Martinez v. Winner, 82-2110
| Decision Date | 29 November 1985 |
| Docket Number | No. 82-2110,82-2110 |
| Parties | Francisco Eugenio MARTINEZ, Plaintiff-Appellant, v. Fred M. WINNER, Chief Judge of the United States District Court for the District of Colorado, individually and in his official capacity; Joseph M. Dolan, United States Attorney for the District of Colorado, individually and in his official capacity; Susan Roberts, Assistant United States Attorney, individually and in her official capacity; John R. Barksdale, Assistant United States Attorney, individually and in his official capacity; Dan Christopher, Assistant United States Attorney, individually and in his official capacity; Jan Chapman, Assistant United States Attorney, individually and in her official capacity; United States Department of Justice, a governmental entity; Federal Bureau of Investigation, a governmental entity; "John Doe" and other unnamed and unknown agents in the Denver Office of the Federal Bureau of Investigation, individually and in their official capacities; Matt Dunn, Deputy United States Marshal, individually and in his official capacity; Peyton Baer, Deputy United States Marshal, individually and in his official capacity; Les Weisenhorn, Deputy United States Marshal, individually and in his official capacity; City and County of Denver, a governmental entity; Dale A. Tooley, District Attorney for the City and County of Denver, individually and in his official capacity; Castelar Garcia, Jr., Deputy District Attorney, individually and in his official capacity; City of Denver Police Department, a governmental entity; Arthur Dill, Chief of Police, individually and in his official capacity; Robert Shaughnessy, Chief, City of Denver Police Department, individually and in his official capacity; Robert Nicoletti, Captain, Denver Police Department, individually and in his official capacity; J.C. Tyus, Detective, Denver Police Department; "John Does," and other unnamed and unknown agents of the Denver Police Department; Sandy Spencer and Peter Webb, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Adele Graham of Graham & Graham, Denver, Colo., and David Graham of Graham & Graham, San Luis, Colo. (Dan Stormer of Litt & Stormer, Los Angeles, Cal., and James I. Meyerson, New York City, with them on brief), for plaintiff-appellant.
Gary T. Cornwell of McGuire, Cornwell & Blakely, Denver, Colo., for defendant-appellee Winner.
Mark B. Stern, Appellate Staff, Civil Div., Dept. of Justice, Washington, D.C. (Richard K. Willard, Acting Asst. Atty. Gen., Barbara L. Herwig, Dept. of Justice, Washington, D.C., and Robert N. Miller, U.S. Atty., Denver, Colo., with him on brief), for defendants-appellees Dolan, Roberts, Barksdale, Chapman, Christopher, Dept. of Justice, F.B.I., Dunn, Baer and Weisenhorn.
Daniel J. Sears of Denver, Colo., for defendant-appellee Spencer.
Jeffrey A. Chase of Holme, Roberts & Owen, Denver, Colo. (Carol H. Green of Holme, Roberts & Owen, Denver, Colo., with him on brief), for defendant-appellee Webb.
David R. Brougham of Hall & Evans, Denver, Colo., for defendants-appellees Tooley and Garcia.
John R. Flanders of Halaby & McCrea, Denver, Colo. (Theodore S. Halaby and Leslie L. Schluter of Halaby & McCrea, Denver, Colo., and Steven M. Munsinger of Keene, Munsinger & Stuckey, Denver, Colo., with him on brief), for defendants-appellees City and County of Denver, City of Denver Police Dept., Dill, Shaughnessy, Nicoletti and Tyus.
Before LAY, * Chief Judge, and BRIGHT * and ARNOLD, * Circuit Judges.
On August 22, 1985, we filed our opinion in this case, affirming in part and reversing and remanding for further proceedings in part. Martinez v. Winner, 771 F.2d 424 (10th Cir.1985). Three petitions for rehearing are now before us: One filed by J.C. Tyus, one filed by the United States Attorney for the District of Colorado and the Federal Bureau of Investigation, and one filed by Jan Chapman.
The petitions for rehearing filed by J.C. Tyus, the United States Attorney for the District of Colorado, and the Federal Bureau of Investigation are denied. 1
The petition for rehearing of Jan Chapman is granted. On reconsideration, the Court vacates and sets aside that portion of its prior opinion reversing the judgment of dismissal of the complaint as to her. A new judgment will be entered affirming the District Court's dismissal with prejudice of the complaint as to Jan Chapman.
The complaint, which we must take as true for present purposes, alleged, p 127, I R. 25, that the defendant Chapman, an Assistant United States Attorney, filed an affidavit concealing and misrepresenting what had happened in Martinez's trial before Judge Winner, "for the purpose of defeating plaintiff's lawful efforts to claim a mistrial." We understood this allegation to refer to a submission made by Chapman "in some sort of bar disciplinary proceeding...." 771 F.2d at 438. Such a submission, we held, was outside the scope of prosecutorial immunity, because it was "not part of the presentation of the government's case nor of the judicial process," and did "not involve the role of the prosecutors as advocates." Ibid. The affidavit was...
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