Jordan v. Keys et al
ORDER DIRECTING PLAINTIFF TO FILE A SECOND AMENDED COMPLAINT by Magistrate Judge Gordon P. Gallagher on 10/21/15. (dkals, )
IN 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 HOUCH, H.O.A. President,
ORDER DIRECTING PLAINTIFF TO FILE A SECOND AMENDED COMPLAINT
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.
The Court must construe the 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, Mr.
Jordan will be directed to file a Second Amended Complaint.
I. The Amended Complaint
Mr. Jordan=s Amended Complaint consists, in part, of a lengthy diatribe against
Aurora police officers and his neighbors. Notwithstanding, the Court discerns the
following factual allegations that are relevant to his claims asserted against the named
Defendants. In approximately August 2014, Plaintiff was arrested by Defendant Aurora
Police Officer Keys for Aliving in his garage.@ (ECF No. 6 at 3). According to Plaintiff,
the charge was false because he did not permanently reside in his garage but only stayed
there on occasion. Mr. Jordan was ultimately convicted of a criminal offense as a result
of an alleged conspiracy between Defendant Aurora Police Officers Keys, Vankam and
Cooley, and Defendant HOA president Houch, to arrest and prosecute him without
probable cause, in violation of Fourth Amendment rights. He further claims that
Defendant Vankam has persecuted him arbitrarily, both before and after his conviction,
by physically altering Plaintiff=s property and by preventing Plaintiff from reporting any
legal problems concerning his garage to an Aurora police officer other than himself.
Jordan states that Defendant Vankam refused to arrest Plaintiff=s neighbor after the
neighbor hit Plaintiff with a steal bat and broke his knee cap, permanently disabling him.
Plaintiff claims that Defendant Vankam=s arbitrary and discriminatory actions violate his
Fourteenth Amendment rights. And, finally, Mr. Jordan asserts that members of the
Aurora police department have retaliated against him for filing civil lawsuits against the
police force by: refusing to investigate his reports of criminal activity; failing to arrest the
neighbor who assaulted Plaintiff; arresting Plaintiff for an assault that occurred during the
perpetration of a hate crime against him; and, by interfering with Plaintiff=s real property.
Mr. Jordan seeks monetary relief.
II. Legal Analysis
A. Fourth Amendment claims
In his first claim, Mr. Jordan seeks damages for a wrongful arrest and prosecution,
in violation of the Fourth Amendment.
1. Application of Heck v. Humphrey
Plaintiff alleges that he was convicted of a criminal charge arising from an unlawful
arrest and prosecution. He claims that he is innocent of the charge. However, Mr.
Jordan may not challenge his state criminal conviction in a ' 1983 action, 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 486-87.
Plaintiff does not allege any facts to show that his criminal conviction was
dismissed, reversed on direct appeal, or otherwise vacated. Consequently, a ' 1983
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 allegation of innocence
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 invoking Heck@).
Plaintiff is reminded that if he wishes to challenge the legality of his state law
conviction, he may do so in a new proceeding under 28 U.S.C. ' 2254, after exhausting
available state court remedies.
2. Personal Participation
Even if the Fourth Amendment claim(s) is not barred by the rule of Heck, the
Amended Complaint is deficient because Mr. Jordan does not allege facts to show how
each named Defendant was personally involved in a deprivation of his constitutional
rights. See Bennett v. Passic, 545 F.2d 1260, 1262-63 (10th Cir. 1976); Kentucky v.
Graham, 473 U.S. 159, 166 (1985). There must be an affirmative link between the
alleged constitutional violation and each defendant=s participation, control or direction, or
failure to supervise. See Gallagher v. Shelton, 587 F.3d 1063, 1069 (10th Cir. 2009)
(citations and quotations omitted); see also Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009).
Moreover, to hold a private individual, such as Defendant Houch, 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
allegation that Defendant Houch conspired with the Aurora police officer Defendants to
deprive him of his Fourth Amendment rights is inadequate to state an arguable claim
under § 1983.
3. Municipal Liability
Mr. Jordan states that he is suing the Aurora police officer 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, 25 (1991).
To hold the City of Aurora liable under ' 1983, Plaintiff 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 Amended Complaint does not include factual allegations sufficient to subject
the City of Aurora to liability under ' 1983.
B. Fourteenth Amendment Claim(s)
Mr. Jordan claims that Defendant Vankam=s alleged arbitrary and discriminatory
treatment violated Plaintiff=s Fourteenth Amendment rights.
1. 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 Defendant Vankam=s conduct deprived him
of a liberty interest, in violation of his substantive due process rights, the factual
allegations in the Amended Complaint fall sort 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)).
The complained of misconduct by Defendant Vankam does not rise to the level of
Mr. Jordan may also be asserting that Defendant Vankam=s destruction of
Plaintiff=s real or personal property violated the Due Process Clause. 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). The allegations of the Amended
Complaint fail to show an arguable deprivation of Mr. Jordan=s due process rights based
on Defendant Vankam=s alleged interference with his property.
Mr. Jordan=s allegations of purposeful discrimination by Defendant Vankam could
also be construed liberally as asserting a violation of the Fourteenth Amendment Equal
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).
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 facts to show that Defendant Vankam=s objectionable conduct was
directed at him because of his race. Instead, Plaintiff=s allegations are more properly
construed as possibly asserting a Aclass of one@ equal protection claim.
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.
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).
If Mr. Jordan intends to pursue an equal protection claim, he must allege specific
facts to show that he was treated differently than similarly situated individuals.
C. Unlawful Retaliation
Mr. Jordan asserts in his third claim for relief that the Defendant police officers
retaliated against him for his prior civil rights complaints by: refusing to investigate his
reports of criminal activity; failing to arrest the neighbor who assaulted Plaintiff; arresting
Plaintiff for an assault that occurred during the perpetration of a hate crime against him;
and, by cutting holes in the Plaintiff=s garage.
To state a 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)).
The allegations in the Amended Complaint do not include enough specific facts to
demonstrate that one or more of the named Defendants were personally involved in
unlawful retaliation against Mr. Jordan in response to his filing of prior civil rights lawsuits.
Mr. Jordan will be directed to file a Second Amended Complaint that cures the
deficiencies noted above. Plaintiff should exclude from his amended pleading the
unnecessary sarcastic commentary that permeates the Amended Complaint. To state a
claim in federal court, Aa complaint must explain what each defendant did to him or her;
when the defendant did it; how the defendant=s action harmed him or her; and, what
specific legal right the plaintiff believes the defendant violated.@ See Nasious v. Two
Unknown B.I.C.E. Agents, 492 F.3d 1158, 1163 (10th Cir. 2007). Accordingly, it is
ORDERED that Plaintiff file, within thirty (30) days from the date of this order,
a Second Amended Complaint that complies with the directives in this Order. It is
FURTHER ORDERED that Plaintiff shall obtain the court-approved Complaint
form, along with the applicable instructions, at www.cod.uscourts.gov. It is
FURTHER ORDERED that, if Plaintiff fails to file a Second Amended Complaint
within the time allowed, this action will be dismissed without further notice.
DATED October 21, 2015, at Denver, Colorado.
BY THE COURT:
Gordon P. Gallagher
United States Magistrate Judge
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