Akande v. Philips

• Decision Date: 24 June 2019
• Docket Number: 1:17-CV-01243 EAW
• Citation: 386 F.Supp.3d 281
• Parties: Jason Shola AKANDE, Plaintiff, v. Michael PHILIPS, I.C.E. Field Office Director, John Doe 1, The Owner/Chief Executive Officer, Giant Airline, New York, John Doe 2, The Pilot of Giant Airline, and John Doe 3, The Co-Pilot of Giant Airline, Defendants.
• Court: U.S. District Court — Western District of New York

386 F.Supp.3d 281

Jason Shola AKANDE, Plaintiff,

v.Michael PHILIPS, I.C.E. Field Office Director, John Doe 1, The Owner/Chief Executive Officer, Giant Airline, New York, John Doe 2, The Pilot of Giant Airline, and John Doe 3, The Co-Pilot of Giant Airline, Defendants.

1:17-CV-01243 EAW

United States District Court, W.D. New York.

Signed June 24, 2019

Filed June 28, 2019

Jason Shola Akande, Bloomfield, CT, pro se.

DECISION AND ORDER

ELIZABETH A. WOLFORD, United States District Judge

INTRODUCTION

Plaintiff Jason Shola Akande ("Plaintiff") filed this pro se action on November 30, 2017, seeking relief for violations of his constitutional rights pursuant to 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). (Dkt. 1). On July 11, 2018, the Court granted Plaintiff's request to proceed in forma pauperis and screened his initial Complaint pursuant to 28 U.S.C. § 1915(e)(2). (Dkt. 6). The Court dismissed Plaintiff's claim for the destruction of his legal materials as against Defendant Michael Philips ("Philips") as well as all claims against Defendants John Doe 1, John Doe 2, and John Doe 3 (collectively, the "John Doe Defendants") without prejudice. (Id. at 24). The remaining claims alleged against Philips and the other named defendants were dismissed with prejudice, with the exception of Plaintiff's excessive force claim asserted against Philips, which was permitted to proceed to service unless Plaintiff filed an amended complaint consistent with the Court's screening order. (Id. ). Plaintiff was advised that any amended complaint must include all necessary allegations so that it may stand alone as the sole complaint in this action. (Id. ).

On September 7, 2018, Plaintiff filed his Amended Complaint (Dkt. 7) along with three motions requesting various miscellaneous relief (Dkt. 8; Dkt. 9; Dkt. 10). Plaintiff subsequently filed two motions to expedite the review of his other motions on March 4, 2019, and March 13, 2019, respectively. (Dkt. 14; Dkt. 15).

The Court has considered each of Plaintiff's motions and has reviewed the Amended Complaint as required by 28 U.S.C. § 1915(e)(2). For the following reasons, Plaintiff's amended excessive force claim may proceed to service as against Philips, but his remaining claims are dismissed with prejudice, Plaintiff's motion for permission to use the Court's electronic filing system (Dkt. 8) is denied without prejudice, motion for an order pursuant to Valentin v. Dinkins , 121 F.3d 72 (2d Cir. 1997) is denied in part and granted in part (Dkt. 9), motion for subpoenas (Dkt. 10) is denied without prejudice as premature, and his two motions to expedite (Dkt. 14; Dkt. 15) are dismissed as moot.

BACKGROUND

Plaintiff's allegations in the Amended Complaint are in many ways substantially the same as those asserted in his initial Complaint. Plaintiff claims that Philips, who was employed as the Immigration and Customs Enforcement ("ICE") Field Office Director in Buffalo, New York, forged a Nigerian Travel Certificate to unlawfully remove him from the United States in order to "help some ‘rogue’ Connecticut Law Enforcement Officers get away with" having illegally arrested Plaintiff and caused him to serve seven years of "false imprisonment" and two years of "federal prison overtime." (Dkt. 7 at 1-2).¹ Philips and "other ICE agents" conspired with the "rogue" officers to unlawfully remove Plaintiff from the United States to impede his legal actions challenging his alleged illegal arrests, false imprisonment, and federal sentence. (Id. at 5). Philips used a "private airline," identified by Plaintiff as "Giant Airline," to "execute the illegal removal." (Id. ). Plaintiff alleges that John Doe 1 is the "Owner/CEO" of "Giant Private Airline," and that John Doe 2 and John Doe 3 were the pilot and the co-pilot of the "deportation plane," respectively. (Id. at 4).

Before Plaintiff was allegedly removed from the United States, "Philips and his fellow ICE agents deliberately confiscated and destroyed" all of Plaintiff's "legal documents and legal materials" in order to prevent Plaintiff from contesting the purportedly wrongful acts he alleges were committed against him. (See id. at 6-7 (emphasis omitted)). Plaintiff claims that he "consequently lost" several judicial and administrative actions that he outlines in further detail within his Amended Complaint. (See id. at 7-18).

Plaintiff also claims that "Philips and his fellow ICE Agents (About 12 of them)" stripped Plaintiff of his clothes in front of "all female ICE agents" and "all other female prison staff," and then "tied Plaintiff up with chains" while they "severely beat him up while butt naked." (Id. at 20). Plaintiff was then carried "like a dead body" into the deportation plane and was "periodically" beaten during the flight from Buffalo, New York to Lagos, Nigeria. (Id. ).²

Plaintiff further alleges that John Doe 1 contractually agreed "to use his aircraft[ ] to violate Plaintiff's constitutional rights." ( Id. at 23, 112 S.Ct. 995 ). Stated differently, Plaintiff claims that John Doe 1 "consented" to Philips' use of excessive force, and that he "knew exactly what Defendant Philips and other ICE agents would do with his aircraft[ ] before he allowed them to use it." ( Id. ). Plaintiff also alleges that John Doe 2 and John Doe 3 both "witnessed" the excessive force used by Philips and the "other ICE Agents" and yet, they did nothing to intervene to assist Plaintiff. ( Id. at 25-27, 112 S.Ct. 995 ).

Attached to Plaintiff's Amended Complaint were three motions requesting various forms of relief. Plaintiff seeks permission to use the Court's electronic filing system ("CM/ECF") (Dkt. 8), an order pursuant to Valentin v. Dinkins , 121 F.3d 72 (2d Cir. 1997) to identify Philips' "current contact information" and the John Doe Defendants' identities and contact information for purposes of service process (Dkt. 9), and subpoenas to retrieve "some documentary records" (Dkt. 10).

DISCUSSION

I. Plaintiff's Excessive Force Claims May Proceed as Against Philips

A. Standard of Review

" Section 1915 requires the Court to conduct an initial screening of complaints filed by civil litigants proceeding in forma pauperis , to ensure that the case goes forward only if it meets certain requirements." Guess v. Jahromi , No. 6:17-CV-06121(MAT), 2017 WL 1063474, at *2 (W.D.N.Y. Mar. 21, 2017), reconsideration denied , 2017 WL 1489142 (W.D.N.Y. Apr. 26, 2017). In evaluating the complaint, a court must accept as true all of the plaintiff's factual allegations, and must draw all inferences in the plaintiff's favor. See, e.g., Larkin v. Savage , 318 F.3d 138, 139 (2d Cir. 2003). While "a court is obliged to construe [pro se ] pleadings liberally, particularly when they allege civil rights violations," McEachin v. McGuinnis , 357 F.3d 197, 200 (2d Cir. 2004), even pro se pleadings must meet the notice requirements of Rule 8 of the Federal Rules of Civil Procedure, Wynder v. McMahon , 360 F.3d 73, 79 n.11 (2d Cir. 2004) ("[T]he basic requirements of Rule 8 apply to self-represented and counseled plaintiff's alike.").

Upon conducting its screening of the complaint, a court must dismiss the case pursuant to § 1915(e)(2)(B) "if the [c]ourt determines that the action (i) is frivolous or malicious; (ii) fails to state a claim upon which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief." Eckert v. Schroeder, Joseph & Assocs. , 364 F. Supp. 2d 326, 327 (W.D.N.Y. 2005). "In addition, if the Court ‘determines at any time that it lacks subject-matter jurisdiction, the Court must dismiss the action.’ " West v. Sanchez , No. 17-CV-2482 (MKB), 2017 WL 1628887, at *1 (E.D.N.Y. May 1, 2017) (quoting Fed. R. Civ. P. 12(h)(3) ); see English v. Sellers , No. 07-CV-6611L, 2008 WL 189645, at *1 (W.D.N.Y. Jan. 18, 2008) ("[E]ven pleadings submitted pro se must fit within the subject matter jurisdiction of an Article III court....").

B. Plaintiff's Excessive Force Claims Are Assumed to Fall Outside the Jurisdictional Bar Set Forth in § 1252(g)

In its July 11, 2018, order, the Court assumed—for screening purposes only—that Plaintiff's excessive force allegations fell outside the jurisdictional bar set forth in 8 U.S.C. § 1252(g), that those claims implicated both the Fifth and Eighth Amendments, and that they presented a new context 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). (Dkt. 6 at 11, 21-23). The Court reaches the same conclusion here for substantially the same reasons as those outlined in the initial screening order. The Second Circuit has not yet addressed whether a district court has jurisdiction over an excessive force claim that appears to arise out of the act of physically removing a plaintiff aboard an airplane pursuant to his immigration removal order. Cf. Foster v. Townsley , 243 F.3d 210, 214 (5th Cir. 2001) (finding that "[t]he particular acts that form the basis of [the plaintiff]'s lawsuit arise from the officials' decision to execute his removal order," and thus, "[h]is claims of excessive force," amongst others, were "all directly connected to the execution of the deportation order").

Furthermore, it is still not completely clear whether Plaintiff also claims that he experienced mistreatment simply while he was detained and awaiting the execution of his removal order. See Humphries v. Various Fed. USINS Emps. , 164 F.3d 936, 944 (5th Cir. 1999) (holding that claims of mistreatment while in detention "bear no more than a remote relationship to the Attorney General's decision to ‘execute [Humphries's] removal order’ "). "In reviewing a pro se complaint, the court must be mindful that a plaintiff's pleadings should be held ‘to less stringent standards than formal pleadings drafted by lawyers.’ " Bahr v. City Univ. of N.Y./York Coll. , No. 15-CV-4380 (MKB), 2016 WL 8711060, at *3 (E.D.N....