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Pearson v. Hodgson

United States District Court, D. Massachusetts

December 20, 2018

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.

          MEMORANDUM & ORDER

          Indira Talwani United States District Judge.

         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 [#1-1]. 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 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 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 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 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 ...


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