VITO A. PELINO, Plaintiff, v. JON LOGAN, Defendant Civil Action No. 19-355 United States District Court, W.D. Pennsylvania Filed October 09, 2019 Counsel Vito A. Pelino, Waynesburg, PA, pro se. Jonathan F. Bloom, Karl S. Myers, Stradley Ronon Stevens & Young, LLP, Philadelphia, PA, for Defendant. Kelly, Maureen P., United States Magistrate Judge REPORT AND RECOMMENDATION I. RECOMMENDATION *1 Plaintiff Vito A. Pelino (“Plaintiff”), an inmate confined at the State Correctional Institution at Greene (“SCI-Greene”), initiated this pro se action arising out of allegations that Defendant Jon Logan (“Defendant”) violated the Stored Communications Act (“SCA”) by contracting with the Pennsylvania Department of Corrections (“DOC”) to electronically copy, store, and process DOC inmates’ incoming mail. ECF No. 1. Presently before the Court is Defendant’s Motion to Dismiss (“Motion to Dismiss”) and Brief in Support. ECF Nos. 22 and 23. Plaintiff opposes the Motion to Dismiss. ECF No. 37. For the reasons that follow, it is respectfully recommended that the Motion to Dismiss be granted. II. REPORT A. FACTUAL AND PROCEDURAL BACKGROUND Plaintiff initiated this action on January 14, 2019 by filing a Civil Complaint in the United States District Court for the Middle District of Pennsylvania. ECF No. 1. Because Plaintiff is incarcerated at SCI-Greene, which is located in the jurisdiction of the United States District Court for the Western District of Pennsylvania, the instant action was transferred to this Court on April 1, 2019. ECF No. 19. 1. Plaintiff’s Complaint In his Complaint, Plaintiff alleges that Defendant, the Chief Executive Officer (“CEO”) of Smart Communications Holding, Inc. (“Smart Communications”), violated the SCA by entering into a contract with the DOC to provide services to receive, electronically copy, store, and process incoming mail for DOC inmates. ECF No. 1 ¶ 6. The “Agreement for Processing Inmate Postal Mail,” (the “Contract”) was entered into between the DOC and Smart Communications on September 4, 2018. Id. at 17, 21. In the Contract, Smart Communications agreed to provide mail processing services for inmates using its “MailGuard” product, which “converts regular incoming postal mail into an electronic document.” Id. at 17. Defendant Logan, as CEO, signed the Contract on behalf of Smart Communications. Id. at 21. Plaintiff asserts that Defendant is in violation of the SCA because the DOC “never had the legal authority to authorize the Defendant to receive, electronically copy, store and process the Plaintiff’s incoming mail.” Id. ¶ 11. Plaintiff further alleges that because the DOC was not legally allowed to authorize the Defendant to process Plaintiff’s mail, that Defendant’s authorization was secured by “fraudulent or deceitful conduct,” and therefore violates the SCA. Id. ¶ 14. Plaintiff further claims that, as a result of this electronic mail processing, his family, friends and respondents in legal matters have been “forced to communicate with him through ‘Smart Communications.’ ” Id. ¶ 7. Plaintiff alleges that he has suffered injury because certain of his friends and family refuse to correspond with him “for fear of their communications and/or images being saved in Smart Communication’s database.” Id. In addition, he claims that Defendant and Smart Communications have, “on occasion,” not forwarded Plaintiff’s mail to his facility. Id. Based on these allegations, Plaintiff seeks injunctive, declaratory, and compensatory relief. Id. ¶¶ 15-17. 2. Defendant’s Motion to Dismiss *2 Defendant filed a Motion to Dismiss Plaintiff’s Complaint and Brief in Support on April 9, 2019. ECF Nos. 22 and 23. Plaintiff filed a Response and Brief in Opposition to Defendant’s Motion to Dismiss on May 20, 2019. ECF Nos. 36 and 37. The Motion to Dismiss is now ripe for consideration. B. STANDARD OF REVIEW In assessing the sufficiency of a complaint pursuant to a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the Court must accept as true all material allegations in the complaint and all reasonable factual inferences must be viewed in the light most favorable to the plaintiff. Odd v. Malone, 538 F.3d 202, 205 (3d Cir. 2008). The Court, however, need not accept bald assertions or inferences drawn by the plaintiff if they are unsupported by the facts set forth in the complaint. See Cal. Pub. Employees’ Retirement Sys. v. The Chubb Corp., 394 F.3d 126, 143 (3d Cir. 2004) (citing Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997)). Nor must the Court accept legal conclusions set forth as factual allegations. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). Rather, “[f]actual allegations must be enough to raise a right to relief above the speculative level.” Id. (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). Indeed, the United States Supreme Court has held that a complaint is properly dismissed under Fed. R. Civ. P. 12(b)(6) where it does not allege “enough facts to state a claim to relief that is plausible on its face,” id. at 570, or where the factual content does not allow the court “to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); see also Phillips v. County of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008) (finding that, under Twombly, “labels, conclusions, and a formulaic recitation of the elements of a cause of action” do not suffice but, rather, the complaint “must allege facts suggestive of [the proscribed] conduct” and that are sufficient “to raise a reasonable expectation that discovery will reveal evidence of the necessary element[s] of his claim”). Pro se pleadings and filings, “however inartfully pleaded,” must be held to “less stringent standards than formal pleadings drafted by lawyers.” Haines v. Kerner, 404 U.S. 519, 520 (1972). If the court can reasonably read pleadings to state a valid claim on which the litigant could prevail, it should do so despite failure to cite proper legal authority, confusion of legal theories, poor syntax and sentence construction, or the litigant’s unfamiliarity with pleading requirements. Boag v. MacDougall, 454 US. 364 (1982); U.S. ex rel. Montgomery v. Brierley, 414 F.2d 552, 555 (3d Cir. 1969) (A “petition prepared by a prisoner ... may be inartfully drawn and should ... be read ‘with a measure of tolerance’ ”); Freeman v. Dept. of Corrections, 949 F.2d 360 (10th Cir. 1991). Under our liberal pleading rules, a district court should construe all allegations in a complaint in favor of the complainant. Gibbs v. Roman, 116 F.3d 83 (3d Cir. 1997) (overruled on other grounds); see also Nami v. Fauver, 82 F.3d 63, 65 (3d Cir. 1996) (discussing Fed. R. Civ. P. 12(b)(6) standard); Markowitz v. Northeast Land Co., 906 F.2d 100, 103 (3d Cir. 1990) (same). However, there are limits to the court’s procedural flexibility: “pro se litigants still must allege sufficient facts in their complaints to support a claim ... they cannot flout procedural rules — they must abide by the same rules that apply to all other litigants.” Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 245 (3d Cir. 2013) (citations omitted). Accordingly, because Plaintiff is a pro se litigant, this Court will consider the facts and make inferences where it is appropriate. C. DISCUSSION *3 Plaintiff bases his claim on an alleged violation of the SCA. The SCA “bars unauthorized access to stored electronic communications,” and its general purpose is to “create a cause of action against computer hackers (e.g. electronic trespassers).” Thompson v. Ross, No. 2:10-cv-479, 2010 WL 3896533, at *2 (W.D. Pa. Sept. 30, 2010); Ideal Aerosmith, Inc. v. Acutronic USA, Inc., No. 07-1029, 2007 WL 4394447, at *6 (citing Int’l Ass’n of Machinists & Aerospace Workers v. Werner-Masuda, 390 F. Supp. 2d 479, 495 (D. Md. 2005)); see also In re Nickelodeon Consumer Privacy Litig., 827 F.3d 262, 276 (3d Cir. 2016) (noting that the SCA “aims to prevent potential intrusions on individual privacy arising from illicit access to stored communications in remote computing operations and large data banks that stored emails”) (citing In re Google Inc. v. Cookie Placement Consumer Privacy Litig., 806 F.3d 125, 145 (3d Cir. 2015) (internal quotations omitted)). In order to state a claim under the SCA, a plaintiff must show that the defendant “(1) intentionally accesses without authorization a facility through which electronic communication service is provided; or (2) intentionally exceeds an authorization to access that facility; and thereby obtains, alters, or prevents access to a wire or electronic communication while it is in electronic storage in such system.” 18 U.S.C. § 2701(a); In re Google Inc., 806 F.3d at 145-146. The statute provides a private cause of action for individuals “aggrieved by any violation of this chapter in which the conduct constituting the violation is engaged in with a knowing and intentional state of mind.” 18 U.S.C. § 2707(a). In the instant Motion to Dismiss, Defendant argues that the Complaint should be dismissed because there is no plausible claim that Defendant accessed, without authorization, a facility through which an electronic communication is provided. ECF No. 32 at 1-2. The Contract expressly authorizes the scanning of regular postal mail. Therefore, Defendant argues, there is no alleged interception of any stored electronic communication, as required to violate the SCA. Id. at 5. Plaintiff also does not identify any particular “facility” to which Defendant did not have authorized access. Id. By virtue of the Contract, he argues, the DOC granted Smart Communications authority to access relevant mail processing facilities and to open and scan inmate mail. Id. at 5-6. Finally, Defendant asserts that he is not a proper defendant, because he is not a party to the Contract. Id. at 6. He merely signed the Contract on behalf of Smart Communications in his capacity as CEO. Id. In his Brief in Opposition, Plaintiff argues that Smart Communications is the “facility through which an electronic communication service is provided,” because it receives incoming mail, electronically copies and stores it, and then emails it to the prison facility. ECF No. 37 ¶ 13. Plaintiff further argues that, because the DOC did not have the authority to hand over inmates’ mail to Smart Communications, any “authorization” to access inmates’ mail was obtained by “fraudulent or deceitful conduct,” and does not provide a defense to Plaintiff’s claim. Id. ¶¶ 17-20, 32. Finally, Plaintiff argues that Defendant is personally liable because he committed tortious activity; is a “contractor” within the meaning of the Contract; and is personally involved in the activities giving rise to his Complaint. Id. ¶¶ 24-30. Based on our review, the Court finds that the Complaint should be dismissed for failure to state a claim. Plaintiff does not plead that (1) Defendant accessed a facility through which electronic communication service is provided; and (2) that he did so without authorization. See 18 U.S.C. § 2701(a). Even if Plaintiff could establish that Smart Communications is a “facility through which electronic communication service is provided,” as he argues, there are no allegations that Defendant—the CEO of Smart Communications—accessed Smart Communications’ database without authority.[1] Instead, the “unauthorized” conduct alleged in the Complaint is the DOC’s purported lack of authority to provide inmates’ non-electronic mail to an outside vendor. This allegation does not give rise to a claim against this individual Defendant under the SCA, which protects against unauthorized access of electronically stored materials. Id.; see also Thompson, 2010 WL 3896533, at *3 (noting that, in order to violate the SCA, “the data must have been accessed or obtained while it was within the electronic storage of the electronic communications service itself”). As Plaintiff failed to allege the requisite elements of a violation of the SCA against the Defendant, Plaintiff’s Complaint should be dismissed pursuant to Rule 12(b)(6). D. CONCLUSION *4 For the foregoing reasons, it is respectfully recommended that Defendant’s Motion to Dismiss, ECF No. 22, be GRANTED. In accordance with the Magistrate Judges Act, 28 U.S.C. § 636(b)(1), and Local Rule 72.D.2, the parties are permitted to file written objections in accordance with the schedule established in the docket entry reflecting the filing of this Report and Recommendation. Objections are to be submitted to the Clerk of Court, United States District Court, 700 Grant Street, Room 3110, Pittsburgh, PA 15219. Failure to timely file objections will waive the right to appeal. Brightwell v. Lehman, 637 F.3d 187, 193 n. 7 (3d Cir. 2011). Any party opposing objections may file their response to the objections within fourteen (14) days thereafter in accordance with Local Civil Rule 72.D.2. Footnotes [1] To the extent Plaintiff seeks to hold Defendant liable with respect to the conduct of Smart Communications, the Court notes that “[a] defendant who is a provider of electronic communication service is immune from liability under § 2701.” Ideal v. Aerosmith. Inc. v. Acutronic USA, Inc., No. 07-1029, 2007 WL 4394447, at *6 (E.D. Pa. Dec. 13, 2007); see also Doe v. Hofstetter, No. 11-cv-02209, 2012 WL 2319052, at * (D. Colo. June 13, 2012) (holding no violation of the SCA occurred where defendant accessed account that he created).