Akers v. Watts
Decision Date | 24 September 2010 |
Docket Number | Civil Action No. 08-0140 (EGS) |
Citation | 740 F.Supp.2d 83 |
Parties | Montgomery Carl AKERS, Plaintiff, v. Harrell WATTS, et al., Defendants. |
Court | U.S. District Court — District of Columbia |
Montgomery Carl Akers, Florence, CO, pro se.
Kenneth Adebonojo, U.S. Attorney's Office, Washington, DC, Daniel P. Struck, Jones, Skelton & Hochuli, Phoenix, AZ, for Defendants.
Plaintiff, a federal prisoner, brings this civil rights action against various officials, employees and agents of the Federal Bureau of Prisons ("BOP"), the Federal Bureau of Investigation ("FBI"), the United States Attorney's Office for the District of Kansas, and the United States Marshals Service ("USMS") in their individual capacities under Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), and under 42 U.S.C. §§ 1983 and 1985(3).1 This matter is before the Court on the federal defendants' motion to dismiss, and for the reasons discussed below, the motion will be granted.
Plaintiff has a history of committing crimes while incarcerated. Notwithstanding his conviction on fourteen counts of bank fraud, one count of making, uttering and possession a counterfeit security, and one count of failure to appear, he continued his criminal activities "[w]hile serving a 105-month sentence at the federal penitentiary in Leavenworth, Kansas." United States v. Akers, 261 Fed.Appx. 110, 111 (10th Cir.2008). The Tenth Circuit summarizes his activities as follows:
Id. The indictment did not deter plaintiff's criminal activities:
Id. at 112 (internal citation omitted). "The government filed a superseding indictment against Akers which, in addition to the five counts of wire fraud alleged in the original indictment, included a conspiracy to commit bank fraud count related to [plaintiff's] activities with Mixan, who was named as a co-defendant." Id. Plaintiff pled guilty to one count of wire fraud, id., and while awaiting sentencing, his criminal activities continued:
Plaintiff is serving a sentence of 327 months' imprisonment, Mem. of P. & A. in Supp. of Defs.' Mot. to Dismiss () , Ex. A (Public Information Inmate Data) at 4, and currently is incarcerated at the BOP's Administrative Maximum facility in Florence, Colorado ("ADX").
The sentencing court was " 'appalled[,] disappointed and with the Department of Justice's failure to prevent [plaintiff] from continuing his criminal conduct while incarcerated," United States v. Akers, 261 Fed.Appx. at 114 n. 2, and made the following recommendations to the BOP:
(1) That [plaintiff] be placed in segregated confinement; (2) that [plaintiff] have no incoming or outgoing mail correspondence with anyone except his attorney of record (meaning: an attorney who has actually entered an appearance in the case), and that any legal mail be scrutinized in his presence; (3) that [plaintiff] have no telephone privileges whatsoever; (4) that the [BOP] take whatever steps are necessary to prevent [plaintiff] from engaging in any further fraudulent schemes while in custody.
Defs.' Mem., Ex. B (excerpt of criminal judgment).
In February 2007, the Warden of the ADX "placed [plaintiff] on restricted general correspondence [status] pursuant to 28 C.F.R. § 540.15" because plaintiff's "use of the mail to conduct fraudulent business activity pose[d] a threat to security and good order of the institution and protection of the public." Defs.' Mem., Ex. C . Plaintiff's "general correspondence (incoming/outgoing) [was] limited to/from verifiable family members only (spouse, mother, father, children, and siblings)," id. (Notice of Inmate Restrictions effective February 21, 2007). His restricted general correspondence status ended on March 23, 2009. See Pl.'s Resp. to Fed. Defs.' Combined Mot. to Dismiss ("Pl.'s Opp'n"), Ex. 33 (Memorandum from R. Wiley dated March 23, 2009).
According to plaintiff, defendants "willfully entered into a ... conspiracy to violate [his] constitutional rights ... by frustrating and restricting his communication with the outside world, without notice or due process, in order to destroy his family, social, business, ... professional and religious ties to the community." Am. Compl. at 2.
Plaintiff had been incarcerated at a correctional facility operated by Corrections Corporation of America ("CCA") in Leavenworth, Kansas, from July 2004 through December 5, 2005. Am. Compl. at 3. During that time, CCA staff "began confiscating [plaintiff's] social and legal mail ... and eavesdropping on [his] legal phone calls to his attorneys" without justification, id. at 3-4, under orders from FBI Special Agent James Keszei, id. at 5. In addition, confiscated mail and personal property were forwarded to Deputy United States Marshals Michael Shute and ChristopherJohnson, id. at 6, and transferred to FBI Headquarters in Washington, D.C., id. at 7. Special Agent Keszei's actions, taken with the assistance of Kim I. Martin,...
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