Opinion
Civil Action No. 3:03-CV-1555-D.
November 2, 2004
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
The following pleadings are before the Court:
(1) Southwestern Bell Telephone, L.P.'s Motion to Dismiss, filed June 16, 2004, and referred to this Court for recommendation on June 21, 2004;
(2) Motion to Dismiss of Mid-America Services, Inc., filed June 29, 2004, and referred to this Court for recommendation on July 1, 2004;
(3) Defendant Bowles' Motion for Reply Under Fed.R.Civ.P. 7(a), filed July 16, 2004, and referred to this Court for determination on July 16, 2004
Based on the pleadings and the applicable law, the Court is of the opinion that Southwestern Bell Telephone, L.P.'s Motion to Dismiss and Motion to Dismiss of Mid-America Services, Inc. should be GRANTED and Plaintiff's claims against those defendants be DISMISSED with prejudice. Additionally, the Court is of the opinion that Plaintiff's claims against Defendant Jim Bowles should be DISMISSED without prejudice.
I. BACKGROUND
Plaintiff was formerly an inmate in the custody of the Dallas County Jail. He filed the instant civil rights action against Defendants. In his complaint, Plaintiff alleges Defendant Jim Bowles ("Bowles") violated his civil rights by denying him access to medical care while in custody, denying his right to practice religion, and by conspiring with other defendants to overcharge for telephone calls and commissary. Plaintiff claims that Defendants Southwestern Bell Telephone, L.P. ("SBC") and MCI Telephone conspired with Bowles to overcharge inmates for telephone services. (Compl. at 3, 3(a), 4.) Plaintiff asserts that Defendant Mid-America Services, Inc. ("MASI") conspired with Bowles to overcharge inmates for commissary items. (Pl. M. to Am. Orig. Pet. at 3.)II. MOTIONS TO DISMISS
Both SBC and MASI move to dismiss Plaintiff's claims for lack of subject matter jurisdiction under FED. R. CIV. P. 12(b)(1), on grounds that the suit does not involve a question of federal law and there is no diversity of citizenship between the parties. Additionally, SBC and MASI assert that Plaintiff has failed to state a claim upon which relief can be granted and that the complaint should be dismissed pursuant to Fed.R.Civ.P. 12(b)(6). Although twice given extensions of time in which to respond to the motions to dismiss, Plaintiff filed no response.
A. Dismissal under Fed.R.Civ.P. 12(b)(1)
SBC and MASI contend that the District Court lacks jurisdiction over this action because "[t]his case does not involve a substantial disputed question of federal law, nor does it require the resolution of a substantial federal question." (SBC Br. at 3, ¶ 9; MASI Br. at 3, ¶ 9.) They move to dismiss Plaintiff's complaint under FED. R. CIV. P. 12(b)(1) because the court lacks federal question jurisdiction.
A motion to dismiss under Rule 12(b)(1) of the Federal Rules of Civil Procedure challenges a federal court's subject matter jurisdiction. See FED. R. CIV. P. 12(b)(1). Federal courts are courts of limited jurisdiction. Peoples Nat. Bank v. Office of Comptroller of Currency of U.S., 362 F.3d 333, 336 (5th Cir. 2004). Their power is limited to that power authorized by the Constitution and by statute. Id. Federal courts have subject matter jurisdiction only where a question of federal law is involved or where there is diversity of citizenship between the parties and the amount in controversy exceeds $75,000. See 28 U.S.C. §§ 1331, 1332. The party asserting federal subject matter jurisdiction has the burden of proving it exists. Howery v. Allstate Ins. Co., 243 F.3d 912, 916 (5th Cir. 2001).
The Fifth Circuit recognizes a distinction between a "facial attack" and a "factual attack" upon a complaint's subject matter jurisdiction. See Rodriguez v. Tex. Comm'n on the Arts, 992 F. Supp. 876, 878 (N.D. Tex. 1998). "A facial attack requires the court merely to decide if the plaintiff has correctly alleged a basis for subject matter jurisdiction" by examining the allegations in the complaint, which are presumed to be true. See id. (citation omitted). However, if the defendant supports the motion with evidence, then the attack is "factual," and "no presumptive truthfulness attaches to plaintiff's allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims." Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir. 1981). Regardless of the attack, "[t]he plaintiff constantly bears the burden of proof that jurisdiction does exist." Rodriguez, 992 F. Supp. at 879 ("The burden of proof for a Rule 12(b)(1) motion to dismiss is on the party asserting jurisdiction.") (citations omitted). The instant case is a facial attack. SBC and MASI argue that Plaintiff's jurisdictional claims fail on legal, not factual, grounds, and SBC and MASI do not support their motion with any evidence. Accordingly, all of Plaintiff's factual allegations will be accepted as true.
The Court has thoroughly reviewed Plaintiff's Complaint, filed August 5, 2003, and Plaintiff Motion to Amend Original Petition, filed October 10, 2003. The form of the complaint makes it clear that Plaintiff's cause of action is brought under 42 U.S.C. § 1983. Construing the complaint liberally, the Court determines that Plaintiff alleges that SBC "singled prisoners out as a class of people to overcharge on phone calls" in a conspiracy with Bowles, a state actor. (Compl. at 3.) Plaintiff also contends that MASI conspired with Bowles to "sell items that are valued at 8¢ for 60¢ and at 50¢ for $3.00. This is a 500% markup." (Pl. M. to Amend Orig. Pet. at 3.)
Because Plaintiff's complaint is brought pursuant to 42 U.S.C. § 1983 and alleges a conspiracy between SBC, MASI, and Bowles, a state actor, the Court concludes that the District Court does have subject matter jurisdiction over this case based on federal question jurisdiction.
B. Dismissal under Fed.R.Civ.P. 12(b)(6)
SBC and MASI assert that dismissal of Plaintiff's complaint is necessary because the complaint fails to state a claim upon which relief can be granted.
1. Legal Standard
Pursuant to Rule 12(b)(6), a claim for relief may be dismissed for failure to state a claim upon which relief can be granted. Motions to dismiss under Rule 12(b)(6) are disfavored and rarely granted. Sosa v. Coleman, 646 F.2d 991, 993 (5th Cir. 1981). Under this standard, a court cannot look beyond the face of the pleadings. Baker, 75 F.3d at 196; Spivey v. Robertson, 197 F.3d 772, 774 (5th Cir. 1999), cert. denied, 530 U.S. 1229 (2000). To avoid dismissal, those pleadings must show specific, well-pleaded facts, not mere conclusory allegations. Guidry v. Bank of LaPlace, 954 F.2d 278, 281 (5th Cir. 1992). The court must accept those well-pleaded facts as true and view them in the light most favorable to the plaintiff. Baker v. Putnal, 75 F.3d 190, 196 (5th Cir. 1996). A court cannot dismiss a complaint, or any part of it, for failure to state a claim upon which relief can be granted unless it appears beyond a doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-6 (1957); Blackburn v. City of Marshall, 42 F.3d 925, 931 (5th Cir. 1995). "The issue is not whether a plaintiff will ultimately prevail, but whether the claimant is entitled to offer evidence to support the claims." Scheuer v. Rhodes, 416 U.S. 232, 236 (1974).
Furthermore, where a plaintiff proceeds pro se, the court is further guided by the general rule that allegations in a pro se complaint are construed more permissively. See Bannister v. Dal-Tile Intern., Inc., 2003 WL 21145739, at *1 (N.D. Tex. May 14, 2003). While pro se pleadings are construed liberally, a pro se plaintiff still bears the burden "to plead specific facts and proper jurisdiction, pursuant to Rule 8 of the Federal Rules of Civil Procedure." Martin v. United States Post Office, 752 F. Supp. 213, 218 (N.D. Tex. 1990).
2. 1983 Claim
Section 1983 provides a right of action against:
Every person who, under color of any statute, ordinance, regulation, or usage, of any State or Territory or the District of Columbia, subjects or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any right, privileges, or immunities secured by the Constitution and laws.42 U.S.C. § 1983. "To state a claim under § 1983, a plaintiff must allege the violation of a right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law." West v. Atkins, 487 U.S. 42, 48 (1988). In certain circumstances, private parties may be acting "under color of state law" and thus held liable under § 1983:
'Private persons, jointly engaged with state officials in the prohibited action, are acting 'under color' of law for purposes of the statute. To act 'under color' of law does not require that the accused be an officer of the State. It is enough that he is a willful participant in joint activity with the State or its agents.'Adickes v. S.H. Kress Co., 398 U.S. 144, 152 (1970) (quoting United States v. Price, 383 U.S. 787, 794 (1966)). To support such a conspiracy claim, a plaintiff "must allege facts that suggest: 1) an agreement between the private and public defendants to commit an illegal act and 2) an actual deprivation of constitutional rights." Cinel v. Connick, 15 F.3d 1338, 1343 (5th Cir. 1994) (citations omitted).
a. SBC
Plaintiff's complaint alleges that SBC and MCI Telephone Co. conspired with Bowles to defraud and overcharge Plaintiff for telephone calls in violation of his civil rights. (Compl. at 3.)
For Plaintiff's alleged conspiracy regarding telephone restrictions to rise to a viable claim under 42 U.S.C. § 1983, the conspiracy must involve some constitutional right. The Fifth Circuit Court of Appeals has not specifically stated that prisoners have a constitutional right to use the telephone. However, in Lopez v. Reyes, 692 F.2d 15, 17 (5th Cir. 1982), it held that inmates have no right to unlimited telephone use, implying that there is some constitutional right to telephone access. Such interpretation is consistent with other courts which have specifically held that inmates have a First Amendment right to reasonable access to the telephone so that they can contact their family and friends. See Washington v. Reno, 35 F.3d 1093, 1099-1100 (6th Cir. 1994); Johnson v. Galli, 596 F. Supp. 135, 138 (D. Nev. 1984). This Court assumes (without deciding) for purposes of this motion that there is a constitutional right to some telephone access. See Arney v. Simmons, 26 F. Supp. 2d 1288, 1293 (D. Kan. 1998) (recognizing an unpublished opinion of the Tenth Circuit, Martinez v. Mesa County Sheriff, 69 F.3d 548, 1995 WL 640302 (10th Cir. 1995) which held that prisoners have "no constitutional right to make personal telephone calls").
The Court assumes for purposes of the instant motions that Plaintiff's allegations suffice to establish the first element of a claim under § 1983, i.e., a conspiracy to commit an illegal act. See Cinel, 15 F.3d at 1343.
In this case, Plaintiff does not allege that he was denied telephone access while incarcerated. He instead complains about the price of telephone calls. Plaintiff claims that SBC charged him $5.00 per local phone call and $20.00 per long distance call. (Compl. at 4.) While there may be some price at which telephone calls become so prohibitively expensive as to deny inmates their right to telephone access, Plaintiff does not claim that such is the case here.
Plaintiff has stated no conspiracy to interfere with his constitutional rights, and his conspiracy charge against SBC thus fails to state a claim under 42 U.S.C. § 1983. Therefore, Plaintiff's claims against SBC should be dismissed with prejudice pursuant to FED. R. Civ. P. 12(b)(6).
b. MASI
Plaintiff also claims that MASI conspired with Bowles to permit price gauging at the commissary. (Pl. M. to Am. Orig. Pet. at 3.) Specifically, he claims that MASI charges $0.60 for items that are valued at $0.08, and $3.00 for items valued at $0.50. Id. However, overcharging for commissary items does not independently violate any constitutional right and thus fails to state a claim under 42 U.S.C. § 1983. Reed v. Dallas County Sheriff's Dept., 2004 WL 2187104, *6 (N.D. Tex. Sep 28, 2004) (Ramirez, J.) (citing Starks v. Powers, 2004 WL 1380530, at *1 (7th Cir. June 17, 2004) (noting that district court had dismissed a claim of commissary overpricing as frivolous)). Although such a claim perhaps could be viable in the context of an alleged deprivation of the necessities of life, Plaintiff makes no claim that he was deprived of food in general during his stay in the Dallas County Jail. That he could not purchase certain goods at a price he finds acceptable does not state a constitutional violation.
Plaintiff failed to state a conspiracy to interfere with his constitutional rights, and his conspiracy claim against MASI thus fails to state a claim under 42 U.S.C. § 1983. Therefore, Plaintiff's claims against MASI should be dismissed with prejudice pursuant to FED. R. CIV. P. 12(b)(6).
III. RULE 7(a) REPLY
On July 16, 2004, Jim Bowles ("Bowles") filed Defendant Bowles' Motion for Reply Under Fed.R.Civ.P. 7(a), requesting the Court to order Plaintiff to file a detailed reply tailored to Bowles immunity defenses. On July 23, 2004, this Court ordered Plaintiff to file a Rule 7(a) reply by September 7, 2004. No such pleading was filed.
If, after being ordered to file a Rule 7(a) reply, a plaintiff fails to support his claims with sufficient precision and factual specificity to raise a genuine issue as to whether the defendant has qualified immunity, the court should dismiss the complaint against the party alleging the defense of qualified immunity. Reyes v. Sazan, 168 F.3d 158, 161 (5th Cir. 1999); Bryant v. Lubbock Independent School Dist., 2004 WL 884471, *4 (N.D. Tex. Apr. 26, 2004). When a court determines that dismissal is appropriate due to Eleventh Amendment immunity, the barred claims "can be dismissed only under Rule 12(b)(1) and not with prejudice." Warnock v. Pecos County, Tex., 88 F.3d 341, 343 (5th Cir. 1996) (remanding grant of summary judgment because "the proper course of action for the district court would have been to treat the motion for summary judgment on the Eleventh Amendment immunity issue as a motion for dismissal for lack of subject matter jurisdiction."); see also United States v. Texas Tech University, 171 F.3d 279, 286 n. 9 (5th Cir. 1999) ("While the Supreme Court has left this question open, our court has repeatedly referred to the Eleventh Amendment's restriction in terms of subject matter jurisdiction.").
Because Plaintiff failed to file a Rule 7(a) reply explaining why Bowles is not entitled to qualified immunity in this case, the Court RECOMMENDS that Plaintiff's claims against Bowles be DISMISSED without prejudice pursuant to Fed.R.Civ.P. 12(b)(1) for lack of subject matter jurisdiction.
IV. RECOMMENDATION
For the foregoing reasons, the Court RECOMMENDS that SBC and MASI's motions to dismiss be GRANTED and that Plaintiff's claims against them be DISMISSED with prejudice for failure to state a claim upon which relief can be granted.
Additionally, the Court RECOMMENDS that Plaintiff's claims against Bowles be DISMISSED without prejudice for failure to allege facts to overcome Bowle's defense of qualified immunity.
SO RECOMMENDED.