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Akers v. Watts

September 24, 2010


The opinion of the court was delivered by: Emmet G. Sullivan United States District Court


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 (1971), and under 42 U.S.C. §§ 1983 and 1985(3).*fn1 This matter is before the Court on the federal defendants' motion to dismiss, and for the reasons discussed below, the motion will be granted.


A. Plaintiff's Criminal History

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:

[Plaintiff] placed an advertisement for a pen pal in a magazine. Anita Jenkins answered the ad and began corresponding with [plaintiff] in writing and on the telephone. [Plaintiff] convinced Jenkins he had been falsely accused, told her he had a trust fund account and asked her to help him re-start a business he had prior to his incarceration. Jenkins agreed to help him. [Plaintiff] sent her a power of attorney and had her purchase computer software which would allow her to create checks. He also had her open accounts at Fidelity Brokerage Services (Fidelity) and First Union Bank.

After these accounts were opened, [plaintiff] directed Jenkins to create two checks in the amounts of $35,000 and $25,000 and deposit them into the Fidelity account. He provided her the routing and account numbers. She believed the money was coming from his trust fund account. [Plaintiff] then directed Jenkins to wire $58,000 from the Fidelity account to the First Union Bank account. Jenkins later created a third check for $35,000 and deposited it into the Fidelity account. Jenkins also created checks or initiated wire transfers totaling $57,000 from the First Union Bank account to various individuals. Jenkins did not learn she was creating worthless checks and engaging in fraudulent activity until she was contacted by law enforcement officers. As a result of the above scheme, Fidelity and Bank of America (which negotiates Fidelity's financial transactions) suffered actual losses of $22,236.77 and $20,000, respectively. [Plaintiff] was subsequently indicted with five counts of wire fraud.

Id. The indictment did not deter plaintiff's criminal activities:

While the indictment was pending, [plaintiff] was housed at the Corrections Corporation of America (CCA) in Leavenworth, Kansas, where he met fellow inmate Donald Mixan. [Plaintiff] told Mixan he was wealthy and showed him paperwork indicating he had an account containing over $7 million. Although he initially believed [plaintiff], Mixan soon realized it was a scam. Nevertheless, Mixan agreed to help [plaintiff] because it was "[e]asy money." Once Mixan was released, [plaintiff] had him purchase check-writing software and apply for credit cards. [Plaintiff] directed Mixan to use the credit cards for his living expenses; the cards' balances were paid from accounts which had no money in them. [Plaintiff] instructed Mixan to send two checks totaling $150,000 to an attorney [plaintiff] wanted to retain. These checks were intercepted by law enforcement officers. Because the attorney never received the checks, Mixan personally delivered a third check for $100,000 to him. Two more checks, in the amounts of $25,000 and $2,700, were sent to [plaintiff]'s alleged wife and Mixan's landlord, respectively.

All five checks were drawn on a U.S. Bank account that Mixan opened for [plaintiff] over the Internet with a $400 counterfeit check. Mixan also created a check for $2,500 using an account number he found in a dumpster. This check was deposited, at [plaintiff's] direction, into one of [plaintiff's] bank accounts. [Plaintiff] further directed Mixan to create a $117,000 check and deposit it into another one of [plaintiff's] bank accounts. Fortunately, the banks involved in this scheme were able to avoid incurring financial loss by freezing the accounts or intercepting, dishonoring or returning the checks to the payee. However, the scheme did result in an actual loss of $2,037.21 to various businesses.

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:

This time plaintiff preyed on Tony Casanova, who suffers from multiple sclerosis. [Plaintiff] and Casanova became pen pals through Casanova's church. Casanova opened a bank account for [plaintiff] and applied for a credit card for him. [Plaintiff] also sent Casanova his telephone bills, promising to reimburse him. At [plaintiff's] direction, Casanova responded to a newspaper advertisement seeking investors for a casino boat. The person who placed the advertisement referred [plaintiff] to Nick Voulgaris. [Plaintiff] convinced Voulgaris he was wrongly convicted and was wealthy. Although the casino deal fell through, [plaintiff] succeeded in recruiting Voulgaris to help him start a business. At [plaintiff's] direction, Voulgaris created various checks totaling over $1 million and expended numerous hours on starting the business. Voulgaris also spent over $8,000 of his own money. In the end, Casanova's son contacted law enforcement personnel, who pulled the plug on [plaintiff's] scam.

This did not stop [plaintiff], however. He proceeded to dupe Cheryl Navarrette, a former cellmate's daughter. Based on [plaintiff's] promise of employment and financial security, Navarrette purchased check-writing software and her husband quit his job. Fortunately, Navarrette could not get the software to work and no fraudulent checks were produced. However, Navarrette and her family suffered financially.

Id. at 112-13.

Plaintiff is serving a sentence of 327 months' imprisonment, Mem. of P. & A. in Supp. of Defs.' Mot. to Dismiss ("Defs.' Mem."), Ex. A (Public Information Inmate Data) at 4, and currently is incarcerated at the BOP's Administrative Maximum facility in Florence, Colorado ("ADX").

B. Mail Restrictions

The sentencing court was "appalled[,] disappointed and outraged" 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 (Memorandum to plaintiff from R. Wiley dated February 26, 2007). 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).

C. Allegations of Plaintiff's Amended Complaint

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, . ...

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