PRITCHETT v. GLOBAL TELL LINK CORP

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

CAMDEN VICINAGE

_______________

:

MICHAEL PRITCHETT, :

: Civ. No. 20-14355 (RMB/MJS)

Plaintiff :

:

v. : OPINION

:

GLOBAL TEL LINK CORP. and :

SALEM COUNTY CORRECTIONAL :

PRISON, :

:

Defendants :

:

BUMB, District Judge

Plaintiff Michael Pritchett is pretrial detainee who was

confined in Salem County Correctional Facility in Woodstown, New

Jersey at the time he filed a pro se civil rights complaint.

(Compl., Dkt. No. 1.) For the following reasons, the Court will

dismiss the complaint without prejudice.

I. FILING FEE/IN FORMA PAUPERIS

Pursuant to Local Civil Rule 54.3, the Clerk shall not be

required to enter any suit, file any paper, issue any process, or

render any other service for which a fee is prescribed, unless the

fee is paid in advance. Under certain circumstances, however, this

Court may permit an indigent plaintiff to proceed in forma

pauperis.

The entire fee to be paid in advance of filing a civil

complaint is $402. That fee includes a filing fee of $350 plus an

administrative fee of $52, for a total of $402.1 A prisoner who is

granted in forma pauperis status will, instead, be assessed a

filing fee of $350 to be paid in installments and will not be

responsible for the $52 administrative fee. A prisoner who is

denied in forma pauperis status must pay the full $402, including

the $350 filing fee and the $52 administrative fee, before the

complaint will be filed.

Title 28, section 1915 of the United States Code establishes

certain financial requirements for prisoners who are attempting to

bring a civil action in forma pauperis. Under § 1915, a prisoner

seeking to bring a civil action in forma pauperis must submit an

affidavit, including a statement of all assets and liabilities,

which states that the prisoner is unable to pay the fee. 28 U.S.C.

§ 1915(a)(1). The prisoner also must submit a certified copy of

his inmate trust fund account statement(s) for the six-month period

immediately preceding the filing of his complaint. 28 U.S.C. §

1915(a)(2). The prisoner must obtain this certified statement from

the appropriate official of each correctional facility at which he

was or is confined during such six-month period. Id.

If the prisoner is granted in forma pauperis status, the

prisoner must pay the full amount of the filing fee in

1 On December 1, 2020, the administrative fee was raised from $50

to $52. However, as Plaintiff submitted his complaint in this

action prior to this change, should Plaintiff elect to pay the

filing fee, he shall only owe $400.

installments. 28 U.S.C. § 1915(b)(1). In each month that the amount

in the prisoner’s account exceeds $10.00, until the filing fee is

paid, the agency having custody of the prisoner shall deduct from

the prisoner’s account, and forward to the Clerk, an installment

payment equal to 20% of the preceding month’s income credited to

the prisoner’s account. 28 U.S.C. § 1915(b)(2).

Plaintiff may not have known when he submitted his complaint

that he must pay the filing fee, and that even if the full filing

fee, or any part of it, has been paid, the Court must dismiss the

case if it finds that the action: (1) is frivolous or malicious;

(2) fails to state a claim upon which relief may be granted; or

(3) seeks monetary relief against a defendant who is immune from

such relief. 28 U.S.C. § 1915(e)(2)(B) (in forma pauperis actions);

see also 28 U.S.C. § 1915A (dismissal of actions in which prisoner

seeks redress from a governmental defendant). If the Court

dismisses the case for any of these reasons, § 1915 does not

suspend installment payments of the filing fee or permit the

prisoner to get back the filing fee, or any part of it, that has

already been paid.

If the prisoner has, on three or more prior occasions while

incarcerated, brought in federal court an action or appeal that

was dismissed on the grounds that it was frivolous or malicious,

or that it failed to state a claim upon which relief may be granted,

he cannot bring another action in forma pauperis unless he is in

imminent danger of serious physical injury. 28 U.S.C. § 1915(g).

In this case, although Plaintiff stated that he was attaching

his certified copy of his inmate trust fund account statement(s)

for the six-month period immediately preceding the filing of his

complaint, the Court did not receive the statements. Furthermore,

for the following reasons, Plaintiff’s complaint is dismissed

without prejudice for failure to state a claim upon which relief

may be granted.

II. LEGAL STANDARD FOR SUA SPONTE DISMISSAL

District courts must review complaints in those civil actions

in which a prisoner is proceeding in forma pauperis, see 28 U.S.C.

§ 1915(e)(2)(B)2, seeks redress against a governmental employee or

entity, see 28 U.S.C. § 1915A(b), or brings a claim with respect

to prison conditions, see 42 U.S.C. § 1997e. District courts must

sua sponte dismiss any claim that is frivolous or malicious, fails

to state a claim upon which relief may be granted, or seeks

monetary relief from a defendant who is immune from such relief.

28 U.S.C. § 1915(e)(2)(B), § 1915A(b)(1); 42 U.S.C. § 1997e(c)(1).

2 The United States Court of Appeals for the Third Circuit has

determined this Court can screen Plaintiff’s complaint for

dismissal before considering an in forma pauperis application.

Brown v. Sage, 941 F.3d 655, 660 (3d Cir. 2019) (en banc). This

Court elects to do so here.

“The legal standard for dismissing a complaint for failure to

state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) is the

same as that for dismissing a complaint pursuant to Federal Rule

of Civil Procedure 12(b)(6).” Schreane v. Seana, 506 F. App’x 120,

122 (3d Cir. 2012) (citing Allah v. Seiverling, 229 F.3d 220, 223

(3d Cir. 2000)); Mitchell v. Beard, 492 F. App’x 230, 232 (3d Cir.

2012) (discussing 42 U.S.C. § 1997e(c)(l)); Courteau v. United

States, 287 F. App’x 159, 162 (3d Cir. 2008) (discussing 28 U.S.C.

§ 1915A(b)). That standard is set forth in Ashcroft v. Iqbal, 556

U.S. 662 (2009) and Bell Atlantic Corp. v. Twombly, 550 U.S. 544

(2007), as explained by the United States Court of Appeals for the

Third Circuit as follows. To survive the court's screening for

failure to state a claim, the complaint must allege ‘sufficient

factual matter’ to show that the claim is facially plausible.

Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009)

(citation omitted). “A claim has facial plausibility when the

plaintiff pleads factual content that allows the court to draw the

reasonable inference that the defendant is liable for the

misconduct alleged.” Fair Wind Sailing, Inc. v. Dempster, 764 F.3d

303, 308 n.3 (3d Cir. 2014) (quoting Iqbal, 556 U.S. at 678). “[A]

pleading that offers ‘labels or conclusions' or ‘a formulaic

recitation of the elements of a cause of action will not do.’”

Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555).

Pro se pleadings must be liberally construed. Haines v.

Kerner, 404 U.S. 519 (1972). Nevertheless, “pro se litigants still

must allege sufficient facts in their complaints to support a

claim.” Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 245 (3d Cir.

2013) (citation omitted).

III. THE COMPLAINT

The allegations in the Complaint are accepted as true for

purposes of this opinion only. Plaintiff asserts jurisdiction

under Bivens because he is a federal pretrial detainee. (Compl.

¶1a, Dkt. No. 1.) He alleges that he has been a federal pretrial

detainee housed in Salem County Prison since October 11, 2018.

(Compl. ¶6.) He immediately noticed that the phone rates were

egregiously high. Upon researching the issue, Plaintiff learned

Global Tel Link Corp. (“GTL”) engaged in a joint action with Salem

County Jail that allowed them to charge excessively high phone

rates for inmates’ telephone calls. Plaintiff alleges he has been

a victim of this “consumer fraud act” from October 11, 2018 to the

present. He alleges that the defendants violated the Takings Clause

by agreeing to excessive fees and rates. (Compl. ¶4.)

IV. DISCUSSION

Although Plaintiff is a federal pretrial detainee, he raises

claims against a county jail and a private corporation. Therefore,

jurisdiction is under 42 U.S.C. § 1983. A plaintiff may have a

cause of action under 42 U.S.C. § 1983 for violations of his

constitutional rights. Section 1983 provides in relevant part:

Every person who, under color of any statute,

ordinance, regulation, custom, or usage, of

any State or Territory ... subjects, or causes

to be subjected, any citizen of the United

States or other person within the jurisdiction

thereof to the deprivation of any rights,

privileges, or immunities secured by the

Constitution and laws, shall be liable to the

party injured in an action at law, suit in

equity, or other proper proceeding for redress

....

Thus, to state a claim for relief under § 1983, a plaintiff must

allege, first, the violation of a right secured by the Constitution

or laws of the United States and, second, that the alleged

deprivation was committed or caused by a person acting under color

of state law. West v. Atkins, 487 U.S. 42, 48 (1988); Piecknick v.

Pennsylvania, 36 F.3d 1250, 1255–56 (3d Cir. 1994).

One of the named defendants is a county jail. Prisons or jails

are not “persons” who can be sued under § 1983. See Fischer v.

Cahill, 474 F.2d 991, 992 (3d Cir. 1973) (the New Jersey Prison

Medical Department may not be sued under § 1983 because it is not

a “person” within the meaning of the statute) (citing United States

ex rel. Gittlemacker v. County of Philadelphia, 413 F.2d 84 (3d

Cir. 1969), cert. denied, 396 U.S. 1046 (1970)). The Court will

dismiss the § 1983 claim against “Salem County Prison” without

prejudice.

Plaintiff brings his claims under the Takings Clause of the

Fifth Amendment.3 “The Takings Clause provides: ‘[N]or shall

private property be taken for public use, without just

compensation.’” Horne v. Dep't of Agric., 576 U.S. 350, 358 (2015)

(quoting U.S. Const., Amdt. 5)). The Takings Clause applies to

takings by the States. Knick v. Twp. of Scott, Pennsylvania, 139

S. Ct. 2162, 2171 (2019). “[A] property owner has a claim for a

violation of the Takings Clause as soon as a government takes his

property for public use without paying for it.” Id. at 2170.

“‘[T]he act of taking’ is the ‘event which gives rise to the claim

for compensation.’” Id. (quoting United States v. Dow, 357 U.S.

17, 22 (1958)). “[T]he classic taking is a transfer of property to

the State or to another private party by eminent domain, [but] the

Takings Clause applies to other state actions that achieve the

same thing.” Stop the Beach Renourishment, Inc. v. Fla. Dep't of

Env't Prot., 560 U.S. 702, 713 (2010). The “doctrine of regulatory

takings ‘aims to identify regulatory actions that are functionally

equivalent to the classic taking.’” Id. (quoting Lingle v. Chevron

U.S.A. Inc., 544 U.S. 528, 539 (2005)). “States [also] effect a

taking if they recharacterize as public property what was

3 Fifth Amendment Takings Clause claims, as applied to the States

under the Fourteenth Amendment, may be brought under 42 U.S.C. §

1983. See e.g. Stop the Beach Renourishment, Inc. v. Fla. Dep't

of Env't Prot., 560 U.S. 702, 707, 130 S. Ct. 2592, 2597, 177 L.

Ed. 2d 184 (2010) (citing Dolan v. City of Tigard, 512 U.S. 374,

383–384 (1994)).

previously private property. Stop the Beach Renourishment, Inc.,

560 U.S. at 713 (citing Webb's Fabulous Pharmacies, Inc. v.

Beckwith, 449 U.S. 155, 163–165 (1980)). A lack of reasonably

priced services available to county inmates is not a “taking”

because there is no legal compulsion to pay the alleged excessive

rate. James v. Glob. Tel*Link Corp., No. 13-4989, 2020 WL 998858,

at *3 (D.N.J. Mar. 2, 2020). Plaintiff has not alleged a taking;

therefore, the Court finds that Plaintiff has failed to allege a

§ 1983 claim under the Takings Clause.4

The Court notes that Plaintiff wrote “Consumer Fraud Act” at

the top of the first page of his Complaint. He did not, however,

make any specific factual allegations to state a claim under the

New Jersey Consumer Fraud Act. Moreover, because Plaintiff fails

to state a federal claim or to allege diversity jurisdiction, the

4 The Court notes Plaintiff has not alleged what rate he was charged

for phone calls. The Court also takes judicial notice, under

Federal Rule of Evidence 201(b), of N.J. Stat. Ann. § 30:4-8.12,

effective on August 21, 2016, which provides, in relevant part:

a. All telephone service contracts for inmates in State

or county correctional facilities shall be subject to

the procurement provisions set forth in chapter 34 of

Title 52 of the Revised Statutes and chapter 11 of Title

40A of the New Jersey Statutes; provided, however, the

State Treasurer or appropriate person on behalf of the

county or private correctional facility shall contract

with the qualified vendor whose rate shall not exceed

11 cents per minute for domestic debit, prepaid, and

collect calls and who does not bill to any party any

service charge or additional fee exceeding the per

minute rate, including, but not limited to, any per

call surcharge, account set up fee, bill statement fee,

monthly account maintenance charge, or refund fee.

N.J. Stat. Ann. § 30:4-8.12(a).

Court declines to exercise supplemental jurisdiction over a state

law claim. See 28 U.S.C. § 1367(c)(3).

V. CONCLUSION

For the foregoing reasons, Plaintiff’s complaint is dismissed

without prejudice for failure to state a claim upon which relief

may be granted. Plaintiff shall have thirty (30) days in which to

either pay the $400 filing fee or submit a complete application to

proceed in forma pauperis along with a proposed amended complaint

that corrects the deficiencies of his original complaint, should

he elect to do so. An appropriate order will be entered.

DATED: May 4, 2021 s/Renée Marie Bumb

RENÉE MARIE BUMB

United States District Judge