Martinez v. Backer et al

Filing 25

ORDER Rejecting 24 Notice of Dismissal of Defendant United States of America Without Prejudice and Order Dismissing United States of America. The notice of dismissal is rejected and the fourth claim for relief in the complaint is dismissed for failure to state a claim against the defendant United States of America and it is dismissed from this civil action. USA terminated, by Judge Richard P. Matsch on 7/31/15. (ktera)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-03305-RPM
ANTHONY MARTINEZ,
Plaintiff,
v.
PATRICK BACKER,
CHERYL HERRERA,
MATTHEW MITCHELL,
LA PLATA COUNTY, COLORADO, and
UNITED STATES OF AMERICA,
Defendants.
_____________________________________________________________________
ORDER REJECTING NOTICE OF DISMISSAL OF DEFENDANT UNITED STATES OF
AMERICA WITHOUT PREJUDICE AND ORDER DISMISSING UNITED STATES OF
AMERICA
_____________________________________________________________________
The defendant United States of America filed a motion to dismiss this civil action
against it pursuant to Rules 12(b)(1) and 12(b)(6). The plaintiff filed a response in
opposition to the motion on July 9, 2015, (Doc. 23) and also filed a notice of dismissal
without prejudice with the suit to be reinstated to comply with the exhaustion
requirement (Doc. 24). The claims made in the complaint go beyond a federal tort
claims act claim and assert respondeat liability for the conduct of the defendant tribal
police officers but the actions brought against those officers are pursuant to 42 U.S.C. §
1983 which does not apply to federal officers. Additionally, the claims made under the
FTCA are barred by the statute.
It is clear that the motion to dismiss should be granted independently of any
failure to exhaust the administrative remedy. According, it is

ORDERED that the notice of dismissal is rejected and the fourth claim for relief in
the complaint is dismissed for failure to state a claim against the defendant United
States of America and it is dismissed from this civil action.
SO ORDERED.
DATED this 31st of July, 2015.
BY THE COURT:
s/Richard P. Matsch
_________________________________
Richard P. Matsch , Senior District Judge