Opinion
No. CV09 4034844
July 31, 2009
MEMORANDUM OF DECISION RE MOTIONS TO DISMISS #104, #107 AND #115
FACTS
Plaintiff Ernest Francis, an inmate at the Cheshire Correctional Institution, commenced this suit in January 2009 against the Commissioner of Correction Theresa Lantz, as well as MCI World Com (MCI) and Global Tel*Link (GTL), alleging violations of Connecticut Public Acts 02-104 and 03-106, General Statutes § 42-110a et seq. (CUTPA), and the equal protection clause of the fourteenth amendment of the United States constitution. The plaintiff alleges that the defendants collectively failed to implement a statutorily required debit card telephone system in lieu of a collect call telephone system in the Cheshire Correctional Institution and that he has been injured as a result. The plaintiff seeks injunctive relief and a writ of mandamus preventing the defendants from continuing to charge the plaintiff allegedly excessive rates and ordering the defendant to offer debit cards with discount rates as provided in Public Act 03-106. The plaintiff also seeks compensatory and punitive money damages.
Defendant Lantz timely filed a motion to dismiss (#104) on March 30, 2009, accompanied by a memorandum of law in support of her motion (#105). Lantz moves to dismiss on numerous grounds, including mootness, lack of standing, sovereign immunity, immunity pursuant to General Statutes § 4-165, and insufficient service of process. Defendant GTL timely filed a motion to dismiss (#107) on March 24, 2009, accompanied by a memorandum of law in support of its motion (#108). GTL moves to dismiss on the grounds that the plaintiff lacks standing and his claim for injunctive relief is moot. Defendant MCI has not appeared in this action — and it is unclear from the record whether MCI was ever properly served — and therefore is not a subject of this decision.
On March 30, 2009, the plaintiff filed an amended complaint (#106) alleging additional violations including: CUTPA, the Sherman Antitrust Act, the Robinson Patman Act, the equal protection clause of the fourteenth amendment of the United States constitution, the commerce clause in article one § 8 of the United States constitution, Connecticut General Statutes § 4d-46 and the Family Telephone Connection Protection Act of 2005 (H.R. 4466), all arising out of the defendants' alleged failure to provide the plaintiff with a debit card telephone system by which he could pay for his telephone calls. On May 1, 2009, the plaintiff filed objections to defendant Lantz's motion to dismiss (#113) and defendant GTL's motion to dismiss (#114). On May 7, 2009, the defendants filed a joint renewed motion to dismiss (#115) and supplemental memorandum in support (#116) in response to the plaintiff's amended complaint. The defendants reclaimed their arguments from their initial motions to dismiss, emphasizing their arguments on standing and mootness. As the joint renewed motion to dismiss encompasses the arguments set forth in the earlier motions and addresses the plaintiff's amended complaint, the court's decision is directed to that motion in resolution of all of the aforementioned motions. The parties presented oral arguments to the court on May 26, 2009. Additional facts will be set forth as necessary.
DISCUSSION
Practice Book § 10-31(a) states: "The motion to dismiss shall be used to assert (1) lack of jurisdiction over the subject matter, (2) lack of jurisdiction over the person, (3) improper venue, (4) insufficiency of process, and (5) insufficiency of service of process. This motion shall always be filed with a supporting memorandum of law, and where appropriate, with supporting affidavits as to facts not apparent on the record."
"A motion to dismiss . . . properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court . . . A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) Caruso v. Bridgeport, 285 Conn. 618, 627, 941 A.2d 266 (2008).
"The motion to dismiss . . . admits all facts which are well pleaded, invokes the existing record and must be decided upon that alone . . . Where, however . . . the motion is accompanied by supporting affidavits containing undisputed facts, the court may look to their content for determination of the jurisdictional issue and need not conclusively presume the validity of the allegations of the complaint." (Internal quotation marks omitted.) Ferreira v Pringle, 255 Conn. 330, 346-47, 766 A.2d 400 (2001). "The plaintiff bears the burden of proving subject matter jurisdiction, whenever and however raised." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 265 Conn. 423, 430 n. 12, 829 A.2d 801 (2003).
For the reasons stated below, the court grants the defendants' motion to dismiss all of the plaintiff's claims. The plaintiff's claims against defendant Lantz are dismissed by operation of the doctrine of sovereign immunity, and the plaintiff's Sherman Act claim as to both defendants is dismissed under the related state action doctrine. The plaintiff's claims against both defendants alleging violations of Connecticut Public Acts 02-104 and 03-106, the CUTPA claim which is based on an alleged violation of those public acts, and the alleged violation of the equal protection clause of the fourteenth amendment of the United States constitution are dismissed because they are moot. The plaintiff's claims alleging violations of Connecticut Public Acts 02-104 and 03-106, and CUTPA, are alternatively dismissed because the plaintiff lacks standing. The plaintiff's remaining claims are also dismissed for lack of standing.
Sovereign Immunity
Defendant Lantz moves to dismiss the plaintiff's action on the ground that the plaintiff's claims against her in her official capacity as Commissioner of Corrections are barred by sovereign immunity. The court agrees that the plaintiff's claims are barred by sovereign immunity and further notes that the plaintiff's Sherman Act claim is barred by the state action doctrine.
"[T]he doctrine of sovereign immunity implicates subject matter jurisdiction and is therefore a basis for granting a motion to dismiss." Beecher v. Mohegan Tribe of Indians, 282 Conn. 130, 134, 918 A.2d 880 (2007). "[W]e have long recognized the validity of the common-law principle that the state cannot be sued without its consent . . . We have also recognized that because the state can act only through its officers and agents, a suit against a state officer concerning a matter in which the officer represents the state is, in effect, against the state." (Citation omitted; internal quotation marks omitted.) Miller v. Egan, 265 Conn. 301, 313, 828 A.2d 549 (2003). "We have held that a plaintiff seeking to circumvent the doctrine of sovereign immunity must show that: (1) the legislature, either expressly or by force of a necessary implication, statutorily waived the state's sovereign immunity . . . or (2) in an action for declaratory or injunctive relief, the state officer or officers against whom such relief is sought acted in excess of statutory authority, or pursuant to an unconstitutional statute." (Citation omitted.) Id., 314.
The plaintiff's allegations against defendant Lantz are based solely on her actions, or alleged lack thereof, made in her official capacity as Commissioner of Corrections. The state has not waived sovereign immunity for this matter, nor has it consented to suit. There is no allegation or evidence that defendant Lantz acted in excess of statutory authority or pursuant to an unconstitutional statute in implementing the AdvancePay telephone system. Under these circumstances, all of the plaintiff's claims against defendant Lantz are barred by sovereign immunity and are accordingly dismissed in their entirety.
Relatedly, the plaintiff's allegation of a violation of the Sherman Antitrust Act, 15 U.S.C. § 1, is barred by the state action doctrine. "Elucidated by the Supreme Court in Parker v. Brown, 317 U.S. 341, 63 S.Ct. 307, 87 L.Ed. 315 (1943), the doctrine grants immunity from liability under the Sherman Act to any restraints imposed by a state in the exercise of its sovereign powers . . . The Court found that the Sherman Act was not intended to restrain states from conducting their affairs as they see fit." Byrd v. Goord, 2005 U.S. Dist. LEXIS 18544 (S.D.N.Y. Aug. 26, 2005), class cert. denied, 2007 U.S. Dist. LEXIS 71279 (S.D.N.Y. Sept. 26, 2007); see Walton v. New York State Dept. Of Correctional Services, 869 N.Y.S.2d 661, 57 A.D.3d 1180 (2008).
As in the factually near-identical Byrd v. Goord case, supra, the plaintiff's allegation of a Sherman Act violation based on an exclusive contract between the state and a prison phone provider is barred by Parker immunity. See also Arsberry v. Illinois, 244 F.3d 558, 566 (7th Cir. 2001), cert. denied, 534 U.S. 1062, 122 S.Ct. 661, 151 L.Ed.2d 576 (2001) (rejecting inmate antitrust claim for prison telephone monopoly, noting "[s]tates and other public agencies do not violate the antitrust laws by charging fees or taxes that exploit the monopoly of force that is the definition of government . . . [n]or do the persons with whom the states contract violate the antitrust laws by becoming state concessionaires"); McGuire v. Ameritech Services, Inc., 253 F.Sup.2d 988 (S.D. Ohio 2003). Accordingly, the plaintiff's Sherman Act claim is dismissed as to both defendants.
Mootness
Both defendants assert that the court lacks subject matter jurisdiction because the plaintiff's claims for injunctive relief are moot. "Mootness is a question of justiciability that must be determined as a threshold matter because it implicates [this] court's subject matter jurisdiction . . . Because courts are established to resolve actual controversies, before a claimed controversy is entitled to a resolution on the merits it must be justiciable. Justiciability requires (1) that there be an actual controversy between or among the parties to the dispute . . . (2) that the interests of the parties be adverse . . . (3) that the matter in controversy be capable of being adjudicated by judicial power . . . and (4) that the determination of the controversy will result in practical relief to the complainant." (Citations omitted; internal quotation marks omitted.) State v. Preston, 286 Conn. 367, 373-74, 944 A.2d 276 (2008).
"The mootness doctrine is . . . founded on the same policy interests as the doctrine of standing, namely, to assure the vigorous presentation of arguments concerning the matter at issue . . . [T]he standing doctrine is designed to ensure that courts and parties are not vexed by suits brought to vindicate nonjusticiable interests and that judicial decisions which may affect the rights of others are forged in hot controversy, with each view fairly and vigorously represented . . . Indeed, we note that courts are called upon to determine existing controversies, and thus may not be used as a vehicle to obtain advisory judicial opinions on points of law." (Internal quotations marks omitted.) State v. Preston, supra, 286 Conn. 374.
The plaintiff claims that he has been injured, and continues to suffer injury, because the defendants have violated Public Acts 02-104 and 03-106. The portions of Public Acts 02-104 and 03-106 relevant to this action have been codified at General Statutes § 18-81s. Section 18-81s, titled "Pilot program for debit account telephone system" states: "The Commissioner of Correction shall establish a pilot program to allow an option, to be made available to inmates of a unit under said commissioner's control, for payment of telephone service by use of a debit account system or other similar system, in lieu of collect calls, under which funds may be deposited into an inmate's account in order to pay for station-to-station telephone service for such inmate. Said commissioner shall post notice of such option to the inmates and their families. The commissioner, in consultation with the Chief Information Officer of the state, shall make every effort to have a pilot program for a debit account system, or similar system, in place not later than June 3, 2004."
The defendants argue that the plaintiff's claims for injunctive relief are moot because (1) the pilot program was implemented in the Brooklyn Correctional Institute, and (2) the telephone debit card system that the plaintiff seeks was in fact made available for all Connecticut inmate telephone calls on October 1, 2007. In support of its motion, the defendants have filed the following documents: copies of press releases and service agreements from the Department of Corrections documenting the initiation of the pilot program and the implementation of the "AdvancePay" debit card system; an affidavit from GTL's counsel attesting to the accuracy of the Department of Corrections announcements; an affidavit from GTL's Senior Vice President of Administration attesting to GTL's acquisition of MCI's contract with the Department of Corrections and the Connecticut Department of Information Technology as of July 17, 2007; and an affidavit from Lieutenant Scott Barr, the Phone Monitoring Unit Supervisor within the Security Division of the Department of Corrections, attesting that as of May 6, 2009, the plaintiff had nine active phone number accounts, had completed twenty phone calls within the three months prior, and could withdraw money from his inmate account for transfer to family members and other approved phone call recipients for deposit into the "AdvancePay" account.
The court agrees that, to the extent that the plaintiff's claims are for injunctive relief, they are moot. Furthermore, to the extent that the plaintiff's claim for money damages are based on alleged violations of Public Acts 02-104 and 03-106, as well as his CUTPA claim which is derived from an alleged violation of those public acts, those claims are also moot. The defendants have provided convincing and undisputed evidence corroborating their mootness argument. The plaintiff, who bears the burden of establishing subject matter jurisdiction, has not provided any evidence or alleged any facts that impugn the evidence provided by the defendants. In fact, the plaintiff filed with his complaint a copy of a chart comparing the rate differential between collect calls and Advance Pay. The debit card system has been established and the plaintiff can access it pursuant to the guidelines provided by the Department of Corrections. As the requested relief is already available and no further practical relief can be granted by this court, there is no justiciable controversy between the parties on this issue.
Additionally, the plaintiff's claim alleging a violation of the equal protection clause of the fourteenth amendment of the United States constitution is also moot. The plaintiff bases his equal protection argument on the ground that "similarly situated consumers of debit cards pay less in phone services than the plaintiff" and "similarly situated consumers of telephone services can shop around using different phone companies and debit accounts." The problem with the defendants' argument is that inmates and non-inmates are not similarly situated for purposes of equal protection jurisprudence. See, e.g., Hrbek v. Farrier, 787 F.2d 414 (8th Cir. 1986); Daleure v. Kentucky, 119 F.Sup.2d 683 (W.D.Ky. 2000); Walton v. New York State Dept. Of Correctional Services, 869 N.Y.S.2d 661, 57 A.D.3d 1180 (2008). The defendants' uncontested affidavits establish that the debit card option has been provided to all of the inmates in Connecticut. As such, the plaintiff is identically situated to his fellow consumers, his equal protection claim is moot and the court lacks subject matter jurisdiction.
Standing
Both defendants also argue that the plaintiff lacks standing to assert his claims. The court agrees that the plaintiff's allegations of a violation of General Statutes § 18-81s and CUTPA may alternatively be dismissed for lack of standing, and that the plaintiff's remaining claims should also be dismissed for lack of standing.
"Standing is the legal right to set judicial machinery in motion. One cannot rightfully invoke the jurisdiction of the court unless he [or she] has, in an individual or representative capacity, some real interest in the cause of action, or a legal or equitable right, title or interest in the subject matter of the controversy . . . When standing is put in issue, the question is whether the person whose standing is challenged is a proper party to request an adjudication of the issue . . . Standing requires no more than a colorable claim of injury; a [party] ordinarily establishes . . . standing by allegations of injury. Similarly, standing exists to attempt to vindicate arguably protected interests . . .
"Standing is established by showing that the party claiming it is authorized by statute to bring an action, in other words, statutorily aggrieved, or is classically aggrieved . . . [Statutory] [s]tanding concerns the question [of] whether the interest sought to be protected by the complainant is arguably within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question . . .
"The fundamental test for determining [classical] aggrievement encompasses a well-settled twofold determination: [F]irst, the party claiming aggrievement must successfully demonstrate a specific, personal and legal interest in [the challenged action], as distinguished from a general interest, such as is the concern of all members of the community as a whole. Second, the party claiming aggrievement must successfully establish that this specific personal and legal interest has been specially and injuriously affected by the [challenged action] . . . Aggrievement is established if there is a possibility, as distinguished from a certainty, that some legally protected interest . . . has been adversely affected . . .
"[I]f the injuries claimed by the plaintiff are remote, indirect or derivative with respect to the defendant's conduct, the plaintiff is not the proper party to assert them and lacks standing to do so. [When], for example, the harms asserted to have been suffered directly by a plaintiff are in reality derivative of injuries to a third party, the injuries are not direct but are indirect, and the plaintiff has no standing to assert them . . .
"If a party is found to lack standing, the court is without subject matter jurisdiction to determine the cause . . . Because standing implicates the court's subject matter jurisdiction, the plaintiff ultimately bears the burden of establishing standing." (Citations omitted; internal quotation marks omitted.) Cambodian Buddhist Society of Connecticut, Inc. v. Planning Zoning Commission, 285 Conn. 381, 393-95, 941 A.2d 868 (2008).
The defendants argue that the plaintiff lacks standing to bring his action because he has failed to allege any actual injury to a personal legally protected interest. The defendants note that the plaintiff has active phone accounts that he uses regularly and that are not blocked, and that the plaintiff can access the AdvancePay system through family and friends. The plaintiff argues that he is statutorily and classically aggrieved, but provides no further support for this argument.
The plaintiff would have the court find that Public Act 03-106 conferred duties and responsibilities upon the defendants that are not visible upon a plain reading of the statute that codified Public Act 03-106, namely General Statutes § 18-81s. The plaintiff argues that the language of the public act requires a system other than the AdvancePay system provided by GTL. The plaintiff believes that, in order for the Department of Corrections and GTL to comply with the public act, inmates must be allowed to (1) directly place money in debit accounts without family member intermediaries, (2) make phone calls without surcharges, and (3) make phone calls to cellular phones.
Section 18-81s simply does not require any of these features. The plaintiff's argument that the AdvancePay system is not a system "in lieu of collect calls" misconstrues the meaning of the phrase: the evidence establishes that AdvancePay is a debit card system, not a collect call system, whereby the plaintiff may in fact make prepaid phone calls in lieu of, or instead of, collect phone calls. The AdvancePay system is an optional alternative to collect calls available to inmates, which is all that is required by the statute. Furthermore, and perhaps more importantly, the statute does not impose any binding duty upon the defendants relevant to this action, nor does the statute provide the plaintiff a private right of action to enforce any such duty. The statute only requires the implementation of a single optional pilot program, which was in fact implemented. The plaintiff therefore fails to state a claim that falls within the zone of interests that the statute may arguably protect and cannot establish statutory aggrievement.
Additionally, under these factual circumstances, even interpreting the statute liberally beyond its minimal dictates requiring only a single pilot program, the plaintiff has failed to allege any actual injury to a personal legally protected interest. There is no viable interpretation of the statute that encompasses a private right of action such as the plaintiff claims. The plaintiff has not suffered any actual injury derived from a protected interest. The plaintiff therefore lacks standing to bring an action pursuant to or based upon General Statutes § 18-81s, and the court lacks subject matter jurisdiction over those claims.
The plaintiff's lack of standing also extends to his allegations of a CUTPA violation. The plaintiff's alleged injuries that form the basis of his CUTPA claims are wholly derivative of his claims based on a violation of Public Act 03-106, namely that the defendants failed to implement a surcharge-free debit card telephone system. As the claimed injuries do not exist, the plaintiff's claims lack sufficient directness to be actionable, the plaintiff lacks standing, and the court lacks subject matter jurisdiction. See Connecticut State Medical Society v. Oxford Health Plans (CT), Inc., 272 Conn. 469, 863 A.2d 645 (2005); Vacco v. Microsoft Corp., 260 Conn. 59, 793 A.2d 1048 (2002); Ganim v. Smith Wesson Corp., 258 Conn. 313, 780 A.2d 98 (2001).
Additionally, the plaintiff's CUTPA claims are explicitly barred by operation of General Statutes § 42-110c(a), which states in relevant part: "Nothing in this chapter shall apply to: (1) Transactions or actions otherwise permitted under law as administered by any regulatory board or officer acting under statutory authority of the state . . ." The defendants' contractual implementation of the debit card system was an action made pursuant to General Statutes § 18-81s, the clearly valid statute that the plaintiff repeatedly relies upon in alleging his other claims. As such, CUTPA does not apply to the contract between the state and GTL and the plaintiff lacks standing to assert such a claim.
The plaintiff alleges a violation of the federal Family Telephone Connection Protection Act of 2005 (H.R. 4466). This proposed act was never enacted by Congress and thus is not a law. There is no basis for a claimed violation of a non-existent law, and therefore the plaintiff's claim is dismissed for lack of standing.
The plaintiff also asserts that the defendants violated General Statutes § 4d-46. Section 4d-46, concerning the disqualification of potential contractors which participate in Department of Administrative Services requests for proposals process, is wholly inapplicable to anything alleged in the complaint or the amended complaint and is therefore dismissed for lack of standing as the plaintiff has failed to establish aggrievement.
The plaintiff alleges violations of 15 U.S.C. § 13, also known as the Robinson-Patman Act, as well as the Commerce Clause, because GTL "installed electronic hardware and or software which makes circumventing the collect calling system impossible and or difficult," and these actions "amount to a monopoly and interferes with commerce."
"The Robinson-Patman Act prohibits price discrimination that may have the effect of hindering competition in the marketplace, or inflicting economic or competitive injury on specific market actors. The Act provides that `it shall be unlawful for any person . . . either directly or indirectly, to discriminate in price between different purchasers of commodities . . . where such commodities are sold for use, consumption, or resale within the United States,' and where the effect of the discrimination is anti-competitive . . . The Robinson-Patman Act's prohibition on price discrimination extends only to transactions involving `commodities.' . . . Courts have strictly construed this term, holding that it denotes only `tangible products of trade.'" (Citation omitted.) Innomed Labs, LLC v. ALZA Corp., 368 F.3d 148, 156 (2d. Cir. 2004).
The plaintiff has failed to allege a claim cognizable under the Robinson-Patman Act as this case does not involve any commodities. GTL monitors inmate calls over the telephone system pursuant to a valid contract with the state, an action that has nothing to do with commodity price discrimination. As to the plaintiff's claims regarding an interference with commerce, our Supreme Court, in a class action decision, upheld challenges to state regulations monitoring the prison phone systems. Washington v. Meachum, 238 Conn. 692, 680 A.2d 262 (1996). Refusing to allow inmates to circumvent a constitutionally valid security-based telephone system in no way constitutes a monopoly, price discrimination or an impermissible interference with commerce. The plaintiff's claims are frivolous, the plaintiff lacks standing as he has not established aggrievernent, and his claims are therefore dismissed.
CONCLUSION
For the forgoing reasons, the defendants' joint motion to dismiss the plaintiff's original and amended complaint is granted.