United States District Court, D. Massachusetts
MEMORANDUM AND ORDER ON DEFENDANT'S MOTION TO
RICHARD G. STEARNS, UNITED STATES DISTRICT JUDGE
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.
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 per-minute 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.
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 invasion of privacy (Count VI). 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.
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).
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 plausibly
demonstrate his standing to bring the action.”
Hochendoner, 823 F.3d at 731.
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.
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, allegedly caused by Securus's negligence
and breaches of contract. 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 . . . .”).
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 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.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.
Morrison, 449 U.S. 361, 365 (1981); cf. Weatherford
v. Bursey, 429 U.S. 545, 558 (1977).
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.
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 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
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 ...