Martinez v. City of Colorado Springs et al

Filing 15

ORDER of Dismissal re: granting 6 Motion to Dismiss, by Judge Richard P. Matsch on 8/19/2011.(rpmcd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Senior District Judge Richard P. Matsch
Civil Action No. 11-cv-01664-RPM
JOSEPH MARTINEZ,
Plaintiff,
v.
CITY OF COLORADO SPRINGS and
COLORADO SPRINGS POLICE DEPARTMENT METRO
VNI DETECTIVE CHASE PASSANANTE,, and
UNKNOWN COLORADO SPRINGS POLICE DEPARTMENT METRO
VNI DETECTIVES,
Defendants.
____________________________________________________________________________________
ORDER OF DISMISSAL
____________________________________________________________________________________
On June 24, 2011, Joseph Martinez filed a complaint naming the City of Colorado Springs and
Colorado Springs Detective Chase Passanante as defendants, claiming violations of the plaintiff’s First,
Fourth and Fourteenth Amendments to the United States Constitution and seeking damages under 42
U.S.C. § 1983. The case was drawn to United States District Judge Walker D. Miller and United States
Magistrate Judge Michael E. Hegarty. An Order of Reference to Magistrate Judge Hegarty was entered
and a conference scheduled for September 8, 2011. The defendants filed a motion to dismiss under
Fed.R.Civ.P. 12(b)(6) on July 18, 2011. Upon Judge Miller’s retirement, the case was reassigned and this
Court entered an Order Vacating the Order of Reference on August 9, 2011 and on August 10, 2011
extended time for the plaintiff to respond to the motion to dismiss. On August 18, 2011, the plaintiff
responded by filing a first amended complaint which named only the defendant Chase Passanante in his
individual capacity. The second amended complaint was filed later in the day changing one of the dates
in the factual allegations.
The plaintiff having conceded the City’s motion by amending the complaint to delete the claims
against the City, the question presented is whether the amended complaint has factual allegations

sufficient to form a basis for a claim of a constitutional violation. It does not. The defendant Passanante
can only be held liable for his personal participation in a constitutional violation. Accepting all the
allegations of the amended complaint as true, the role of the defendant in the arrest and subsequent
detention of the plaintiff was a submission of an affidavit for an arrest warrant for participation in an
undercover drug purchase made by Chase Passanante on September 16, 2009 based on an erroneous
identification of Joseph Martinez as the person called “Casper” at that time. The plaintiff alleges that this
identification was made recklessly because Officer Passanante used a data base of police records
concerning persons using the name Casper, which included Joseph Martinez because of an earlier arrest
for criminal trespass in 2008. Plaintiff contends that in his police report the defendant had written that
“Casper” had a clearly identifiable tattoo on his shin and the plaintiff has no such tattoo. What is missing
from the amended complaint is any participation by defendant Passanante in the arrest of the plaintiff
when he voluntarily presented himself at the criminal justice center, approximately four months later, and
was arrested based on the incorrect identification in the warrant.
At best, the amended complaint shows negligence by defendant Passanante in failing to take steps
to better identify the participant in the drug sale resulting in an incorrect identification in the affidavit for
arrest warrant. That is not sufficient to establish liability for a constitutional violation. It is therefore
ORDERED that the motion to dismiss is granted and this civil action is dismissed.
DATED: August 19th , 2011
BY THE COURT:
s/Richard P. Matsch
__________________________
Richard P. Matsch, Senior Judge

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