Pamela Gilmore v. Cty. of Douglas ( 2005 )


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  •                     United States Court of Appeals
    FOR THE EIGHTH CIRCUIT
    ___________
    No. 04-1325
    ___________
    Pamela Gilmore,                       *
    *
    Appellant,                 *
    * Appeal from the United States
    v.                               * District Court for the
    * District of Nebraska.
    County of Douglas, State of Nebraska, *
    *
    Appellee.                  *
    ___________
    Submitted: February 17, 2005
    Filed: May 2, 2005
    ___________
    Before LOKEN, Chief Judge, RILEY, and SMITH, Circuit Judges.
    ___________
    SMITH, Circuit Judge.
    Pamela Gilmore brought an action against the County of Douglas under 
    42 U.S.C. § 1983
     alleging that the Douglas County Corrections Center (the DCCC)
    violated her Fourteenth Amendment equal protection rights by assessing her charges
    for collect telephone calls made to her from inmates in the facility. The district
    court1concluded that Gilmore failed to state a cause of action and dismissed the
    complaint pursuant to Fed. R. Civ. P. 12(b)(6). We affirm.
    1
    The Honorable Laurie Smith Camp, United States District Judge for the
    District of Nebraska.
    I. Background
    The DCCC is an inmate facility operated by Douglas County (the County) in
    Omaha, Nebraska. The County contracts with private telecommunications companies
    to provide inmates with telephone services at the DCCC. The private companies
    install and operate telephones at the DCCC. As part of the contract, the private
    companies charge recipients of collect calls for the outgoing calls made by inmates
    at the DCCC. The contracts require that the County receive 45% of the gross billable
    revenue that is generated from inmate calls. Collect calls originating from the DCCC
    are more expensive than normal collect calls.2
    Gilmore's daughter was incarcerated at the DCCC from September 2002
    through January 2003. During that time, Gilmore accepted collect calls from her
    daughter on a daily basis. Gilmore claimed that she needed to keep in constant
    communication with her daughter because she was caring for her daughter's children.
    After her release from the DCCC, Gilmore's daughter moved in with Gilmore. Then,
    Gilmore's daughter began to accept inmate initiated collect calls from the DCCC
    inmates that she befriended during her incarceration. These calls are reflected on
    Gilmore's phone bill.
    Gilmore filed a complaint against the County alleging that the 45% commission
    paid to the County by the DCCC's telecommunications providers is a tax or levy
    imposed on friends and relatives of inmates in violation of the Equal Protection
    Clause of the Fourteenth Amendment. She sought class certification and requested
    money damages and injunctive relief. The district court granted the County's motion
    to dismiss, and, in the process, denied class certification.3
    2
    The record in this case suggests that a 15-minute inmate-initiated call from
    the DCCC costs $2.30.
    3
    Gilmore does not appeal the district court's ruling with respect to class
    certification.
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    II. Discussion
    We review a district court's grant of a motion to dismiss for failure to state a
    claim de novo, taking all facts alleged in the complaint as true. Carter v. Arkansas,
    
    392 F.3d 965
    , 968 (8th Cir. 2004). A motion to dismiss should be granted only if it
    appears beyond doubt that the plaintiff can prove no set of facts to warrant a grant of
    relief. 
    Id.
     A district court must accept the allegations contained in the complaint as
    true, and all reasonable inferences from the complaint must be drawn in favor of the
    nonmoving party. Crumpley-Patterson v. Trinity Lutheran Hosp., 
    388 F.3d 588
    , 590
    (8th Cir. 2004).
    As a threshold matter, to establish the particular equal protection claim alleged
    by Gilmore, she must establish that some government action caused her to be treated
    differently from others similarly situated.4 Johnson v. City of Minneapolis, 
    152 F.3d 859
    , 862 (8th Cir.1998); Carter v. Arkansas, 
    392 F.3d 965
    , 968 (8th Cir. 2004).
    Gilmore has not alleged that she is a member of any suspect class or that a
    fundamental right has been infringed. When an equal protection claim is neither
    based on a "suspect class" or grounded in a fundamental right, it is subject to a
    rational basis review. Carter, 
    392 F.3d at 968
    ; City of Cleburne v. Cleburne Living
    Ctr., 
    473 U.S. 432
    , 446–47 (1985). Additionally, while we view facts alleged in the
    complaint as true, we recognize that "a legislative choice . . . may be based on rational
    speculation unsupported by evidence or empirical data." 
    Id.
     (quoting FCC v. Beach
    Communications, Inc., 
    508 U.S. 307
    , 315 (1993)). We have thus explained that
    because "all that must be shown is 'any reasonably conceivable state of facts that
    could provide a rational basis for the classification,' it is not necessary to wait for
    further factual development" in order to conduct a rational basis review on a motion
    to dismiss. 
    Id.
     (citations omitted).
    4
    In analyzing Gilmore's claim, the district court assumed that the charges
    assessed through the private telecommunications companies constituted action by the
    County under color of law. For purposes of this appeal then, we will also assume that
    Gilmore has properly alleged a claim arising out of some government action.
    -3-
    A. Similarly Situated
    In her complaint, Gilmore drew her equal protection analysis from a distinction
    between two classes of recipients of collect calls–those who receive telephone service
    in general including collect calls and those who receive collect calls from inmates at
    the DCCC. Gilmore's theory is that people who receive collect calls from inmates at
    the DCCC are treated differently from those general telephone service recipients who
    receive collect calls from callers not incarcerated at the DCCC. Accordingly, Gilmore
    asserted that the County was impermissibly levying a special tax exclusively on those
    persons who accepted collect calls from inmates at the DCCC in violation of their
    right to equal protection of the laws.
    The district court concluded that "[w]hile persons who receive collect calls
    from inmates and persons who receive collect calls from non-inmates may be
    similarly situated for many purposes, they are not similarly situated for purposes of
    the billing for such collect calls." Gilmore v. Douglas County, No. 8:03cv366, slip op.
    at 5 (D. Neb. Jan. 12, 2004). The district court's reasoning rested primarily on
    Daleure v. Kentucky, 
    119 F. Supp. 2d 683
    , 691 (W.D. Ky. 2000), where a federal
    district court, addressing a comparable issue, stated:
    The connection between the inmates and the recipients of their calls
    cannot be severed. It is the relationship to inmates alone that defines the
    group. If security precautions affect the telephone services that are
    available to inmates, this will inevitably impact the inmate call
    recipients. Thus, the real question is whether inmates and non-inmates
    are similarly situated. This court finds that they are not . . . . Because the
    recipients of inmate calls are not similarly situated with the recipients of
    non-inmate calls, Plaintiffs would have to allege they were discriminated
    against as compared to other recipients of inmate calls to state a
    supportable claim.
    -4-
    Thus, the district court recast the classifications drawn by Gilmore in her complaint
    finding no similar situation extant between those who received calls from DCCC
    inmates and those who received collect calls from the general public.
    Nonetheless, Gilmore's claim fails even when applying the classification drawn
    in her complaint. An equal protection analysis requires that plaintiffs be "similarly
    situated to another group for purposes of the challenged government action." Carter,
    
    392 F.3d at 969
    . This equal protection concept recognizes that "[u]sually one must
    look to the end or purpose of the legislation in order to determine whether persons are
    similarly situated in terms of that governmental system." See R. Rotunda, J. Nowak
    & J. Young, Treatise on Constitutional Law: Substance and Procedure § 18.2 (3d ed.
    1999). "Once a court has found an end of government which does not in itself violate
    the Constitution, it can analyze the way in which the government has classified
    persons in terms of that end." Id.
    Here, even assuming the money received by Douglas County is a tax, the
    purpose of this tax, as reasoned by the district court, was to recoup costs associated
    with the space and maintenance of the telephones provided to inmates. Under rational
    basis review, a plaintiff must show more than that the government treated two classes
    differently for some irrational reason, a plaintiff must show that the government
    intended to discriminate against one class. Batra v. Bd. of Regents of Univ. of
    Nebraska, 
    79 F.3d 717
    , 721 (8th Cir. 1996). In this case, the alleged government
    action is aimed at generating revenue to defray the costs of providing inmates with
    a specific service, it is not aimed at treating persons who receive collect calls from the
    DCCC differently from those who generally receive collect calls.
    Gilmore cites to several cases out of other jurisdictions relating to charges
    billed to the guardians of persons in state custody for services provided to the persons
    in state custody. See Dupes v. Dep't of Health and Rehabilitative Servs., 
    536 So.2d 311
     (Fla.App. 1 Dist. 1988); Van Daam v. Hegstrom, 
    744 P.2d 269
     (Ore. 1987); State
    -5-
    v. Miller, 
    472 A.2d 1272
     (Conn. 1984); In re Jerald C., 
    678 P.2d 917
     (Cal. 1984);
    Jesmer v. Dundon, 
    271 N.E.2d 905
     (N.Y. 1971). The cases are inapposite. Put simply,
    the government has not charged Gilmore as a guardian for services rendered to
    Gilmore's daughter. Rather, the charges Gilmore complains of resulted from services
    provided by the DCCC to inmates for making telephone calls to persons outside its
    facility. Gilmore is not obligated to accept collect calls from inmates at the DCCC.5
    B. Rational Basis
    Gilmore also contends that in judging the rational basis of the assumed
    government action, the district court erroneously relied on new and unsupported
    factual determinations in violation of the standards applied in a motion to dismiss.
    Gilmore seizes on the following statement in the court's order:
    The governmental unit operating any jail or prison must incur a variety
    of costs in order to provide inmates with access to telephone services.
    These costs include space, utilities, maintenance, security, and the time
    of administrative personnel.
    Gilmore v. Douglas County, No. 8:03cv366, slip op. at 5 (D. Neb. Jan. 12, 2004).
    Gilmore argues that there is nothing in her complaint to reveal to the court that the
    pay phone system at DCCC caused the County to incur these costs. Furthermore,
    Gilmore explains that the court improperly assumed that the charges for the calls were
    used to recoup costs.
    Generally, a district court is supposed to refrain from considering facts not
    referenced in a complaint when considering a motion to dismiss. See Inland
    Container Corp. v. Cont'l Ins. Co., 
    726 F.2d 400
    , 401 (8th Cir. 1984) (per curiam).
    5
    In addition, Gilmore's claim stems from inmates making collect calls to
    Gilmore's daughter. These charges do not even arguably relate the fee shifting in
    guardian cases cited by Gilmore.
    -6-
    However, in a case alleging a violation of equal protection that invokes a rational
    basis standard, "we presume legislation is valid and will sustain it if the classification
    drawn by the statute is rationally related to a legitimate [governmental] interest."
    Chance Mgmt., Inc. v. South Dakota, 
    97 F.3d 1107
    , 1114 (8th Cir. 1996), cert.
    denied, 
    519 U.S. 1149
     (1997) (citing City of Cleburne v. Cleburne Living Ctr., Inc.,
    
    473 U.S. 432
    , 440 (1985)). Gilmore has the burden of proving "that the classification
    is so attenuated to its asserted purpose that the distinction it draws is wholly arbitrary
    and irrational." 
    Id.
     at 1114 (citing City of Cleburne, 
    473 U.S. at 446
    ). She must,
    therefore, also negate "every conceivable basis which might support" the
    classification. Indep. Charities of Am., Inc. v. Minnesota, 
    82 F.3d 791
    , 797 (8th Cir.
    1996) (citing FCC v. Beach Communications, Inc., 
    508 U.S. 307
    , 315 (1993)).
    Gilmore casts her Equal Protection claim in the form of discriminatory
    taxation. When we review the constitutionality of a tax, the appropriate standard is
    one of "relaxed scrutiny," under which a statutory classification will stand if any
    characterization of the facts may reasonably be said to justify it. Richards v. C.I.R.,
    
    745 F.2d 524
    , 526 (8th Cir. 1984). Moreover, the government has "especially broad
    latitude in creating classifications and distinctions in tax statutes." 
    Id.
     (citing Regan
    v. Taxation with Representation of Wash., 
    461 U.S. 540
     (1983)).
    We must recognize that "a legislative choice . . . may be based on rational
    speculation unsupported by evidence or empirical data." FCC v. Beach
    Communications, Inc., 
    508 U.S. 307
    , 315 (1993). Thus, because "all that must be
    shown is 'any reasonably conceivable state of facts that could provide a rational basis
    for the classification,' it is not necessary to wait for further factual development."
    Knapp v. Hanson, 
    183 F.3d 786
    , 789 (8th Cir. 1999) (quoting Beach
    Communications, 
    508 U.S. at 313
     (1993)). Accordingly, the district court was within
    its discretion to formulate a conceivable basis for the government action at issue in
    this case. See Cuno v. DaimlerChrysler, Inc., 
    386 F.3d 738
    , 748 (6th Cir. 2004)
    (deciding rational basis on 12(b)(6) motion); see also Carter v. Arkansas, 392 F.3d
    -7-
    965, 968 (8th Cir. 2004) (explaining that a district court may conduct a rational basis
    review on a motion to dismiss).
    For the foregoing reasons, we affirm.
    ______________________________
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