William Demler, a 74-year-old incarcerated man at South Florida Reception Center is the lead plaintiff in the case, which was filed in the northern U.S. District Court on Tuesday with the backing of the nonprofit legal firm, the Florida Justice Institute.
In 2012, Demler first bought an MP3 player while incarcerated at Hamilton Correctional Institution in Jasper. Over the next few years, he purchased about 335 songs, spending nearly $700 all told on the player and accessories. He is seeking to form a class with similarly situated inmates.
Demler's grievance about losing his music was first reported by the Times-Union in August after inmates sent scores of letters with similar complaints to the newsroom.
Over the course of the Access contract, which dates back to 2014, more than 30,299 media players were sold and 6.7 million songs downloaded — about $11.3 million worth of music.
The department ditched the contract in 2017 in favor of a more lucrative multimedia tablet deal with JPay, rendering all past purchases irrelevant.
The complaint details the rollout and advertising of the Access program. It quotes ad copy directed toward inmates promising, "Once music is purchased, you'll always own it!"
"These men and women relied on representations made by the FDOC and its vendor that, once purchased, they would own these songs and books for the duration of their incarceration," Josh Glickman, an attorney for the Social Justice Law Collective, also backing the suit, said in a statement.
Glickman continued, "The FDOC's confiscation of these individuals' lawfully purchased property — for no reason other than to turn a profit —is simply unconscionable."
The Times-Union has asked the Department of Corrections for comment on the pending lawsuit.
The Florida Justice Institute has a lengthy track record of mounting class actions against the department over prison conditions. The media player complaint alleges violations of the Takings and Due Process clauses of the U.S. Constitution.
If certified, the class could be sprawling in scale. Inmates filed grievances about the mp3 program so frequently that the Department of Corrections created a separate category in December 2017 to track hundreds of related grievance appeals at the administrative level.
The fallout from the media player contract is one example of how inmates are often on the losing end in the Department of Corrections' various dealings with the private companies that do profitable business in state prisons.
The department, meanwhile, has positioned itself to generate more cash than ever. Commissions from its JPay contract are spiking and its prison canteens are bringing in about $35 million or more per year.
Securus Technologies, the department's former phone vendor, sued the agency last month, claiming it was going around the Legislature to collect a "wish list of goodies" from its new phone contract rather than negotiate for lower calling rates.
PROMISES UNKEPT
The Department of Corrections published numerous ads and posted them in various institutions, the lawsuit claims, in an effort to encourage prisoners to purchase digital media players, files, and accessories.Besides touting the media player's memory capacity, operating power, and screen size, at least one widely distributed advertisement, which appeared on the digital media player order form, promised that inmates would always own the music they purchased.
"Notably, the same advertisement that promised participating FDOC prisoners that they would 'always own' the digital media files they had purchased listed only one restriction," the lawsuit said, "that each FDOC prisoner was only permitted to possess one digital media player at any given time."
A user guide informed inmates that they were allowed to delete and re-order digital media files they had purchased from a cloud-based library at any time, with no additional cost, according to the lawsuit.
"You will never be charged for a song that is ordered from the Re-Order manager," the guide said. "After all, you have already paid for the song once, we don't think you should ever have to pay for it again."
Attorneys were unable to uncover any written warnings or suggestions that purchases made through the Access program would only be available for use during the span of the contract, according to lawsuit.
Media players were first sold in 2011 under a different vendor, according to the lawsuit. When the department signed its contract with Access in 2014, it ensured that inmates would be able to transfer the music purchases they already made.
"It is the intent of the department that the implementation of the new digital player program have little or no financial impact on inmates presently participating in the department's current program," the old contract language said, according to the lawsuit.
The latest round of media player negotiations with JPay included no such protections, the lawsuit said.
CUT OFF
The Department of Corrections officially terminated its contract with Access in April 2017, entering that same month into a new agreement with JPay that would bring the Florida-based company's multimedia tablets to every facility.Beginning in January 2018, inmates lost access to their cloud-based libraries, preventing them from downloading previously purchased music and books, according to the lawsuit.
Prisoners who chose not to receive a JPay tablet were given a deadline of January 23, 2019 to surrender their digital media players, the lawsuit said.
Inmates who are forced to give up their digital media players and files were given the option to mail the player back to Access Corrections to have its security timer removed and mailed to someone outside of the prison for a fee of $25, or have the files from the player transferred to a CD and mailed to someone outside prison for the same fee.
"The option to send the player and/or files to someone outside of prison does not cure the problem," the lawsuit claims. " ... Prisoners purchased the digital players and music to listen to them and enjoy them while in prison — not at some unspecified time in the future."
Beyond that, many of the inmates who purchased media files were serving life sentences or equivalent sentences, the complaint said. Others have no family or friends outside prison who would be able to receive a player or CD, it continued.
"For these prisoners in particular, the option to mail out the player is completely illusory," the complaint said.
Demler, for example, is serving a life sentence, and remains in contact only with his 92-year-old uncle, "who has no use for Mr. Demler's digital music player and/or files," according to the lawsuit.
The lawsuit emphasizes that state prison inmates don't have Internet access, and many don't have access to AM/FM radios, or meaningful work assignments.
In a 2017 grievance filed with the Department of Corrections, Demler complained that the agency "promoted the MP3 Program and encouraged participation to ensure a larger share in the profits made by Access Corrections."
"Discontinuing the program and forcing inmates to give up their players without compensation amounts to an act of fraud," he said.
©2019 The Florida Times-Union (Jacksonville, Fla.). Distributed by Tribune Content Agency, LLC.
