Akande v. Philips

386 F. Supp. 3d 281
CourtDistrict Court, W.D. New York
DecidedJune 24, 2019
Docket1:17-CV-01243 EAW
StatusPublished
Cited by16 cases

This text of 386 F. Supp. 3d 281 (Akande v. Philips) is published on Counsel Stack Legal Research, covering District Court, W.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Akande v. Philips, 386 F. Supp. 3d 281 (W.D.N.Y. 2019).

Opinion

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, *286the "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 *287them)" 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

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Bluebook (online)
386 F. Supp. 3d 281, Counsel Stack Legal Research, https://law.counselstack.com/opinion/akande-v-philips-nywd-2019.