Opinion
Civil Action No. 19-cv-00735-LTB-GPG
05-01-2019
WYATT T. HANDY JR., Plaintiff, v. CITY AND COUNTY OF DENVER, GRETA ALDRIDGE, DENVER PRETRIAL SERVICES DEPARTMENT, and UNKNOWN EMPLOYEE, Defendants.
RECOMMENDATION REGARDING CIVIL COMPLAINT
This matter comes before the Court on the Complaint, ECF No. 1 filed pro se by Plaintiff Wyatt T. Handy Jr. on March 11, 2019. The matter has been referred to this Magistrate Judge for recommendation. See ECF No. 6. The Court has reviewed the filings to date. The Court has considered the entire case file, the applicable law, and is sufficiently advised in the premises. This Magistrate Judge respectfully recommends that the Complaint be dismissed without prejudice pursuant to Heck v. Humphrey, 512 U.S. 477 (1994).
"ECF No.1" is an example of the convention the Court uses to identify the docket number assigned to a specific paper by the Court's case management and electronic case filing system (CM/ECF). The Court uses this convention throughout this Recommendation.
Be advised that all parties shall have fourteen (14) days after service hereof to serve and file any written objections in order to obtain reconsideration by the District Judge to whom this case is assigned. Fed. R. Civ. P. 72(b). The party filing objections must specifically identify those findings or recommendations to which the objections are being made. The District Court need not consider frivolous, conclusive or general objections. A party's failure to file such written objections to proposed findings and recommendations contained in this report may bar the party from a de novo determination by the District Judge of the proposed findings and recommendations. United States v. Raddatz, 447 U.S. 667, 676-83 (1980); 28 U.S.C. § 636(b)(1). Additionally, the failure to file written objections to the proposed findings and recommendations within fourteen (14) days after being served with a copy may bar the aggrieved party from appealing the factual findings of the Magistrate Judge that are accepted or adopted by the District Court. Thomas v. Arn, 474 U.S. 140, 155 (1985); Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991).
I. Background
Plaintiff Wyatt T Handy Jr. appears to reside in Denver, Colorado, based on the post office box mailing address he provided on page two of the Complaint that he initiated with the Court on March 11, 2019. ECF No. 1 at 2. The Court has granted Plaintiff leave to proceed without prepaying fees or costs. ECF No. 4.
In the Complaint, Plaintiff asserts jurisdiction pursuant to 28 U.S.C. § 1331 and claims his First, Fourth, Eighth, and Fourteenth Amendment rights have been violated based on his current house arrest. ECF No. 1 at 4. Plaintiff sets forth six claims and seeks declaratory and injunctive relief and money damages.
II. Merit of Claims on Initial Review
The Court must construe the Complaint liberally because Plaintiff is not represented by an attorney. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). However, the Court should not be an advocate for a pro se litigant. See Hall, 935 F.2d at 1110.
A court may not assume that a plaintiff can prove facts that have not been alleged, or that a defendant has violated laws in ways that a plaintiff has not alleged. Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 526 (1983). See also Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997) (court may not "supply additional factual allegations to round out a plaintiff's complaint"); Drake v. City of Fort Collins, 927 F.2d 1156, 1159 (10th Cir. 1991) (the court may not "construct arguments or theories for the plaintiff in the absence of any discussion of those issues"). A plaintiff's pro se status does not entitle him to application of different rules. See Montoya v. Chao, 296 F.3d 952, 957 (10th Cir. 2002).
A. Claims
In Claim One, Plaintiff contends his First Amendment right to freedom of association has been violated by Defendants in their individual and official capacities. ECF No. 1 at 6. Plaintiff further contends that the City and County of Denver has intentionally implemented and enforced unconstitutional house arrest practices and policies that are unduly restrictive, because the practices and policies preclude Plaintiff from associating with friends, family, religious leaders, and spiritual advisors. Id.
In support of Claim One, Plaintiff asserts that he was arrested and booked in the Denver Jail on December 13, 2019, for domestic violence charges. Plaintiff further asserts that he spoke with an unknown pretrial services employee on December 15, who later recommended that Plaintiff's bond be set at $10,000 cash and he be placed on maximum supervision. ECF No. 1 at 6. Plaintiff also asserts that the judge set his bond at $5,000, cash only, placed him on maximum supervision, and issued a protection order restraining him from seeing the victim and his two-year old daughter. Id. Plaintiff states that he was released to Denver Pretrial Services Department on December 16, and he met with Defendant Greta Aldridge who told him that (1) the GPS monitor on his ankle had exclusion zones, which precluded him from several locations where his wife may be located; and (2) he was required to be on house arrest at his uncle's home unless he had a medical emergency, a court date, or an appointment with the pretrial services supervisor. Id. at 7.
Plaintiff refers to 2019 throughout the Complaint. Because of the December date used in each of the date references, the Court construes the date as 2018 --------
Plaintiff contends that he has been denied requests to (1) visit his adult daughter and grandchildren; (2) visit his elderly father who is sick; (3) go grocery shopping, and as a result has gone hungry on numerous occasions and is not able to comply with his religious diet; (4) visit this Court to obtain court-approved forms; (5) seek employment so he can provide for himself and his family; and (6) visit religious leaders and spiritual advisors. ECF No. 1 at 7-8. Plaintiff further contends that Defendant Aldridge threatened him with a violation of his pretrial release for doing chores for his uncle, one of which was to take out the garbage. Id. at 8. Plaintiff concludes that the house arrest violates his First Amendment rights to association and should be terminated or modified because he is being punished and the terms are not related to a calculated risk assessment of his propensity to commit a new crime, nor does it reflect the seriousness of the crime for which he was charged. Id. at 9-10.
In Claim Two, Plaintiff contends his First Amendment right to free exercise of religion has been violated by Defendants in their individual and official capacities. ECF No. 1 at 10. Plaintiff further contends that the City and County of Denver has intentionally implemented and enforced unconstitutional house arrest practices and policies that are unduly restrictive, because the practices and policies preclude Plaintiff from practicing his sincerely held religious beliefs, such as a religious diet, visiting religious leaders and spiritual advisors, and attending religious services. Id.
In support of Claim Two, Plaintiff asserts that he has been a Muslim since 1997. ECF No. 1 at 10. He further asserts that he consumes only Halal and Kosher foods, of which Defendant Aldridge is aware, and due to his house arrest has not been able to observe his religious diet practices. Id. at 11. Plaintiff also asserts that without being able to visit religious leaders and spiritual advisors he is precluded from continuing his rehabilitation process and spiritual growth "pink." Id. Plaintiff concludes that abridgement of religious freedoms is not tolerated in the probation context and all instances of house arrest should permit travel for religious purposes without strict pre-authorization. Id.
In Claim Three, Plaintiff contends his Fourth Amendment right to not be subjected to an unreasonable search and seizure has been violated by Defendants in their individual and official capacities. ECF No. 1 at 12. Plaintiff further contends that the City and County of Denver has intentionally implemented and enforced unconstitutional house arrest practices and policies by forcing Plaintiff to wear a GPS electronic monitoring device, which monitors his movements electronically without his consent. Id. at 12-13.
In support of Claim Three, Plaintiff asserts that he is not on probation or parole and has not been convicted of a crime. ECF No. 1 at 13. Plaintiff further asserts that the victim has stated she believes Plaintiff's conditions are harsh and that she admits she was not completely truthful about the allegations. Id. Plaintiff also asserts that he has asked Defendant Aldridge to petition her supervisor or the court to modify his conditions, which she has refused to do. Id. Plaintiff concludes that under Grady, a search is conducted and implicates the Fourth Amendment when a person's movements are monitored electronically without their consent. Id, at 14.
In Claim Four, Plaintiff contends his Eighth Amendment right not to be subjected to excessive bail has been violated by Defendants in their individual and official capacities. ECF No. 1 at 15. Plaintiff further contends that the City and County of Denver has intentionally implemented and enforced unconstitutional excessive bail practices and policies that are unduly restrictive, because the practices and policies have subjected Plaintiff to a bail set at a figure higher than the amount reasonably calculated to fulfill its purpose. Id.
In support of Claim Four, Plaintiff asserts that the scheduled bond for domestic violence cases in the City and County of Denver is $1500, case, surety, or property, which is why the judge was surprised at the $10,000 bond requested by the unknown person from the pretrial services. ECF No. 1 at 16. Plaintiff further asserts that he does not have a history of escape or failure to appear. Id. at 18. He also asserts that the Colorado Constitution presumes that every person charged with a noncapital crime is entitled to pretrial release on reasonable terms. Id. Plaintiff concludes that the US Constitution prohibits excessive bail, which is bail set at a figure higher than an amount reasonably calculated to fulfill its purpose. Id. at 19.
In Claim Five, Plaintiff contends his Fourteenth Amendment right to due process has been violated by Defendants in their individual and official capacities. ECF No. 1 at 19. Plaintiff further contends that the City and County of Denver has intentionally implemented and enforced unconstitutional house arrest practices and policies that are unduly restrictive and have a disparate impact on Blacks and Latinos. Id. at 19-20.
In support of Claim Five, Plaintiff asserts that when he visits Defendant Aldridge the only individuals he sees there, who are subject to the same conditions as he is, are Black. ECF No. 1 at 20. Plaintiff further asserts that Defendants City and County of Denver, Greta Aldridge, and the unknown person from pretrial services, intentionally follow an absolute blanket policy of placing Black and Latino men on maximum conditions of house arrest, even though they have not been convicted of a crime. Id. Plaintiff concludes that of the pretrial supervision population five percent of the population is on maximum supervision and nearly all five percent are Black. Id. at 22.
In Claim Six, Plaintiff contends that his Fourteenth Amendment right to due process has been violated by Defendants in their individual and official capacities. ECF No. 1 at 22. Plaintiff further contends that the City and County of Denver has intentionally implemented and enforced unconstitutional house arrest practices and policies that are unduly restrictive and have a disparate impact on Blacks and Latinos. Id. at 19-20.
In support of Claim Six, Plaintiff relies on his assertions set forth in Claims One through Five.
B. Barred by Heck
In Heck v. Humphrey, 512 U.S. 477 (1994), the Supreme Court held that no cause of action exists under 42 U.S.C. § 1983 for actions that, if proven, would "necessarily imply" the invalidity of an underlying conviction or sentence, unless that conviction or sentence is first properly invalidated, either on appeal or through habeas corpus proceedings. Heck, 512 U.S. at 487. The Supreme Court stated: "We think the hoary principle that civil tort actions are not appropriate vehicles for challenging the validity of outstanding criminal judgments applies to § 1983 damages actions that necessarily require the plaintiff to prove the unlawfulness of his conviction or confinement . . . ." Id. at 486.
The rule in Heck is not limited to claims challenging the validity of criminal convictions. See Edwards v. Balisok, 520 U.S. 641 (1997) (applying Heck to a § 1983 claim challenging prison administrative procedures to challenge loss of good time credits). The Tenth Circuit found Heck precluded the recovery of damages for an alleged illegal pretrial detention "in the absence of a prior award of habeas relief." Ippolito v. Justice Service Div., 562 F. App' 690, 692 (10th Cir. Apr. 21, 2014) (applying Heck to claims regarding imposition of sobriety testing as part of release conditions). The Tenth Circuit also applied Heck to another civil action where an alien detainee sought damages for the time he was detained without bond. Cohen v. Clemens, 321 F. App'x 739, 741-42 (10th Cir. 2009) (If Plaintiff "would need to prove that his detention [is] unlawful in order to receive an award of damages for that detention," the action is barred by Heck.)
It appears that a judgment in his favor would imply the invalidity of Plaintiff's current pretrial house arrest. As such, his claims appear to be barred by Heck. Therefore, this case is subject to dismissal. A dismissal pursuant to Heck is without prejudice. See Fottler v. United States, 73 F.3d 1064, 1065 (10th Cir. 1996).
C. Younger Abstention
Additionally, the Court notes that the Younger abstention doctrine might apply to some or all of Plaintiff's claims. Under the Younger abstention doctrine, to the extent that any of Plaintiff's claims pertain to a pending criminal proceeding, absent extraordinary or special circumstances, federal courts are prohibited from interfering with ongoing state criminal proceedings. See Younger v. Harris, 401 U.S. 37 (1971); Phelps v. Hamilton, 122 F.3d 885, 889 (10th Cir. 1997). Abstention under Younger is jurisdictional in nature, see D.L. v. Unified Sch. Dist. No. 497, 392 F.3d 1223, 1228 (10th Cir. 2004), and is appropriate when three conditions are met: "(1) the state proceedings are ongoing; (2) the state proceedings implicate important state interests; and (3) the state proceedings afford an adequate opportunity to present the federal constitutional challenges." Phelps, 122 F.3d at 889. If the three requirements are met, and no exceptions to Younger apply, a federal court must abstain from hearing the case. See Weitzel v. Div. of Occupational & Prof. Licensing, 240 F.3d 871, 875 (10th Cir. 2001).
In this case, criminal charges remain pending against Plaintiff, and the first condition would be met. In such a case, the second condition would also be met because the Supreme Court has recognized that the States' interest in administering their criminal justice systems free from federal interference is one of the most powerful of the considerations that should influence a court considering equitable types of relief. Kelly v. Robinson, 479 U.S. 36, 49 (1986) (citing Younger, 401 U.S. at 44-45). Finally, for the third condition, Plaintiff fails to demonstrate that the state criminal proceeding is not an adequate forum to hear any claim that pertains to a pending criminal proceeding.
To establish extraordinary or special circumstances to avoid Younger abstention, Plaintiff must be facing an irreparable injury that is both great and immediate. See Younger, 401 U.S. at 46. The exceptions to Younger provide only for a very narrow gate for federal intervention. Phelps, 59 F.3d at 1064 (internal quotation marks omitted). Plaintiff, however, may overcome the presumption of abstention in cases of proven harassment or prosecutions undertaken by state officials in bad faith without hope of obtaining a valid conviction and perhaps in other extraordinary circumstances where irreparable injury can be shown. Phelps, 122 F.3d at 889 (quoting Perez v. Ledesma, 401 U.S. 82, 85 (1971)). Courts have considered three factors in determining whether a prosecution is commenced in bad faith or to harass:
(1) whether it was frivolous or undertaken with no reasonably objective hope of success; (2) whether it was motivated by the defendant's suspect class or in retaliation for the defendant's exercise of constitutional rights; and (3) whether
it was conducted in such a way as to constitute harassment and an abuse of prosecutorial discretion, typically through the unjustified and oppressive use of multiple prosecutions.Id. It is Plaintiff's heavy burden to overcome the bar of Younger abstention by setting forth more than mere allegations of bad faith or harassment. Id. at 890.
Nonetheless, the case is subject to dismissal pursuant to Heck.
III. Recommendations
For the reasons set forth herein, this Magistrate Judge respectfully
RECOMMENDS that the Complaint and action be dismissed without prejudice as barred by Heck v. Humphrey, 512 U.S. 477 (1994).
DATED at Grand Junction, this 1st day of May, 2019.
BY THE COURT:
/s/_________
Gordon P. Gallagher
United States Magistrate Judge