Akande v. Crutchfield et al

Filing 12

Judge Rya W. Zobel: MEMORANDUM AND ORDER entered: Plaintiff's Motion to Amend Complaint (Docket No. 9) is ALLOWED as of right, but is STRICKEN and the original Complaint (Docket No. 1) shall remain the operative pleading in this action; Plaintif f is PROHIBITED from filing any further Amended Complaints until after the Defendants have filed a response to the Complaint, and upon a Motion to Amend with good cause shown; Plaintiff's Motion for Reconsideration of Appointment of Counsel (Doc ket No. 10) is DENIED; and The Clerk shall re-send to Plaintiff the USM 285 forms so that he may provide the U.S. Marshal Service with the required information for effectuating service of process.(PSSA, 1)[remark: USM 285 forms sent with copy of Memorandum and Order].

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
JASON SHOLA AKANDE,
Plaintiff,
v.

CIVIL ACTION NO. 11-12288-RWZ

I.C.E. AGENT ANTHONY CRUTCHFIELD,
ET AL.,
Defendants.
MEMORANDUM AND ORDER
ZOBEL, D.J.
BACKGROUND
On or about December 21, 2011, Plaintiff Jason Shola Akande (“Akande”), an
immigration detainee at the Suffolk County House of Correction (“SCHC”), filed a civil
rights Complaint against Anthony Crutchfield, an agent for the Immigration and Customs
Enforcement Department (“ICE”) at SCHC, the Director of the Massachusetts Branch of
ICE, the Warden of SCHC, and the Warden of Wyatt Federal Prison in Central Falls,
Rhode Island (“Wyatt”). Akande claims the Defendants are thwarting his ability to
challenge his criminal conviction (based on alleged prosecutorial and law enforcement
misconduct), by wrongfully withholding his legal documents needed to pursue his
challenge. Akande further alleges the Defendants conspired to deny him access to his
boxes of legal documents in order to “cover-up” and protect the interest of their
governmental colleagues.
On January 3, 2012, this Court issued a Memorandum and Order (Docket No. 5)
permitting this action to proceed against some Defendants, and declining to construe
the Complaint as asserting claims against others referenced in the Complaint.
Additionally, this Court denied Akande’s motion appoint counsel without prejudice to
renew after the Defendants have filed a response to the Complaint. In denying the

motion, this Court considered that the merits of this case were dubious.
On January 3, 2012, summonses issued along with the standard USM 285 forms
in the event that Akande elected to have the United States Marshal Service (“USMS”)
serve process on the Defendants. Thereafter, Akande provided the USMS with
completed USM 285 forms; however, they were filled out incorrectly. Instead of listing
the address at which the Defendant(s) could be served, Akande listed his own address.
As a result, the USMS was unable to effect service.
Subsequently, on January 19, 2012, Akande filed a Motion to Amend Complaint
(Docket No. 9) to add claims. He also filed a Motion for Reconsideration of the Order
on his Motion to Appoint Counsel (Docket No. 10).
DISCUSSION
I.

The Motion to Amend Complaint
Since service of process has not been made at this time, nor any responsive

pleading filed, Akande may amend his Complaint once as of right. See Fed. R. Civ. P.
15(a)(1). Thus, his Motion to Amend Complaint is ALLOWED on that basis.
Nevertheless, this Court has reviewed the Amended Complaint to determine whether
additional summonses should issue with respect to the Amended Complaint, but finds
that this case may not proceed further based on the Amended Complaint.
First, Akande’s Amended Complaint fails to set forth coherent claims; it materially
fails to set forth claims in accordance with the pleading requirements of Rule 8 of the
Federal Rules of Civil Procedure.1 From what can be gleaned, Akande alleges that ICE
1

Fed. R. Civ. P. 8(a) provides in relevant part that "[a] pleading that states a claim
for relief must contain . . . a short and plain statement of the claim showing that the
pleader is entitled to relief. . . ." Fed. R. Civ. P. 8(a)(2). The statement must "give the
defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests."
Phelps v. Local 0222, No. 09-11218-JLT, 2010 WL 3342031, at *5 (D. Mass. Aug. 20,
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agents and agents of the USMS were “part of the prosecution team” that allegedly used
fabricated and forged documentary evidence against him at his criminal trial, and
planted bribed jurors on the jury. Additionally, Akande alleges, in a very general
fashion, that Defendant Crutchfield listens in on his legal phone calls, which are
privileged. He claims that as a result, the USMS arrested and charged Akande with
probation violations. He asserts that this is evidence of the fact that Defendant
Crutchfield was aware of the “Jury Trial Scam” in Connecticut and that these parties are
actively participating in the on-going “Government Cover-Up.” Am. Compl. at ¶ 2.
Next, Akande alleges, again in a general fashion, that unidentified prison staff
regularly opened and read his legal mail before giving it to him. He also claims that the
mail room staff “impersonated” U.S. Postal agents. Id. at ¶ 3. He asserts that this also
evidences that the Defendants knew about the “Jury Trial Scam” and were actively
participating in the on-going cover-up.
Further, Akande again asserts that the Wyatt Deputy Warden (whom he now
identifies as Timothy E. Tapley) lied in a letter to him regarding his lack of knowledge of

2010) (quoting Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512, 122 S. Ct. 992, 998,
152 L.Ed. 2d 1 (2002) (quotations and citations omitted)). In addition, the pleadings
"must afford the defendants a meaningful opportunity to mount a defense." Benyamin v.
Commonwealth Med. UMass Med. Ctr., Inc., No. 11-40126-FDS, 2011 WL 2681195, at
*2, (D. Mass. July 6, 2011) (quoting Diaz-Rivera v. Rivera-Rodriguez, 377 F.3d 119,123
(1st Cir. 2004) (internal punctuation and additional citations omitted)). At a minimum,
"the complaint should at least set forth minimal facts as to who did what to
whom, when, where, and why." Id. (quotation omitted). While the "First Circuit holds a
pro se litigant to a standard of pleading less stringent than that for lawyers," "this cannot
be taken to mean that pro se complaints are held to no standard at all." Green v.
Massachusetts, 108 F.R.D. 217, 218 (D. Mass. 1985). Thus, "the requirements of Rule
8(a)(2) are minimal – but minimal requirements are not tantamount to nonexistent
requirements." Educadores Puertorriquenos en Accion v. Hernandez, 367 F.3d 61, 68
(1st Cir. 2004) (internal quotation omitted).
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his whereabouts in order to deliver his legal documents.
This Court considers that most of Akande’s allegations in the Amended
Complaint do not present new claims upon which relief may be granted; rather, it simply
points to problems with his legal mail and legal phone calls as evidence of the alleged
conspiracy by the Defendants. To the extent that he seeks to assert separate causes of
action based upon alleged misconduct concerning his legal mail and phone calls, he
has not set forth his claims in a manner that would permit the (unidentified) Defendants
(or Defendant Crutchfield or Warden Tapley) an opportunity to file a meaningful
response.
Further, to the extent that Akande seeks to assert claims against unidentified ICE
agents and agents of the USMS for being “part of the prosecution team” that allegedly
forged evidence and bribed jurors, such claims are barred by the favorable termination
rule of Heck v. Humphrey, 512 U.S. 477, 486-87 (1994) (holding that "in order to
recover damages for allegedly unconstitutional conviction or imprisonment . . . a [federal
civil rights] plaintiff must prove that the conviction or sentence has been reversed on
direct appeal, expunged by executive order, declared invalid by a state tribunal
authorized to make such determination, or called into question by a federal court's
issuance of a writ of habeas corpus," The rule applies not only where the plaintiff
expressly states that his conviction or sentence is invalid, but wherever "a judgment in
favor of the plaintiff would necessarily imply the invalidity of his conviction or
sentence.").2
2

Although Heck involved a civil rights action brought under 42 U.S.C. § 1983,
suits brought under Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971) are
treated in the same manner. See Pandey v. Freedman, 1995 WL 568490, at *1 (1st Cir.
1995) (unpublished) (citing Stephenson v. Reno, 28 F.3d 26, 27 (5th Cir. 1994);
Tavarez v. Reno, 54 F.3d 109, 110 (2d Cir. 1995). See also Abella v. Rubino, 63 F.3d
4

In light of the above, this Court will not permit this action to proceed based on the
Amended Complaint. Accordingly, the Amended Complaint (Docket No. 9) is
STRICKEN, and the original Complaint (Docket No. 1) shall remain the operative
pleading in this action.
Akande is prohibited from filing any further Amended Complaints until after the
Defendants have filed a response to the Complaint, and upon a Motion to Amend with
good cause shown. The Defendants shall have an opportunity to respond to any dulyfiled motion.
II.

The Clerk Shall Re-send USM 285 Forms To Plaintiff
On January 3, 2012, the clerk sent a service package to Akande for completion

should he elect to have the USMS serve process and advance the costs of service.
The USMS has advised this Court that Akande filled out the USM 285 forms incorrectly
(thus preventing proper service by the USMS). The USMS has received sufficient
copies of the original Complaint for service, but still requires submission of the USM 285
forms indicating the proper address of the Defendant to be served.
Accordingly, the clerk is directed to re-send blank USM 285 forms to Akande for
completion. Akande is reminded that, notwithstanding the Order directing the USMS to
effect service, it remains his responsibility to provide all the necessary paperwork and
information to the USMS for service. Failure to do so may result in a dismissal of this
action for lack of service.
III.

The Motion for Appointment of Counsel
Akande seeks reconsideration of the denial of his Motion for Appointment of

Counsel on the ground that his Amended Complaint provides evidence of the alleged

1063 (11th Cir. 1995) (section 1983 law is generally applied to Bivens cases).
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conspiracy to cover-up governmental misconduct. He also contends that he is
incarcerated and unable to represent himself, particularly where the government has
unlimited resources at their disposal.
This Court has considered Akande’s arguments, but still finds that this case does
not warrant the expenditure of scarce pro bono resources. Akande does not present
circumstances that are unique; many incarcerated litigants lack legal skills and/or
resources to prosecute their claims against the government. The fact that there is a
disparity of resources (and thus an unlevel playing field) is a consideration, but is not
dispositive of the matter. Of some significance is the fact that Akande has filed
numerous cases in this Court and others, and thus is deemed to have at least some
familiarity with legal proceedings and legal concepts. More importantly, however, this
Court remains of the view that the merits of Akande’s claims are doubtful. The
amorphous allegations contained in the Amended Complaint do not alter this Court’s
view in any material manner. Therefore, in this Court’s discretion, appointment of pro
bono counsel would not be warranted.3
Accordingly, Akande’s Motion for Reconsideration to Appoint Counsel (Docket
No. 10) is DENIED.
CONCLUSION
Based on the foregoing, it is hereby Ordered that:
1.

Plaintiff’s Motion to Amend Complaint (Docket No. 9) is ALLOWED as of right,
but is STRICKEN and the original Complaint (Docket No. 1) shall remain the

3

This Court also is aware that Akande’s removal may be effected in the
foreseeable future, and thus he would be at a great disadvantage to prosecute his
claims from abroad. Nevertheless, this Court’s view of the uncertain merits of this case
outweighs the problems presented by removal, and militates against appointment of pro
bono counsel.
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operative pleading in this action;
2.

Plaintiff is PROHIBITED from filing any further Amended Complaints until after
the Defendants have filed a response to the Complaint, and upon a Motion to
Amend with good cause shown;

3.

Plaintiff’s Motion for Reconsideration of Appointment of Counsel (Docket No. 10)
is DENIED; and

4.

The Clerk shall re-send to Plaintiff the USM 285 forms so that he may provide the
U.S. Marshal Service with the required information for effectuating service of
process.

SO ORDERED.

/s/ Rya W. Zobel
RYA W. ZOBEL
UNITED STATES DISTRICT JUDGE
DATED: January 26, 2012

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