Kurtenbach v. Securus Technologies

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
NORTHERN DIVISION
FILED
MAS 2 S 2322
MATTHEW C. KURTENBACH,
1:21-CV-01006-CBK
Plaintiff, MEMORANDUM OPINION
vs.
AND
SECURUS TECHNOLOGIES, ORDER
Defendant.
Plaintiff claims that, while he was a pre-trial detainee facing state court criminal
proceedings in South Dakota and Minnesota, defendant Securus Technologies, the
telecommunications provider for the jails where he was detained, violated the Electronic
Communication Privacy Act(the "Wiretap Act"), 18 U.S.C. 2510-2520, by intercepting,
monitoring, or recording at least one call to his attorney. Plaintiff further claims that
Securus Technologies violated the Federal Communications Act("FCA"),47 U.S.C.
§ 201, etseq., by blocking or immediately terminating certain calls but nonetheless by
unjustly and unreasonably charging fees for such calls. Defendant has moved to dismiss
pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a claim upon which relief could be
granted.
The United States Court of Appeals for the Eighth Circuit has set forth the relevant
standard when considering a motion to dismiss for failure to state a claim.
To state a claim under the Federal Rules of Civil Procedure, a complaint must
contain "a short and plain statement of the claim showing that the pleader is
entitled to relief." Fed. R. Civ. P. 8(a)(2)."To survive a motion to dismiss, a
complaint must contain sufficient factual matter, accepted as true, to 'state a claim
to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662,678, 129
S.Ct. 1937, 173 L.Ed.2d 868(2009){quoting Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929(2007)). A pleading need not include
"detailed factual allegations," but it is not sufficient to tender "naked assertion[s]"
that are "devoid of further factual enhancement." Id.(internal quotation marks
omitted). A complaint must do more than allege "labels and conclusions" or "a
formulaic recitation of the elements of a cause of action." Id.
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Zink V. Lombardi. 783 F.3d 1089, 1098 (8th Cir. 2015).
"[L]egal conclusions" and "threadbare recitations ofthe elements of a cause of
action supported by mere conclusory statements" are not entitled to a presumption
oftruth when considering the sufficiency of a complaint. Iqbal, 556 U.S. at 678,
129 S.Ct. 1937. A complaint must be plausible on its face and "'[a] claim has
facial plausibility when the pleaded factual content allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.'"
Magee v. Trustees ofHamline Univ., Minn., 747 F.3d 532, 535 (8th Cir.2014)
{quoting Iqbal, 556 U.S. at 678, 129 S.Ct. 1937). Making a plausibility
determination is a '"context-specific task that requires the reviewing court to draw
on its judicial experience and common sense.'" Id. {quoting Iqbal, 556 U.S. at
679, 129 S.Ct. 1937).
Zink V. Lombardi, 783 F.3d at 1098. "At this stage in the proceedings, we are required to
treat the facts alleged in the complaint as true and make all reasonable inferences in favor
of the plaintiff. This is a highly deferential standard." Barton v. Taber, 820 F.3d 958,
967(8th Cir. 2016).
It is not necessary to plead facts sufficient to establish a prima facie case at the
pleading stage. See Swierkiewicz[v. SoremaJ, 534 U.S.[506] at 512, 122 S.Ct.
992. This conclusion is bolstered by the fact that the Twombly Court, which first
authoritatively articulated the plausibility standard, cited Swierkiewicz with
approval. See Twombly, 550 U.S. at 569-70, 127 S.Ct. 1955 (discussing how the
new pleading standard does not "run[]counter to" Swierkiewicz ).
Iqbal does not mention, but is wholly eonsistent with, Swierkiewicz', there, the
Court stressed that, notwithstanding the neoteric plausibility standard, no "detailed
factual allegations" are required in a complaint. Iqbal, 556 U.S. at 677-78, 129
S.Ct. 1937 (internal quotation marks omitted). The prima facie standard is an
evidentiary standard, not a pleading standard, and there is no need to set forth a
detailed evidentiary proffer in a complaint.
Rodriguez-Reves v. Molina-Rodriguez, 711 F.3d 49, 54 (1st Cir. 2013).
I. Wiretap Act Claim.
The Wiretap Act was originally enacted as part of the Omnibus Crime Control and
Safe Streets Act of 1968, Pub. L. 90-351, Title III, § 802, 82 Stat. 212, 18 U.S.C.
§§ 2510-2520. "The Act represents a comprehensive attempt by Congress to promote
more effective control of crime while protecting the privacy of individual thought and
expression." United States v. U.S. Dist. Ct. for E. Dist. of Mich.. S. Div.. 407 U.S. 297,
302, 92 S. Ct. 2125, 2129, 32 L. Ed. 2d 752(1972).
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The Wiretap Act prohibits, inter alia, the intentional interception of telephone
communications unless specifically authorized by court order. The Act has been updated
by the Electronic Communications Privacy Act of 1986, Pub. L. 99-508, Title 1,100 Stat.
1848, and the USA PATRIOT Act of 2001, Pub. L. 107-56, Title II, 115 Stat. 272, to,
inter alia, make the provisions applicable to new technologies.
Subject to certain specified exceptions, the Wiretap Act prohibits, inter alia:
1. the intentional interception of any wire, oral, or electronic communication
(§ 2511(l)(a)),
2. the intentional use of an electronic device to intercept any oral
communication (§ 25112(b)),
3. the intentional disclosure of the contents of any wire, oral, or electronic
communication knowing the information was obtained in violation of the
Wiretap Act(§ 2511(c)),
4. the intentional use of the contents of any wire, oral, or electronic
communication knowing the information was obtained in violation ofthe
Wiretap Act(§2511(d)), and
5. the intentional disclosure of the contents of any wire, oral, or electronic
communication obtained lawfully, knowing it was obtained in connection
with a criminal investigation, with the intent to obstruct, impede, or
interfere with the criminal investigation (§ 2511(e)).
As applicable to this case, the Wiretap Act "prohibits the interception oftelephone
conversations, subject to certain exceptions, without a court order." United States v.
Lewis. 406 F.3d 11, 14 (1st Cir. 2005).
In addition to the criminal penalty provision, 18 U.S.C. § 2511, the Wiretap Act
provides a private right of action for the recovery of civil damages by "any person whose
wire, oral, or electronic communication is intercepted, disclosed, or intentionally used in
violation of this chapter," 18 U.S.C. § 2520. Plaintiff alleges in his complaint that
defendant installed, maintained, and marketed equipment that intentionally intercepts,
monitors, or records wire communications at three facilities where plaintiff was a pretrial
3
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detainee. Plaintiff further alleges that defendant intercepted, monitored, or recorded a
call made by plaintiff to a law firm, that he had an expectation of privacy that such call
would not be intercepted, monitored, or recorded, and that defendant's intentional
interception, monitoring, or recording of his communications to a law office violated the
Wiretap Act. Plaintiff has stated a claim that is plausible on its face that defendant
violated the Wiretap Act by installing equipment that did intercept plaintiffs telephone
call.
Defendant contends that plaintiffs complaint fails to plausibly allege a Wiretap
Act claim because plaintiff, an incarcerated individual, had no expectation of privacy in
his telephone calls. The Wiretap Act does not specifically address the recording of
inmate communications by an inmate telephone service provider. We know that
attomey/client communications are protected under the Sixth Amendment's right to the
effective assistance of counsel, Mastrian v. McManus. 544 F.2d 813, 820-21 (8th Cir.
1977)("an accused does not enjoy the effective aid of counsel if he is denied the right of
private consultation with him"). Inmates may also have a Fourth Amendment interest in
not having their telephone calls monitored. See Katz v. United States. 389 U.S. 347, 353,
88 S. Ct. 507, 512, 19 L. Ed. 2d 576(1967)("The Government's activities in
electronically listening to and recording the petitioner's words ... constituted a 'search
and seizure' within the meaning of the Fourth Amendment.").
The Sixth Amendment and the Fourth Amendment protections of attomey/client
conversations provide the basis for an inmate's expectation that telephone conversations
between attomey and client will not be recorded. The United States Supreme Court, in a
case pre-dating the Wiretap Act, stated that "it may be assumed that even in a jail, or
perhaps especially there, the relationships which the law has endowed with particularized
confidentiality must continue to receive unceasing protection." Lanza v. State of N.Y..
370 U.S. 139, 143^4,82 S. Ct. 1218, 1221, 8 L. Ed. 2d 384(1962). The law is clear
that an incarcerated individual does have an expectation of privacy in their
communications with their attomeys.
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Defendant also contends that plaintiffs complaint fails to plausibly plead a
Wiretap Act claim because plaintiff failed to allege that defendant "specifically intended
to record attorney-client telephone calls," that defendant "deliberately targeted privileged
calls for recording," and that defendant's "conscious objective was to record attorney-
client calls," citing Pratt v. Securus Techs.. Inc.. No. l;20-CV-00295-JDL, 2021 WL
1725936, at *4(D. Me. Apr. 30, 2021). Reliance on Pratt is misplaced. In that case, the
district court considered matters outside the complaint, including the Maine's Department
of Corrections policy on prisoner telephone systems and the jail's inmate handbook. The
District Court considered the facts alleged in the complaint, together with the facts set
forth in the policies that were judicially noticed, and determined that plaintiff failed to
plausibly allege that Securus intentionally recorded attorney-client calls. Id. at 5.
The District Court in Pratt relied on In re HIPAA Subpoena. 961 F.3d 59,66(1st
Cir. 2020) for the assertion that plaintiffs complaint must allege defendant's
conscious objective." In re HIPPA Subpoena eoncerned an employee's attempt to quash
an administrative subpoena issued to obtain her employer's recorded business telephone
ealls, whieh recordings included calls involving the employee which were allegedly
illegally recorded in violation of the Wiretap Act. In re HIPAA Subpoena. 961 F.3d at
63. When considering whether the recordings of the employee's calls should be excluded
from the subpoenaed records, the First Circuit considered whether the employee's calls
were intentionally intercepted by the employer. Id. at 65. In re FIIPAA Subpoena
coneemed whether the recorded telephone calls in question were in fact recorded in
violation of the Wiretap Act. The case has no relevance to a motion to dismiss at the
pleading stage of litigation. Pratt also relied upon In re Pharmatrak. Inc.. 329 F.3d 9, 23
(1st Cir. 2003), which held that the legislative history of the Electronic Communications
Privacy Act(which narrowed the definition of"intentional" in the Wiretap Act)showed
that liability under the wiretap aet required a "conscious objective." Pratt. 2021 WL
1725936, at *6. In re Pharmatrak was decided at summary judgment. That case also has
no relevance to the determination whether a complaint has alleged a violation ofthe
Wiretap Act.
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The Wiretap Act provides exceptions to the § 2511(1)prohibitions including
interception, disclosure, or use of a communication "in the normal course of employment
while engaged in any activity which is necessary incident to the rendition of his service."
18 U.S.C. § 251 l(2)(a)(i). Further, the definition of a "device" used to intercept a
communication excludes equipment furnished by a provider of wire or electronic
communication service or used by the subscriber or user or by an investigative or law
enforcement officer in the ordinary course of business. 18 U.S.C. § 2510(5)(a)(i),(ii).
Defendant contends that plaintiffs complaint must be dismissed because plaintiff failed
to allege that defendant did not act outside the ordinary scope of its business or that
defendant's equipment was not being used by an investigative or law enforcement officer
in the ordinary course of his duties.
Defendant appears to assert that a complaint which fails to allege facts showing
affirmative defenses to plaintiffs claims do not apply must be dismissed for failure to
state a claim. Plaintiff is required to state a claim upon which relief could be granted.
Plaintiff is not required to rebut all possible defenses to his complaint in the first place.
Defenses, if they exist, are raised in the answer and on motion for summary judgment.
At that stage of the litigation, plaintiff would be required to show genuine issues of
material fact exist to rebut the claimed defenses.
Defendant's motion to dismiss plaintiffs Wiretap Act claim should be denied.
II. Federal Communications Act(FCA)Claim.
The Federal Communications Act of 1934(FCA), Title II, § 201 et seq., 48 Stat.
1070, as amended provides, inter alia, that "any 'unjust or unreasonable' charge in
connection with a communication service 'is declared to be unlawful,' and gives the FCC
power to promulgate rules and regulations defining 'jusf and 'reasonable.'" Stuart v.
Glob. Tel*Link Corp.. 956 F.3d 555, 561-62(8th Cir. 2020), 47 U.S.C. § 201(b). The
FCA provides a private right of action for damages against a carrier by any person
injured by any unlawful practice. 47 U.S.C. §§ 206, 207.
Plaintiff claims that defendant violated the FCA by blocking or immediately
terminating certain calls but nonetheless by unjustly and unreasonably charging fees for
6
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such calls. Defendant contends that the FCA claim should be dismissed because plaintiff
has failed to allege that he was charged rates in excess ofthe caps established by the
Federal Communications Commission("FCC")and that plaintiffs claim is within the
FCC's primary jurisdiction.
Plaintiffs complaint does not appear to ehallenge the rates set by the FCC for
provision oftelephone services to pre-trail detainees such as plaintiff. Plaintiff does set
forth the rates and fees charged and that, because of the defendant's unreasonable
practice, he is required to pay higher fees. However, plaintiff is challenging the method
defendant uses to charge those fees. Plaintiff claims that blocking certain calls and
dropping calls as soon as they are connected but nonetheless eharging him for those calls
is an unreasonable praetice un^er the FCA.
Pursuant to 47 U.S.C. § 203(a), defendant is required to file with the FCC
"schedules"(ealled a "tariff) showing its charges and showing the "classifications,
practices, and regulations affecting such charges." The FCC determines whether such
charges, classifieations, practices, and regulations are reasonable. 47 U.S.C. § 204.
Pursuant to the "filed-rate doctrine,""no rate other than the one on file may be charged."
Arkansas Louisiana Gas Co. v. Hall. 453 U.S. 571, 581, 101 S.Ct. 2925,69 L.Ed.2d 856
(1981). The filed-rate doctrine "precludes courts from deciding whether a tariff is
reasonable, reserving the evaluation of tariffs to the FCC." In re NOS Communications.
MDL No. 1357, 495 F.3d 1052, 1057 (9th Cir. 2007).
Defendant failed to cite any case setting forth the requirements for pleading a
cause of action for a violation of47 U.S.C. § 201. Defendant instead eontends that
plaintiff failed to allege that defendant's actions are "inconsistent with governing
regulations or legitimate seeurity eoneems" and therefore plaintiff has failed to state a
plausible claim. That is an insufficient basis for dismissal of a complaint. I find that
plaintiff has adequately pleaded a claim that defendant's praetices violate the FCA.
Whether in fact such practices are a violation can only be determined after a factual
review of the tariff at issue and the FCC's interpretations of the terms ofsueh tariff.
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Defendant also suggests that the Court should refer this matter to the FCC because
a claim that rates and fees are unjust and unreasonable present an issue within the FCC's
primary jurisdiction. The FCA provides:
Any person claiming to be damaged by any common carrier subject to the
provisions of this chapter may either make complaint to the Commission as
hereinafter provided for, or may bring suit for the recovery of the damages
for which such common carrier may be liable under the provisions of this
chapter, in any district court of the United States of competent jurisdiction;
but such person shall not have the right to pursue both such remedies.
47 U.S.C.A. § 207. Plaintiff has the right to pursue his claim in the District Court that
defendant's practice violated the FCA. While it is true that the FCC has exercised its
authority over inmate calling services, see, Stuart v. Glob. Tel*Link Corp., 956 F.3d at
558, this case does not challenge the rates set by the FCC. At this stage of the litigation,
referral is not warranted.
ORDER
Based upon the foregoing,
IT IS ORDERD that the defendant's motion. Doe. 16, to dismiss is denied.
DATED this My of March, 2021.
BY THE COURT:
:harles b. kornmann
United States District Judge
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