1The named defendants to this action, as identified by

Akers, are: Federal Bureau of Investigations Special Agent James

Kaszei, FBI Contract Informants Donald James Mixan, Jr., Misty

Stewart, Nicholas Voulgaris, J. Shields, Sandra Elliott, FreddyBoy Lawrence, and Robert Mundt, Assistant United States Attorney

Kim I. Martin (also known as Kim M. Berger and Kim M. Fowler),

Special Assistant United States Attorney Jacquelyn E. Rokusek,

Special Investigator Melissa Doe, and Deputy United States

Marshal Christopher Johnson.

2Bivens v. Six Unknown Named Agents of Fed. Bureau of

Narcotics, 403 U.S. 388 (1971) provides a cause of action for

plaintiffs alleging that their federal legal rights have been

violated by individuals acting under the authority of federal

law. 

UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Montgomery Carl Akers

v. Civil No. 08-cv-334-JL

James Keszei, et al.1

REPORT AND RECOMMENDATION

This Bivens2 action initially came before the Court for a

preliminary review of Montgomery Akers’ complaint (document no.

1). On February 3, 2009, I directed plaintiff, a federal

prisoner proceeding pro se and in forma pauperis, to show cause

why the District of New Hampshire is the appropriate venue for

this action, as neither Akers nor any of the defendants reside in

Case 1:08-cv-00334-JL Document 8 Filed 03/09/09 Page 1 of 11
2

New Hampshire (document no. 6). Akers has responded (document

no. 7), and his response will be considered to be part of the

complaint for all purposes. The matter can now be preliminarily

reviewed to determine whether the complaint states any claim upon

which relief might be granted. See United States District Court

District of New Hampshire Local Rule 4.3(d)(2); 28 U.S.C. §

1915A(a). 

Standard of Review

Under this Court’s local rules, when an incarcerated

plaintiff commences an action pro se and in forma pauperis, the

magistrate judge is directed to conduct a preliminary review. LR

4.3(d)(2). In conducting the preliminary review, the Court

construes pro se pleadings liberally, however inartfully pleaded. 

See Erickson v. Pardus, 551 U.S. 89, ___, 127 S. Ct. 2197, 2200

(2007) (following Estelle v. Gamble, 429 U.S. 97, 106 (1976) and

Haines v. Kerner, 404 U.S. 519, 520-21 (1972) to construe pro se

pleadings liberally in favor of the pro se party). “The policy

behind affording pro se plaintiffs liberal interpretation is that

if they present sufficient facts, the court may intuit the

correct cause of action, even if it was imperfectly pled.” See

Castro v. United States, 540 U.S. 375, 381 (2003) (noting that

Case 1:08-cv-00334-JL Document 8 Filed 03/09/09 Page 2 of 11
3

courts may construe pro se pleadings so as to avoid

inappropriately stringent rules and unnecessary dismissals of

claims); Ahmed v. Rosenblatt, 118 F.3d 886, 890 (1st Cir. 1997). 

All of the factual assertions made by a pro se plaintiff and

inferences reasonably drawn therefrom must be accepted as true. 

See id. This review ensures that pro se pleadings are given fair

and meaningful consideration.

Background

Montgomery Carl Akers is a federal prison inmate

incarcerated in Florence, Colorado. Akers is serving a 327 month

sentence for charges related to bank fraud.

In this action, Akers seeks damages against a number of

individuals, including an FBI Special Agent, a Special

Investigator, and federal prosecutors, all ostensibly involved in

investigating and prosecuting criminal charges against him, and

witnesses in the criminal case against Akers. Akers refers to

these witnesses as “FBI contract informants,” although he does

not reveal the nature of the contracts they allegedly held with

the government. Each of the defendants resides either in

Missouri, Nebraska, California, or Kansas. 

Case 1:08-cv-00334-JL Document 8 Filed 03/09/09 Page 3 of 11
3Akers has provided no address in Tilton for any Equifax

company. Further, my search of both the area phone book and a

computer search reveals no listing for a business location for

Equifax in Tilton or, in fact, anywhere in New Hampshire.

4

Akers claims that the defendants, acting together, conspired

to steal his money and ruin his business reputation and credit

rating. Akers states that the federal authorities did this by

utilizing the services of ‘contract informants’ posing either as

Akers or as Akers’ wife, or acting under the auspices of an

expired power of attorney grant. Akers states that the agents

and informants contacted Equifax, a financial institution that

Akers alleges is located in Tilton, New Hampshire, and with whom

Akers claims he did business, as he held a credit card with that

institution.3 Akers asserts, without providing details, that by

contacting Equifax, defendants have caused Akers to lose over

$6.5 million. Akers alleges that, in engaging in these actions,

the defendants have violated his Fourteenth Amendment right not

to be deprived of property without due process, and his Fourth

Amendment right not to have his property unreasonably seized. 

Akers further claims that the conspiratorial acts of defendants

violated the Racketeer Influenced Corrupt Organizations Act, 18

U.S.C. § 1962, et seq., as well as Akers’ First Amendment rights 

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5

to access the courts, petition the government for a redress of

grievances, and to associate with his wife. 

Discussion

1. Heck v. Humphrey

In Heck v. Humphrey, the Supreme Court held that a

prisoner’s claim for damages is not cognizable under § 1983 if a

judgment for the prisoner would “necessarily imply” that the

conviction or sentence was invalid unless and until the inmate

obtains favorable resolution of a challenge to his conviction. 

512 U.S. 477, 486-87 (1994); see Pandey v. Freedman, 66 F.3d 306,

*1 (1st Cir. 1995) (applying Heck in the context of a Bivens

action). “A claim for damages bearing that relationship to a

conviction or sentence that has not been invalidated is not

cognizable under § 1983” and must be dismissed. Id. at 487

(emphasis in original); see Thore v. Howe, 466 F.3d 173, 178 (1st

Cir. 2006) (same). To the extent that the claims contained in

Akers’ complaint would, if relief were granted thereon, undermine

the convictions or sentence pursuant to which Akers is currently

confined, no cognizable claim for damages lies. 

Case 1:08-cv-00334-JL Document 8 Filed 03/09/09 Page 5 of 11
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2. Conspiracy Claims

The allegations in the complaint are vague and do not

include sufficient specificity to allow me to find that they

state any claim for relief. Akers’ allegations generally accuse

the defendants of engaging in a conspiracy to harm him by phoning

a financial institution and attempting to harm his relationship

with that institution. Outside of actions taken in furtherance

of Akers’ prosecution, which are likely barred by Heck, as

explained above, the complaint asserts, without support, the

existence of a conspiracy designed to harm Akers in the abstract

by harming his ability to conduct business and acquire wealth,

abilities arguably at odds with the twenty-seven year sentence

Akers has recently begun serving. Even affording the complaint

liberal construction, the allegations therein are insufficient to

support a conspiracy claim, as such a claim must be plead “in

some detail and provide some factual basis supporting the

existence of a conspiracy.” Slagel v. Shell Oil Refinery, 811 F.

Supp. 378, 381 (C.D. Ill. 1993). “Mere conjecture that there has

been a conspiracy is not enough to state a claim.” Tarkowski v.

Robert Bartlett Realty Co., 644 F.2d 1204, 1206-07 (7th Cir.

1980). Akers’ assertions of conspiracy are simply conclusory

Case 1:08-cv-00334-JL Document 8 Filed 03/09/09 Page 6 of 11
7

statements, based on conjecture, that a conspiracy exists to harm

him. As these assertions are insufficient to state a claim, I

recommend that the complaint, which contains only claims premised

on this conspiracy, be dismissed in its entirety.

3. Vexatious Litigation

While this is Akers’ first foray into the District of New

Hampshire, it should be noted that Akers is a prolific filer of

actions around the country containing allegations against many of

the defendants listed here, and asserting a variety of nefarious

acts by these and other defendants intended to harm Akers’

financial position and ability to engage in business and to

acquire wealth. Akers has been identified by the courts that

have convicted and sentenced him as someone with “a long history

of fraudulent activity,” beginning at age seventeen, and

resulting in the accrual of a “serious” and recidivist criminal

history. Akers’ current sentence is for an offense committed

while Akers was serving a 105 month federal prison sentence on a

similar offense. See United States v. Akers, 261 Fed. Appx. 110,

111, 115 (10th Cir. 2008). 

It does not appear that Akers has confined his manipulations

to the criminal realm. It very clearly appears that Akers is now

Case 1:08-cv-00334-JL Document 8 Filed 03/09/09 Page 7 of 11
8

trying to gain some benefit, to which he is not entitled, by

filing civil actions around the country premised on bald

assertions that the defendants to these actions have engaged in

illegal conduct, to Akers’ financial detriment, in the federal

district where each action is filed. See, e.g.:

# Akers v. Vratil, 05-cv-2080-GTV (D. Kan. Mar. 24, 2005) 

(order of dismissal);

# Akers v. Martin, 06-cv–3175-SAC (D. Kan. July 12, 2006) 

(order of dismissal);

# Akers v. Martin, 06-cv-94-JBC (E.D. Ky. Sept. 1, 2006) 

(order denying motion to reconsider dismissal);

# Akers v. Keszei, 07-cv-572-JCM-GWF (D. Nev. Apr. 30, 2007) 

(complaint filed);

# Akers v. Wiley, 07-cv-855-ZLW (D. Colo. July 20, 2007) 

(order of dismissal);

# Akers v. Keszei, 07-cv-521-HFS (W.D. Mo. Oct. 19, 2007) 

(order of dismissal);

# Akers v. Wiley, 08-cv-723-ZLW (D. Colo. Apr. 28, 2008) 

(order denying reconsideration of dismissal);

# Akers v. Shute, 08-cv-3106-SAC (D. Kan. Apr. 28, 2008) 

(complaint filed);

# Akers v. Rokusek, 08-cv-725-H-WMC (S.D. Cal. July 24, 2008) 

(order of dismissal);

# Akers v. Vratil, 08-cv–2692-SBA (N.D. Cal. Oct. 17, 2008) 

(order transferring case to D. Kan.); 08-cv-3271-SAC (D. 

Kan. Nov. 7, 2008) (order of dismissal);

Case 1:08-cv-00334-JL Document 8 Filed 03/09/09 Page 8 of 11
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# Akers v. Weinshienk, 08-cv–2572-ZLW (D. Colo. Nov. 25, 2008)

(order of dismissal);

# Akers v. Clerk of Court, 08-cv-1587-KJD-RJJ (D. Nev. Dec. 2,

2008) (order of dismissal);

# Akers v. Keszei, 09-cv-279-HB (S.D.N.Y. Jan. 12, 2009) 

(order transferring case to D. Kan.); 09-cv-3032-SAC (D. 

Kan. Feb. 5, 2009) (complaint received);

# Akers v. Watts, 08-cv-140-EGS (D.D.C. Jan. 24, 2008) 

(complaint filed);

# Akers v. Wiley, 08-cv-121-RCJ-GWF (D. Nev. Feb. 25, 2008) 

(order transferring case to D. Colo.; Akers v. Wiley, 08-cv434-ZLW (D. Colo. Feb. 29, 2008) (complaint received);

# Akers v. Warden, Fed. Transfer Ctr., 09-cv-141-D (W.D. Okla.

Feb. 5, 2009) (complaint filed);

# Akers v. Poisson, 09-cv-54-GZS (D. Me. Feb. 6, 2009) 

(complaint filed);

# Akers v. Crow, 09-cv-3037-RDR (D. Kan. Mar. 2, 2009) (order 

of dismissal).

Akers is a restricted filer in the District of Colorado. See

Akers v. Wiley, 2008 WL 1746959, *1 (D. Colo. 2008). In Akers v.

Sandoval, No. 94-B-2445 (D. Colo. June 20, 1995); aff’d, 100 F.3d

967 (10th Cir. 1996), due to his vexatious and abusive litigation

practices, Akers was:

enjoined and prohibited from initiating any civil 

action in the United States District Court for the 

District of Colorado without representation by an 

attorney licensed to practice in the State of 

Colorado or duly admitted to practice in the 

United States District Court for the District of 

Case 1:08-cv-00334-JL Document 8 Filed 03/09/09 Page 9 of 11
4I do note that in Akers v. Watts, 589 F. Supp. 2d 12, 14

(D.D.C. 2008) the United States District Court for the District

of Columbia declined, on December 12, 2008, to ban Akers from

filing an in forma pauperis action under the Prison Litigation

Reform Act’s “three strikes” rule, see 28 U.S.C. § 1915(g), which

generally precludes an inmate from proceeding in forma pauperis

if, while incarcerated, he has filed at least three prior cases

that were dismissed as frivolous, malicious, or for failing to

state a claim. That Court found that Akers, who may in fact be

possessed of at least two strikes, had not been shown by

defendants there to have three strikes against him at that time,

and that, as Akers was not abusing the privilege of proceeding in

forma pauperis in that Court at that time, any sort of

restrictions on Akers’ ability to file actions in forma pauperis

in that Court was inappropriate. Akers v. Watts, 589 F. Supp. 2d

at 16.

10

Colorado unless he first obtains leave of court to 

proceed pro se.

While Akers is not a restricted filer in this Court, it is clear

that his wide spray of civil actions against many of the

defendants named here approaches, if not reaches, the use of the

federal courts in an abusive fashion. Accordingly, Akers should

consider himself warned that this Court will not wait to be

inundated with numerous frivolous actions that are clearly not

appropriate in this venue to prevent Akers from abusing the

proper use of the resources of this Court.4 

Conclusion

I recommend that this action be dismissed in its entirety as

it has failed to state any claim upon which relief might be

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granted. Any objections to this report and recommendation must

be filed within ten (10) days of receipt of this notice. Failure

to file objections within the specified time waives the right to

appeal the district court’s order. See Unauthorized Practice of

Law Comm. v. Gordon, 979 F.2d 11, 13-14 (1st Cir. 1992); United

States v. Valencia-Copete, 792 F.2d 4, 6 (1st Cir. 1986). 

_________________________________

James R. Muirhead

United States Magistrate Judge

Date: March 9, 2009

cc: Montgomery C. Akers, pro se

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