warden objection to magistrate's report in 0460

1

Roy Warden, Publisher 1

Common Sense II 2

3700 S. Calle Polar 3

Tucson Arizona 85730 4

[email protected] 5

6

7

UNITED STATES DISTRICT COURT 8

DISTRICT OF ARIZONA 9

10

ROY WARDEN,

Plaintiff, IN FORMA

PAUPERIS

Vs

RICHARD MIRANDA,

et.al.,

DEFENDANTS

)

)

)

)

)

)

)

)

)

)

)

Case No. CIV 11-0460 TUC DCB

OPPOSITION TO MAGISTRATE REPORT

(Hon. Judge David C. Bury)

11

Plaintiff addresses issues raised in the Magistrate Report (DOC 123) as set 12

forth in sections I through VIII below: 13

I. THE LENGTH OF PLAINTIFF’S COMPLAINT 14

1. The Magistrate is in error when he states: 15

“Plaintiff’s complaint is not simple and concise, it is dense 16

and verbose, with so many factual averments of such speci-17

ficity, re-alleged in every count, that it is impossible to discern 18

which facts support, or are even relevant to, which claims. 19

(DOC 123, 3:6-13) 20

21

“Plaintiff’s proposed SAC is 37 pages long, with over 100 22

paragraphs of largely irrelevant “facts and allegations” re-al-23

leged in each and every count as the basis for that count, with 24

each count raising multiple claims against multiple defend-25

ants. This places the onus on the Court to decipher which, if 26

any, facts support which claims, as well as to determine 27

mailto:[email protected]

2

whether a plaintiff is entitled to the relief sought.” (DOC 123, 1

3:13-19) 2

3

2. However; when deleted text is removed and “new1” underlined text is 4

added, (as it supports the one remaining event subject to this suit—the 5

denial of Plaintiff’s rights in Armory Park Tucson Arizona on May 1, 6

2010), the Second Amended Complaint2 (“SAC”) is only 29 pages long 7

(with three additional pages for Plaintiff’s exhibit). 8

3. Moreover; the issue of alleged prolixity is untimely; Defendants failed 9

to raise it when they were served the First Amended Complaint3 in 2011. 10

4. Defendants first alleged prolixity on April 18, 2014, 29 months after ser-11

vice of the First Amended Complaint. (DOC 120, 2:17-3:21) 12

5. This is the first time the Court has issued a recommendation challenging 13

the complaint’s verbosity. 14

6. Significantly; on April 25, 2014 Plaintiff offered to further amend his 15

complaint4 and delete all commentary except the “bare bone” facts as 16

they support his claims against (1) Defendant Azuelo (previously misi-17

dentified as “Robinson),” (2) Defendants Johnson and Wooldridge (pre-18

viously misidentified as the “Unidentified Officer”), and (3) new De-19

fendants Grey, Ochoa, Rozema, Stamatopoulous, Azuelo, Sayre, Johnson, 20

1 The “new” text derives solely from defendants Initial Disclosures.

2 The SAC is nearly identical to the First Amended Complaint except for (1) a signif-

icant number of deletions Plaintiff made subsequent to the Court dismissing various

causes of action, and (2) the addition of new facts and allegations which were revealed

in Defendants Initial Disclosures (DOC 115), only insofar as they arise out of the sin-

gular event still subject to this suit: Defendants’ violation of Plaintiff’s rights in Ar-

mory Park on May 1, 2010.

3 The First Amended Complaint is the only complaint served upon Defendants.

4 Plaintiff will submit a Third Amended Complaint, as permitted by law.

3

Wooldridge, Teitelbaum, and Miles who, as Plaintiff first learned from De-1

fendants’ Initial Disclosures, worked in concert, formulated a plan and in-2

structed Defendants Azuelo, Johnson and Wooldridge to violate Plaintiff’s 3

rights in Armory Park Tucson Arizona on May 1, 2010; the singular re-4

maining event subject to this suit. (DOC 122; 10: 25-11:3) 5

II. PLAINTIFF HAS A RIGHT TO AMEND COMPLAINT 6

7. The Magistrate is in error when he recommends the Court deny Plaintiff 7

opportunity to further amend his complaint. (DOC 123, 2:19-4:14.) 8

8. For the first time in more than two years since this case was filed, the Court 9

states verbosity as a reason to dismiss complaint, without right to amend. 10

(DOC 123, 2:19-4:4) 11

9. The Court, for the first time in these proceedings, provides Plaintiff with a 12

notice of his complaint’s deficiencies, which the Court is required to do 13

before dismissing a pro-se complaint: 14

“In Armstrong v. Rushing, 352 F.2d 836, 837 (9th Cir.1965), 15

we established that a pro se litigant bringing a civil rights suit 16

in forma pauperis is entitled to five procedural protections. 17

These are: 18

“(1)process issued and served, (2) notice of any motion there-19

after made by defendant or the court to dismiss the complaint 20

and the grounds therefor, (3) an opportunity to at least submit 21

a written memorandum in opposition to such motion, (4) in 22

the event of dismissal, a statement of the grounds therefor, 23

and (5) an opportunity to amend the complaint to overcome 24

the deficiency unless it clearly appears from the complaint 25

that the deficiency cannot be overcome by amendment. 26

“The rule favoring liberality in amendments to pleadings is 27

particularly important for the pro se litigant. Presumably un-28

skilled in the law, the pro se litigant is far more prone to mak-29

ing errors in pleading than the person who benefits from the 30

representation of counsel. Indeed, the Supreme Court has held 31

that allegations of a pro se complaint are held to less stringent 32

standards than formal pleadings drafted by lawyers. Haines v. 33

4

Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 595-96, 30 1

L.Ed.2d 652 (1972) (Per Curiam); see also Maurer v. Individ-2

ually and as Members of Los Angeles County Sheriff's 3

Dept., 691 F.2d 434, 437 (9th Cir.1982); Gillespie v. Civi-4

letti, 629 F.2d 637, 640 (9th Cir.1980). 5

“The requirement that courts provide a pro se litigant with no-6

tice of the deficiencies in his or her complaint helps ensure 7

that the pro se litigant can use the opportunity to amend effec-8

tively. Without the benefit of a statement of deficiencies, the 9

pro se litigant will likely repeat previous errors. This is 10

equally true for the pro se litigant who amends his complaint 11

at his own instance without any guidance from the court. 12

Amendments that are made without an understanding of un-13

derlying deficiencies are rarely sufficient to cure inadequate 14

pleadings.” Noll v Carlson, 809 F.2d 1446 15

16

10. In a significant number of other Title 42 § 1983 cases the Ninth Circuit has 17

stated the desirability of permitting a pro-se to amend complaint to correct 18

error; clearly complaint amendment furthers one of the basic objectives of 19

the F.R.C.P.: the determination of cases on the merits, not technical defi-20

ciencies. 21

11. Therefore; now that the Court has stated Plaintiff’s complaint’s deficiency, 22

Plaintiff will submit a Third Amended Complaint, irrespective of the warn-23

ing given in the Magistrate’s Report. (DOC 123, 4:1-5) 24

12. This “bare bones” Third Amended Complaint, (subtracting the deleted por-25

tions) will reduce the length of Plaintiff’s proposed TAC to 12 pages. 26

(Exhibit 1) 27

III. THE COURT CAUSED A THREE YEAR DELAY 28


“Additionally, the undersigned finds that the undue delay is 30

attributable to Plaintiff. The only reason Plaintiff cites for the 31

delay in seeking leave to amend is that he misplaced a DVD 32

for over three years.” (DOC 123, 5:8-12) 33

5

14. However; Plaintiff was only obliged to “notice plead” in his First Amended 1

Complaint: 2

“Under the federal rules a complaint is required only to give 3

the notice of the claim such that the opposing party may de-4

fend himself or herself effectively. The theory of the federal 5

rules is that once notice-giving pleadings have been served, 6

the parties are to conduct discovery in order to learn more 7

about the underlying facts. When they have learned the facts, 8

the parties can settle or seek judgment.” Starr v Baca, 632 9

F.3d 1202 (9th Cir. 2011) 10

15. Until February 2014 Plaintiff did not have access to a DVD5 record of the 11

May 1, 2010 Armory Park violation to his rights but instead relied upon his 12

imperfect memory, the Rules of Procedure, notice pleading, discovery and 13

the production of documents to prove his claim,6 documents including an 14

“After Action Report,” TPD created Video and TPD Incident Reports, all-15

created by TPD officers on May 1, 2010 or shortly thereafter. 16

16. Had the Court granted Plaintiff the scheduling conference required by Rule 17

16 within 120 days of service of complaint, Plaintiff would have com-18

menced discovery in 2012, gained the data he needed to prove his claim, 19

and moved to amend complaint accordingly. 20

17. Instead of working to “secure the just, speedy, and inexpensive determi-21

nation of every action” the rules require, Defendants employed a legal 22

strategy intended to create confusion, expense and delay, avoid document 23

disclosure and forestall the production of evidence which Plaintiff needed 24

to properly amend his complaint and prove his claim. 25

5 See Section IV and the Affidavits of Roy Warden and Jim Kay, attached to and in-

corporated by reference in this document.

6 Plaintiff neither had possession nor was he obliged to produce his DVD until subse-

quent to the Scheduling Conference and Initial Disclosures.

6

18. Defendants began this strategy on April 6, 2012 when they moved the Court 1

to stay the Rule 16 mandatory scheduling conference (DOC 29) which the 2

Court granted. (DOC 30) 3

19. For the next two years Defendants and the Court denied Plaintiff access to 4

the documents he needed to amend his complaint and prove his case, com-5

pelled Plaintiff to submit to two Motions for Summary Judgment and two 6

years of “wasteful pre-trial activities,” denied Plaintiff’s Rule 56 (f) Re-7

quest to Stay Summary Judgment Until Conclusion of Discovery, etc.; two 8

years of expense, frustration and delay, which the Court now attributes to 9

Plaintiff and uses as justification to dismiss complaint. 10

20. The Rules of Civil Procedure are meant for holistic, not capricious applica-11

tion. 12

21. Plaintiff respectfully submits: it was Defendants and the Court, not Plain-13

tiff, who caused the nearly three year delay for which the Court now holds 14

Plaintiff responsible and now uses as a basis to dismiss Plaintiff’s claims. 15

IV. PLAINTIFF DID NOT POSSESS THE “MISSING” DVD 16

22. The Magistrate is in error, and he displays bias, regarding Plaintiff’s pos-17

session of a DVD record of Defendants violating Plaintiff’s rights on May 18

1, 2010. 19

“As noted above, Plaintiff was in possession of the infor-20

mation that revealed the name of the “unidentified” TPD 21

officer, but due to his lack of diligence he listed the defend-22

ant as “the unidentified TPD officer.” Plaintiff’s statements 23

regarding the identification of the “unidentified TPD of-24

ficer” are inconsistent and misleading. Plaintiff has previ-25

ously stated that he “did not have access to a DVD of events 26

which occurred in Armory Park on May 1, 2010 when he 27

filed his Complaint for damages in this action. (DOC 123, 28

7:3-11) 29

“This assertion is disingenuous at best as the DVD was ad-30

mittedly in Plaintiff’s possession. Moreover, even if the 31

7

DVD would not have provided Plaintiff with the unidenti-1

fied officer’s name without comparing it to the names listed 2

on the “Special Operations Plan May 1st Coalition March & 3

Rally,” this document was submitted by Defendants on 4

June 6, 2013, as an exhibit submitted in support of Defend-5

ant Robinson’s motion for summary judgment.” (DOC 123, 6

7:11-17) 7

8

“Plaintiff does not explain why he waited nearly ten months 9

to move to amend the complaint to identify the unnamed 10

TPD officer, or to make a notification of substitution.” 11

(DOC 123, 7:17-20) 12

23. Plaintiff now provides a full explanation7 regarding “diligence,” the “miss-13

ing” DVD and why he waited to amend complaint: 14

A. Prior to writing the First Amended Complaint, Plaintiff did not have 15

access to his DVD record of Defendants’ violations of his rights in Ar-16

mory Park on May 1, 2010, for reasons described in particularity in the 17

Affidavits of Roy Warden and Jim Kay, incorporated by reference and 18

attached to this document. 19

B. Subsequent to the 2011 filing of the First Amended Complaint in which 20

Plaintiff was only legally obliged to “notice plead” as per Starr v. Baca, 21

Plaintiff renewed his effort to locate the “missing” DVD, even though 22

he was not obliged to use it to prove his case or provide it to Defendants 23

until completion of the Scheduling Conference and the provision of In-24

itial Disclosures, a process mandated by FRCP 16 to avoid “wasteful 25

pretrial activity and unnecessary delay,8” a rule this Court steadfastly 26

refused to implement until 2014. 27

7 See “Warden Affidavit in Support of Objection to Magistrate Report Dated May 5,

2014,” and “Jim Kay Affidavit in Support of Objection to Magistrate Report Dated

May 5, 2014” filed with and incorporated by reference in this document.

8 “Wasteful pretrial activity and unnecessary delay” is a tactic Defendants have inten-

tionally employed to exhaust Plaintiff’s resources and defeat his claim.

8

C. Moreover; ever since May 1, 2010 Defendants were in possession doc-1

uments Plaintiff was entitled to in 2012, “from the get-go9,” to prove his 2

case, including but not limited to (1) an “After Action Report” created 3

subsequent to May 1, 2010, (2) TPD Incident Reports and TPD Video, 4

created on May 1, 2010, (all of which Defendants still refuse to disclose 5

in spite of Plaintiff’s repeated requests) which prove Defendants’ viola-6

tion of Plaintiff’s rights as per Gathright on May 1, 2010, and provide 7

the true identities of the officers who created the violations, independent 8

of Plaintiff’s “missing” DVD, thus allowing Plaintiff to effectively 9

amend his complaint. 10

D. On December 16, 2013, in Plaintiff’s Opposition to Magistrates’ Report, 11

Plaintiff disclosed to the Court the following: 12

“Moreover, Plaintiff informs the Court: Recently, on Plain-13

tiff’s behalf, a portable hard drive containing the video rec-14

ords Plaintiff has relied upon to support his allegation that De-15

fendant Robinson10 was in fact present in Armory Park on 16

May 01, 2010, was submitted for repair to Computer Guru, 17

located at 510 E. Ft. Lowell Rd., Tucson Arizona 85705. 18 19

However; Plaintiff, whose poverty had prevented him from 20

attempting repair of the device at an earlier date, does not 21

know if the device can be economically repaired, or whether 22

or not it contains the video records he seeks.” (DOC 94, 2:21-23

3:6) 24

25

9 The express purpose of FRCP Rule 16, requiring the Court to set a scheduling con-

ference no later than 120 days of service of complaint, is to “discourage wasteful

pretrial activities” that Defendants have engaged in since the commencement of this

case.

10 Regarding Robinson; On December 16, 2013 Plaintiff repeats the mistake he made

in the First Amended Complaint regarding “Robinson,” due to the fact the Court had

not permitted Plaintiff discovery he was due, which proves it was Azuelo, not “Rob-

inson,” who denied Plaintiff entry into Armory Park on May 1, 2010.

9

E. On December 16, 2013 Plaintiff made the same disclosure, under oath, 1

in his Affidavit in Support of Opposition to Magistrate’s Report (Doc 2

94-1, 2: paragraphs 5-7) 3

F. Thus; on December 16 2013 the Court had uncontroverted evidence of 4

the existence of the DVD in question, the fact that it was “missing,” and 5

a description of Plaintiff’s efforts to recover the data on it. 6

G. On January 6, 2014, under oath, Plaintiff again supplied the Court with 7

the same information regarding the “missing” DVD.11 (Doc 98, 1-12) 8

H. Sometime in early February 2014, Plaintiff had delivered to his current 9

residence, located at 3700 S. Calle Polar, Tucson Arizona, a half dozen 10

boxes of personal items which he had stored at 1242 W. Knox Place, 11

Tucson Arizona 85705 which an Order of the Tucson Municipal Court 12

had denied Plaintiff access to since May 2013. 13

I. One of the boxes contained the long-sought “missing” DVD created by 14

affiant Jim Kay which documents Defendants’ violation of Plaintiff’s 15

rights in Armory Park on May 1, 2010. 16

J. Plaintiff reviewed the “missing” DVD; then, on February 26, 2014, 17

Plaintiff provided the Court specific information on the true identities 18

of the officers who violated Plaintiff’s rights on May 1, 2010—Azuelo, 19

Wooldridge, and Johnson—which Plaintiff, in the absence of discovery, 20

had previously mistakenly identified as “Robinson” and “Unidentified.” 21

(Plaintiff’s Case Management Report, DOC 108) 22

K. On the basis of data obtained from the “missing” DVD the Magistrate 23

expressly invited12 Plaintiff to submit a Motion for Substitution of Par-24

ties, and Motion to Amend Complaint on March 6, 2014. 25

11 Subsequent to receipt of Plaintiff’s Answer to Summary Judgment, and included

documents, Defendants withdrew their MSJ.

12 Plaintiff has ordered a transcripts.

10

L. Plaintiff attaches his own Affidavit and the Affidavit of Jim Kay in Support 1

of Plaintiff’s Opposition to Magistrates Report, describing in particularity 2

(1) Plaintiff’s diligent search for the missing DVD, (2) the fact the DVD 3

had been removed from Plaintiff’s possession sometime prior to the sub-4

mission of the First Amended Complaint in late 2011, and (3) the fact Plain-5

tiff regained possession of the “missing” DVD in February 2014. 6

V. DELAY, EXPENSE AND SPEEDY DETERMINATION 7


“This action is over three years old. Granting leave to file 9

another amended complaint would essentially start the case 10

over, at least with respect to those defendants Plaintiff 11

seeks to add in his proposed Second Amended Complaint, 12

would add more delay and expense in reaching the merits 13

of Plaintiff’s claims and is inconsistent with Rule 1, 14

Fed.R.Civ.P., (“These rules . . . shall be construed and ad-15

ministered to secure the just, speedy, and inexpensive de-16

termination of every action.”).” (DOC 123, 5:1-9) 17

25. Plaintiff respectfully submits: the Fed.R.Civ.P. were written for holistic, not 18

capricious, application. 19

26. “Delay and expense” was the result of Defendants use of a legal tactic in-20

tended to exhaust Plaintiff, create expense, delay the proceedings and defeat 21

Plaintiff’s claim. (see section III above.) 22

27. The Magistrate (1) failed to implement Rule 16 within 120 days of service 23

of complaint, (2) denied Plaintiff procedural due process, (3) denied Plain-24

tiff the discovery Plaintiff needed to prove his claim, (4) frustrated Plain-25

tiff’s right to sue his government, (5) created the very delay and expense 26

the Magistrate now uses as a basis to deny Plaintiff amendment of com-27

plaint, and (6) violated our most sacred legal principle, as chiseled in stone 28

over the entrance of the U.S. Supreme Court: “Equal Justice Under Law.” 29

11

28. Delay cost Plaintiff dearly; Defendant Tucson City Officials, who created 1

the delay as a legal tactic while availing themselves to the benefits of a bot-2

tomless public purse, paid nothing. 3

VI. RELATION BACK 4

29. Regarding “relation back” the Magistrate is in error when he states: 5

“Most significantly, the allegations against these individu-6

als do not relate back to conduct, transactions, or occur-7

rences set forth in the original pleadings. (Doc 123, 6:1-10) 8

30. F.R.C.P. 15, in pertinent part, provides: 9

“(c) RELATION BACK OF AMENDMENTS. 10

“(1) When an Amendment Relates Back. An amendment to a 11

pleading relates back to the date of the original pleading 12

when: 13

“(B) the amendment asserts a claim or defense that arose out 14

of the conduct, transaction, or occurrence set out—or at-15

tempted to be set out—in the original pleading.” 16

31. Regarding “conduct, transaction, or occurrence” the First Amended Com-17

plaint states: 18

“On or about May 01, 2008 Defendant Robinson denied 19

Plaintiff right of entry into Armory Park, Tucson Arizona, to 20

speak in opposition to “Pro Raza” demonstrators who had 21

gathered there, Tucson City Open Border Policy and the Pol-22

icy of the Mexican Government, even though Plaintiff 23

showed her the Mike Rankin Letter dated April 12, 2006 24

which stated, in sum and substance, that Exclusive Use Per-25

mits may not be used to deny First Amendment Rights as per 26

Gathright v City of Portland, 439 F.3d 573 (9th Cir 2006). 27

“On or about May 01, 2009 and May 01, 2010 Defendant 28

Robinson13 again denied Plaintiff right of entry into Armory 29

Park, Tucson Arizona, to speak in opposition to “Pro Raza” 30

13 Plaintiff misidentified Defendant Azuelo as “Robinson” for the May 1, 2010 viola-

tion.

12

demonstrators who had gathered there, Tucson City Open 1

Border Policy and the Policy of the Mexican Government, 2

even though Plaintiff again showed her the Mike Rankin Let-3

ter dated April 12, 2006 which stated, in sum and substance, 4

that Exclusive Use Permits may not be used to deny First 5

Amendment Rights as per Gathright v City of Portland, 439 6

F.3d 573 (9th Cir 2006). 7

“On May 1, 2010, subsequent to Defendant Robinson pre-8

venting his entry into Armory Park, Plaintiff moved across the 9

street and began speaking to onlookers who had gathered 10

there. However; an unidentified TPD officer14 approached 11

Plaintiff and said, in sum and substance, if Plaintiff did not 12

move himself more than 1,000 feet away from Armory Park 13

he would be arrested.” (DOC 6, 19:29-20:24) 14

32. The First Amended Complaint sufficiently “notice pleads” Defendants’ vi-15

olation of Plaintiff’s rights on May 1, 2010, as set forth above in paragraph 16

31. 17

33. The Second Amended Complaint “newly pleads” the conduct of those who 18

conspired to issue an “Exclusive Use Permit” knowing that case law ex-19

pressly forbad such practice;15 and instructed several TPD officers to vio-20

late plaintiff’s rights on May 1, 2010. 21

34. The law cannot rationally hold liable officers who followed unlawful direc-22

tions given by their superiors to commit violations, and withhold liability 23

from the same superiors who issued the unlawful instructions. 24

35. Moreover; until Plaintiff was afforded partial discovery on March 20, 2014 25

Plaintiff was unaware of (1) Defendant Azuelo’s role, along with Defend-26

ants Miranda16, Rankin, Judge and Grey and Ochoa, as a “decision-maker” 27

14 Plaintiff mistakenly pled 1 officer when there were 2.

15 Gathright v City of Portland, 439 F.3d 573 (9th Cir 2006) 16 Plaintiff contends Defendants Miranda, Rankin, Judge, and Ochoa, who, along with

Defendant Azuelo participated in the decision to issue the permit, were also put “on

13

and “planner” of Defendants’ violations on May 1, 2010; (2) the identities 1

of Defendants Johnson and Wooldridge (previously pled as “unidentified”) 2

who violated Plaintiff’s rights in Armory Park on May 1, 2010; (3) the 3

identity of Defendants Rozema and Stamatopoulous, commanders who is-4

sued specific “on the scene” instructions to Defendants Azuelo, Johnson 5

and Wooldridge, and prior directions earlier that morning at “command” 6

and “tactical” briefings; (4) the identity of Exclusive Use Permit Holder 7

Defendant Paul Teitelbaum & Defendant May 1st Coalition, and Defendant 8

John Miles; (5) the identity of Defendant Lt. Paul Sayre who met with De-9

fendant May 1st Coalition Organizers prior to May 1, 2010; and (6) the fact 10

that on the morning of May1, 2010 Defendant Officers had two meetings 11

where they received precise instructions from superior officers, whose iden-12

tities are still undisclosed, on what methods to employ to keep Plaintiff out 13

of Armory Park on May 1, 2010, in violation of the law and Plaintiff’s 14

rights, etc. 15

36. Prior to Initial Disclosures, Plaintiff had no way of knowing the true nature 16

and full extent of Azuelo’s actionable conduct, which pre-dates his exclu-17

sion of Plaintiff from Armory Park on May 1, 2010, until Plaintiff saw 18

Azuelo (1) referenced as a “decision-maker, along with Rankin, Miranda, 19

Judge, and Ochoa at the bottom of the “Exclusive Use” Permit, and, (2) 20

listed as a participant in the command and tactical briefings which took 21

place in the early morning hours of May 1, 2010. 22

37. Therefore: even if Azuelo had played no role whatsoever in excluding 23

Plaintiff from Armory Park on May 1, 2010, Plaintiff would have added 24

notice” that Plaintiff’s rights would be violated on May 1, 2010 when they received

Defendant Fred Gray’s April 26, 2010 letter (a.k.a. “the Exclusive Use Permit”) to

Defendant Teitelbaum.

14

him as a Defendant in the Second Amended Complaint for the role he 1

played as “decision maker” and “planner” to violate Plaintiff’s rights. 2

VII. NOTICE 3


“The Defendants named in Count One, Two, and Four of 5

the proposed Second Amended Complaint lacked notice, 6

there was no way they could have known that they would 7

be a party to this lawsuit.” DOC 123, 6:1-10 8

39. The newly named Defendant Tucson City Officials had constructive notice 9

of this suit; they (1) share the same legal counsel (Defendant Rankin, Judge, 10

and the rest of the Civil Division of the Tucson City Attorney), (2) were 11

“noticed” recipients of the 2010 Exclusive Use Permit, (3) knew that the 12

law of Gathright expressly prohibited the use of exclusive use permits to 13

exclude of publics speakers from public parks, (4) are indemnified from risk 14

by Tucson City Policy, and (5) as a practical daily reality, are “joined at the 15

hip” with existing Defendants, including Defendants Miranda and Rankin. 16

40. The newly named Defendant Officers had constructive notice of this suit; 17

they (1) share common status as T.P.D. officers, (2) share the services of 18

the Tucson City Attorney who has employed and will continue to employ 19

the same legal strategy for the defense of one or all, (3) are Tucson City 20

employees, (4) are indemnified by the same Tucson City Policy which pro-21

tects Tucson City Officials, and (5) are members of the small team which 22

controlled Armory Park on May 1, 2010. 23

41. Moreover; Plaintiff knows Defendant Sayre in particular. Since this suit was 24

filed Plaintiff and Defendant Sayre have shared several conversations re-25

garding the events which took place in Armory Park on May 1, 2010. 26

VIII. MISTAKE 27


15

“Plaintiff cannot show the new defendants ‘knew or should 1

have known that, but for a mistake concerning the identity 2

of the proper party, the action would have been brought 3

against the party’ Fed.R.Civ.P. 15(c)(3)(C).” 4

43. Plaintiff only pleads “mistake” as to the identity of Defendant Azuelo17 and 5

the fact that two officers, (now identified as “Wooldridge” and “Johnston”) 6

not one, told Plaintiff on May 1, 2010 “to move 1,000 feet away from Ar-7

mory Park or face arrest.” 8

44. These officers remained either “misidentified” or “unidentified” until Plain-9

tiff compared their names in the recently disclosed “Special Operations 10

Plan” to the indistinct utterances on his DVD. 11

45. Moreover; if the Court had ordered a scheduling conference within 120 days 12

of service of complaint as required by Rule 16, Plaintiff would have ob-13

tained the information he needed to amend complaint in 2012, independent 14

of the data found on Plaintiff’s “missing” DVD which he was not obliged 15

to provide until Initial Disclosures were due. 16

46. Significantly; as for the other “newly named defendants,” Plaintiff only 17

learned of their conspiracy and other unlawful conduct, and learned their 18

identities, consequent to Defendants’ Initial Disclosures which Plaintiff re-19

ceived on March 20, 2014. 20

SUMMARY 21

Plaintiff again respectfully submits: the F.R.C.P. were written for holistic, not 22

capricious, application on a random basis. 23

The Magistrate, by failing to implement Rule 16 within 120 days of service of 24

complaint, denied Plaintiff (1) procedural due process, (2) the discovery Plaintiff 25

needed to prove his claim, and (3) the right to “…the just, speedy, and inexpensive 26

17 Plaintiff mistakenly identified “Robinson” as the TPD Officer who denied Plaintiff

entry into Armory Park on May 1, 2010, when the evidence now reveals the offending

officer was “Azuelo.”

16

determination of his action;” a delay for which Plaintiff paid dearly and Defend-1

ants, who avail themselves to the bottomless public purse, paid nothing. 2

Moreover; the Magistrate himself helped Defendants create the very delay and 3

expense he now uses as a basis to recommend the dismissal of complaint. 4

CONCLUSION 5

The Magistrate has violated our most sacred legal principle, as chiseled in stone 6

over the entrance of the U.S. Supreme Court: “Equal Justice Under Law.” 7

The Magistrate committed additional error and may have engaged in miscon-8

duct on March 6, 201418 when he suggested that Plaintiff, when amending his com-9

plaint, ignore the high level Tucson City Officials who conspired and directed low 10

level TPD officers to violate the law of Gathright on May 1, 2010. 11

Moreover; the Magistrate may have engaged in other misconduct when he 12

warned Plaintiff not to exercise his procedural right to submit another Motion to 13

Amend Complaint, as “such filings can only be viewed as intended to vex and 14

harass and will result in dismissal with prejudice.” (DOC 123 4:1-5) 15

Since this case was filed in 2011 the Magistrate, in a raw exercise of judicial 16

power, has (1) parsed bits and pieces of the F.R.C.P., (2) created unnecessary delay 17

and expense, (3) forced Plaintiff to submit to “wasteful pre-trial activities” by re-18

fusing to issue a Rule 16 Scheduling Order for three years, (4) only permitted dis-19

covery to commence on March 7, 2014 and, (5) otherwise selectively applied the 20

F.R.C.P. to achieve a desired and predictable result; the depletion of Plaintiff’s 21

energy, the evisceration of his complaint and the defeat of Plaintiff’s case on the 22

basis “too much time has passed.” 23

Moreover; the Magistrate recommends the Court deny Plaintiff the opportunity 24

to amend complaint to overcome deficiency, a right set forth in Noll v Carlson, 25

because such amendment would “vex and harass” Defendants. (DOC 123, 4:1-4). 26

18 Plaintiff has ordered a transcript and will use the Magistrate’s comments to prove

additional error and bias on appeal.

17

Justice delayed is justice denied, and the Magistrate, who for more than two 1

years denied Plaintiff discovery and the express protections provided by the 2

F.R.C.P., substituted “the rule of man” for “the rule of law” which essentially 3

means: no justice at all, at least not for this pro-se plaintiff. 4

Plaintiff respectfully submits; justice for the pro-se litigant is only served when 5

the Rules of Civil Procedure are applied holistically and without bias, subterfuge, 6

or selective enforcement by the Court. 7

PRAYER 8

Plaintiff respectfully prays the Court to: 9

1. Reject the Magistrate’s Report in its’ entirety; 10

2. Permit Plaintiff the opportunity to submit a Third Amended Complaint, 11

as required by law; 12

3. Provide such other relief the Court deems proper. 13

14

RESPECTFULLY SUMBITTED this 19th Day of May 2014. 15

BY: 16

____________________________ 17

Roy Warden, In Forma Pauperis 18

19

20

Original and one copy filed with the Court on May 19, 2014. I hereby certify 21

that on May 19, 2014 I personally hand delivered the attached document, 22

The Affidavit of Jim Kay in Support, and the Affidavit of Roy Warden in 23

Support to the Office of the Tucson City Attorney, and served by email, on 24

the following: 25

26

Viola Romero-Wright 27

Principal Assistant Tucson City Attorney 28

[email protected] 29

30

____________________________ 31


33


18

1

2

3

4

5

6

7

8

9

EXHIBIT 1 10

11

12 13

14 15 16

17 18

19

20

21 22

23 24 25

26 27 28 29

30 31 32

33 34 35 36

37

19

Roy Warden, Publisher 1

Common Sense II 2 3700 S. Calle Polar 3 Tucson Arizona 85730 4

[email protected] 5 6

UNITED STATES DISTRICT COURT 7 DISTRICT OF ARIZONA 8

9

ROY WARDEN,

Plaintiff, IN FORMA

PAUPERIS

Vs

RICHARD MIRANDA, individually and in his official capacity as Assistant Tucson City Man-ager; MICHAEL RANKIN, individually and his official capacity as Tucson City Attorney; L. JUDGE, individually and in his official capacity as Assistant Tucson City Attorney; FRED GREY, individually and in his official capacity as Director of Tucson Parks and Recreation; RENEE OCHOA, individually and in her offi-cial capacity as Southwest District Administra-tor of Tucson Parks and Recreation; TERRY ROZEMA, individually and in his official ca-pacity as AC of the Tucson Police Department; STAMATOPOULOS, individually and in his official capacity as Captain of the Tucson Police Department; DAVID AZUELO, individually and in his official capacity as Lieutenant of the Tucson Police Department; PAUL SAYRE, in-dividually and in his official capacity as Lieu-tenant of the Tucson Police Department; JOHNSON, individually and in his official ca-pacity as Sergeant of the Tucson Police Depart-ment; WOOLDRIDGE, individually and in his official capacity as Sergeant of the Tucson Po-lice Department; PAUL TEITELBAUM, Coor-dinator for Tucson May 1st Coalition for Worker and Immigrant Rights; JOHN MILES, Organ-izer for the May 1st Coalition for Worker and Immigrant Rights; TUCSON MAY 1ST COALTITION FOR WORKER AND IMMI-GRANT RIGHTS; THE CITY OF TUCSON; AND DOES 1-25,

Defendants.

) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

Case No. CIV 11-0460 TUC DCB (BPV)

(EXHIBIT ONLY)

THIRD AMENDED COMPLAINT FOR INJUNCTIVE & DECLARATORY RE-LIEF, AND COMPENSATORY & EX-EMPLARY DAMAGES FOR NEGLI-GENT AND INTENTIONAL VIOLA-TIONS OF TITLE 42 U.S.C. §1983 AND TITLE 42 U.S.C. §1985

(Hon. Judge David C. Bury) (Hon. Magistrate Bernardo P. Velasco)


20

COMES NOW the Plaintiff Roy Warden, with his Complaint for Injunctive 1

and Declaratory Relief, and Damages, against the Defendants, named and unnamed 2

above, and as grounds therefore alleges: 3

I. INTRODUCTION 4

1. This is an action pursuant to the Civil Rights Act of 1871, 42 U.S.C. §1983, 5

42 U.S.C. §1985 and 28 U.S.C. § 1343, seeking redress for the negligent and 6

intentional deprivation of the Plaintiff’s constitutional rights. Venue is proper 7

in the 9th District of Arizona, as all of the acts complained of occurred in Pima 8

County Arizona. 9

II. JURISDICTION 10

2. This Court has jurisdiction over this action under 28 U.S.C. § 1343(a)(3) for 11

negligent and intentional violations of constitutional rights as provided by 42 12

U.S.C. §1983 and 42 U.S.C. §1985. The Plaintiff seeks injunctive relief, de-13

claratory relief and monetary damages—including exemplary damages—as 14

well as attorney fees and costs pursuant to 42 U.S.C. §1988. 15

3. The Plaintiff seeks redress for violation of the Plaintiff’s rights to speech, 16

press, petition and assembly under the First Amendment of the Constitution 17

of the United States, the Plaintiff’s right to be free of illegal seizures under the 18

Fourth Amendment of the Constitution of the United States, the Plaintiff’s 19

right to be free from unlawful seizure and imprisonment as provided for by 20

the Fourth and Fourteenth Amendments of the Constitution of the United 21

States, and the Plaintiff’s right to due process of law as guaranteed by the 22

Fourth and Fourteenth Amendments of the Constitution of the United States. 23

III. REQUEST FOR JURY TRIAL 24

4. Pursuant to Rule 38 of the Federal Rules of Civil Procedure, Plaintiff requests 25

a trial by jury. 26

IV. IDENTITY OF THE PARTIES 27

5. Plaintiff Roy Warden, writer and publisher of political newsletters Common 28

Sense II, CS II Press, Arizona Common Sense and Director of the Tucson 29

21

Weekly Public Forum, is a citizen of the United States and was a resident of 1

Pima County Arizona at all times relevant to this complaint. 2

6. Defendant Richard Miranda was employed by the City of Tucson, and acted 3

individually and in his official capacity as Assistant Tucson City Manager, 4

under color of state law, regulations, customs and policies at all times relevant 5

herein. Defendant Miranda is sued in his individual and official capacities. 6

7. Defendant Michael Rankin was employed by the City of Tucson, and acted 7

individually and in his official capacity as Tucson City Attorney, under color 8

of state law, regulations, customs and policies at all times relevant herein. De-9

fendant Rankin is sued in his individual and official capacities. 10

8. Defendant L. Judge was employed by the City of Tucson, and acted individu-11

ally and in his official capacity as Assistant Tucson City Attorney, under color 12

of state law, regulations, customs and policies at all times relevant herein. De-13

fendant Judge is sued in his individual and official capacities. 14

9. Defendant Fred Grey was employed by the City of Tucson, and acted individ-15

ually and in his official capacity as Director of Tucson Parks and Recreation, 16


herein. Defendant Grey is sued in his individual and official capacities. 18

10. Defendant Renee Ochoa was employed by the City of Tucson, and acted in-19

dividually and in her official capacity as Southwest District Administrator of 20

Tucson Parks and Recreation, under color of state law, regulations, customs 21

and policies at all times relevant herein. Defendant Ochoa is sued in her indi-22

vidual and official capacities. 23

11. Defendant Terry Rozema was employed by the City of Tucson, and acted in-24

dividually and in his official capacity as AC of the Tucson Police Department, 25


herein. Defendant Rozema is sued in his individual and official capacities. 27

22

12. Defendant Stamatopoulos was employed by the City of Tucson, and acted in-1

dividually and in his official capacity as Captain of the Tucson Police Depart-2

ment, under color of state law, regulations, customs and policies at all times 3

relevant herein. Defendant Stamatopoulos is sued in his individual and official 4

capacities. 5

13. Defendant David Azuelo was employed by the City of Tucson, and acted in-6

dividually and in his official capacity as Lieutenant of the Tucson Police De-7

partment, under color of state law, regulations, customs and policies at all 8

times relevant herein. Defendant Azuelo is sued in his individual and official 9

capacities. 10

14. Defendant Paul Sayre was employed by the City of Tucson, and acted indi-11

vidually and in his official capacity as Lieutenant of the Tucson Police De-12

partment, under color of state law, regulations, customs and policies at all 13

times relevant herein. Defendant Sayre is sued in his individual and official 14

capacities. 15

15. Defendant Johnson was employed by the City of Tucson, and acted individu-16

ally and in his official capacity as Sergeant of the Tucson Police Department, 17


herein. Defendant Johnson is sued in his individual and official capacities. 19

16. Defendant Wooldridge was employed by the City of Tucson, and acted indi-20

vidually and in his official capacity as Sergeant of the Tucson Police Depart-21

ment, under color of state law, regulations, customs and policies at all times 22

relevant herein. Defendant Wooldridge is sued in his individual and official 23

capacities. 24

17. Defendant Paul Teitelbaum was employed by the Tucson May 1st Coalition 25

for Worker and Immigrant Rights, and acted individually, in his official ca-26

pacity as Coordinator for the Tucson May 1st Coalition for Worker and Immi-27

grant Rights, as an agent of the state under the direction or control of named 28

23

or unnamed Defendants, and in concert with Defendant Azuelo and other Tuc-1

son Officials and Employees, under color of state law, regulations, customs 2

and policies at all times relevant herein. Defendant Teitelbaum is sued in his 3

individual and official capacities. 4

18. Defendant John Miles was employed by the Tucson May 1st Coalition for 5

Worker and Immigrant Rights, and acted individually, in his official capacity 6

as Organizer for the Tucson May 1st Coalition for Worker and Immigrant 7

Rights, as an agent of the state under the direction or control of named or 8

unnamed Defendants, and in concert with Defendant Azuelo and other Tucson 9

Officials and Employees, under color of state law, regulations, customs and 10

policies at all times relevant herein. Defendant Miles is sued in his individual 11

and official capacities. 12

19. Defendant Tucson May 1st Coalition for Worker and Immigrant Rights, a po-13

litical organization located in Tucson Arizona, acted as an agent of the state 14

under the direction or control of named or unnamed Defendants, and in con-15

cert with Defendant Azuelo and other Tucson Officials and Employees, under 16

color of state law, regulations, customs and policies at all times relevant 17

herein. 18

20. Defendant City of Tucson, a municipal corporation, is a unit of local govern-19

ment organized under the laws of the State of Arizona. Municipalities “…may 20

be sued for constitutional deprivations visited pursuant to governmental ‘cus-21

tom’ even though such a custom has not received formal approval through the 22

body’s official decision-making channels.” Monell v. Department of Social 23

Services, 436 U.S. 658, 690, 691 (1978). 24

21. Defendant Does 1 25 are (1) individuals or members of various political or-25

ganizations who acted as agents of the state under the direction or control of, 26

or in concert with, named or unnamed Defendants, and (2) Pima County or 27

Tucson City employees, including employees of the Tucson Police Depart-28

ment, who acted individually and at the direction of their superiors, within 29

24

their enforcement, administrative and executive capacities, under color of 1

state law, regulations, customs and policies at all times relevant herein. Does 2

125 are sued in their individual and official capacities. 3

22. Defendant City of Tucson was served with a Notice of Claim, pursuant to 4

A.R.S. § 12-821.01, that included an administrative demand. Defendant City 5

of Tucson did not respond to the administrative demand. 6

V. FACTS AND ALLEGATIONS 7

23. On April 2, 2010 Defendant Paul Teitelbaum, Coordinator for Defendant 8

Tucson May 1st Coalition for Worker and Immigrant Rights, sent a letter to 9

Defendant Reenie Ochoa, Southwest District Director Tucson Parks and Rec-10

reation, requesting “exclusive use” of Armory Park on May 1, 2010. 11

24. Defendant Teitelbaum stated: “Our group’s request is based primarily on pub-12

lic safety concerns…(W)e have received an explicit threat from a local resi-13

dent, Mr. Roy Warden.” 14

25. On top of the page is the following handwritten notation: “4/6/10 OK to pro-15

cess for attorney approval on April 1, 2010. Reenie Ochoa.” 16

26. Sometime prior to making the notation, or shortly thereafter, Defendant Ochoa 17

communicated with Defendants Miranda, Judge, Rankin, Grey, and other De-18

fendants whose identities are unknown, and came to an agreement to deny 19

Plaintiff entry into Armory Park on May 1, 2010, even though all Defendants 20

knew such action would violate Plaintiff’s First Amendment rights. 21

27. By letter dated April 26, 2010 Defendant Fred Gray granted Defendant Teitel-22

baum “exclusive use” of Armory Park on May 1, 2010 and instructed Defend-23

ant Teitelbaum how to deny access to unwanted entrants, even though De-24

fendant Gray knew the granting of such “exclusive use” permits authorizing 25

permit holders to deny the public access to public parks, on the basis of view-26

point, was unlawful as per the law set forth in Gathright. 27

25

28. Copies of Defendant Gray’s April 26, 2010 letter were sent to Defendants Mi-1

randa, Rankin, Judge, Ochoa and Azuelo, putting them “on notice” that a con-2

stitutional violation was about to occur. 3

29. Sometime prior to the May 1, 2010 Rally in Armory Park Defendant Sayre, 4

and other Tucson City and Pima County officials and employees whose iden-5

tities are unknown, met with Defendants Teitelbaum, Miles, and other activ-6

ists whose identities are unknown, and came to an agreement to deny Plaintiff 7

entry into Armory Park on May 1, 2010 in violation of Plaintiff’s rights under 8

the First Amendment. 9

30. Sometime prior to the May 1, 2010 Rally in Armory Park Defendants Mi-10

randa, Rankin, Judge, Azuelo, and other Defendants whose identities are un-11

known, communicated with each other and agreed to employ a Tucson Court 12

Order dated March 16, 2009 as an additional basis to deny Plaintiff exercise 13

of his First Amendment rights on May 1, 2010, even though Defendants knew 14

the underlying case, CR 7030208, was under review by the Arizona Supreme 15

Court and the order was not in effect. 16

31. Sometime just prior to the May 1, 2010 Rally in Armory Park Defendants 17

Stamatopoulos, Rozema, Azuelo and Sayre attended a “command briefing” 18

with other high ranking Tucson Police Officials, whose identities are un-19

known, and formulated a plan to violate Plaintiff’s First Amendment rights 20

later that day in Armory Park. 21

32. Immediately subsequent to the “command briefing” Defendants Azuelo, 22

Wooldridge and Johnson attended a “tactical briefing” conducted by high 23

ranking Tucson Police Officials, whose identities are unknown, and received 24

instructions on how to keep Plaintiff out of Armory Park later that day, in 25

violation of Plaintiff’s First Amendment rights. 26

33. On May 1, 2010 Defendant Azuelo, at the request of exclusive use permit 27

holder Defendant Teitelbaum, told Plaintiff he would be arrested if he did not 28

move 1,000 feet away from Armory Park, citing both the provisions of the 29

26

“exclusive use” permit and a court order issued by Tucson Municipal Court 1

Judge Eugene Hays as authority for his order, even though no such court order 2

was then in effect. 3

34. Plaintiff moved to the western side of South Sixth Avenue and positioned 4

himself at the corner of south Sixth Avenue and East 13th Street to view the 5

proceedings; however Plaintiff was compelled to depart the May 1, 2010 rally 6

area altogether when Defendants Wooldridge and Johnson threatened him 7

with arrest if he did not move 1,000 feet away from Armory Park. 8

VI. COUNT ONE: VIOLATION OF FREEDOM OF SPEECH 9

35. Plaintiff repeats and re-alleges each and every allegation contained in para-10

graphs 1-143 as though fully set forth herein. 11

36. The Arizona Supreme Court has stated: 12

“Any question regarding infringement of First Amendment rights is of 13

the utmost gravity and importance, for it goes to the heart of the natural 14 rights of citizens to impart and acquire information which is necessary 15 for the well being of a free society. Since an informed public is the most 16

important of all restraints upon misgovernment, (the government may 17 not take) any…action which might prevent free and general discussion 18

of public matters as seems essential to prepare the people for an intel-19

ligent exercise of their rights as citizens.” New Times Inc. v Arizona 20

Board of Regents, 110 Ariz. 367, 519 P.2d 169 (1974) 21 22

37. Plaintiff alleges that the following Defendants violated Plaintiff rights under 23

the First Amendment as set forth below: 24

A. Defendant Azuelo when he threatened Plaintiff with arrest on May 1, 2010 25

if he did not move 1,000 feet away from Armory Park; 26

B. Defendants Wooldridge and Johnson when they threatened Plaintiff with 27

arrest on May 1, 2010 if he did not move 1,000 feet away from Armory 28

Park; 29

C. Defendant Grey when he issued the “exclusive permit” letter dated April 30

26, 2010 and instructed Defendant Teitelbaum how to exclude Plaintiff 31

from Armory Park on May 1, 2010, and 32

27

D. Defendants Miranda, Rankin, Judge, and Azuelo when they failed to take 1

action to protect Plaintiff’s rights after being put “on notice” by Defendant 2

Grey’s letter dated April 26, 2010 that Plaintiff’s rights would be violated 3

on May 1, 2010. 4

38. The actions taken by Defendants Miranda, Rankin, Judge, Grey, Azuelo, John-5

son and Wooldridge, and others who assisted named Defendants whose iden-6

tities are unknown, were the proximate cause of harm done to Plaintiff. 7

VII. COUNT TWO: FIRST AMENDMENT RETALIATION 8



40. Plaintiff alleges that the following Defendants engaged in acts of first amend-11

ment retaliation as set forth below: 12

A. Defendants Miranda, Rankin, Judge, Grey, Ochoa, and other Tucson City and 13

Pima County policy makers whose identities are unknown, when they violated 14

Plaintiff’s rights in retaliation for Plaintiff exposing Defendant City of Tucson 15

engagement in Open Border Policy. 16

41. The actions taken by Defendants Miranda, Rankin, Judge, Grey, Ochoa, and 17

other Tucson City and Pima County policy makers whose identities are un-18

known, were the proximate cause of harm done to Plaintiff. 19

IX. COUNT FOUR: CONSPIRACY 20



43. Plaintiff alleges that the following Defendants met, came to an agreement and 23

acted in concert for the purpose of denying Plaintiff his rights under the First 24

Amendment as set forth below: 25

A. Defendant Sayre and other Tucson City and Pima County officials, whose 26

identities are unknown, when they met with Defendants Teitelbaum, Miles, 27

and other members of Tucson May 1st Coalition for Worker and Immigrant 28

28

Rights whose identities are unknown, and formulated a plan to deny Plaintiff 1

entry into Armory Park on May 1, 2010; 2

B. Defendant Ochoa when she consulted with Defendants Miranda, Rankin, 3

Judge, Grey, and others whose identities are unknown, and came to a decision 4

to issue a permit for “exclusive use” of Armory Park on May 1, 2010, knowing 5

that it was unlawful to authorize permit holders to exclude public speakers 6

from public parks; 7

C. Defendants Miranda, Rankin, Judge, Azuelo and other Defendants whose 8

identities are unknown, when they met, formulated a plan and decided to em-9

ploy a Tucson Court Order dated March 16, 2009 as an additional basis to 10

deny Plaintiff exercise of his First Amendment rights on May 1, 2010, even 11

though Defendants knew the underlying case, CR 7030208, was under review 12

by the Arizona Supreme Court and the order was not in effect; 13

D. Defendant Grey when he consulted with Defendants Rankin, Miranda, Ochoa, 14

Judge, Azuelo, and others whose identities are unknown, and formulated a 15

plan to grant “exclusive use” of Armory Park on May 1, 2010 and instruct 16

Defendant Teitelbaum how to deny Plaintiff entry into Armory Park on May 17

1, 2010 even though Defendants knew such action would violate Plaintiff’s 18

rights and the law regarding “exclusive use” permits set forth by Gathright; 19

E. Defendants Rozema, Stamatopoulos, Azuelo, Sayre, and others whose identi-20

ties are unknown, when they met on the morning of May 1, 2010 at a “com-21

mand briefing” with other high level TPD and Tucson City Defendants, whose 22

identities are unknown, and agreed to implement a plan to violate Plaintiff’s 23

rights later that day in Armory Park, and 24

F. Defendants Wooldridge and Johnson, and others whose identities are un-25

known, when they met on the morning of May 1, 2010 at a “tactical briefing” 26

with other high level TPD and Tucson City Defendants, whose identities are 27

unknown, and agreed to implement a plan to violate Plaintiff’s rights later that 28

day in Armory Park. 29

29

44. The actions taken by Defendants Miranda, Rankin, Judge, Grey, Ochoa, Ro-1

zema, Stamatopoulos, Azuelo, Sayre, Johnson, Wooldridge, Teitelbaum, 2

Miles, the Tucson May 1st Coalition for Worker Rights, and others whose 3

identities are unknown who advised and assisted named Defendants, were the 4

proximate cause of harm done to Plaintiff. 5

XII. PRAYER FOR RELIEF 6

WHEREFORE, Plaintiff prays that this Court: 7

A) Order Defendant Tucson City to provide all enforcement level employees 8

with mandatory training regarding all aspects of their duty to protect the con-9

stitutional rights of the people, independent from the directions of their supe-10

riors; 11

B) Upon submission, to issue a preliminary injunction enjoining Tucson City Po-12

lice Officers from enforcing any court order, including injunctions and orders 13

setting forth the conditions of release from custody, which, as an unlawful act 14

of prior restraint, prohibits pure political speech; 15

C) Upon submission, to issue a preliminary injunction enjoining the Tucson City 16

Council from employing Tucson City Code Section 21-4(a) (b)(6), or any 17

code section granting “exclusive use” permit holders the authority to exclude 18

public speakers from a public park; 19

D) Award Plaintiff compensatory damages in an amount deemed fair, just and 20

reasonable, for (1) the harm and violation of rights Plaintiff has suffered as set 21

forth above, (2) the emotional distress Plaintiff has suffered by his loss of 22

rights and reputation, and (3) the negligent and intentional deprivation of 23

Plaintiff’s civil rights under the First, Fourth, Fifth, and Fourteenth Amend-24

ments to the United States Constitution, 42 U.S.C. §1983, and 42 U.S.C. 25

§1985; 26

30

E) Award Plaintiff exemplary damages in the amount sufficient to deter Defend-1

ants and other government officials from abusing the prerogatives of their 2

power and acting in a similar malicious and unlawful manner; 3

F) Award Plaintiff reasonable attorney’s fees and costs pursuant to 42 U.S.C. 4

§1988, and 5

G) Grant such additional relief as the Court deems just and proper. 6

7

RESPECTFULLY SUBMITTED this day of 2014. 8

9

BY: 10 ________________________________ 11


13

14 15

warden objection to magistrate's report in 0460

Documents