Handy v. City & County of Denver

          RECOMMENDATION REGARDING CIVIL COMPLAINT

          Gordon P. Gallagher, United States Magistrate Judge

         This matter comes before the Court on the Complaint, ECF No. 1^[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.^[2] 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).

         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. 1at 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^[3], 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 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 ...