Akande v. United States Marshal Service et al

Filing 120

ORDER granting 62 Motion to Dismiss and 94 Motion to Amend/Correct; granting in part and denying in part 79 Motion to Dismiss. Please see attached Ruling & Order for details. All claims against John Doe 3, John Doe 4, Assistant U.S. Attorney Ge offrey Stone, and ICE Special Agent Wisniewski are hereby dismissed with prejudice. The case will continue as to John Does 1 and 2. The U.S. Attorney will undertake to identify them and file a statement on the docket containing their names and addresses for service of process on or before April 9, 2018. Once served, they will have an opportunity to file a motion to dismiss on any basis. So ordered. Signed by Judge Robert N. Chatigny on 3/19/18. (Jones, P.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
JASON S. AKANDE,
Plaintiff,
v.
U.S. MARSHALS SERVICE,
et al.,
Defendants.

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Case No. 3:11cv1125(RNC)

RULING AND ORDER
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.
denied in part.

The motions to dismiss are granted in part and
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

1

See 8 C.F.R. § 287.7(d) (“Upon a determination by the
Department to issue a detainer for an alien not otherwise
detained by a criminal justice agency, such agency shall maintain
custody of the alien for a period not to exceed 48 hours,
excluding Saturdays, Sundays, and holidays in order to permit
assumption of custody by the Department.”).
2

Plaintiff’s damages theory appears to be that had he been
released from Wyatt, he could have absconded to England in
violation of the conditions of his supervised release and thus
avoided removal to Nigeria, where he currently resides.
2

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.
136-RNC (D. Conn.).

See United States v. Akande, 3:05-cr-

On June 1, 2005, he appeared before a

federal magistrate judge and was ordered detained.
Deputy U.S. Marshal, was present.

John Doe 1, a

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

3

After John Does 1 and 2 are served, they will have an
opportunity to file a motion to dismiss. Nothing in this ruling
is binding on them with regard to the timeliness or sufficiency
of the plaintiff’s allegations, and nothing in this ruling limits
their ability to raise any arguments or defenses, substantive or
procedural, that they wish to raise in opposition to the
plaintiff’s claims.
4

Plaintiff was transferred to the custody of the U.S.
Marshal on September 25, 2006, but he remained in the physical
custody of the state until December 9, 2008, when he was
3

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.
entered on January 20.

Judgment

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 reenter 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

transferred to Wyatt.
4

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

5

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.
eventually removed to Nigeria several years later.

He was

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

5

In considering a motion to dismiss, a court may take
judicial notice of a fact that is “not subject to reasonable
dispute because it . . . can be accurately and readily determined
from sources whose accuracy cannot reasonably be questioned.”
Fed. R. Evid. 201; see Kramer v. Time Warner Inc., 937 F.2d 767,
773 (2d Cir. 1991). Properly authenticated immigration warrants,
detainers, and notices fall within this definition. Cf. Salemo v.
Murphy, No. 11-cv-2525, 2012 WL 4714765, at *8 (S.D.N.Y. Sep. 27,
2012) (taking judicial notice of warrant submitted by government
agent defendants); Guerrier v. Quillan, No. 10-civ-9453-CM, 2011
WL 4916295, at *3 (S.D.N.Y. Oct. 14, 2011) (same). Plaintiff
objects to judicial notice of these forms, claiming they are
forged. See Pl.’s Motions to Hire Forensic Experts and for
Sanctions (ECF Nos. 114, 115). He provides no basis for this
assertion, however. I therefore take judicial notice of the
forms.
6

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

6

Agent Wisniewski signed a certificate of service on January
19, 2010. Plaintiff refused to sign the certificate.
7

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

7

The Court of Appeals had stated that consideration should
be given to appointing counsel to represent the plaintiff. After
due consideration, I concluded that undertaking to obtain counsel
for the plaintiff would be counter-productive. I thought that
trying to find a lawyer who would agree to represent the
plaintiff would be difficult and time-consuming in view of his
history of filing grievances and lawsuits against his counsel.
8

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.

More fundamentally, plaintiff prefers to represent himself. In
addition to representing himself in the criminal case before this
court, he has filed numerous cases pro se in this district and
elsewhere. See Akande v. Jepsen, No. 3:16-cv-2137 (JCH) (D.
Conn.); Akande v. Hassell, 4:12-cv-3612-RBP-HGD (N.D. Ala.)
Akande v. Doe, No. 12-10741-RWZ (D. Mass.); Akande v.
Crutchfield, No. 11-12288-RW (D. Mass.); Akande v. Baldwin, No.
11-11291-GAO (D. Mass.); Akande v. Long, No. 3:10-cv-1568 (RNC)
(D. Conn.); Akande v. Koffsky, No. 3:10CV1062 (RNC) (D. Conn.);
Akande v. Graser, No. 3:08cv188 (WWE) (D. Conn.); Akande v.
Sobol, No. 3:09CV1663 (RNC) (D. Conn.); Akande v. Essington, No.
3:08CV679 (JCH) (D. Conn.); Akande v. Thibault, No. 3:06cv936
(PCD) (D. Conn.); Akande v. Estremera, No. 3:06CV873 (AWT) (D.
Conn.).
8

Plaintiff has made similar allegations in some of his
other cases.
See Akande v. Doe, No. 12-10742-RWZ, 2012 WL
165891 (D. Mass. May 10, 2012); Akande v. Crutchfield, No. 1112288-RWZ, 2012 U.S. Dist. LEXIS 64212(D. Mass. May 8, 2012).
9

In addition to the “federal incarceration overtime” claim,
the amended complaint raises various issues related to, among
other things, plaintiff’s receipt of “good time credits,” his
conditions of confinement, and alleged racial discrimination by
investigators. Because the mandate’s scope is limited to the
prolonged detention claim, I do not address other issues.
9

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,
10

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. Motion to Amend
Plaintiff moves to amend the complaint to add a Fourth
Amendment claim (ECF No. 94).

Defendants argue that the proposed

amendment is time-barred under the applicable statute of
limitations (ECF No. 106, 112).

Plaintiff has not responded to

this argument but it appears that the proposed amendment probably
would relate back to the date of the original complaint.

See

Fed. R. Civ. P. 15(c) (“An amendment to a pleading relates back
to the date of the original pleading when . . . the amendment
asserts a claim or defense that arose out of the conduct,
transaction, or occurrence set out - or attempted to be set out in the original pleading . . . .”).

In view of the relation back

doctrine, I assume for present purposes that the claim is not

11

time-barred.10
Apart from the issue of timeliness, plaintiff’s request for
leave to amend is complicated by his failure to comply with the
order directing him to file an amended complaint in conformity
with the mandate on or before January 16, 2017.

As discussed

above, he claimed that he could not comply with the order due to
the confiscation of his legal papers.

The defendants

subsequently filed renewed motions to dismiss on March 3 and
April 24, 2017.

Plaintiff filed the present motion to amend on

May 31, 2017, several months after the January 16 deadline.
Plaintiff claims that “newly discovered evidence” supports a
claim based on the Fourth Amendment, but he cites no such
evidence.

He also does not explain why he could not have added a

Fourth Amendment claim prior to the January 16 deadline or, for
that matter, at the time of his original complaint.
Though plaintiff may have willfully failed to comply with
the order requiring him to file an amended complaint in
accordance with the mandate by the January 16 deadline, I don’t
think his noncompliance should preclude from raising a claim
based on the Fourth Amendment.

Under Rule 15, leave to amend

ordinarily should be granted when it promotes resolution of
issues on the merits and there is no prejudice to the opposing

10

As noted earlier, once John Does 1 and 2 are identified
and served, they may move to dismiss on any basis.
12

party.

Permitting the plaintiff to add a claim under the Fourth

Amendment facilitates a resolution on the merits and causes no
prejudice.

Moreover, it is doubtful that plaintiff’s failure to

raise a Fourth Amendment claim at an earlier point in the
litigation was tactical.

It is more likely that he did not

realize he might have a Fourth Amendment claim until after he
read the defendants’ briefs in support of the motions to dismiss.
In view of the plaintiff’s pro se status, which requires that his
allegations be interpreted to raise the strongest arguments they
suggest, I conclude that the motion to amend should be granted.
Accordingly, the amended complaint is deemed to include a claim
based on the Fourth Amendment.
B. John Doe 3, John Doe 4, AUSA Stone and Agent Wisniewski
i. Bivens Actions Against Private Parties
Under Bivens and its progeny, a plaintiff may bring an
action for damages against a federal officer alleged to have
violated certain constitutional rights, including the rights
plaintiff has invoked here.

See generally Correctional Servs.

Corp. V. Malesko, 534 U.S. 61, 66-70 (2001).

However, implying

the existence of a Bivens action is inappropriate when the “claim
focuses on a kind of conduct that typically falls within the
scope of traditional state tort law” and “state tort law provides
an ‘alternative, existing process’ capable of protecting the
constitutional interests at stake.”

13

Minneci v. Pollard, 565

U.S. 118, 125 (2012) (quoting Wilkie v. Robbins, 551 U.S. 537,
550 (2007).
John Doe 3 argues that, as an employee of a privately
operated prison, he is not subject to suit under Bivens.

His

argument is supported by recent case law declining to recognize
Bivens claims in the context of privately operated prisons.

See

Minneci, 565 U.S. at 131 (plaintiff may not bring Bivens claim
alleging deliberate indifference to medical needs against
“privately employed personnel working at privately operated
federal prison”); Malesko, 534 U.S. at 70-73 (ability of prisoner
to bring state tort law damages action against employee of
privately managed prison weighed against implying existence of
Bivens remedy against prison-management company).
Plaintiff argues that his case is distinguishable from
Minneci because that case involved only an Eighth Amendment
claim, whereas his case involves other claims as well.

Amicus

counsel argues that the Court should recognize the existence of a
Bivens claim because the analogous state law claim -- false
imprisonment under Rhode Island law -- is narrower in scope than
the constitutional claims plaintiff has raised here.
I agree with John Doe 3 that he is not subject to suit under
Bivens.

The principal question is “whether, in general, state

tort law remedies provide roughly similar incentives for
potential defendants to comply with the [constitutional

14

provision] while also providing roughly similar compensation to
victims of violations.”

Minneci, 565 U.S. at 129.

The analogous

“[s]tate-law remedies and a potential Bivens remedy need not be
perfectly congruent.”

Id.

There is no reason to think Rhode

Island tort law fails to provide incentives for employees at
Wyatt to release prisoners whose sentences have expired.

Nor is

there any reason to think a successful suit under Rhode Island
law would fail to provide a prisoner with reasonable compensation
comparable to that available under Bivens.
ii. Personal Involvement
“[A] plaintiff bringing a Bivens claim ‘must plead that each
Government-official defendant, through the official’s own
individual actions, has violated the Constitution.’” Ganek v.
Leibowitz, 874 F.3d 73, 92 (2d Cir. 2017) (quoting Ashcroft v.
Iqbal, 556 U.S. 662, 676 (2009)).

Plaintiff adequately alleges

personal involvement in the alleged violation of his rights on
the part of Deputy Marshal John Doe 1 and BOP Agent John Doe 2
because his allegations, generously construed, support an
inference that they were responsible for his post-sentencing
detention at Wyatt and continued to detain him after they knew
his sentence had expired.

See also 18 U.S.C. § 3621 (person

sentenced to imprisonment “shall be committed to the custody of
the [BOP]”); 28 C.F.R. § 0.111(k) (USMS retains custody of
federal prisoners until committed to BOP); Judgment, Akande,

15

3:05-cr-136(RNC) (ECF No. 408) (Jan. 20, 2010) (stating the
“defendant is hereby committed to the custody of the [BOP]”).
However, the amended complaint includes no allegations
suggesting that AUSA Stone or John Doe 4 (the probation officer)
were personally involved in the alleged violation.

Plaintiff

alleges that they were part of the federal “prosecution team” and
he asserts that they knew his sentence was effectively a sentence
of time-served.

But he does not allege facts permitting an

inference that either of them caused his continued detention at
Wyatt.
Plaintiff also fails to allege facts showing personal
involvement in the alleged violation on the part of Agent
Wisniewski.

The detainer form she signed on January 19, 2010,

requested Wyatt to hold the plaintiff for up to 48 hours beyond
the expiration of his sentence to allow ICE to effect an arrest
based on the immigration warrant.

Plaintiff’s allegations do not

support a reasonable inference that Agent Wisniewski had a duty
to arrange for his release into noncustodial status after that
48-hour period expired.

Any legal duty to release the plaintiff

into the community at that point, assuming such a duty existed,
rested with the agency responsible for his continued confinement
–- the USMS or BOP -- not ICE.

See Julio Trujillo Santoyo v.

United States, No. 5:16-CV-855-OLG, 2017 WL 6033861, at *4 (W.D.
Tex. Oct. 18, 2017) (dismissing unlawful detention claims against

16

ICE agents who filed detainer but failed to arrest plaintiff,
where plaintiff was held by municipal defendant for additional 76
days beyond 48-hour window).
C. John Doe 1 and John Doe 2
i. Qualified Immunity Standard
“Qualified immunity shields federal and state officials from
money damages unless a plaintiff pleads facts showing (1) that
the official violated a statutory or constitutional right, and
(2) that the right was ‘clearly established’ at the time of the
challenged conduct.”

Ashcroft v. al-Kidd, 563 U.S. 731, 735

(2011); see District of Columbia v. Wesby, 138 S.Ct. 577, 589-90
(2018).

Qualified immunity is an affirmative defense, but a

motion to dismiss based on qualified immunity may be granted if
“the facts supporting the defense appear on the face of the
complaint.”

McKenna v. Wright, 386 F.3d 432, 436 (2d Cir. 2004)

(citation omitted).
“To determine whether a right is clearly established,
[courts] look to (1) whether the right was defined with
reasonable specificity, (2) whether Supreme Court or court of
appeals case law supports the existence of the right in question,
and (3) whether under preexisting law a reasonable defendant
would have understood that his or her acts were unlawful.”

Scott

v. Fischer, 616 F.3d 100, 105 (2d Cir. 2010) (citation omitted).
Even if no Supreme Court or Court of Appeals precedent is

17

directly on point, a right may be clearly established if
decisions by the Court of Appeals or other courts “clearly
foreshadow a particular ruling on the issue.”
omitted).

Id. (quotation

“It is not enough that the rule is suggested by then-

existing precedent.

The precedent must be clear enough that

every reasonable official would interpret it to establish the
particular rule the plaintiff seeks to apply.”

Wesby, 138 S. Ct.

at 590; see also Malley v. Briggs, 475 U.S. 335, 341 (1986)
(qualified immunity protects “all but the plainly incompetent or
those who knowingly violate the law”).
ii. Eighth Amendment
The Court of Appeals has “suggested . . ., and other courts
within and without this Circuit have held, that detention beyond
that authorized by law may violate the Eighth Amendment.”

Sudler

v. City of New York, 689 F.3d 159, 169 n.11 (2d Cir. 2012)
(citing Calhoun v. N.Y. State Div. of Parole Offs., 999 F.2d 647,
654 (2d Cir. 1993); Sample v. Diecks, 885 F.2d 1099, 1108-10 (3d
Cir. 1989); Haygood v. Younger, 769 F.2d 1350, 1354-55 (9th Cir.
1985)).

“To establish an Eighth Amendment violation, [a

plaintiff] must show: (1) a deprivation that is objectively,
sufficiently serious . . . and (2) a sufficiently culpable state
of mind on the part of the defendant official, such as deliberate
indifference to inmate health or safety.”

18

Jabbar v. Fischer, 683

F.3d 54, 57 (2d Cir. 2012) (quotation omitted).11
Continued detention of a sentenced prisoner after the
expiration of his sentence can entail a “sufficiently serious”
deprivation under the Eighth Amendment if it lasts for a
“significant period beyond” the expiration date.
F.2d at 1109.
sufficient.12

See Sample, 885

Many courts have found lengthy periods
But, as the mandate states, the minimum period of

time required to support a constitutional claim is “not a settled
issue.”

Akande, 659 F. App’x at 684 (citation omitted).

The

Court of Appeals has held that five days is not sufficiently
serious.

Calhoun, 999 F.2d at 654.

Some courts have held that

periods longer than five days -- including periods approaching

11

Because plaintiff was detained following the expiration
date of his sentence based on the ICE detainer, his claim may be
governed by the Fourth Amendment and the Due Process Clause of
the Fifth Amendment, rather than the Eighth Amendment. See
Morales v. Chadbourne, 793 F.3d 208, 217 (1st Cir. 2015)
(plaintiff who was detained based solely on ICE detainer was
“subjected to a new seizure for Fourth Amendment purposes”
because she was “kept in custody for a new purpose after she was
entitled to release”); Darnell v. Pineiro, 849 F.3d 17, 29 (2d
Cir. 2017) (pretrial detainee’s claims of unconstitutional
conditions of confinement governed by due process, not Eighth
Amendment). Even so, I address the motions to dismiss as if the
Eighth Amendment does apply.
12

See, e.g., Haygood, 769 F.2d at 1353 (five years); Sample,
885 F.2d at 1112 (270 days); Shorts v. Bartholomew, 255 Fed.
Appx. 46, 51 (6th Cir. 2007) (219 days); Alston v. Read, 678 F.
Supp. 2d 1061, 1076 (D. Haw. 2010) (145 days), rev’d on other
grounds 663 F.3d 1094 (9th Cir. 2011).
19

thirty-four days -- are insufficient.13

At the time of the

events at issue here, one district court in this Circuit had
ruled without much discussion that forty-seven days is
sufficient.

See Rivera v. Carroll, No. 07-cv-7847 (RJS), 2009 WL

2365240, at *7 (S.D.N.Y. Aug. 3, 2009).

Since then, courts in

this Circuit have held that periods up to twenty-one days are
insufficient.

See Brunson v. Duffy, 14 F. Supp. 3d 287, 294

(S.D.N.Y. 2014); Hayes v. Annucci, No. 14-CV-8845 (NSR), 2016 WL
1746109, at *5 (S.D.N.Y. Apr. 29, 2016).
Accepting plaintiff’s allegations as true, he received
notice from the BOP in late January that his sentence had
expired.

As of that date, John Does 1 and 2 may have understood

that plaintiff was entitled to be released unless ICE assumed
legal custody.

ICE does not take custody of every person

potentially subject to removal.

In this case, however, because

the plaintiff had been convicted of multiple federal and state
offenses involving fraud, the Attorney General was required by
law to take him into custody for removal proceedings.14

In

13

See Herron v. Lew Sterrett Justice Ctr., No. 3:07-cv-0357N, 2007 WL 2241688, at *1 (N.D. Tex. Aug. 6, 2007) (31 days);
Brims, 2004 WL 1403281, at *2 (6 days).
14

ICE initially charged plaintiff under 8 U.S.C. §
1227(a)(2)(A)(ii), which makes deportable any alien who has been
convicted of two crimes of “moral turpitude.” As a result, he
was subject to mandatory detention. See 8 U.S.C. § 1226(c)(1)
(“The Attorney General shall take into custody any alien who . .
. is deportable by reason of having committed any offense covered
in section 1227(a)(2)(A)(ii) . . . .”). ICE later withdrew the
20

addition, ICE had informed Wyatt that it was going to detain him
pending removal proceedings and ICE had requested sufficient
notice prior to the expiration of his sentence to enable it to
take him into custody within the 48-hour window provided by the
regulations.

ICE took custody of the plaintiff on February 18,

approximately two to three weeks after it became known that his
sentence had expired.

Under the cases cited above, detaining the

plaintiff for this brief period of time to enable ICE to take him
into custody did not violate the Eighth Amendment.
Assuming that at some point during this period of time the
length of plaintiff’s continued confinement did become
sufficiently serious to violate the Eighth Amendment, it would
not have been clear to every officer in the position of John Does
1 and 2 that the constitutional limit had been exceeded.

See

Wesby, 138 S.Ct. at 590 (“clearly established” standard requires
that the legal principle clearly prohibit officer’s conduct in
the particular circumstances before him).

Accordingly,

plaintiff’s Eighth Amendment claim is dismissed.
iii. Due Process
It is well-established that “an inmate has a liberty
interest in being released upon the expiration of his maximum

moral turpitude charge because the underlying convictions were on
direct appeal, and plaintiff was ordered removed on another
basis. See Akande v. Hassell, 4:12-cv-3612 (RBP)(HGD), 2013 WL
5774953, at *1 n.1 (N.D. Ala. Aug. 21, 2013).
21

term of imprisonment.”

Calhoun, 999 F.2d at 653.

When the

inmate is held on a federal sentence, this liberty interest is
protected by the Due Process Clause of the Fifth Amendment, which
plaintiff invokes here. See Zadvydas v. Davis, 533 U.S. 678, 690
(2001).

Whether plaintiff is claiming a violation of substantive

or procedural due process or both is unclear.15

I address both

theories and conclude that he cannot establish a substantive due
process claim but may be able to establish a procedural due
process claim.
a. Substantive Due Process
Some courts analyze prolonged detention claims under the
rubric of substantive due process.

See Davis, 375 F.3d at 718;

Armstrong v. Squadrito, 152 F.3d 564, 577 (7th Cir. 1999).

It is

not clear that substantive due process, rather than a more
specific constitutional provision, applies to plaintiff’s
detention after his sentence expired.16

Even assuming it does,

15

The mandate cites one case involving a substantive due
process claim, see Davis v. Hall, 375 F.3d 703, 718 (8th Cir.
2004), and another that could be interpreted to involve
substantive or procedural due process, see Douthit v. Jones, 619
F.2d 527, 532 (5th Cir. 1980) (citing Baker v. McCollan, 443 U.S.
137 (1979)).
16

The Third Circuit has ruled that under the “morespecific-provision” rule, prolonged detention claims are governed
by the Eighth Amendment, not substantive due process. See
Wharton v. Danberg, 854 F.3d 234, 246-47 (3d Cir. 2017). Case
law in this Circuit suggests that the Court of Appeals would
reach the same conclusion. Following Calhoun, 999 F.2d at 65354, courts in this Circuit have analyzed prolonged detention
claims exclusively under Eighth Amendment standards; and any
22

plaintiff’s allegations do not support a claim.
“[S]ubstantive due process protects against government
action that is arbitrary, conscience-shocking, or oppressive in a
constitutional sense, . . . not against government action that is
incorrect or ill advised.”

Cunney v. Bd. of Trustees of Vill. of

Grand View, N.Y., 660 F.3d 612, 626 (2d Cir. 2011) (quotation
omitted).

To state a substantive due process claim, plaintiff

must allege facts showing that (1) the defendants were
deliberately indifferent to his right to be released (2) under
circumstances that shock the conscience.

See Armstrong, 152 F.3d

at 570; accord Goldberg v. Hennepin Cty., 417 F.3d 808, 811 n.3
(8th Cir. 2005).
Deliberate indifference requires more than mere negligence,
but can include “culpable recklessness,” that is, “a conscious
disregard of a substantial risk of serious harm.”

Hathaway v.

Coughlin, 99 F.3d 550, 553 (2d Cir. 1996) (citation omitted).
When a plaintiff claims deliberate indifference based on

accompanying due process challenges are typically analyzed under
procedural due process standards. See, e.g., Hayes, 2016 WL
1746109, at *2; Brunson, 14 F. Supp. 3d at 292; Todd v. Hatin,
No. 2:13-CV-05, 2013 WL 3990815, at *2 (D. Vt. Aug. 5, 2013);
Lozada v. Warden Downstate Corr. Facility, No. 10 CIV. 8425 RWS,
2012 WL 2402069, at *3 (S.D.N.Y. June 26, 2012); McCants v.
Jones, No. 98-CV-6337FE, 1999 WL 804009, at *4 n.2 (W.D.N.Y.
Sept. 30, 1999). But see Grayson, 2004 WL 2106586, at *9
(dismissing substantive due process claim based on sentence
miscalculation); see also Russo v. City of Bridgeport, 479 F.3d
196, 212 (2d Cir. 2007) (holding that pretrial unlawful detention
claims are governed by the Fourth Amendment, not substantive due
process).
23

prolonged detention, courts undertake a three-part inquiry:
(1) did the defendant have “knowledge of the prisoner’s problem
and thus the risk that unwarranted punishment was being, or would
be, inflicted”; (2) did the defendant “fail[] to act or t[ake]
only ineffectual actions under circumstances indicating that his
or her response to the problem was a product of deliberate
indifference to the prisoner’s plight”; and (3) was there a
“causal connection between the official’s response to the problem
and the infliction of the unjustified detention”?

See Sample,

885 F.2d at 1110.
Accepted as true and liberally construed, the allegations of
the amended complaint permit an inference that John Does 1 and 2
may have been deliberately indifferent to plaintiff’s right to be
released.

Cf. Brims v. Burdi, No. 03-cv-3159 (WHP), 2004 WL

1403281, at *2 (S.D.N.Y. June 23, 2004) (defendants responsible
for releasing prisoners who “knew, but ignored” imminent release
date exhibited deliberate indifference).

As of the end of

January, both defendants were aware that plaintiff’s sentence had
expired.

As agents of the USMS and BOP, they may have been

responsible for his continued detention.

See Sample, 885 F.2d at

1110 (noting relevance of whether defendant “had the
responsibility to review inmates’ sentencing status and the
authority to direct the release of inmates whose time had been
served”).

There is no indication that John Doe 1 took steps to

24

follow up on the plaintiff’s custodial status after learning that
his sentence had expired.

And although John Doe 2 did notify the

plaintiff and John Doe 1 of the expiration of the sentence, there
is no indication he took any other action.
Plaintiff’s substantive due process claim fails because,
even assuming the defendants were deliberately indifferent, their
conduct was not conscience-shocking.

Plaintiff has not alleged

that either defendant failed to act despite repeated complaints
about his situation.

See Davis, 375 F.3d at 707-08; Armstrong,

152 F.3d at 580; see also Barnes v. Dist. of Columbia, 793 F.
Supp. 2d 260, 279-80 (D.D.C. 2011) (inadequate administrative
procedures resulting in frequent detentions of between 4 to 21
days beyond expiration of sentence shocks the conscience).

As

mentioned earlier, there is no allegation that plaintiff
complained even once after he was notified by John Doe 2 that his
sentence has expired.

Moreover, the relatively brief period of

his continued confinement at Wyatt beyond his release date
pending his transfer into ICE custody, although not dispositive,
weighs against finding defendants’ conduct conscience-shocking.
See Grayson, 2004 WL 2106586, at *8-9 (finding potential
deliberate indifference but rejecting substantive due process
claim based on 20-day detention); see also Cty. of Sacramento v.
Lewis, 523 U.S. 833, 853 (1998) (“When . . . extended
opportunities to do better are teamed with protracted failure

25

even to care, indifference is truly shocking.” (emphasis added)).
The substantive due process claim is therefore dismissed.
b. Procedural Due Process
Procedural due process involves a two-pronged inquiry: (1)
“whether there exists a liberty or property interest of which a
person has been deprived,” and (2) “if so . . . whether the
procedures followed by the [defendant] were constitutionally
sufficient.”

Swarthout v. Cooke, 562 U.S. 216, 219 (2011)

(quotation omitted); see also Calhoun, 999 F.2d at 653 (“Due
process requires, as a general matter, an ‘opportunity to be
heard at a meaningful time and in a meaningful manner.’” (quoting
Mathews v. Eldridge, 424 U.S. 319, 333 (1976)).
Here, plaintiff had a “liberty interest in being released
upon the expiration of his maximum term of imprisonment.”
Calhoun, 999 F.2d at 653.

As the mandate states, at the

expiration of his sentence, he was “presumptively entitled to be
released from prison.”

Akande, 659 F. App’x at 684.

A violation

of procedural due process may occur when a person is deprived of
his liberty for a period of time that would not support an Eighth
Amendment claim.

See Calhoun, 999 F.2d at 653-54 (addressing

procedural due process claim despite dismissal of Eighth
Amendment claim); McDay v. Travis, 303 F. App’x 928, 929-30 (2d
Cir. 2008) (vacating dismissal of procedural due process claim
brought by plaintiff who was detained two days beyond his maximum

26

release date).
Plaintiff alleges that he was held by John Doe 1 and John
Doe 2 after they knew his sentence had expired.

If the

defendants’ continued detention was not authorized by law, he may
be able to prove that they violated procedural due process.

See

Armstrong, 152 F.3d at 578 (“In a constitutional sense, how much
more basic could it get - jails cannot confine people without the
authority to do so.”); Douthit, 619 F.2d at 532 (“Detention of a
prisoner thirty days beyond the expiration of his sentence in the
absence of a facially valid court order or warrant constitutes a
deprivation of due process.”).17

Accordingly, the motion to

dismiss the procedural due process claim is denied.18
iv.

Fourth Amendment

False arrest and false imprisonment claims under the Fourth
Amendment are analyzed according to “the [tort] law of the state
in which the arrest occurred.”

Russo, 479 F.3d at 203 (quotation

17

See also Uroza v. Salt Lake Cty., No. 2:11CV713DAK, 2014
WL 4457300, at *3 (D. Utah Sept. 10, 2014) (plaintiff detained
after expiration of 48-hour detainer window “without receiving
any process” stated procedural due process claim); Rivas v.
Martin, 781 F. Supp. 2d 775, 780 (N.D. Ind. 2011) (same). But see
Luna v. Valdez, No. 3:15-CV-3520-D, 2018 WL 684897, at *8 (N.D.
Tex. Feb. 2, 2018) (plaintiff failed to state procedural due
process claim based on detention beyond 48-hour period, where
detention was based on random and unauthorized acts of individual
defendants and state provided process for challenging
confinement).
18

This ruling is without prejudice to the filing of a motion
to dismiss by John Does 1 and 2.
27

omitted).

To prove a false imprisonment claim under Rhode Island

law, plaintiff must show (1) the defendant intended to confine
him, (2) he was conscious of the confinement, (3) he did not
consent, and (4) the confinement was not otherwise privileged.
Morales v. Chadbourne, 235 F. Supp. 3d 388, 404 (D.R.I. 2017)
(citing Moody v. McElroy, 513 A.2d 5, 7 (R.I. 1986)).
As noted above, some courts treat continued detention on the
basis of an ICE detainer as a “new seizure for Fourth Amendment
purposes.”

See Morales, 793 F.3d at 217; see also Ramos-Macario

v. Jones, No. 3:10-813, 2011 WL 8316678, at *11-12 (M.D. Tenn.
Mar. 2, 2011) (plaintiff kept because of detainer after sentence
expired states Fourth Amendment claim); Francis v. Fiacco, No.
15-cv-901 (MAD/ATB), 2016 WL 3448617, at *10-11 (S.D.N.Y. June
20, 2016) (same).

If the defendants held plaintiff without

authority, he may be able to prove a Fourth Amendment claim.
Accordingly, the motion to dismiss the Fourth Amendment claim is
denied.19
D.

Valentin Order Regarding John Does 1 and 2

Pursuant to Valentin v. Dinkins, 121 F.3d 72 (2d Cir. 1997),
the U.S. Attorney is ordered to ascertain the identity and
service addresses of John Does 1 and 2.

See Snoussi v. Bivona,

No. 05-CV-3133 (RJD) LB, 2008 WL 3992157, at *1 (E.D.N.Y. Aug.

19

Again, this ruling is without prejudice to the filing of a
motion to dismiss by John Does 1 and 2.
28

22, 2008) (seeking assistance of U.S. Attorney in identifying
John Does); see also Fed. Def.’s Resp., at 3 (ECF No. 106)
(“Should the Court order AUSA Stone or ICE Agent Wisniewski to
take action with respect to identifying John Doe 1 and/or 2, we
will promptly proceed in attempting to do so and update the
Court.”).

The U.S. Attorney “need not undertake to defend or

indemnify [either] individual at this juncture.

This Order

merely provides a means by which [plaintiff] may name and
properly serve defendant[s] . . . as instructed by the Second
Circuit in Valentin.”

Brunson v. City of New York Dep't of

Correction, No. 16CV1471RRMLB, 2016 WL 4203485, at *3 (E.D.N.Y.
Aug. 9, 2016).
III. Conclusion
Accordingly, plaintiff’s motion to amend (ECF No. 94) is
granted, John Doe 3's motion to dismiss (ECF No. 62) is granted,
and the federal defendants’ motion to dismiss (ECF No. 79) is
granted in part and denied in part.

All claims against John Doe

4, AUSA Stone and Agent Wisniewski are dismissed and the Eighth
Amendment claim against John Does 1 and 2 is also dismissed.
The case will continue as to John Does 1 and 2.

The amended

complaint is construed to allege Bivens claims for damages
against these defendants in their individual capacities for
detaining the plaintiff at Wyatt after they knew his sentence had
expired in violation of his right to be free from unreasonable

29

seizures under the Fourth Amendment and his right to procedural
due process under the Fifth Amendment.

The U.S. Attorney will

undertake to identify John Does 1 and 2 and file a statement on
the docket containing their names and addresses for service of
process.

To be timely, the statement should be filed on or

before April 9, 2018.
So ordered this 19th day of March 2018.

/s/
Robert N. Chatigny
United States District Judge

30