Akande v. United States Marshal Service et al

Filing 24

ORDER granting in part and denying in part 22 Motion to Amend/Correct, and dismissing the amended complaint for failure to state a claim on which relief may be granted. Signed by Judge Robert N. Chatigny on 10/23/2013. (Warden Rodgers, H.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
JASON S. AKANDE,
Plaintiff,
v.
UNITED STATES MARSHAL
SERVICE [DIRECTOR], et al.,
Defendants.

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Case No. 3:11cv1125(RNC) OP

RULING AND ORDER
Plaintiff Jason Akande, a Nigerian national in the custody of
the

Department

of

Homeland

Security

Immigration

and

Customs

Enforcement ("ICE") at the time this action was filed, seeks
damages for what he characterizes as "federal prison incarceration
overtime."

The case arises from the plaintiff's detention at the

Donald W. Wyatt Detention Center ("Wyatt") in Rhode Island in
connection with his federal prosecution for conspiracy to commit
passport fraud, passport fraud and making false statements to
immigration authorities.1

Pending for decision is the plaintiff's

pro se motion to amend the complaint.
complaint names six defendants:

The proposed amended

John Doe 1, Agent U.S. Marshal

Service; John Doe 2, Bureau of Prisons Agent; John Doe 3, Inmate
System

Management

Coordinator

at

Wyatt;

John

Doe

4,

Federal

Probation Officer; Assistant U.S. Attorney Geoffrey M. Stone; and

1

Wyatt houses detainees in the legal custody of the U.S.
Marshal.

ICE Special Agent Grace Ann Wisniewski.2

For reasons that follow,

the motion to amend is granted in part and denied in part and the
amended complaint will be dismissed for failure to state a claim on
which relief may be granted.
I.

Background
Plaintiff's original complaint in this case was construed as

a Bivens action3 claiming prolonged incarceration in violation of
the Eighth Amendment.

The complaint was dismissed sua sponte

because it did not allege facts showing a deprivation of
constitutional magnitude or deliberate indifference on the part
of any of the named defendants, the two elements required to
support an eighth amendment claim.

See Sample v. Dicks, 885 F.2d

1099, 1110 (3d Cir. 1989); Zandstra v. Cross, 10 CIV. 5143 DLC,
2012 WL 383854, at *4 (S.D.N.Y. Feb. 6, 2012), appeal dismissed
(Apr. 17, 2012).
The Court of Appeals vacated the judgment dismissing the
action and remanded for consideration of whether the complaint
alleged a violation of procedural or substantive due process or
whether the plaintiff should be allowed to amend the complaint to
identify the legal bases for his claims, articulate factual

2

Unlike the original complaint, the amended complaint does
not name as defendants the Director of the U.S. Marshal's Service
or the Warden at Wyatt. Any claims against those defendants are
therefore deemed withdrawn.
3

Bivens v. Six Unknown Named Agents of the Fed. Bureau of
Narcotics, 403 U.S. 388 (1971).
2

allegations to develop the claims, or add more defendants.
Following the remand, the plaintiff was given an opportunity
to file an amended complaint alleging facts to support claims
under the Eighth Amendment and the Due Process Clause of the
Fifth Amendment.

He was directed to allege facts showing how any

defendant named in the amended complaint was responsible for the
alleged deprivation of his constitutional rights.

He was

notified that failure to allege such facts as to a named
defendant would result in dismissal of the amended complaint as
to that defendant.
In response to the Court's order, the plaintiff has filed a
motion to amend along with an amended complaint.

In essence, the

proposed amended complaint alleges that after the expiration of
the plaintiff's federal sentence, there was a delay in
transferring him from Wyatt to the physical custody of ICE, and
that the conditions of the plaintiff's confinement at Wyatt were
"much more stringent" than the conditions he subsequently
encountered at an ICE detention facility in Massachusetts.

The

amended complaint alleges that the defendants knew or should have
known that the plaintiff was being held at Wyatt beyond the time
called for by his federal sentence and "failed to rectify the
situation."

In addition, the amended complaint makes new

allegations concerning other alleged wrongs, including
allegations that the plaintiff has been the victim of "racial

3

profiling" and "targeting" by law enforcement officials since
2002.
II.

Discussion
A.

Motion to Amend

Plaintiff seeks leave to file the proposed amended complaint
citing Fed. R. Civ. P. 15.

To the extent the motion seeks leave

to add new defendants and allegations pertaining to the delay in
transferring the plaintiff from Wyatt to the physical custody of
ICE, the motion is granted in accordance with the prior orders of
the Court of Appeals and this Court.

However, to the extent the

motion seeks leave to allege other wrongs, the motion is denied.
The new allegations concerning other wrongs are conclusory in
nature and fall far short of pleading a cause of action against
any of the defendants named in the amended complaint.
Accordingly, the motion to amend is granted in part and
denied in part.

As a result of this ruling, the operative

pleading is the amended complaint, the defendants are the
individuals listed in the caption of the amended complaint, and
the scope of the amended complaint is limited to a Bivens action
seeking damages for prolonged incarceration in violation of the
Eighth Amendment and the Due Process Clause of the Fifth
Amendment.
B.

Analysis

Congress has directed that when a person is proceeding in

4

forma pauperis, as the plaintiff is here, "the court shall
dismiss the case at any time if the court determines that . . .
the action . . . fails to state a claim on which relief may be
granted."

28 U.S.C. § 1915(e)(2)(B)(ii).

Insofar as the amended

complaint attempts to plead claims for damages under the Eighth
Amendment and the Due Process Clause of the Fifth Amendment based
on the alleged delay in transferring the plaintiff from Wyatt to
the physical custody to ICE, the Court concludes that the amended
complaint must be dismissed for failure to state a claim on which
relief may be granted.
The test of the legal sufficiency of a complaint is whether
it pleads “enough facts to state a claim to relief that is
plausible on its face.”
570 (2007).

Bell Atlantic v. Twombly, 550 U.S. 544,

A claim is plausible on its face "when the plaintiff

pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged."
(2009).

Ashcroft v. Iqbal, 556 U.S. 662, 678

Applying this standard is a “context-specific task that

requires the court to draw on its judicial experience and common
sense.”

Id. at 679.

Because the plaintiff is proceeding pro se,

his pleadings must be construed liberally to present the
strongest arguments they suggest.

For reasons that follow, the

amended complaint does not allege a plausible claim as to any of
the named defendants.

5

1.

Facts

The following facts are drawn from the plaintiff's
submissions and public records.

On February 16, 2005, the

plaintiff was arrested on state charges and held at the Hartford
Correctional Center ("HCC").

On June 1, 2005, while still in

state custody, he was arrested on federal charges.

The amended

complaint alleges that the lodging of a federal detainer at HCC
resulted in the plaintiff's transfer to "much more stringent"
conditions of confinement at HCC and prevented him from being
released on bond pending trial in state court.4
On May 22, 2006, the plaintiff was sentenced in state court
for forgery and larceny to concurrent terms of five years'
imprisonment, suspended after time served, followed by three
years' probation.

On September 25, 2006, he was discharged from

state custody to federal pretrial custody.

The U.S. Marshal

became his legal custodian on that date, but he remained in the
physical custody of the State of Connecticut Department of
Correction until December 9, 2008, at which time he was
transferred to Wyatt pending trial in federal court.

4

To the extent the amended complaint can be construed as
attempting to seek damages under Bivens for deprivation of
liberty caused by the lodging of the federal detainer at HCC, any
such claim lacks an arguable basis in fact or law. The lodging
of the detainer was undoubtedly proper and there is no
possibility that the problems the plaintiff allegedly experienced
as a result of the detainer can be attributed to wrongdoing on
the part of the persons named as defendants in the amended
complaint.
6

On October 22, 2009, the plaintiff was convicted of the
federal charges after a jury trial in which he chose to proceed
pro se.5

On January 15, 2010, he was sentenced to a term of

imprisonment of 41 months.

Judgment entered on January 20.

Approximately one week later, the plaintiff received a letter
from Bureau of Prisons Agent John Doe 2 stating that he had been
held in federal custody for several months longer than his
sentence.

A copy of the letter was sent to John Doe 1, Agent

U.S. Marshal Service, and John Doe 3, Wyatt Inmate System
Management Coordinator.
On February 18, 2010, the plaintiff was transferred from
Wyatt to an ICE detention facility in Boston.

The amended

complaint alleges that the conditions of the plaintiff's
confinement at Wyatt were "much more stringent" than the
conditions at the ICE facility.

The amended complaint further

alleges that the named defendants knew he was a victim of
"manifest injustice," and that the longer they delayed his
release to ICE custody, "the more pains, agony and injustice,
they . . . inflict[ed] on him . . . ."
2.

Am. Cmpl. at 20.

Eighth Amendment

To state a claim for prolonged incarceration in violation of

5

The trial was delayed by changes of defense counsel,
lengthy proceedings relating to the plaintiff's competency to be
tried, the plaintiff's decision to proceed pro se, and subsequent
proceedings relating to his competency to represent himself at
the jury trial.
7

the Eighth Amendment, a plaintiff must allege that he was
confined for a significant period of time beyond the date he was
entitled to be released and that the excessive period of
confinement was caused by the deliberate indifference of the
defendant.

See Sample, 885 F.2d at 1110; Zandstra, 2012 WL

383854, at *4.

The amended complaint does not plead facts

supporting either element as to any named defendant.
For purposes of the plaintiff's claim, the relevant period
of confinement began no earlier than January 15, 2010, when the
41-month sentence was imposed in the federal criminal case,6 and
ended no later than February 18, 2010, when the plaintiff was
transferred to ICE's physical custody.

Under existing case law,

depriving an inmate of physical liberty for this length of time
after the completion of a prison sentence does not impose a harm
of sufficient magnitude to violate the inmate's rights under the
Eighth Amendment.

See Zandstra, 2012 WL 383854, *4 (twenty-one

days not a "harm of significant magnitude to implicate the
Eight[h] Amendment"); Herron v. Lew Sterrett Justice Ctr., 3:07CV-0357-N, 2007 WL 2241688, at *3 (N.D. Tex. Aug. 6, 2007)
(thirty-one days insufficient to rise to the level of an eighth
amendment violation) (citing Calhoun v. New York State Div. of
Parole Officers, 999 F.2d 647, 654 (2d Cir. 1993) ("[T]he

6

Prior to the federal sentencing hearing, none of the
defendants could know what the federal sentence would be.
8

five-day extension of Calhoun's release date did not inflict 'a
harm of a magnitude' that violates a person's eighth amendment
rights.")).
In this case, there is no allegation that the plaintiff was
entitled to be restored to freedom at the end of his sentence.
Indeed, this case does not involve a sentenced prisoner’s right
to be released after serving a term of imprisonment in a Bureau
of Prisons facility.7

The concern here is limited to the alleged

delay of one month in transferring the plaintiff from one
detention facility to another.

Plaintiff’s conclusory allegation

that the conditions of his confinement at Wyatt were "far more
stringent" than the conditions of his confinement at the ICE
facility is insufficient to state a claim.
at 678.

See Iqbal, 556 U.S.

And while the amended complaint alleges that “civil

detainees” have more freedom in detention facilities than
“criminal detainees,” it is implausible that the conditions of
the plaintiff's confinement at Wyatt were so different from the
conditions he would have experienced at the ICE facility that the
alleged delay in transferring him violated the Eighth Amendment.
In addition to failing to plausibly allege harm of
sufficient magnitude to implicate the Eighth Amendment, the
amended complaint also fails to allege facts showing deliberate

7

Because Mr. Akande’s pre-sentence confinement in the
custody of the U.S. Marshal exceeded his 41-month sentence, he
never entered BOP custody.
9

indifference on the part of any of the named defendants.

To

adequately plead this element of an eighth amendment claim, a
plaintiff must allege facts showing that the defendant knew
unwarranted punishment was being inflicted on the plaintiff and
failed to take corrective action in circumstances indicating
deliberate indifference to the plaintiff's plight.

See Sample,

885 F.2d at 1110.
The plaintiff alleges that the defendants knew or were in a
position to know that he was being detained at Wyatt beyond the
time authorized by his federal sentence.

Accepting this

allegation as true, it does not follow that any of the named
defendants knew his continued detention at Wyatt was causing him
harm and violated his rights by failing to take corrective
action.

Indeed, while the plaintiff now alleges that he was

injured by the delay in transferring him to ICE's physical
custody, there is no allegation that he complained to anyone at
the time, or requested assistance, such that a failure to act on
the part of the named defendants could reasonably be viewed as
reflecting deliberate indifference to a violation of his rights.
3.

Due Process

Under the Due Process Clause, an inmate has a liberty
interest in being released from confinement on the expiration of
his maximum term of imprisonment.

Calhoun, 999 F.2d at 653; see

also Douthit v. Jones, 619 F.2d 527, 532 (5th Cir. 1980)

10

("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.").

In this

case, however, the plaintiff was not entitled to be released from
confinement.

Instead, he seeks redress for a delay of one month

in transferring him from one detention facility to another.
Even assuming the delay in transferring the plaintiff to
ICE's physical custody could be found to implicate a protected
liberty interest, the amended complaint does not allege facts
supporting a reasonable conclusion that any of the named
defendants intentionally caused the delay, as required to support
a due process claim.

The Due Process Clause was designed to

prevent "abusive government conduct."
U.S. 344, 347-48 (1986).

Davidson v. Cannon, 474

It "is simply not implicated by a

negligent act of an official causing unintended loss of or injury
to life, liberty or property."
327, 328 (1986).

Daniels v. Williams, 474 U.S.

In the absence of allegations supporting a

reasonable conclusion that a named defendant intentionally
delayed the plaintiff's transfer to ICE's physical custody, the
amended complaint fails to state a claim on which relief may be
granted under the Due Process Clause.8
8

The amended complaint does not indicate whether it
alleges a violation of procedural or substantive due process.
Because the deficiencies discussed in the text are dispositive
with regard to either type of due process claim, it is
unnecessary to consider which type of claim could conceivably be
presented.
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III.

Conclusion
For the foregoing reasons, the motion to amend is hereby

granted in part and denied in part, and the amended complaint is
dismissed for failure to state a claim on which relief may be
granted.
It is necessary to consider whether the plaintiff should be
given leave to file a second amended complaint.

The plaintiff

was previously notified that unless he pleaded facts showing that
a named defendant deprived him of a constitutional right, the
action would be dismissed as to that defendant.

He has not made

the required showing as to any of the named defendants.
Accordingly, the Clerk will enter judgment in favor of the
defendants named in the amended complaint dismissing the action
with prejudice.
So ordered this 23rd day of October 2013.

/s/
Robert N. Chatigny
United States District Judge

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