     13-4629
     Akande v. United States Marshal Service


                                         UNITED STATES COURT OF APPEALS
                                             FOR THE SECOND CIRCUIT

                                                    SUMMARY ORDER

          RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
     SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY
     FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN
     CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE
     EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
     “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY
     PARTY NOT REPRESENTED BY COUNSEL.

 1                 At a stated term of the United States Court of Appeals for the Second Circuit,
 2   held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of
 3   New York, on the 31st day of August, two thousand sixteen.
 4
 5   PRESENT:
 6              DEBRA ANN LIVINGSTON,
 7              GERARD E. LYNCH,
 8                     Circuit Judges.
 9              JED S. RAKOFF,*
10                  District Judge.
11   _____________________________________
12
13   JASON SHOLA AKANDE,
14
15                                  Plaintiff-Appellant,
16
17                        v.                                                    13-4629
18
19   United States Marshals Service, Director,
20   GEOFFREY M. STONE, Assistatant United
21   States Attorney, GRACE ANN WISNIEWSKI,
22   Special Agent, ICE, WARDEN, Central Falls
23   Detention Facility,
24
25                    Defendants.
26   _____________________________________
27

     *
       Judge Jed S. Rakoff, of the United States District Court for the Southern District of New York,
     sitting by designation.
 1   FOR PLAINTIFF-APPELLANT:                                    Jason Shola Akande, pro se, Kale
 2                                                               Akobo, Nigeria.
 3
 4   FOR AMICUS CURIAE UNITED STATES:                            Vanessa Roberts Avery, Sandra S.
 5                                                               Glover, Assistant United States
 6                                                               Attorneys, for Deirdre M. Daly,
 7                                                               United States Attorney, District of
 8                                                               Connecticut, New Haven, CT.
 9
10          Appeal from a judgment of the United States District Court for the District of

11   Connecticut (Robert N. Chatigny, J.).

12          UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

13   AND DECREED that the judgment of the district court is VACATED and the case is

14   REMANDED.

15          Appellant Jason Shola Akande, proceeding pro se, appeals the district court’s

16   judgment dismissing his complaint sua sponte pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii),

17   which provides that in proceedings in forma pauperis “the court shall dismiss the case at

18   any time if the court determines that . . . the action . . . fails to state a claim on which

19   relief may be granted.” We hold that the sua sponte dismissal was premature because,

20   given the factual and legal complexity of this case, Akande’s pro se status, and the fact

21   that he may be able to clarify his complaint to state a claim, Akande should have been

22   granted an additional opportunity to amend. In explaining why we believe that Akande

23   may be able to state a claim, we do not undertake to decide any of the issues presented by

24   the complaint. But given our remaining questions, we cannot say that the district court

25   appropriately dismissed the complaint.


                                                     2
 1          Akande, a non-citizen who has been removed from the United States, brought this

 2   action under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403

 3   U.S. 388 (1971), and claims that the defendants unlawfully prolonged his incarceration

 4   for a criminal conviction in violation of his rights under the Fifth and Eighth

 5   Amendments. Because Akande’s Complaint was dismissed sua sponte prior to service of

 6   process on the defendants, no named defendant appeared in the district court proceedings,

 7   and, accordingly, there is no opposing party in the case. Nevertheless, at our request, the

 8   United States has filed a brief as amicus curiae in support of the judgment below. See

 9   Boddie v. Alexander, 356 F. App’x 438, 439 (2d Cir. 2009) (summary order).

10          We review de novo a district court’s dismissal of a complaint for failure to state a

11   claim, “construing the complaint liberally, accepting all factual allegations in the

12   complaint as true, and drawing all reasonable inferences in the plaintiff’s favor.”

13   Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002). The complaint must

14   plead “enough facts to state a claim to relief that is plausible on its face,” Bell Atlantic

15   Corp. v. Twombly, 550 U.S. 544, 570 (2007), and “allow[] the court to draw the

16   reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v.

17   Iqbal, 556 U.S. 662, 678 (2009). Because Akande’s complaint alleges civil rights

18   violations and he is pro se, we construe his complaint with particular generosity. See

19   Davis v. Goord, 320 F.3d 346, 350 (2d Cir. 2003).

20          Akande alleges the following facts. On May 22, 2006, he was sentenced on a

21   criminal charge in state court. On September 25, 2006, he was discharged from state

                                                    3
 1   custody to federal pretrial custody, and eventually transferred to the Donald W. Wyatt

 2   Detention Center (“Wyatt”). On January 15, 2010, having been found guilty by a jury of

 3   federal crimes, Akande was sentenced to 41 months’ imprisonment. By the date of

 4   sentencing, however, Akande had served more than 41 months in federal custody.1 About

 5   a week after entry of judgment, Akande received a letter a from Bureau of Prisons Agent,

 6   defendant John Doe 2, stating that he had been held in federal custody for several months

 7   longer than his sentence. Copies of the letter were sent to Deputy U.S. Marshal John Doe

 8   1 and Wyatt Inmate System Management Coordinator John Doe 3. On February 17 or 18,

 9   2010, Akande was transferred from Wyatt to the physical custody of the Department of

10   Homeland Security Immigration and Customs Enforcement (“ICE”) at a detention facility

11   in Boston, pending removal proceedings. Akande remained in ICE’s custody until his

12   deportation to Nigeria. Therefore, as the district court and the United States acknowledge,

13   the relevant period of alleged unauthorized incarceration is, at most, 34 days, from

14   January 15, 2010 to February 18, 2010.2

     1
 1    The government and the court understood that Akande’s sentence amounted to time served as
 2   of his sentencing. In a sentencing memorandum, the prosecutor wrote that “the defendant has
 3   been in federal custody since June 1, 2005. Thus, a sentence . . . of ‘time served’ would reflect a
 4   sentence of 55 months and 14 days of imprisonment.” Gov’t’s Suppl. Sentencing Mem.,
 5   D.Conn. 05-cr-136, Doc. 401, at 1, Jan. 14, 2010. At sentencing, the district court stated: “I
 6   sentence you to the custody of Bureau of Prisons for a period of 41 months. You will receive
 7   credit for time served, of course. With that in mind, you will soon be released from the custody
 8   of the Bureau of Prisons in connection with this case.” Sentencing Tr. vol. II, 86, 05-cr-136,
 9   Doc. 421, Jan 15, 2010.
10
     2
 1    Akande complains that he was incarcerated for 57 months, and that since he was sentenced to
 2   only 41 months, he was unlawfully detained for 16 months. His calculations appear to be based
 3   on a misunderstanding of what periods of incarceration count towards satisfaction of a criminal
 4   sentence. Much of the time Akande claims is based on time that he was detained pending trial for

                                                      4
 1          The district court and the United States characterized Akande’s claims as alleging

 2   merely a delay in transfer from federal prison to ICE detention. In their view, Akande can

 3   have suffered harm based only on where he was incarcerated, since his continued

 4   incarceration was inevitable. They conclude that his complaint must be dismissed,

 5   because Akande has failed to allege that the conditions of his confinement were severe

 6   enough to constitute a constitutional deprivation. It is not clear, however, that Akande did

 7   not plead – or cannot plausibly plead – a different claim, namely that he had a right to be

 8   released from federal prison when his federal sentence ended absent some indication

 9   (such as a warrant) that another agency had lawfully exercised its authority over him. Nor

10   is it clear that the government and district court correctly assumed that Akande did not

11   possess such a right. See, e.g. Gov’t App. 99 (“[T]his case does not involve a sentenced

12   prisoner’s right to be released after serving a term of imprisonment in a Bureau of Prisons

13   facility”); U.S. Amicus Br. 15 (“[T]his is not a case in which the Court is comparing

14   confinement to release; the comparison here is between one type of confinement and

15   another”).

16          “Freedom from bodily restraint has always been at the core of the liberty protected

17   by the Due Process Clause from arbitrary governmental action.” Foucha v. Louisiana,


1    failure to satisfy conditions for his release. Order Setting Conditions of Release, D.Conn.
2    05-cr-136, Doc. 26. Additionally, Akande appears to mistakenly believe that he was entitled to
3    “good time credits” before sentencing, Gov’t App. 55. Since his pre-trial detention was lawful,
4    even though it exceeded his ultimate sentence, he can at most claim that he was unjustly detained
5    from the time he was sentenced. Both the district court and the United States have assumed, at
6    least for present purposes, that Akande has sufficiently alleged that he spent 34 days in federal
7    prison after he was sentenced and that that period was in excess of his sentence.

                                                    5
 1   504 U.S. 71, 80 (1992). Although the precise contours of the relevant right have not been

 2   fully fleshed out, courts have recognized that, at the expiration of a sentenced prisoner’s

 3   term, the legal authority to detain him under that sentence ends, and he is presumptively

 4   entitled to be released from prison. See Douthit v. Jones, 619 F.2d 527, 532 (5th Cir.

 5   1980) (“Detention of a prisoner thirty days beyond the expiration of his sentence in the

 6   absence of a facially valid court order or warrant constitutes a deprivation of due

 7   process.”); see also Davis v. Hall, 375 F.3d 703, 712 (8th Cir. 2004) (“We have

 8   recognized a protected liberty interest in being free from wrongful, prolonged

 9   incarceration.”). And whatever the contours of that right, it is possessed by all persons

10   within our borders. See Zadvydas v. Davis, 533 U.S. 678, 693 (2001) (“[T]he Due Process

11   Clause applies to all ‘persons’ within the United States, including aliens, whether their

12   presence here is lawful, unlawful, temporary, or permanent.”).

13          Courts have also addressed claims of unwarranted extensions of detention under

14   the rubric of the Eighth Amendment. While the district court held that “[u]nder existing

15   case law, depriving an inmate of physical liberty for this length of time after the

16   completion of a prison sentence does not impose a harm of sufficient magnitude to violate

17   the inmate’s rights under the Eighth Amendment,” Gov’t App. 98, this is not a settled

18   issue. See, e.g., Hankins v. Lowe, 786 F.3d 603, 605 (7th Cir. 2015) (holding that

19   conditions imposed by parole “were sufficiently onerous to constitute cruel and unusual

20   punishment if prolonged beyond the parole expiration date” because “[a] lawless

21   extension of custody is certainly unusual, and it is cruel in the sense of being imposed

                                                   6
 1   without any legal authority”). We have held that a five-day delay in release of a prisoner entitled

 2   to liberty did not violate the Eighth Amendment. Calhoun v. New York State Div. of Parole

 3   Officers, 999 F.2d 647 (2d Cir. 1993). The Third Circuit has held that a nine-month delay in

 4   release did violate the Eighth Amendment. Sample v. Diecks, 885 F.2d 1099, 1108 (3d Cir.

 5   1989). Akande’s claim that he was held in federal prison for 34 days after the expiration of his

 6   criminal sentence falls somewhere between these two poles.

 7          The limited facts alleged in the complaint, and those of which we can take judicial

 8   notice, do not indicate what legal authority, if any, justified Akande’s continued detention

 9   between the expiration of his sentence and his arrest by immigration agents who took him

10   to an immigration detention facility. When immigration officials plan to institute removal

11   proceedings against a person in criminal custody who is either awaiting trial or serving a

12   sentence, regulations provide that immigration officials send a “detainer” to the agency

13   that has the person in custody to declare their interest in the prisoner. DHS regulations

14   permit “[a]ny authorized immigration officer” to issue an “Immigration Detainer – Notice

15   of Action” form “to any other Federal, State or Local law enforcement agency.” 8 C.F.R.

16   § 287.7(a). The regulation goes on to explain the purpose of such a detainer:

17                  A detainer serves to advise another law enforcement agency
18                  that the Department seeks custody of an alien presently in the
19                  custody of that agency, for the purpose of arresting and
20                  removing the alien. The detainer is a request that such agency
21                  advise the Department, prior to release of the alien, in order
22                  for the Department to arrange to assume custody, in situations
23                  when gaining immediate physical custody is either
24                  impracticable or impossible.

25   Id. The regulation further provides that the agency receiving such a detainer should

                                                      7
 1   continue to hold the prisoner to facilitate the arrest of the alien by DHS, but only for a

 2   brief period of time:

 3                  [The] agency [receiving such a detainer] shall maintain
 4                  custody of the alien for a period not to exceed 48 hours,
 5                  excluding Saturdays, Sundays, and holidays in order to permit
 6                  assumption of custody by the Department.

 7   8 C.F.R. § 287.7(d) (emphasis added).3 Thus, by regulation, the immigration detainer

 8   would appear, at most, to justify an additional 48 hours of detention beyond the expiration

 9   of the prisoner’s term.4 The limited record before us, moreover, does not even reflect that

10   a detainer was used in this case, and we cannot presume that ICE issued one. Cf. Lora v.

11   Shanahan, 804 F.3d 601, 606 (2d Cir. 2015) (noting that defendant who pled guilty to

12   criminal possession of cocaine with intent to sell was not detained by ICE despite being

13   removable).


     3
      Indeed, the face of the detainer instrument itself (as it existed at the time of Akande’s
     detention) explicitly states that an alien can be detained “for a period not to exceed 48
     hours (excluding Saturdays, Sundays, and Federal holidays).” Understanding
     Immigration Detainers, Appendix B DHS Form I-247 (April 1, 1997), available at
     http://www.ilrc.org/files/documents/pa_understanding_immigration_detainers_05-2011.pdf.
     Current DHS policies are even more restrictive, in that the agency has (1) eliminated the
     exception for Saturdays, Sundays, and holidays from the 48-hour window; (2) requires a
     recitation that probable cause has been found, or that an order of removal has already been
     entered and that the alien is an agency enforcement priority: and (3) requires the receiving
     agency to serve a copy on the prisoner. See U.S. Immigration and Customs Enforcement, About
     PEP [Priority Enforcement Policy], available at
     https://www.ice.gov/sites/default/files/documents/Fact%20sheet/2015/pep_brochure.pdf 1-2.

     4
      We do not decide whether a prisoner otherwise eligible for immediate release may be lawfully
     detained for an additional 48 hours on the authority of a detainer alone; nor do we decide under
     what circumstances a belief that a prisoner is subject to removal proceedings would justify
     detention of that length or beyond.


                                                     8
 1          We therefore cannot conclude with confidence that Akande cannot plausibly allege

 2   a viable cause of action.5 Accordingly, given the complicated facts in this case, the

 3   unsettled nature of the case law, and Akande’s pro se status, we remand to the district

 4   court with instructions that Akande be given one more opportunity to amend his

 5   complaint to better articulate the facts he alleges and the legal bases for his claims. Cf.

 6   Fed. R. Civ. P 15(a)(2) (“The court should freely give leave when justice so requires.”);

 7   Gomez v. USAA Fed. Savings Bank, 171 F.3d 794, 796 (2d Cir. 1999) (explaining that,

 8   even in cases concerning dismissals under § 1915(e)(2)(B)(ii), a pro se plaintiff should be

 9   afforded at least one opportunity to amend his complaint “unless the court can rule out

10   any possibility, however unlikely it may be, that an amended complaint would succeed in

11   stating a claim.”). On remand, the district court should also consider whether it is

12   desirable to make appointed counsel available to assist Akande in drafting an amended

13   complaint.

14          For the foregoing reasons, we VACATE the judgment of the district court and

15   REMAND for further proceedings consistent with this order.

16                                                 FOR THE COURT:
17                                                 Catherine O’Hagan Wolfe, Clerk

18




     5
       Even if Akande can allege that he was detained unlawfully, establishing a claim for damages
     under Bivens will present other issues, including establishing individual culpability on the part of
     particular defendants, and confronting possible defenses including qualified immunity. We
     express no views regarding such issues, and leave them to the district court to resolve in the first
     instance, after Akande’s claims are clarified.
                                                      9
