United States District Court, D. Massachusetts
KELLIE PEARSON, ROGER BURRELL, BRIAN GIVENS, and THE LAW OFFICES OF MARK BOOKER, on behalf of themselves and those similarly situated, Plaintiffs,
THOMAS M. HODGSON, individually and his official capacity as Sheriff of Bristol County, and SECURUS TECHNOLOGIES, INC., Defendants.
MEMORANDUM & ORDER
Talwani United States District Judge.
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
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.
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,
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.
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.
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.
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.
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.
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.
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.
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
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].
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.
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.
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.
Hodgson and Securus moved to dismiss. Sheriff Hodgson's
Mot. to Dismiss (“Sheriff's MTD”) [#26];