United States District Court, D. Colorado
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
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 ...