Porwitzky et al v. Romkowsky et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
____________________
THOMAS PORWITZKY and
MATTHEW JONES,
Plaintiffs,
v. Case No. 1:25-cv-00280-MIS-LF
ANDREW ROMKOWSKY,
in his individual and official capacities,
MARISA J. MARTINEZ,
in her individual and official capacities,
JONATHAN BARELA,
in his individual and official capacities,
CARLOS GIDINO,
in his individual and official capacities, and
CITY OF ALBUQUERQUE,
Defendants.
MEMORANDUM OPINION AND ORDER
This matter comes before the Court on defendants’ Partial Motion to Dismiss (Doc. 14)
and plaintiffs’ Motion to Amend (Doc. 37). Plaintiffs did not respond to defendants’ Partial
Motion to Dismiss. Defendants responded to plaintiffs’ Motion to Amend (Doc. 39), and
plaintiffs did not file a reply. All briefing deadlines have passed. Having reviewed the parties’
submissions and the applicable law, the Court rules as discussed below.
BACKGROUND
On March 18, 2025, plaintiffs Thomas Porwitzky and Matthew Jones filed a complaint in
federal court. Doc. 1. Appearing pro se, they allege violations of the First, Fourth, and Fourteenth
Amendments to the United States Constitutions by defendants Andrew Romkowsky, Marisa J.
Martinez, Jonathan Barela, and Carlos Gidino in their individual and official capacities, as well
as against the City of Albuquerque. Id. at 1. In short, some their allegations spring from a
Case 1:25-cv-00280-MIS-LF Document 42 Filed 11/10/25 Page 1 of 5

2
September 2024 visit from Officers Barela and Gidino to Porwitzky’s property, which may have
been to investigate a disturbance, conduct a welfare check, or confirm whether Mr. Jones resided
there. Id. at 4–7. Others arise because, in January 2025, Mr. Porwitzky and Mr. Jones allegedly
visited “the APD building” with the intention of arranging a meeting with the chief of police to
ask questions about the oath of office, if any, that police officers swear; they had sought public
records on this matter previously. Id. at 9. They claim that after various inquiries and an “intense
discussion,” they were told that they “would be trespassed from the APD building if they did not
immediately leave the building.” Id. at 10. They state that they relocated to City Hall, where they
were then approached by defendants Martinez and Romkowsky, among others, who “stated that
Plaintiffs were now creating a disturbance in another government building and that they were
being trespassed from this building[] as well.” Id. They “were issued a 90-day trespass from the
APD publicly owned building at 400 Roma Avenue in Albuquerque, New Mexico,” after which
they exited the building. Id. at 11.
The complaint contains causes of action for 1) Fourth Amendment violations against
Officers Barela and Gidino for an unreasonable search of Mr. Porwitzky’s property; 2) First
Amendment violations against defendants Romkowsky and Martinez for the defendants’ alleged
retaliation against the plaintiffs’ efforts to seek public records; 3) a First Amendment claim
against the City of Albuquerque for “permitt[ing] or otherwise ratif[ying the] practice of
permitting its employees to withhold records and retaliate against those that persist in their
attempts”; and 4) a Fourteenth Amendment due process claim against the City of Albuquerque
because the city “provides no procedures or opportunity for Plaintiffs to challenge the validity of
the Criminal Trespass Warnings they were given.” Id. at 11–14.
Case 1:25-cv-00280-MIS-LF Document 42 Filed 11/10/25 Page 2 of 5

3
On April 8, 2025, defendants moved to dismiss the second and third causes of action (the
allegations against defendants Romkowsky and Martinez and the First Amendment claim against
the City of Albuquerque). See Doc. 14. In response, plaintiffs filed an amended complaint, which
the referral judge struck as untimely; the presiding judge overruled plaintiffs’ objections to this
decision. See Docs. 18, 20, 33, 35, 36.
Now plaintiffs move to amend their complaint. Doc. 37. They do not articulate what
aspects of their original complaint they seek to amend. See generally id.; see also Doc. 39 at 1
(“[T]he Plaintiffs do not specify the nature of the information added or clarified.”). Rather, they
simply state that they “have made corrections, added facts, and made clarifications of fact in
order to more clearly present their case[.]” Doc. 37 at 1. The Court has reviewed the changes,
which largely are stylistic (see, e.g., Doc. 37-1 at 7 ¶ 15, replacing “approached” in the original
complaint with “walked towards”) or provide new citations to exhibits (see, e.g., id. at 8 ¶ 17,
adding reference to Exhibit 2). In terms of substantive allegations, the proposed First Amended
Complaint includes additional statements between the security officer at the APD building
reception station and other employees saying not to help plaintiffs and discussing whether “they
could criminally trespass Plaintiffs from the building.” Id. at 12. A new exhibit—purportedly a
screenshot from Mr. Porwitzky’s cell phone—also is included. Id. at 32. The causes of action
remain the same. See id. at 15–18.
DISCUSSION
Federal Rule of Civil Procedure 15(a)(2) states that a party may amend its pleading with
the court’s leave, which the court should give “freely” “when justice so requires.” However, a
court should deny leave to amend “upon a showing of undue delay, undue prejudice to the
opposing party, bad faith or dilatory motive, failure to cure deficiencies by amendments
Case 1:25-cv-00280-MIS-LF Document 42 Filed 11/10/25 Page 3 of 5

4
previously allowed, or futility of amendment.” Wilkerson v. Shinseki, 606 F.3d 1256, 1267 (10th
Cir. 2010). Here, defendants argue that amendment would be futile. Doc. 39 at 3. Amendment is
futile “if the complaint, as amended, would be subject to dismissal.” Barnes v. Harris, 783 F.3d
1185, 1197 (10th Cir. 2015). And a complaint is subject to dismissal if it does not “contain
sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
Somewhat unusually, defendants argue only that two of the four claims plaintiffs raise are
subject to dismissal: Cause 2 (First Amendment retaliation claim against defendants Romkowsky
and Martinez) and Cause 3 (First Amendment claim against the City of Albuquerque). See Doc.
39 at 3–5. Defendants do not address the other two causes of action, and they do not cite to any
case law indicating that partial futility—i.e., an amended complaint that would be subject to
partial dismissal—is an adequate basis to deny amendment. Nor has the Court found case law in
support of this conclusion. Rather, the Court holds that the most appropriate way to move
forward is to grant leave to amend, then for the defendants to move to dismiss any claims that
they believe appropriate. The current motion to dismiss pertains to the previous complaint and
therefore is denied as moot. See Scott v. Buckner Co., 388 F. Supp. 3d 1320, 1323–24 (D. Colo.
2019).
CONCLUSION
For the reasons stated above, the Court GRANTS plaintiffs’ Motion to Amend (Doc. 37).
Plaintiffs are ordered to file their First Amended Complaint (which currently appears as Doc. 37-
1) as a separate entry on the docket no later than November 20, 2025.
Case 1:25-cv-00280-MIS-LF Document 42 Filed 11/10/25 Page 4 of 5

5
The Court DENIES defendants’ Partial Motion to Dismiss (Doc. 14) as moot in light of
the amended complaint. Defendants may direct any subsequent motion to dismiss at the amended
complaint.
It is so ordered.
____________________________________
LAURA FASHING
UNITED STATES MAGISTRATE JUDGE
Case 1:25-cv-00280-MIS-LF Document 42 Filed 11/10/25 Page 5 of 5