Martinez v. Winner

• Citation: 548 F. Supp. 278
• Decision Date: 30 July 1982
• Docket Number: No. 82-BJ-199.,82-BJ-199.
• Parties: Francisco Eugenio MARTINEZ, Plaintiff, 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 Doe", and other unnamed and unknown agents of the Denver Police Department; Sandy Spencer; and Peter Webb, Defendants.
• Court: United States District Courts. 10th Circuit. United States District Court of Colorado

548 F. Supp. 278

Francisco Eugenio MARTINEZ, Plaintiff, 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 Doe", and other unnamed and unknown agents of

the Denver Police Department; Sandy Spencer; and Peter Webb, Defendants.

No. 82-BJ-199.

United States District Court, D. Colorado.

July 30, 1982.

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David Graham, Esq. & Adele Graham, Denver, Colo., for plaintiff.

Gary Cornwell, Denver, Colo., for Judge Fred M. Winner.

J. Paul McGrath, John J. Farley, III, John L. Euler, R. Joseph Sher, Torts Branch, Dept. of Justice, Washington, D. C., for Joseph Dolan, Susan Roberts, John R. Barksdale, Jan Chapman, Matt Dunn, and Les Weisenhorn and U. S. Dept. of Justice and F. B. I.

George G. Matava, James E. Nesland, Denver, Colo., for Dan Christopher.

Theodore S. Halaby, Denver, Colo., for City and County of Denver, Arthur Dill, Robert Shaughnessy & Robert Nicoletti.

Daniel J. Sears, Denver, Colo., for Sandy Spencer.

David Brougham, Denver, Colo., for Dale Tooley and Castelar Garcia.

Jeffrey A. Chase, Denver, Colo., for Peter Webb.

Stephen M. Munsinger, Denver, Colo., for defendants.

MEMORANDUM OPINION

JENKINS, District Judge.

This is a civil rights action alleging wrongdoing on the part of a Federal Judge, a United States Attorney and several Assistant United States Attorneys, several deputy United States Marshals, a host of individuals and agencies engaged in federal and state law enforcement, and a television news reporter. The plaintiff seeks damages for and declaratory and equitable relief from what he asserts to be an overall conspiracy to deprive him of his civil rights and to "railroad" him into prison on unsubstantiated criminal charges.¹ The allegations in Martinez' complaint relate to the commencement of a criminal action entitled United States v. Martinez and the events leading to a mistrial in that case. Those events have been briefly summarized by the Court of Appeals:

On November 9, 1973, Martinez was indicted on seven counts relating to possession of unregistered explosives and the sending of explosives through the United States mails. Before trial commenced, in January, 1981, four counts were severed by the district court, Chief Judge Fred Winner presiding. Martinez went to trial on counts one, four, and seven; one count alleged a conspiracy and the other two charged possession of explosives and mailing of the explosives to an individual known as Carol Hogue.

On January 27, 1981, trial commenced in Pueblo, Colorado on the unsevered counts. On January 29, the defendant moved to replace two jurors with two alternates because of complaints allegedly made by the two jurors about spectators wearing T-shirts with "Free Kiko" (defendant's nickname) printed on them. The two jurors had also allegedly complained about a law student at the defense table wearing sun-glasses. The government objected to the motion and Judge Winner denied the motion.

On the evening of the third day of trial, January 29, the trial judge held a secret meeting with the prosecutors, court personnel, and several government witnesses in his hotel room. Neither defendant nor his counsel were notified about this meeting. Judge Winner stated that he believed there was an atmosphere of intimidation in the court room caused by some of the spectators who were sympathetic to the defendant and that he wanted hidden cameras to be installed to record the intimidation. Judge Winner informed the prosecutors that he would grant a motion for a mistrial, but advised them not to make such a motion until after the cameras were installed and after the defense presented its case. The judge further indicated that he could provoke defense counsel to request a mistrial. One witness, Officer Tyus, stated that he could cause a mistrial by giving testimony which had previously been ruled inadmissible. Judge Winner repeated many of these comments in chambers to United States Attorney Roberts who arrived from Denver the next day. The trial judge also expressed a desire to remain in ex parte contact with the prosecutors. The reason given for not inviting defendant's counsel to the meeting was the court's suspicion (unverified on this record) that one of defendant's counsel might be involved in a conspiracy to intimidate the jury.

On January 30, the morning after the meeting, the government stated that it "did not object to the granting of defendant's motion for a mistrial." At that time all of the defendant's motions had been overruled. The prosecutor, Mr. Barksdale, explained:

We understand the jurors' two names were in the newspaper. I was aware of that this morning. We also understand from the Court this morning that the — in court, of course, the juror was — one juror was ill, and we, therefore, have changed our position.

The court granted a recess to allow the defense to decide whether to join in the government's motion. The defense then joined in the motion. The trial court granted the joint motion for mistrial.

United States v. Martinez, 667 F.2d 886, 887-888 (10th Cir. 1981) (footnote omitted). The Court of Appeals held in the criminal case that the prosecutors' failure to inform the defense of the January 29 meeting barred retrial on three counts because of the Double Jeopardy Clause.² Id., 667 F.2d at 890. Martinez now asserts claims for wrongdoing at and after the January 29 meeting as well as claims based upon a pattern of purported wrongdoing by state and federal officials reaching back to before the filing of the indictment against him in November of 1973.³

He asserts claims based upon 42 U.S.C. §§ 1981, 1983, 1985, 1986, and 1988, the First, Fourth, Fifth, Sixth, Eighth, Ninth, Thirteenth, and Fourteenth Amendments to the United States Constitution, unspecified sections of the Constitution of the State of Colorado, common-law tort actions such as false arrest, false imprisonment, abuse of process, harassment, gross misconduct, outrageous conduct, and negligence, and violations of the Code of Judicial Conduct and the Code of Professional Responsibility.

I. JURISDICTION

Though this action was not commenced in this Court, and the pleadings consequently lack the jurisdictional allegations common to federal complaints, the jurisdiction of this Court is firmly established by the removal statutes relied upon by the defendants in moving the case to this forum. See 28 U.S.C. §§ 1441(b), 1442(a) (1976). This Court has original jurisdiction of plaintiff's action pursuant to 28 U.S.C. §§ 1331 (federal question), and 1343(a) (civil rights actions); see Davis v. Passman, 442 U.S. 228, 99 S.Ct. 2264, 60 L.Ed.2d 846 (1979) (actions directly under Constitution), as well as exclusive original jurisdiction of plaintiff's tort claims against the United States. See 28 U.S.C. § 1346(b) (1976). Though all but two named defendants have moved to dismiss the plaintiff's complaint, subject matter jurisdiction is not at issue.⁴ But see Part VIII, infra.

II. MOTIONS UNDER RULE 12(b)(6)

The defendants' motions uniformly assert that the plaintiff's complaint should be dismissed "for failure to state a claim upon which relief may be granted," Rule 12(b)(6), Federal Rules of Civil Procedure, the modern equivalent of the obsolete plea of demurrer. In determining the issue raised by the motions, the material factual allegations of the complaint are, of course, to be taken as true, see Hospital Building Co. v. Trustees of Rex Hospital, 425 U.S. 738, 740, 96 S.Ct. 1848, 1850, 48 L.Ed.2d 338 (1976); Mandeville Island Farms, Inc. v. American Crystal Sugar Co., 334 U.S. 219, 222, 68 S.Ct. 996, 999, 92 L.Ed. 1328 (1948),⁵ and the complaint is to be read in a light most favorable to the plaintiff. See Jenkins v. McKeithen, 395 U.S. 411, 421-422, 89 S.Ct. 1843, 1848-1849, 23 L.Ed.2d 404 (1969); 5 C. Wright & A. Miller, Federal Practice and Procedure § 1357 at 594 & n. 46 (1969). A complaint should not be dismissed unless it appears to a certainty that plaintiff is not entitled to relief under any state of facts which could be proved in support of the claim. Haines v. Kerner, 404 U.S. 519, 520-521, 92 S.Ct. 594, 595-596, 30 L.Ed.2d 652 (1972); Conley v. Gibson,...