2241658, *4 (D. N.J. Aug. 3, 2006)
(finding no Eighth Amendment violation for expensive telephone
service because it “does not deprive [a prisoner] of a basic human
need.”); Griffin v. Cleaver, 03-CV-1029, 2005 WL 1200532, at * 6
constitutional right to telephone use . . . .”); Johnson v. State
of California, 207 F.3d 650, 656 (9th Cir. 2000) (holding that
although prisoners have a First Amendment right to telephone access
subject to reasonable limitations arising from the legitimate
penological and administrative interests of the prison system,
“[t]here is no authority for the proposition that prisoners are
entitled to a specific rate for their telephone calls”); see also
Holloway v. Magness, 666 F.3d 1076, 1080 (8th Cir. 2012), cert.
denied, ––– U.S. ––––, 133 S. Ct. 130, 184 L. Ed. 2d 62 (2012)
(holding that a jail has no First Amendment obligation to provide
telephone service “at a particular cost to users.”)).
[d]etainee’s and the like, can not prepare an adequate defense due
to: The [phone] system may hang up . . . .” (Compl. at 5), fares no
better. The Constitution guarantees prisoners meaningful access to
See, e.g., Lewis v. Casey, 518 U.S. 343, 351, 116 S.
Ct. 2174, 135 L. Ed. 2d 606 (1996).
To state a claim for denial of
access to the courts, a plaintiff must assert non-conclusory
allegations demonstrating, inter alia, that the plaintiff suffered
an “actual injury.”
Lewis, 518 U.S. at 353-54.
To establish an
“actual injury,” plaintiff must show that “the defendant’s conduct
claim.” Collins v. Goord, 581 F. Supp. 2d 563, 573 (S.D.N.Y. 2008)
Here, as is readily apparent, the Complaint
wholly fails to allege any facts to support a reasonable inference
that the quality and cost of the telephone service provided at the
Suffolk Jail frustrated Plaintiff’s efforts to pursue a nonfrivolous legal claim. Thus, Plaintiff has not alleged a plausible
Though Plaintiff’s Complaint only explicitly alleges an Eighth
Amendment claim, the Court liberally construes his allegations to
also allege a First Amendment claim since pro se papers should be
read to “‘raise the strongest arguments [that they] suggest.’”
Walker v. Schult, 717 F. 3d 119, 124 (2d Cir. 2013) (quoting
Pabon v. Wright, 459 F. 3d 241, 248 (2d Cir. 2006) (add’l
Consequently, the Section 1983 claims asserted against Sheriff
DeMarco and/or Warden Ewald are not plausible and are DISMISSED.
Claim Against SecurusTech.net
As detailed above, Section 1983 liability may only be
imposed upon those “who carry a badge of authority of a State and
represent it in some capacity, whether they act in accordance with
their authority or misuse it.”
National Collegiate Athletic Ass’n
v. Tarkanian, 488 U.S. 179, 191, 109 S. Ct. 454, 102 L. Ed. 2d 469
(1988) (internal citation omitted); see also Fabrikant v. French,
691 F.3d 192, 206 (2d Cir. 2012) (“A plaintiff pressing a claim of
violation of his constitutional rights under Section 1983 is . . .
required to show state action.”).
Indeed, “the under-color-of-
state-law element of § 1983 excludes from its reach merely private
conduct, no matter how discriminatory or wrongful.” American Mfrs.
Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50, 119 S. Ct. 977, 143 L.
SecurusTech.net is a private entity, not a state actor.
11-CV-0068, 2013 WL 2318889, at *13, *15 (E.D. Tex.
May 27, 2013) (“[N]either Securus nor its employees are amenable to
suit under 42 U.S.C. § 1983” because Securus is not a state
The Court notes that the website for SecurusTech.net describes
that it “provides leading communication solutions for the
corrections industry” and that it “install[s] and centrally
manage[s] state-of-the-art call management and communication
systems for use by correctional facilities . . . .” See
https://securustech.net/web/securus/about-securus (last visited
on January 30, 2014). Further, the site details Securus’ history
Although Securustech.net is a private entity, “state
action may be found  if there is such a ‘close nexus between the
State and the challenged action’ that seemingly private behavior
‘may be fairly treated as that of the State itself.”
Acad. v. Tenn. Secondary Sch. Athletic Ass’n, 531 U.S. 288, 295,
121 S. Ct. 924, 148 L. Ed. 2d 807 (2001) (quoting Jackson v. Metro.
Edison Co., 419 U.S. 345, 351, 95 S. Ct. 449, 42 L. Ed. 2d 477
However, “a private entity does not become a state actor
for purposes of Section 1983 merely on the basis of the private
Fabrikant, 691 F.3d at 207.
Here, SecurusTech.net is not a state actor, or acting
under color of state law, merely by virtue of its public contract
with the Suffolk Jail.
See, e.g., Rendell–Baker v. Kohn, 457 U.S.
830, 841, 102 S. Ct. 2764, 73 L. Ed. 2d 418 (1982) (“Acts of . . .
private contractors do not become acts of the government by reason
of their significant or even total engagement in performing public
contracts.”); Phelan ex rel. Phelan v. Torres, 843 F. Supp. 2d 259,
273 (E.D.N.Y. 2011) (“The fact that the state may contract with a
transform the private party into a state actor. . . .”); aff’d 512
F. App’x 88 (2d Cir. 2013); see also Iswed v. Caruso, 08-CV-1118,
2009 WL 4251076, at * 3 (W.D. Mich. Nov. 24, 2009) (“The fact that
since its inception in 1986 including the acquisition of all
common stock in the company, then-named T-Netix, by a private
equity firm in 2004 to form Securus Technologies, Inc. Id.
Embarq may contract with the state for delivery of telephone
services does not render it a ‘state actor’ for purposes of §
1983”) (citing Rendell Baker v. Kohn, 457 U.S. 830, 840, 102 S. Ct.
2764, 73 L. Ed. 2d 418 (1982) (additional citation omitted).
substantial governmental regulation does not convert their actions
into that of the state.”
Iswed, 2009 WL 4251076, at *6 (citing
Jackson v. Metro. Edison Co., 419 U.S. 345, 351, 95 S. Ct. 449, 42
L. Ed. 2d 477 (1974)).
Nor is the provision of telephone services
Iswed, 2009 WL 4251076, at *6 (citing West v.
Atkins, 487 U.S. 42, 48, 108 S. Ct. 2250, 101 L. Ed. 2d 40 (1988)).
Thus, the fact that SecurusTech.net provides telephone
services to prisoners at the Suffolk Jail, alone, is insufficient
to transform SecurusTech.net into a state actor for purposes of
See, e.g. Streater v. Thaler, 11-CV-0068, 2012 WL
3308109, at *14 (E.D. Tex. July 2, 2012), report and recommendation
adopted by 2012 WL 3308105 (E.D. Tex. Aug. 13, 2012) (holding that
the fact that Securus contracted with the Texas Department of
Criminal Justice to provide telephone services to prisoners does
not make it a state actor under Section 1983); Wofford v. Public
Commc’ns Servs., 11-CV-1884, 2012 WL 550134, at * 3 (E.D. Mo. Feb.
19, 2012) (holding that the plaintiff’s allegations that Public
Communications Services (“PCS”) is an inmate telephone service
Corrections did not establish that PCS was a “state actor” within
the meaning of Section 1983); Iswed, 2009 WL 4251076, at *3 (“The
fact that Embarq may contract with the state for delivery of
telephone services does not render it a ‘state actor’ for purposes
of Section 1983.”); Evans v. Skolnik, 08-CV-0353, 2009 WL 3763041,
at * 5 (D. Nev. Nov. 5, 2009) (finding that Global Tel, and other
similar private telephone companies, were not state actors and,
thus, were not amenable to suit under Section 1983).
Since SecurusTech.net is not a state actor, a Section
1983 claim cannot be stated against it as a matter of law.
Accordingly, Plaintiff has not alleged a plausible claim against
SecurusTech.net and the Complaint as against SecurusTech.net is
DISMISSED WITH PREJUDICE.
Leave to Amend
Complaint should not be dismissed without leave to amend unless
amend would be futile, Ashmore v. Prus, 510 F. App’x 47, 49 (2d
Cir. 2013) (citing Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir.
2000)), the Court has carefully considered whether leave to amend
is warranted here.
Upon such consideration, the Court finds that
since the deficiencies noted above are substantive in nature and
would not be remedied if Plaintiff were afforded an opportunity to
amend his Complaint, leave to amend the Complaint is DENIED.6
Indeed, given that Plaintiff has alleged that he has only
suffered “psychological trama” [sic] (Compl. at 6), his claims
also fail because the PLRA requires that a claim under Section
1983 include allegations of physical harm. 42 U.S.C. § 1997e(e).
See also, Cox v. Malone, 199 F. Supp. 2d 135, 139 (S.D.N.Y. 2002)
For the reasons set forth above, the application to
proceed in forma pauperis is GRANTED.
However, because Plaintiff
fails to allege a plausible claim against any Defendant, the
Complaint is DISMISSED WITH PREJUDICE pursuant to 28 U.S.C. §§
1915(e)(2)(B)(ii), 1915A(b)(1). The Clerk of the Court is directed
to CLOSE this case.
The Court certifies pursuant to 28 U.S.C. § 1915(a)(3)
that any appeal from this Order would not be taken in good faith
and therefore in forma pauperis status is DENIED for the purpose of
See Coppedge v. United States, 369 U.S. 438, 444–45,
82 S. Ct. 917, 8 L. Ed. 2d 21 (1962).
/s/ JOANNA SEYBERT
Joanna Seybert, U.S.D.J.
7 , 2014
Central Islip, NY
(“Courts have consistently held that Section 1997e(e) bars
prisoner civil rights suits seeking damages for constitutional
violations where the inmate-plaintiff suffers only emotional and
mental injury.”), aff’d 56 F. App'x 43 (2d Cir. 2003).
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