prisoner's consumer protection claim against false advertising of music player should proceed

Mendoza v. Inch, 2019 WL 1901811, No. 18cv66-RH/CAS (N.D. Fla. Feb. 20, 2019) (report & recommendation)

Prisoners are an extremely vulnerable population; here a consumer protection claim may offer some hope despite the usual barriers to relief.  Mendoza alleged that the Florida Department of Corrections and its vendors (Access, Trinity, and Keefe) advertised an MP3 digital music player with various options and accessories. Buying the player player supposedly included updates of the latest music releases and the ability to own an unlimited amount of music. If the music player failed, purchased music could be transferred to a new device and there was no “mortality” date listed for the player. Mendoza bought a player and accessories, and as well as music which, at the time the complaint was filed, totaled over six hundred dollars.

Four years later, the DOC told inmates that it was ending its contract with Keefe/Trinity/Access and was entering a new contract with “JPay” to provide multimedia services. Inmates were told to mail out their existing music players, and that they would be required to obtain a new tablet to listen to music. Mendoza then learned that a “mortality timer” had been installed on his music player and it would become non-operational on January 23, 2019.

The magistrate recommended rejecting most of the defendants’ motions to dismiss, including that “no degree of redressability within this Court” because this “Court has no power to require a state agency to enter into any specific contract or remain contractually obligated to a specific entity.” The magistrate pointed out that it was far from clear that even injunctive relief would interfere with a DOC contract—requiring Mendoza to surrender his own property “appears to be a matter of DOC policy, not contract.” 

Eleventh Amendment immunity: Ex Parte Young allows injunctive relief, though not money damages, against the DOC.  The defendants argued that Mendoza wasn’t entitled “to any damages as he fails to state a physical injury.”  But anti-prisoner laws reject claims for mental or emotional injury; the relevant statute “does not specifically preclude an inmate from seeking compensatory damages for an actual injury such as the loss of property.”  A disparate impact claim failed, though (based on the idea that requiring surrender of the music player to someone outside the prison deprived inmates with longer/life sentences of more property).

The Florida Deceptive and Unfair Trade Practices Act claim was sufficiently pled, according to the magistrate. Defendants argued that allegations of “bait and switch” alone, without pointing to any unfair or deceptive practices, was insufficient to state a claim. But Mendoza alleged that the defendants made false representations in their ads on which he relied, including a promise that he could “own unlimited music” and Access Corrections would store all purchased songs, including deleted songs, and “give them back” to him whenever he desired “for free.” If the player ceased to function, the music would “be transferable to a new device, and there was absolutely no mortality (end) date advertised in advance.” This was sufficient.

The magistrate rejected Mendoza’s argument that he had a constitutional right not to be defrauded by the government—the law establishes that law enforcement is allowed to deceive people (though why that applies here, without a law enforcement purpose in sight, is mysterious to me)—but fortunately for him, he does have a statutory right not to be defrauded of his money in a sale, even without a constitutional right to buy a music player in the first place (as defendants argued).

Two of the private defendants argued that they weren’t “state actors” for purposes of 42 U.S.C. § 1983. Mendoza argued that the State “significantly encouraged the Defendant(s) to advertise and sell” him and other prisoners mp3 players and music, and that the State and all defendants profited from those sales; further, Florida allegedly “was a joint participant” with the private companies and engaged in collusion to render his device non-operational.  That was enough for “color of state law” for now. “Plaintiff’s allegation of a conspiracy and joint action distinguish this case from the cases cited by Defendants which hold that private parties operating canteens or selling commissary items are not acting under color of state law.”  [Again, the law leaves prisoners very, very exposed here.]

The magistrate also recommended preserving Mendoza’s state-law breach of contract claim.