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Akande v. U.S. Marshal Service

United States District Court, D. Connecticut

March 19, 2018

JASON S. AKANDE, Plaintiff,
U.S. MARSHALS SERVICE, et al., Defendants.


          Robert N. Chatigny United States District Judge.

         Plaintiff Jason Akande, a citizen of Nigeria, was convicted by a jury of conspiracy to make a false statement in a passport application, making a false statement in a passport application, and making a false statement to a government agency. He was sentenced to forty-one months' imprisonment and three years' supervised release. He brings this action under Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), seeking damages for his post-sentencing detention at the Donald W. Wyatt Detention Center, a privately operated prison in Rhode Island. He was detained at Wyatt for approximately one month beyond the expiration of his prison sentence, at which time he was transferred into the custody of Immigration and Customs Enforcement (“ICE”) for removal proceedings. He claims that because ICE failed to take him into custody within 48 hours of the expiration of his sentence, as provided by applicable regulations, [1] his continued detention thereafter violated his constitutional rights.[2]

         The named defendants are: John Doe 1, U.S. Marshals Service (“USMS”) Agent; John Doe 2, U.S. Bureau of Prisons (“BOP”) Agent; John Doe 3, “Inmate System Management Coordinator” at Wyatt; John Doe 4, U.S. Probation Officer; Geoffrey M. Stone, Assistant United States Attorney (“AUSA”); and Grace Ann Wisniewski, ICE Special Agent. Plaintiff has moved to amend the complaint to include a claim under the Fourth Amendment (ECF No. 94). The defendants who have appeared in the action have moved to dismiss the complaint (ECF Nos. 62, 79) and they oppose the proposed amendment.

         For reasons that follow, the motion to amend is granted and the amended complaint is deemed to include a claim based on the Fourth Amendment. The motions to dismiss are granted in part and denied in part. All claims against John Doe 3, John Doe 4, AUSA Stone and Agent Wisniewski are dismissed, as are the Eighth Amendment claims against John Doe 1 and 2. The remaining claims against John Does 1 and 2 - specifically claims alleging a violation of procedural due process and the Fourth Amendment -are sufficiently supported to warrant service on these defendants. The U.S. Attorney is called on to assist in identifying them.[3]

         I. Background

         A. Plaintiff's Allegations

         In 2005, plaintiff was arrested on state forgery and larceny charges and held at the Hartford Correctional Center. On May 24, 2005, he was indicted on federal charges of conspiracy to commit passport fraud, passport fraud, and making false statements to immigration authorities. See United States v. Akande, 3:05-cr-136-RNC (D. Conn.). On June 1, 2005, he appeared before a federal magistrate judge and was ordered detained. John Doe 1, a Deputy U.S. Marshal, was present. On May 22, 2006, plaintiff was sentenced in state court and on September 25, 2006, he was discharged from state to federal custody. He was later transferred to Wyatt pending trial on the federal charges.[4]

         On October 22, 2009, plaintiff was convicted in the federal case. On January 15, 2010, he was sentenced to forty-one months' imprisonment and three years' supervised release. Judgment entered on January 20. AUSA Stone and Agent Wisniewski were involved in investigating and prosecuting the case and were present for the sentencing. John Doe 4, the probation officer who prepared the presentence report, also attended the sentencing, as did John Doe 1 (or another Deputy Marshal).

         The sentence reflected a significant upward variance due to a combination of aggravating factors. The judgment explains the reasons for the sentence and because it was available to the defendants at the pertinent time it provides context for the plaintiff's claims:

After entering the United States without inspection, the defendant engaged in a fraudulent scheme to obtain lawful permanent residency. To achieve this objective, he induced a naive young woman, Chastidy Williams, to go through a marriage ceremony, which she soon regretted. He proceeded to use Ms. Williams and the unknowing services of numerous third parties to convince immigration authorities that he and Ms. Williams were living together in a bona fide marriage when in fact they were not. He also engaged in a fraudulent scheme to obtain a United States passport for his own use in order to be able to leave and re-enter the country. To achieve this objective, he offered to pay Samuel Carter, who was homeless, unemployed and in need of money, to apply for a passport using Carter's name and identifying information but the defendant's photograph. In addition to these frauds, the defendant has engaged in insurance fraud for which he has been convicted in state court. The defendant obstructed justice during the investigation of the present case by encouraging Ms. Williams to refuse to speak with agents and by coaching her regarding what she should say to them. Since his arrest in the present case, he has continually asserted that he is the innocent victim of a wide-ranging conspiracy involving federal and state prosecutors, investigators, judges, and his own defense counsel. He has initiated various legal proceedings, including grievances against his court-appointed counsel, claiming that he has been “sold out” by his counsel and unjustly convicted based on forged and fraudulent evidence. Proceeding pro se, he attempted to obstruct justice during the trial of the present case by making false representations to the jury during closing argument and urging them to conduct their own independent investigation. This course of conduct continued after the trial when the defendant sent correspondence to trial jurors containing misrepresentations and urging them to correct their verdict. The defendant's mental condition appears to be a factor in his overall conduct. However, he is fully competent, as demonstrated by his more than minimally adequate performance as his own counsel at trial, during which he artfully took advantage of his pro se status to “testify” in the guise of questioning witnesses without taking the stand and subjecting himself to cross-examination. The defendant's mental condition does not excuse his conduct. He knows what he is doing. His primary motivation appears to be to remain in the United States. To achieve this objective, he is persisting in a strategy of blaming others for his plight and pursuing multiple legal proceedings against his own counsel and others. In view of the totality of the circumstances, a sentence of imprisonment substantially in excess of the advisory range is necessary.

United States v. Akande, 3:05-cr-136(RNC) (ECF No. 408).

         Near the end of January 2010, while detained at Wyatt, plaintiff received a letter from BOP Agent John Doe 2 stating that he had been held in federal custody past his sentence expiration date. A copy of the letter was sent to John Doe 1 and John Doe 3, a Wyatt employee. There is no allegation that plaintiff took any action in response to the letter. In particular, there is no allegation that he complained to anyone about his continued detention. On February 18, 2010, plaintiff was transferred to ICE custody for removal proceedings. He was eventually removed to Nigeria several years later. He remained in the physical custody of ICE throughout the lengthy removal proceedings.

         B. Removal Proceedings

         The defendants have submitted documents related to plaintiff's removal proceedings. See Def. John Doe 3's Resp. to Order (ECF No. 112-1); Fed. Def.'s Supp. Resp. to Order (ECF No. 119). I take judicial notice of the documents.[5]

         On January 4, 2010, a non-defendant ICE Agent issued a “Warrant of Arrest of Alien” (Form I-200) and a “Notice of Custody Determination” (Form I-286). The Form I-200 stated that plaintiff was subject to being taken into custody by ICE based on evidence showing that he was in the country illegally. The Form I-286 stated that the Agent had determined that plaintiff should be detained by ICE without bond pending removal proceedings. On January 19, 2010, Agent Wisniewski served plaintiff with the Form I-200, Form I-286, and a “Notice to Appear” (Form I-862).[6] The Form I-862 ordered him to appear before an immigration judge at an unspecified date and time.

         Agent Wisniewski also lodged an “Immigration Detainer -Notice of Action” (Form I-247) with Wyatt on January 19, 2010. The Form I-247 requested that Wyatt notify ICE “of the time of [the plaintiff's] release at least 30 days prior to [his] release or as far in advance as possible.” It also stated “[f]ederal regulations (8 C.F.R. § 287.7) require that you detain the alien for a period not to exceed 48 hours (excluding weekends and Federal holidays) to provide adequate time for ICE to assume custody of the alien.” A non-defendant ICE Agent lodged a second Form I-247 on February 17, 2010, one day before plaintiff was taken into ICE custody.

         C. Procedural History

         Plaintiff's initial complaint, filed pro se, was dismissed for failure to state a claim. Plaintiff appealed and the Court of Appeals remanded for consideration of whether plaintiff sufficiently alleged constitutional violations or should be allowed to amend the complaint. Plaintiff moved for leave to file an amended complaint that included some new allegations and a different group of defendants. Leave to amend was granted but the amended complaint was dismissed for failure to state a claim.

         Plaintiff again appealed, and the Court of Appeals again remanded to allow plaintiff “one more opportunity” to amend his complaint. Akande v. U.S. Marshals Serv., 659 F. App'x 681, 685 (2d Cir. 2016). The Court of Appeals ruled that plaintiff might be able to allege a plausible claim regarding his detention at Wyatt between January 15 and February 18, 2010, before he was transferred to ICE custody. The mandate states that plaintiff alleges (or could allege) “that he had a right to be released from federal prison when his federal sentence ended absent some indication (such as a warrant) that another agency had lawfully exercised its authority over him.” Id. at 683.

         Following the remand, plaintiff was directed to file an amended complaint in accordance with the mandate (ECF No. 51).[7] Plaintiff moved to amend his complaint but did not include a proposed amended complaint that complied with the mandate (ECF No. 52). Plaintiff stated he could not amend his complaint as directed because his “legal papers” had been confiscated.[8] In an attempt to get the case moving, I construed the existing amended complaint as the operative pleading and appointed amicus counsel to identify and brief plaintiff's strongest claims (ECF No. 54).[9]

         II. Legal Standard

         A complaint must plead “enough facts to state a claim to relief that is plausible on its face, ” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007), and “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). Factual allegations are accepted as true and viewed in the light most favorable to the plaintiff. Id. “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, ” are disregarded. Id. In addition, a pro se complaint must be liberally construed to “raise the strongest arguments it suggests.” Abbas v. Dixon, 480 F.3d 636, 639 (2d Cir. 2007).

         III. Discussion

         Plaintiff and amicus counsel state that the amended complaint raises two claims: (1) an Eighth Amendment claim based on the defendants' deliberate indifference to plaintiff's right to be released when his sentence expired, and (2) a due process claim based on his unauthorized detention. In addition, plaintiff seeks leave to amend the complaint to add a claim based on the Fourth Amendment.

         Defendants move to dismiss arguing that plaintiff has failed to state a plausible claim and further amendments would be futile. John Doe 3 argues that a Bivens action cannot be maintained against him because he is an employee of a privately operated prison. AUSA Stone and Agent Wisniewski argue that they and any other unnamed federal employees -- including John Does 1, 2, and 4 -- are entitled to absolute or qualified immunity.

         I conclude that plaintiff's motion to amend to add a Fourth Amendment claim should be granted, all claims against John Doe 3, John Doe 4, AUSA Stone and Agent Wisniewski should be dismissed, and the Eighth Amendment claim against John Does 1 and 2 should be dismissed based on qualified immunity. I also conclude that John Does 1 and 2 are potentially liable for a violation of procedural due process and the Fourth Amendment and call on the U.S. Attorney to assist in identifying these defendants so they can be served.

         A. Mo ...

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