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McNeil v. Global Tel-Link

United States District Court, W.D. Arkansas

April 24, 2018

TERRY McNEIL, Plaintiff,
v.
GLOBAL TEL-LINK, et al., Defendants.

          BRANN, J.

          REPORT AND RECOMMENDATION

          JOSEPH F. SAPORITO, JR. UNITED STATES MAGISTRATE JUDGE

         The plaintiff, Terry McNeil, commenced this action by filing his original pro se complaint on June 25, 2015. At the time, McNeil was incarcerated at SCI Benner Township, in Centre County, Pennsylvania.

         I. Background

         McNeil's original complaint alleged that defendant Global Tel-Link (“GTL”) charged excessive long-distance telephone service rates to him and other inmates at SCI Benner Township between 2012 and 2015, and that this conduct violated his federal civil rights, made actionable under 42 U.S.C. § 1983. On November 7, 2016, we recommended that the original complaint be dismissed as frivolous because GTL is not a state actor for § 1983 purposes, and for failure to state a claim because McNeil's dissatisfaction with the long-distance rates charged by GTL did not rise to the level of a constitutional violation. On November 13, 2017, the Court adopted our recommendations over the plaintiff's objections and dismissed the original complaint as frivolous and for failure to state a claim, granting the plaintiff leave to file an amended complaint within twenty-one days.

         Within that twenty-one day period, the plaintiff submitted two separate documents styled as amended complaints, which we have liberally construed together as McNeil's operative amended complaint. (Doc. 54; Doc. 55). See generally Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 244-46 (3d Cir. 2013) (discussing a court's obligation to liberally construe pro se pleadings and other submissions, particularly when dealing with imprisoned pro se litigants).

         The first of these two documents is captioned as an “Amended Consolidated Class Action Complaint.” (Doc. 54). This document is virtually identical to an “Amended Consolidated Class Action Complaint” previously filed in another federal court. See Amended Consolidated Class Action Complaint (ECF No. 47), In re Global Tel*Link Corp. ICS Litig., Civil Action No. 5:14-cv-5275-TLB (W.D. Ark. filed Apr. 23, 2015).[1] Indeed, Doc. 54 filed in this case is a photocopy of ECF No. 47 filed in the Arkansas case, with the first page retyped to name McNeil in the caption, the words “by counsel” in paragraph 3 on page 2 omitted by the use of correction fluid or correction tape, and the final pages containing counsel signatures retyped to substitute McNeil's pro se signature block instead. Compare Amended Consolidated Class Action Complaint (Doc. 54), McNeil v. Global Tel-Link, Civil Action No. 3:15-cv-01243 (M.D. Pa. filed Nov. 14, 2017), with Amended Consolidated Class Action Complaint (ECF No. 47), In re Global Tel*Link Corp. ICS Litig., Civil Action No. 5:14-cv-5275-TLB (W.D. Ark. filed Apr. 23, 2015). Except for these slight and insubstantial modifications, the two documents are literally identical. Both assert the same two legal claims against GTL: a Federal Communications Act (“FCA”) claim and an unjust enrichment claim, based on allegations that GTL charged “exorbitant rates and fees” for telephone calls to and from inmates under exclusive contracts with correctional facilities around the United States, which the Federal Communications Commission had found to be “unreasonably high, unfair, and far in excess of the cost of providing service.” Both seek certification of a class, defined as follows:

[A]ll persons in the United States who, at any time since 2000, have paid to use the telephone services provided by GTL or its subsidiaries in order to make or receive telephone calls involving a person incarcerated in any state in the United States . . . .

         The second document construed in this case as part of McNeil's amended complaint asserts cursory FCA and unjust enrichment claims against the same defendant, along with allegations of fact specific to McNeil and his own personal use of GTL telephone services on and after June 18, 2001. (Doc. 55). This document also recites a second and different class definition:

The Pennsylvania UE Subclass: All persons who, while a resident of Pennsylvania[, ] Georgia, Florida, Idaho, Kansas, Kentucky, Maryland, Maine, Mississippi, Missouri, New Mexico, Nevada, Oregon, South Dakota, Virginia or Wisoncsin [sic], within the applicable limitations period, paid to use inmate calling services provided by Global Tel Link (including its operating subsidiaries) to make or receive one or more interstate phone calls from a correctional facility during a period or time when Global Tel-Link paid the facility a commission of any type in connection with the interstate calls.

(Id.).

         Prior to the filing of either of these two documents in this case, the Arkansas federal district court had granted a motion for class certification and the appointment of class representatives and class counsel in the Arkansas case. Mem. Op. & Order (ECF No. 138), In re Global Tel*Link Corp. ICS Litig., Civil Action No. 5:14-cv-5275-TLB (W.D. Ark. Feb. 3, 2017). The Arkansas court certified a nationwide “FCA Class” to pursue a common claim under the Fair Communications Act, as defined below:

All persons in the United States who, at any time within the applicable limitations period: (1) paid to use inmate calling services provided by Global Tel*Link (including its operating subsidiaries) to make or receive one or more interstate phone calls from a correctional facility during a period or time when Global Tel*Link paid the facility a commission of any type in connection with the interstate calls; and/or (2) paid deposit fees to Global Tel*Link in order to fund a prepaid account used to pay for any interstate calls.

(Id. at 21 (footnotes omitted)). The Arkansas court appointed four inmates-one each from Arkansas, Minnesota, Pennsylvania, and Texas- to represent the FCA Class. (Id.). The Arkansas court further certified four separate “UE” subclasses to pursue unjust enrichment claims under the laws of specified states, ...


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