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Beraha v. State

United States District Court, D. Nevada

May 8, 2019

ARTHUR BERAHA, Plaintiff,
v.
STATE OF NEVADA, et al., Defendants.

          REPORT AND RECOMMENDATION OF U.S. MAGISTRATE JUDGE [1]

         This case involves a civil rights action filed by Plaintiff Arthur Beraha ("Beraha") against Defendants James Dzurenda, William Reubart, William Gittere, Inmate Calling Solutions, LLC ("ICS"), CenturyLink doing business as Embarq Payphone Services, Inc. ("CenturyLink"), Renee Baker, and John Does (collectively referred to as "Defendants"). Currently pending before the Court are a motion to dismiss filed by Defendant CenturyLink, (ECF No. 43), and a motion to dismiss filed by Defendant ICS. (ECF No. 64.) Beraha opposed the motions, (ECF Nos. 58, 66), and CenturyLink and ICS replied. (ECF Nos. 60, 67.) Having thoroughly reviewed the record and papers, the Court hereby recommends CenturyLink and ICS' motions to dismiss be granted.

         I. BACKGROUND AND PROCEDURAL HISTORY

         A. Procedural History

         Beraha is an inmate in the custody of the Nevada Department of Corrections ("NDOC"), and is currently housed at Ely State Prison ("ESP") in Ely, Nevada. (ECF No. 10.) Proceeding pro se, Beraha filed the instant civil rights action pursuant to 42 U.S.C. § 1983 alleging various claims against Defendants. (Id.)

         Pursuant to 28 U.S.C. § 1915A(a), the Court screened Beraha's amended complaint on June 15, 2018. (ECF No. 12.) Subsequently Beraha filed a motion for partial reconsideration (ECF No. 13), which the Court granted. (ECF No. 15.) The Court determined the following claims stated a cause of action: (1) Count I alleging due process claims for property violations and statutory authority against Defendant Dzurenda; (2) Count II alleging free exercise, Religious Land Use and Institutionalized Persons Act ("RLUIPA"), and equal protection violations against Defendants Dzurnda, Gittere, and Reubart[2]; (3) the portions of Count III alleging federal telecommunications violations against Defendants CenturyLink and ICS; (4) the portions of Count III alleging state law violations of Nevada's Deceptive Trade Practices Act and Nevada's Revised Statute ("NRS") §§ 41.130 and 41.600 against Defendants CenturyLink and ICS; and, (5) Count IV alleging free exercise, RLUIPA, and equal protection violations against Defendants Dzurenda, Gittere, Reubart and Baker. (Id.; see also ECF No. 12.)[3]

         B. Facts Related to Count III

         Between February 12, 2008, and December 31, 2016, CenturyLink was the principal party to a contract with the NDOC to provide inmate telephone services ("ITS") and systems at NDOC facilities. (ECF No. 10 at 9.) ICS was a subcontractor or agent of CenturyLink "whose responsibilities included, but were not limited to, providing the ITS system, technical support, maintenance and, point of sale ... billing. (Id.)

         Under NDOC's contract with CenturyLink, the ITS rate structure for intrastate calls was, upon call acceptance, a flat $1.65 surcharge plus thirteen (13) cents per minute after that. (Id. at 11.) Beraha does not challenge the rate structure, rather he alleges during this time, ICS's automated voice system represented calls were limited to fifteen minutes. (Id.) However, on five different occasions, CenturyLink or ICS's network disconnected Beraha's phone call after six, three, one, and ten minutes. (Id. at 11-12.) Of these five phone calls, four were made intrastate and one was made interstate. (Id.)

         Multiple inmates submitted inquiries regarding dropped calls during this time, raising the possibility calls were being intentionally dropped. (Id. at 12- 3.) In response to the inquiries, NDOC officials contacted CenturyLink and/or ICS, whc stated the calls were dropped for nonsecurity and nontechnical reasons. (Id. at 13.) Beraha alleges CenturyLink and ICS "failed to disclose, concealed, and suppressed a material fact from [Beraha] and other inmates, namely, that phone calls . . . would be intentionally and unnecessarily dropped for issues unrelated to security or technical concerns" prior to the fifteen-minute limit. (Id.) Furthermore, Beraha alleges CenturyLink and ICS improperly charged Beraha and other inmates for completed calls even when the calls were dropped early. (Id. at 14, 17.)

         C. Defendants' Motions to Dismiss

         On November 20, 2018, CenturyLink filed a motion to dismiss. (ECF No. 43.) Subsequently, on January 1, 2019, ICS filed a motion to dismiss.[4] (ECF No. 64.) In the motions, CenturyLink and ICS argue: (1) the amended complaint fails to state a claim regarding alleged violations of the Telecommunications Act ("the Act"), because Beraha has not alleged facts that can be adjudicated under the Act as it only applies to interstate calls, not intrastate, and the FCC has not ruled on the practice of dropping calls outside of the rate structure, which he does not challenge; (2) the amended complaint fails to state a claim as to the remaining claims, because he has not pled facts supporting the allegations, providing only a conclusory list; (3) this Court lacks jurisdiction over the primary claim related to an alleged violation of the Federal Communications Act, because Beraha failed to seek and obtain the required FCC review prior to initiating suit; and, (4) Beraha is barred from representing other prisoners or a class of prisoners. (ECF Nos. 43 at 3-11; 64 at 3-10.)

         In response, Beraha filed an opposition arguing dismissal of Centurylink and ICS is inappropriate because: (1) both per call charges and the associated practice of dropped calls that incur per call charges were declared unjust and unreasonable by the FCC in their 2013 and 2015 Orders, thus Beraha did not need to seek the FCC's opinion before filing suit; (2) this Court does not have the subject matter jurisdiction to review or invalidate FCC orders as that is solely the prerogative of the Ninth Circuit Court of Appeals; (3) it does not matter the calls were made before the 2015 FCC Order because Beraha separately relies on the 2013 FCC Interim Order; (4) numerous dropped calls amongst inmates were identified in the FAC, therefore allowing the inference Centurylink and ICS engaged in a discrete practice of dropping calls from 2012-2016; (5) primary jurisdiction is inapplicable since the FCC already ruled the practice of dropping calls is unjust and unreasonable; and, (6) Count III sets forth sufficient facts or legal elements for relief. (ECF Nos. 58 at 7-21; 66 at 5-10.)

         In reply, Centurylink and ICS reiterate their prior arguments, `n addition, they argue: (1) Beraha misconstrues 47 U.S.C. § 276(b)'s application to the facts of this case, because it does not broaden the FCC's authority to regulate intrastate calls, a fact pronounced by the FCC itself; (2) the 2013 and 2015 FCC Orders do not relate to Beraha's allegations because those proposed rules only apply to rates imposed by carriers on interstate calls made after the 2015 Order went into effect, and neither proposed rule opines on the practice of dropping calls; (3) the fraudulent misrepresentation claim fails to allege Centurylink engaged in the allegedly fraudulent conduct; (4) the deceptive trade practices claim fails to allege sufficient underlying wrongful conduct; (5) the unjust enrichment claim fails to allege that Centurylink was paid a fee or that they retained the benefit of that payment; and, (6) if the Court dismisses the Act claim, the state law claims should be dismissed for lack of original jurisdiction. (ECF Nos. 60 at 2-10; 67 at 2-7.)

         II. ...


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