United States District Court, D. Colorado
LEWIS T. BABCOCK, Senior Judge
ORDER OF DISMISSAL
Plaintiff, Aaron Ivan Jordan, resides in Aurora, Colorado. He initiated this action on September 25, 2015, by filing a Complaint on the incorrect form. In response to the Court's order directing him to cure deficiencies, Mr. Jordan filed a Complaint on the court-approved form ("Amended Complaint") (ECF No. 6), asserting deprivations of his constitutional rights pursuant to 42 U.S.C. § 1983. Mr. Jordan has been granted leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915.
On October 21, 2015, Magistrate Judge Gordon P. Gallagher reviewed the Amended Complaint and determined that it was deficient because the Fourth Amendment claim(s) appeared to be barred by the rule of Heck v. Humplirey, 512 U.S. 477 (1994). (ECF No. 9). Further, Plaintiff failed to allege facts to show the personal participation of the Defendant police officers in a deprivation of his constitutional rights, failed to state facts to hold the City of Aurora liable under § 1983, and failed to allege facts to show that the private Defendants engaged in unconstitutional state action with the government Defendants. (Id.). And, finally, Magistrate Judge Gallagher informed Mr. Jordan that his allegations failed to state arguable violations of his Fourteenth Amendment due process and equal protection rights, or an arguable claim of unconstitutional retaliation. (Id.). Magistrate Judge Gallagher ordered Mr. Jordan to file a Second Amended Complaint to cure the deficiencies within 30 days. (Id.). Plaintiff filed a Second Amended Complaint on November 18, 2015. (ECF No. 11).
The Court must construe the Second Amended Complaint liberally because Plaintiff is representing himself. 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 act as the pro se litigant's advocate. Hall, 935 F.2d at 1110. For the reasons stated below, this action will be dismissed.
I. The Second Amended Complaint
The Second Amended Complaint, like the Amended Complaint, contains a lengthy narrative of the alleged wrongs perpetrated against Plaintiff by his neighbors and members of his Homeowners’ Association, as well as by several Aurora police officers,, most of whom are not named as Defendants in the Second Amended Complaint. Only allegations against named Defendants will be considered by the Court.
Mr. Jordan, who is African-American, asserts that he has been persecuted by the Defendants because of his Christian beliefs, his race, and his civil suits filed against Aurora police officers. Plaintiff alleges that Defendant Vankam arrested him unlawfully at his townhome in May 2013 for altering/befouling the property in front of his garage unit with urine. (ECF No. 11 at 6, 10, 23-24, 30). Mr. Jordan was taken to jail and released on bond. (Id. at 24). Plaintiff further alleges that Defendants Vankam, Cooley, Keys and Houck conspired to have him arrested unlawfully in May 2013 on the false charge of living in his garage. (Id. at 6, 9; see also ECF No. 6 at 3). Mr. Jordan was convicted of the charge of unlawfully living in his garage and served approximately one year in jail. (ECF No. 11 at 33; ECF No. 6 at 4). It is unclear whether Plaintiff was convicted of altering/befouling property. In 2015, Mr. Jordan was arrested for third degree assault upon, and false imprisonment of, at-risk adult, after he used an 80-year old woman as a human shield to try to protect himself from a neighbor who had just fractured his knee with a baseball bat. (Id. at 63-64, 69, 79). Plaintiff alleges that there was no probable cause for the arrest that he alleges was instigated by Defendant Vankam. The criminal charges arising out of the 2015 incident are pending trial in the Arapahoe District Court in January 2016. (Id. at 11, 84). Mr. Jordan claims that the Defendants have retaliated against him in violation of his First Amendment right to practice his religion, have violated his Fourth Amendment rights, and have denied him due process and the equal protection of the laws, in violation of the Fourteenth Amendment. Although he does not seek any specific relief in the Second Amended Complaint, Plaintiff asked for an award of damages in his Amended Complaint. (ECF No. 6 at 6).
II. Legal Analysis
A. Fourth Amendment Claims based on May 2013 Arrests
Mr. Jordan appears to assert Fourth Amendment claims against the Defendants arising out of his 2013 arrests for “living in his garage” and for altering/befouling property. (ECF No. 11 at 9-10). He alleges that he was convicted of the former, but it is not clear whether he was convicted of the latter.
Plaintiff may not seek damages in a § 1983 action based on an alleged unlawful criminal conviction, until the criminal conviction is over-turned. See Heck v. Humphrey, 512 U.S. 477 (1994). In Heck, the United States Supreme Court held that if a judgment for damages favorable to a plaintiff in a
§ 1983 action necessarily would imply the invalidity of the plaintiff's criminal conviction or sentence, the
§ 1983 action does not arise until the ''conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by an authorized state tribunal or called into question by a federal court's issuance of a writ of habeas corpus, 28 U.S.C.
§ 2254.'' 512 U.S. at 486-87.
Plaintiff does not allege any facts to show that his criminal convictions(s) were dismissed, reversed on direct appeal, or otherwise vacated. Consequently, a
§ 1983 false arrest or malicious prosecution claim appears to be barred by Heck. See Callen v. Wyoming Dept. of Corrections, No. 14-8057, 608 F.App'x 562, 563 (10th Cir. March 30, 2015) (unpublished) (agreeing with the district court that the plaintiff's
§ 1983 malicious prosecution claim was barred by Heck, where there was no indication that his conviction had been over-turned). Moreover, even though a false arrest claim does not necessarily imply the invalidity of a subsequent criminal conviction, see Beck v. City of Muskogee Police Dep't, 195 F.3d 553, 558 (10th Cir.1999), Mr. Jordan's allegations that he was innocent of the crimes brings his claim within the purview of Heck. See Crabtree v. Oklahoma, No. 13-5153, 564 F.App'x 402, 404-05 (10th Cir. April 25, 2014) (unpublished) (affirming dismissal of false arrest claim under Heck) (citing Jackson v. Loftis, Nos. 05-5050 and 05-5225, 189 F.App'x. 775, 779 n. 1 (10th Cir. July 25, 2006) (unpublished) (suggesting, without holding, that a false arrest claim alleging ''arrest was improper because [the prisoner] had not committed the alleged offenses . . . may be the exceptional false arrest case that satisfies the 'necessarily called into doubt' condition for invoking Heck'').
Accordingly, the Fourth Amendment claims arising out of Plaintiff’s criminal conviction(s) will be dismissed without prejudice under Heck. See Fottler v. United States, 73 F.3d 1064, 1065 (10th Cir.1996).
Alternatively, even if Applicant was not convicted of the charge of altering/befouling property, he cannot pursue a Fourth Amendment claim arising out of his arrest or prosecution on that charge. To maintain a false arrest or malicious prosecution claim under § 1983, a plaintiff must demonstrate that his Fourth Amendment right to be free from unreasonable search and seizure has been violated. See Wilkins v. DeReyes, 528 F.3d 790, 798-99 (10th Cir. 2008). In this case, the exhibits to the Second Amended Complaint reflect that Defendant Vankam had probable cause to arrest Plaintiff for altering/befouling property. (ECF No. 11 at 23-24). Further, Plaintiff does not allege that the charge was ultimately terminated in his favor, a necessary element of a § 1983 malicious prosecution claim. See Wilkins, 528 F.3d at 799. Therefore, to the extent the Fourth Amendment claim is not barred by Heck, it will be dismissed for failure to state an arguable claim for relief.
B. Fourth Amendment Claims Based on 2015 Arrest
Mr. Jordan also complains that Defendant Vankam caused him to be arrested falsely in 2015 for third-degree assault and false imprisonment. An exhibit to the Second Amended Complaint indicates that a three-day trial in the Arapahoe County District Court is set for January 2016. (ECF No. 11 at 84).
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 is appropriate under Younger if 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. The abstention principles of Younger are jurisdictional and apply whether the plaintiff seeks equitable or monetary relief. See D.L. v. Unified School Distr. No. 497, 392 F.3d 1223, 1228 (10th Cir. 2004); Parkhurst v. Wyoming, 641 F.2d 775, 777 (10th Cir.1981).
The first condition for Younger abstention is met because the state court criminal proceeding is ongoing. The second condition also is satisfied 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). Under the third condition, Mr. Jordan will have an opportunity to challenge the legality of his arrest under the Fourth Amendment during the state criminal proceedings and there is no reason to believe his claim will not be given full and proper consideration by the state courts. See Kugler v. Helfant, 421 U.S. 117, 125 (1975) (noting that ...