United States District Court, D. Colorado
ORDER TO DISMISS IN PART AND ASSIGN REMAINING CLAIMS AND CASE TO A PRESIDING JUDGE
LEWIS T. BABCOCK, Senior District Judge.
Plaintiff, Jah Frederick Nathaniel Mason, III, is incarcerated at the Clear Creek County Jail in Georgetown, Colorado. Mr. Mason initiated this action by filing pro se a Complaint (ECF No. 1). The Court determined the Complaint was deficient, and on July 14, 2014, Magistrate Judge Boyd N. Boland entered an order (ECF No. 3) directing Mr. Mason within thirty days to cure certain designated deficiencies and file an amended Prisoner Complaint that sued the proper parties, complied with the pleading requirements of Rule 8 of the Federal Rules of Civil Procedure, and alleged the personal participation of each named Defendant.
On August 7, 2014, Mr. Mason filed an amended Prisoner Complaint (ECF No. 9) for money damages pursuant to 42 U.S.C. § 1983, the Religious Freedom Restoration Act (RFRA), and the Americans with Disabilities Act (ADA).
Mr. Mason has been granted leave to proceed pursuant to 28 U.S.C. § 1915. Subsection (e)(2)(B) of § 1915 requires a court to dismiss sua sponte an action at any time if the action is frivolous, malicious, or seeks monetary relief against a defendant who is immune from such relief. A legally frivolous claim is one in which the plaintiff asserts the violation of a legal interest that clearly does not exist or asserts facts that do not support an arguable claim. Neitzke v. Williams, 490 U.S. 319, 324 (1989).
Mr. Mason is cautioned that his ability to file a civil action or appeal in federal court in forma pauperis pursuant to 28 U.S.C. § 1915 may be barred if he has three or more actions or appeals in any federal court that were dismissed as frivolous, malicious, or for failure to state a claim upon which relief may be granted. See 28 U.S.C. § 1915(g). Under § 1915(g), the Court may count dismissals entered prior to the enactment of this statute. Green v. Nottingham, 90 F.3d 415, 420 (10th Cir. 1996).
The Court must construe Mr. Mason's amended Prisoner Complaint liberally because he 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. Merely making vague and conclusory allegations that his federal constitutional rights have been violated does not entitle a pro se pleader to a day in court, regardless of how liberally the court construes such pleadings. See Ketchum v. Cruz, 775 F.Supp. 1399, 1403 (D. Colo. 1991), aff'd, 961 F.2d 916 (10th Cir. 1992). "[I]n analyzing the sufficiency of the plaintiff's complaint, the court need accept as true only the plaintiff's well-pleaded factual contentions, not his conclusory allegations." Hall, 935 F.2d at 1110. A court may disregard conclusory allegations, which are not entitled to a presumption of truthfulness. Ashcroft v. Iqbal, 556 U.S. 662, 681 (2009); Meek v. Jordan, 534 F.App'x 762, 764 (10th Cir. 2013). For the reasons stated below, the Prisoner Complaint and the action will be dismissed in part as legally frivolous pursuant to § 1915(e)(2)(B).
Mr. Mason makes the vague and conclusory allegation that in October 2008 he received a "fully favorable [canonical (religious)] disability determination" by a United States magistrate judge, apparently Plaintiff's purported justification for asserting jurisdiction pursuant to the ADA. Although Mr. Mason asserts jurisdiction based upon the ADA violations, apparently Title II of the ADA, he fails to allege facts indicating that he is a qualified individual with a disability who was excluded from participation in or denied the benefits of a public entity's services, programs, or activities, and that exclusion, denial of benefits, or discrimination was because of a disability. See Anderson v. Colorado, 887 F.Supp.2d 1133, 1143 (D. Colo. 2012) (discussing the elements of Title II of the ADA and section 504 of the Rehabilitation Act). Mr. Mason's reliance upon the ADA is misplaced.
Mr. Mason alleges that he chooses to exercise his religious freedom, apparently pursuant to RFRA, not to "work for (serve) or bow to (submit) any agency or entity that uses satanic imagery in its seals." ECF No. 9 at 6. He contends government agencies use satanic imagery on their seals. ECF No. 9 at 5. RFRA was held unconstitutional as applied to the states in City of Boerne v. Flores, 521 U.S. 507, 532-36 (1997); Rocky Mountain Christian Church v. Board of County Comm'rs of Boulder County, 612 F.Supp.2d 1163, 1171 (D. Colo. 2009). Mr. Mason's reliance upon RFRA also is misplaced.
Mr. Mason asserts nine claims based on his belief that the use of satanic imagery on the seals of government justifies his driving without a license because the seal on Colorado drivers' licenses displays satanic images. He also apparently believes that, by following his religious beliefs in not carrying a driver's license, he should not be charged with traffic offenses as a result. He references on pages two to three of the amended Prisoner Complaint additional individuals he has not included as parties in the caption to this case. They are Bryan Garrett, deputy district attorney; Bruce I. Brown, district attorney; John Doe, Manitou Springs, Colorado, police officer; and John Doe, Denver parking management meter agent.
As his first claim, Mr. Mason alleges in September 2012 a police officer ticketed him for driving without a license and speeding near Georgetown, Colorado. He further alleges that on December 14, 2012, while he was parked on the side of the road at a rest stop area, a Manitou Springs police officer approached his vehicle; demanded identification; discovered a warrant for Mr. Mason's arrest based on the outstanding ticket for driving without a license and speeding; arrested him; took him to the El Paso County Jail in Colorado Springs, Colorado; and subsequently transferred him to the Clear Creek County Jail, where he currently is confined. Based on these allegations, Mr. Mason contends he was subjected to an unconstitutional search and seizure and a violation of his due process rights.
As his second claim, Mr. Mason alleges that on December 21, 2012, after he was incarcerated in the Clear Creek County Jail, he appeared before the Honorable Rachel Olguin-Fresquez, who he informed he had a religious disability and did not consent to the court's jurisdiction. On January 23, 2013, he was appointed a public defender and released on a personal recognizance bond. He asserts that at a subsequent hearing he "showed my [public defender] evidence of my SSI canonical disability and evidence (court precedence) that I was exempt from having a driver's license." ECF No. 9 at 15. He contends he cannot be compelled to carry a driver's license because the Colorado seal displays satanic images and that he also cannot be denied the privilege of driving. He asserts the public defender moved to withdraw from his case, and apparently was granted the right to do so because he also alleges that at a subsequent pretrial motions hearing he proceed pro se before a "John Doe'" Judge, ECF No. 9 at 17. He alleges that the People of the State of Colorado were represented by Deputy District Attorney Bryan Garrett, who acted under the ...