Jordan v. Keys et al
ORDER dismissing this action, and denying leave to proceed in forma pauperis on appeal, by Judge Lewis T. Babcock on 12/3/15. (dkals, )
THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 15-cv-02134-GPG
AARON IVAN JORDAN,
CHARLES KEYS, Neighborhood Services,
JAY VANKAM, Aurora P.D.,
DIANNA COOLEY, Aurora P.D., and
DENNIS HOUCK, H.O.A. President,
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 (AAmended 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. Humphrey, 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 Aconviction 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
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 Aarrest 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
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 “ordinarily a pending state prosecution
provides the accused a fair and sufficient opportunity for vindication of federal
constitutional rights”). The Court finds that the requirements for abstention have been
Mr. Jordan “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.
Phelps, 122 F.3d at 889. It is Mr. Jordan’s “‘heavy burden’ to overcome the bar of
Younger abstention by setting forth more than mere allegations of bad faith or
Mr. Jordan’s allegations do not show that the criminal prosecution is frivolous; is
motivated by Plaintiff’s race or by unconstitutional retaliation; or that Plaintiff has been
subjected to oppressive and multiple prosecutions. As such, Plaintiff has failed to
overcome the presumption of abstention.
Finally, Mr. Jordan has not shown an irreparable injury stemming from the state
court criminal prosecution. The fact that he will be forced to stand trial on the criminal
charges does not establish great and immediate irreparable injury. See Phelps, 122
F.3d at 889 (The “‘threat to the plaintiff’s federally protected rights’ is only irreparable if it
‘cannot be eliminated by . . . defense against a single prosecution.’”) (quoting Younger,
401 U.S. at 46).
Generally, where Younger abstention is appropriate, a plaintiff’s § 1983 claims for
damages will be stayed pending resolution of the state criminal proceeding. See Deakins
v. Monaghan, 484 U.S. 193, 202 (1988) (a district court finding that Younger abstention is
required should stay claims for monetary relief that cannot be redressed in the state
proceeding); see also Wallace v. Kato, 549 U.S. 384, 393-94 (2007) (“If a plaintiff files a
false-arrest claim before he has been convicted (or files any other claim related to rulings
that will likely be made in a pending or anticipated criminal trial), it is within the power of
the district court, and in accord with common practice, to stay the civil action until the
criminal case or the likelihood of a criminal case is ended.”).
In this case, however, the Court declines to stay the § 1983 Fourth Amendment
claim against Defendant Vankam arising out of Plaintiff’s 2015 arrest and prosecution
because Mr. Jordan has failed to state an arguable constitutional claim. In Deakins, the
Supreme Court determined that a stay of the damages claims was appropriate because
there was “no question that [the complaint] alleged injuries under federal law sufficient to
justify the District Court's retention of jurisdiction.” 484 U.S. at 204. The Fifth Circuit
Court of Appeals has interpreted Deakins “to require the district court to make, if
appropriate, the threshold determination whether the action is frivolous under § 1915(d).”
Marts v. Hines, 68 F.3d 134, 135 (5th Cir. 1995); see also Cassell v. Osborn, Nos.
93-1557, 93-1607, 93-2079, 1994 WL 159424 (1st Cir. April 26, 1994) (unpublished)
(“The preference expressed in Deakins, . . . for staying rather than dismissing, cognizable
federal claims that allege facts ‘sufficient to justify the District Court's retention of
jurisdiction,’ does not come into play where the claims asserted are patently frivolous.”).
The Court agrees with the approach of the Fifth Circuit.
In this case, Defendant Vankam was not the arresting officer. Plaintiff’s
conclusory allegation that Defendant Vankam “convinced the detective to arrest me
months after I had been assaulted” (ECF No. 11 at 11) is insufficient to show Defendant
Vankam’s personal involvement in Plaintiff’s arrest. See Bennett v. Passic, 545 F.2d
1260, 1262-63 (10th Cir. 1976) (personal participation is an essential element in a civil
rights action); Kentucky v. Graham, 473 U.S. 159, 166 (1985). See also Hall, 935 F.2d at
1110 (recognizing that a pro se litigant's “conclusory allegations without supporting
factual averments are insufficient to state a claim on which relief can be based.”).
Further, the attachments to the second amended complaint indicate that there was
probable cause for Plaintiff’s arrest on charges of third-party assault and false
imprisonment. The statements made by Mr. Jordan and a third-party witness to the
police indicate that after Plaintiff was struck in the knee cap by a baseball-bat wielding
neighbor, Plaintiff grabbed onto an elderly woman, stating that he was hurt, and would not
release her until the police arrived because he was afraid that the neighbor would hit him
again if he let her go. (ECF No. 11 at 63-64, 69, 77-78). The elderly woman suffered
pain as a result of the incident. (Id. at 63). The Court finds that the facts alleged by
Plaintiff in the Second Amended Complaint do not alleged injuries under federal law
sufficient to justify the District Court's retention of jurisdiction over a Fourth Amendment
claim against Defendant Vankam. Accordingly, the claim will be dismissed for lack of
subject matter jurisdiction.
C. Other § 1983 Claims
1. Liability of Defendant Hauk
To hold a private individual, such as Defendant Houck, liable under
' 1983, Mr. Jordan must allege facts to show that the Defendant=s conduct was Afairly
attributable to the state.@ Lugar v. Edmondson Oil Co., 457 U.S. 922, 937 (1982); see
also Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50 (1999) (ALike the state-action
requirement of the Fourteenth Amendment, the under-color-of-state-law element of
' 1983 excludes from its reach merely private conduct, no matter how discriminatory or
wrongful.@) (internal citations and quotation marks omitted). Further, while state action
can be Apresent if a private party is a >willful participant in joint action with the State or its
agents,=@ Gallagher v. Neil Young Freedom Concert, 49 F.3d 1442, 1453 (10th Cir.1995)
(quoting Dennis v. Sparks, 449 U.S. 24, 27 (1980)), Athe mere acquiescence of a state
official in the actions of a private party is not sufficient,@ id. (citing Flagg Bros. v. Brooks,
436 U.S. 149, 164 (1978)). A[C]onstitutional standards are invoked only when it can be
said that the State is responsible for the specific conduct of which the plaintiff complains.@
Blum v. Yaretsky, 457 U.S. 991, 1004 (1982).
When a plaintiff seeks to prove state action based on a conspiracy theory, Aa
requirement of the joint action charge . . . is that both public and private actors share a
common, unconstitutional goal.@ See Anaya v. Crossroads Managed Care Systems, 195
F.3d 584, 596 (10th Cir.1999). Conclusory allegations of conspiracy are insufficient.
Hunt v. Bennett, 17 F.3d 1263, 1268 (10th Cir.1994) (citation and quotations omitted);
see also Durre v. Dempsey, 869 F.2d 543, 545 (10th Cir. 1989) (AConclusory allegations
of conspiracy are insufficient to state a valid ' 1983 claim.@). Mr. Jordan’s conclusory
allegations that Defendant Houck conspired with the Aurora police officer Defendants to
deprive him of his constitutional rights are inadequate to state an arguable claim under
Mr. Jordan was warned by Magistrate Judge Gallagher in the October 21 Order
that the Amended Complaint failed to allege specific facts to show that Defendant Hauk
acted jointly with one or more of the other Defendants to deprive him of his constitutional
rights. The Second Amended Complaint suffers from the same deficiencies.
Furthermore, it is well established that a private individual does not act under color of
state law merely by reporting an alleged crime to police officers who then take action
based on the report. See Benavidez v. Gunnell, 722 F.2d 615, 618 (10th Cir. 1983); see
also Lane v. Johnson, 385 F. Supp. 2d 1146, 1151 (D. Kan. 2005) (stating that “[t]he mere
fact that a private party furnished information, even if false, is not sufficient to constitute
joint activity with state officials to state an actionable claim under § 1983") (emphasis
added). Accordingly, Plaintiff’s claim(s) against Defendant Houck will be dismissed as
2. Municipal Liability
Mr. Jordan states that he is suing Defendants Keys, Vankam and Cooley (“City of
Aurora Defendants”) in their official capacities. The official capacity claims are
construed as claims asserted against the City of Aurora. See Hafer v. Melo, 502 U.S. 21,
Mr. Jordan was warned in the October 21 Order that to hold the City of Aurora
liable under ' 1983, he must allege facts to show that an unconstitutional policy or custom
exists and that there is a direct causal link between the policy or custom and the injury
alleged. City of Canton, Ohio v. Harris, 489 U.S. 378, 385 (1989); Myers v. Oklahoma
County Bd. of County Comm'rs, 151 F.3d 1313, 1316-20 (10th Cir. 1998). Municipalities
are not liable under 42 U.S.C. ' 1983 solely because their employees inflict injury on a
plaintiff. Monell v. New York City Dep=t of Social Servs., 436 U.S. 658, 694 (1978);
Hinton v. City of Elwood, Kan., 997 F.2d 774, 782 (10th Cir. 1993). Plaintiff cannot state
a claim for relief under ' 1983 merely by pointing to isolated incidents. See Monell, 436
U.S. at 694.
The Second Amended Complaint does not include factual allegations sufficient to
subject the City of Aurora to liability under ' 1983. Accordingly, the official capacity
claims against the City of Aurora Defendants will be dismissed as legally frivolous.
3. Fourteenth Amendment claims
Mr. Jordan asserts that the actions of the City of Aurora Defendants violated his
substantive due process rights; and possibly, that one or more of the Defendants
destroyed or defaced his property without affording him procedural due process. He
further contends that the City of Aurora Defendants discriminated against him on the
basis of his race, or singled him out for unlawful discrimination under a “class of one”
equal protection theory.
a. due process
AThe Due Process clause of the Fourteenth Amendment does not prohibit the
government from depriving an individual of Alife, liberty, or property@; it protects against
governmental deprivations of life, liberty, or property Awithout due process of law.@
Farthing v. City of Shawnee, Kan., 39 F.3d 1131, 1135 (10th Cir. 1994) (quoting U.S.
Const. amend. XIV, ' 1).
To the extent Mr. Jordan asserts that the City of Aurora Defendants’ conduct
deprived him of a liberty interest, in violation of his substantive due process rights, the
factual allegations in the Second Amended Complaint fall short of stating an arguable
constitutional deprivation. The Aultimate@ standard for determining whether there has
been a substantive due process violation is Awhether the challenged government action
shocks the conscience of federal judges.@ Ruiz v. McDonnell, 299 F.3d 1173, 1183 (10th
Cir. 2002) (quotations and citations omitted). It is well settled that negligence is not
sufficient to shock the conscience. Id. at 1184. In addition, A>a plaintiff must do more than
show that the government actor intentionally or recklessly caused injury to the plaintiff by
abusing or misusing government power.=@ Tonkovich v. Kansas Bd. of Regents, 159 F.3d
504, 528 (10th Cir.1998) (quoting Uhlrig v. Harder, 64 F.3d 567, 574 (10th Cir.1995)).
Mr. Jordan was warned in the October 21 Order that the allegations of the
Amended Complaint failed to rise to the level of conscious-shocking behavior. The
Second Amended Complaint does not cure the deficiencies in the earlier pleading.
Therefore, the substantive due process claim will be dismissed as legally frivolous.
Mr. Jordan may also be asserting that one or more of the City of Aurora
Defendants destroyed his property without affording him procedural due process.
However, a state official=s unpredictable or random and unauthorized deprivation of
property does not violate the Fourteenth Amendment if the plaintiff had an adequate
post-deprivation remedy, such as a state law tort claim. See Hudson v. Palmer, 468 U.S.
517, 533 (1984); Myers v. Koopman, 738 F.3d 1190, 1193 (10th Cir. 2013). Colorado
law provides adequate post-deprivation remedies, such as a cause of action for
conversion or replevin. See, e.g., City and County of Denver v. Desert Truck Sales, Inc.,
837 P.2d 759 (Colo. 1992) (holding that replevin claim based on allegation that personally
property was wrongfully detained by Denver police was a conversion-based tort claim);
see also COLO.REV.STAT. ' 24-10-118 (2013) (waiving sovereign immunity for public
employees whose tortious conduct was wilful and wanton).
Mr. Jordan was warned in the October 21 Order that the allegations of the
Amended Complaint failed to show an arguable deprivation of Mr. Jordan=s procedural
due process rights. The Second Amended Complaint does not cure the deficiencies in
the earlier pleading. Accordingly, the procedural due process claim will be dismissed as
b. equal protection
Mr. Jordan also asserts that the City of Aurora’s conduct violated the Fourteenth
Amendment Equal Protection Clause.
The Equal Protection Clause requires that similarly situated individuals be treated
alike. City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 439 (1985). Race is a
suspect class entitled to heightened protection under the Equal Protection Clause. See
id. at 440. However, while Mr. Jordan alleges that he is an African-American, he does
not allege specific facts to show that any objectionable conduct by one or more of the City
of Aurora Defendants was directed at him because of his race. Instead, Plaintiff=s
allegations are more properly construed as possibly asserting a Aclass of one@ equal
A>The paradigmatic >class of one= case, [ ] sensibly conceived, is one in which a
public official, with no conceivable basis for his action other than spite or some other
improper motive (improper because unrelated to his public duties), comes down hard on a
hapless private citizen.=@ Kansas Penn Gaming, LLC v. Collins, 656 F.3d 1210, 1216
(10th Cir. 2011) (quoting Lauth v. McCollum, 424 F.3d 631, 633 (7th Cir.2005)).
To state a class-of-one equal protection claim, Mr. Jordan must allege facts to show that
other persons, who are Asimilarly situated in every material respect@ were treated
differently. Jicarilla Apache Nation v. Rio Arriba County, 440 F.3d 1202, 1210 (10th Cir.
2006). Plaintiff must also allege facts to demonstrate that the difference in treatment
was without rational basis, that is, the government action was Airrational and abusive,@ id.
at 1211, and Awholly unrelated to any legitimate state activity,@ Mimics, Inc. v. Vill. of
Angel Fire, 394 F.3d 836, 849 (10th Cir. 2005).
Mr. Jordan was warned in the October 21 Order that the allegations of the
Amended Complaint failed to state an arguable equal protection claim. The Second
Amended Complaint does not cure the deficiencies in the earlier pleading. As such, the
equal protection claim will be dismissed as legally frivolous.
4. Unlawful Retaliation
Finally, Mr. Jordan asserts that the City of Aurora Defendants retaliated against
him because of his exercise of religion and because of his prior civil rights complaints
against Aurora police officers.
Mr. Jordan was warned in the October 21 Order that to state an arguable claim of
unlawful retaliation by government officials in response to the exercise of Plaintiff=s First
Amendment right to petition the court for redress of grievances, Plaintiff must allege facts
to show that (1) he was engaged in a constitutionally protected activity; (2) a defendant's
action caused him to suffer an injury that would chill a person of ordinary firmness from
continuing to engage in that activity; and, (3) a defendant's action was substantially
motivated as a response to his exercise of his First Amendment rights. Van Deelen v.
Johnson, 497 F.3d 1151, 1155-56 (10th Cir. 2007) (citing Worrell v. Henry, 219 F.3d
1197, 1212 (10th Cir. 2000)).
In the Second Amended Complaint, Mr. Jordan does not allege specific facts to
demonstrate that one or more of the City of Aurora Defendants were personally involved
in unlawful retaliation against Mr. Jordan because of his exercise of religion, or in
response to his filing of prior civil rights lawsuits. With regard to the former, Plaintiff
complains about statements made by members of the homeowner’s association, who are
not named Defendants, and whose statements cannot be attributed to the State. (ECF
No. 11 at 4). For the latter, Plaintiff relies solely on a statement made by an Officer Mark
Sears, who likewise is not a named Defendant. (Id.). As such, the retaliation claims will
be dismissed as legally frivolous.
Mr. Jordan’s allegations that the Defendants’ actions violated the First Amendment
Establishment Clause will also be dismissed as legally frivolous for lack of any arguable
factual support. See Abdulhaseeb v. Saffle, 65 F. App’x 667, 676 (10th Cir. Mar. 27,
2003) (“’The Establishment Clause limits any governmental effort to promote particular
religious views to the detriment of those who hold other religious beliefs or no religious
beliefs, while the Free Exercise Clause affirmatively requires the government not to
interfere with the religious practices of its citizens.’”) (quoting Brown v. Gilmore, 258 F.3d
265, 274 (4th Cir. 2001)).
For the reasons discussed above, it is
ORDERED that the § 1983 Fourth Amendment claims against Defendants Keys,
Vankam and Cooley, arising out of one or more state criminal convictions relating to
Plaintiff’s use of his garage, are DISMISSED WITHOUT PREJUDICE pursuant to the rule
of Heck v. Humphrey. It is
FURTHER ORDERED that the § 1983 Fourth Amendment claim against
Defendant Vankam arising out of the pending state criminal prosecution is DISMISSED
WITHOUT PREJUDICE for lack of subject matter jurisdiction pursuant to the doctrine of
Younger abstention. It is
FURTHER ORDERED that the remaining § 1983 claims against Defendants Keys,
Vankam and Cooley, sued in their official and individual capacities, are DISMISSED
WITH PREJUDICE as legally frivolous. It is
FURTHER ORDERED that the § 1983 claims against Defendant Houck are
DISMISSED WITH PREJUDICE as legally frivolous. It is
FURTHER ORDERED that the Court declines to exercise supplemental
jurisdiction over any state law claims asserted in this action. See 28 U.S.C. § 1367(c)(3).
FURTHER ORDERED that leave to proceed in forma pauperis on appeal is denied
for the purpose of appeal. The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that
any appeal from this order would not be taken in good faith. See Coppedge v. United
States, 369 U.S. 438 (1962). If Mr. Jordan files a notice of appeal he must also pay the
full $505 appellate filing fee or file a motion to proceed in forma pauperis in the United
States Court of Appeals for the Tenth Circuit within thirty days in accordance with Fed. R.
App. P. 24.
DATED December 3, 2015, at Denver, Colorado.
BY THE COURT:
s/Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court
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