warden opposition to defendant tucson city motion to dismiss

8/10/2019 WARDEN OPPOSITION TO DEFENDANT TUCSON CITY MOTION TO DISMISS

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Roy Warden, Publisher1Arizona Common Sense23700 S. Calle Polar3Tucson Arizona [email protected] 5

6

UNITED STATES DISTRICT COURT7DISTRICT OF ARIZONA 8

ROY WARDEN,

Plaintiff, IN PRO SE

Vs

RICHARD MIRANDA, etc.,

Defendants.

)))))))))))

Case No. CV-14-2050 TUC (DCB)

PLAINTIFFS OPPOSITION TO RULE12(B)(6) MOTION TO DISMISS

ORAL ARGUMENT REQUESTED

THE HON. DAVID BURY9

Plaintiff opposes Defendants Motion to Dismiss for reasons set forth in sec-10

tions A-F below:11

STATEMENT OF FACTS 12

1. On August 14, 2014 Plaintiff filed his First Amended Complaint (FAC)13

in the above captioned action.14

2. On September 4, 2014 Defendants, without answering complaint, instead15

filed a Motion to Dismiss (MTD) raising only one legitimate issue to be16

determined in a 12 (b)(6) motion to dismiss, which Plaintiff responds to17

in sections A and A-1 below: Defendants contention that TCC 21-3(7)18

(4) 1, the Tucson City code section which authorizes a permit holder to19

1 Defendants may have changed the numbering of TCC code sections on their web-site, resulting in Plaintiff misidentifying the challenged TCC code section in hisFirst Amended Complaint. The TCC section which Plaintiff challenges, whichallows permit holders to exclude members of the public from public parks on the

basis of viewpoint, is TCC 21-3(7)(4). (Exhibit 1)
mailto:[email protected]:[email protected]:[email protected]


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exclude a public speaker from an open meeting in a public park on the1

basis of viewpoint, is lawful.2

3. Nevertheless; in an excess of caution, Plaintiff responds to the rest of De-3

fendants issues (even if they would be more appropriately addressed in4

summary judgment proceedings 2 after discovery) in sections B through5

F below.6

MEMORANDUM OF POINTS AND AUTHORITIES7

A. TCC 21-3(7)(4) Violates Gathright v. City of Portland, 439 F.3d 5738(9 th Cir 2006)9

10

4. Defendants cite a series of out-of-date extra-jurisdictional rulings 3 and a11

U.S. Supreme Court decision concerned with parade events 4, (in which12

the Court held permit holders may exclude prospective parade partici-13

pants on the basis of viewpoint), to support their contention that T.C.C 14

21-3(7)(4) 5, the Tucson City code section now under review, lawfully15

2 There has been no discovery in this case. Defendants have presented no evidenceto support their conjectures . Defendants MTD is no more than a thinly disguised,

premature, motion for summary judgment.

3 Sistrunk v. City of Strongville, 99 F.3d 194, 198 (6 th Cir 1996) (MTD 6:25);

Schwitzgebel v. City of Strongville, 898 F.Supp 1208 (E.D. Ohio 1985) (MTD 7:23-24); United Auto Workers v. Gaston Festivals, 43 F.3d 902 (4 th Cir 1995)(MTD 8:2); Diener v. Reed, 232 F.Supp.2d 362 (M.D. Pa. 2002) (MTD 8:5);Sanders v. United States, 518 F.Supp 728 (D.D.C. 1981) (MTD 8:8-9)

4 Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston, 515 U.S.557, 115 S.Ct. 2338 (1995) (MTD 7:20-21)

5 In their MTD, Defendants cite the current language of TCC 21-4 as it presentlyexists on the Tucson City Website. However; in a companion case, CIV 11-0460,Defendants cited s pecific and different language from a different code section

TCC 21-3(7)(4) which allows permit holders to exclude members of the publicwho disturb or interfere unreasonably with any person or party occupying anyarea, or participating in any activity, under the authority of a permit license or re-servation, almost a verbatim statement of the express language proscribed bythe Ninth Circuit in Gathright, because it conveys upon permit holders the express

power to exclude members of the public from public parks on the basis of view-


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authorizes permit holders, on the basis of viewpoint, to exclude members1

of the public from open political events held in public parks. (MTD 5:20-2

8:15)3

5. [N.B. Plaintiff requests the Court to take judicial notice of the following:4

In another case 6 Defendants presented a different argument to disavow5

the clear, unambiguous words stated in the Mike Rankin Letter 7 dated6

April 12, 2006, and refute the clear, unambiguous meaning of Gathright,7

which forbids an event permit holder to expel a public speaker from a8

public park on the basis of viewpoint.]9

6. In Gathright v City of Portland, 439 F.3d 573 (9 th Cir 2006) the Court10

stated:11

This case concerns the intersection of two First Amend-12ment rights: on the one hand, the classic right of an indivi-13dual to speak in the town square; on the other hand, the14interest organizations have in not being compelled to15communicate messages not of their choosing. Gathright at1657517

7. Regarding the challenged Portland City code section which the Gathright18

Court ruled unconstitutional, the Court said:19

Portland enforces the right of permit holders sponsoring an20event to evict any member of the public who espouses a21message contrary to what the permit holder wants as part of22its event. Under Portland City Code (PCC) 20:08:060,23[i]t is unlawful for any person unreasonably to interfere24with a permittees use of a Park. According to the Citys25

policy, a permittee may order a person to leave an open26event when that person unreasonably interferes with the27

point. See Warden v Miranda, CIV 11-0460, Defendants 2 nd Motion for Summary

Judgment, DOC 92, 6: 4-11.6 Warden v Miranda, CIV 11-0460

7 Exhibit 2. See also; 8:16-9:24, this document.


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permittees use of the licensed space. Id. 575 (emphasis1added)2

8. In this case, the City of Tucson has enforced TCC 21-3(7)(4), a code3

section which allows permit holders to exclude members of the public4

who:5

Interfere with permittees. Disturb or interfere unreasonably6with any person or party occupying any area, or parti-7cipating in any activity, under the authority of a permit8license or reservation . See footnote 5. See also CIV 11-90460 DOC 92, 6: 6-11 (Exhibit 1)10

9. Plaintiff respectfully submits: the language and effective meaning of the11

Portland code section, which the Gathright Court found unconstitutional,12

is nearly identical to the Tucson City code section under review here:13

both code sections allow a permit holder to exclude members of the pub-14

lic from public meetings in public parks on the basis of viewpoint.15

10. By way of further clarification and analysis the Gathright Court said:16

We disagree with the Citys reading of Hurley . Hurley in-17volved the exclusion of those who wished to participate in18the parade as marchers, not those who witnessed or opposed19the processionAs the district court has here observed,20

[t]here is a distinctio n between participating in an event21 and being present at the same location. Merely being present22at a public event does not make one part of the organizers23message for First Amendment purposes. Gathright v. City24of Portland , 315 F. Supp. 2d 1099, 1103 (D. Or. 2004). Id.2557726

27

Applying Ward s criteria to the facts before us, we con -28clude that the Citys policy is not a valid time, place or29manner regulation of public space. See Ward , 491 U.S. at30791. Solely for the purposes of the Citys appeal, we accept 31

its proposition that its policy is content neutral and that it32has a significant interest in protecting the free speech rights33of people and organizations who have obtained permits to34use a public park for an event open to the public. We hold,35however that the policy of allowing permittees unfettered36


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discretion to exclude private citizens on any (or no) basis is1not narrowly tailored to the legitimate interest in protecting2its permittees rights under Hurley. See Ward , 491 U.S. at3798-800. Because the Cit ys policy is not narrowly tailored,4we do not reach whether it leaves open ample alternative5

channels of communication. Id. 577 (emphasis added)6

The Citys assertion that its policy is content neutral is7questionable. The policy enables private citizens to exclude8

people from events in public forums solely on the basis of9the content of their speech . Id . 577 (emphasis added)10

In Hurley , the Supreme Court made clear that every mar-11ching participant in the St. Patricks Day parade was an ex -12

pressive unit, the sum of which constituted the expressive13message attributable to the parades organizer Here, there14

is no risk that Gathrights provocations could be mistaken15 by anybody as part of the message of the events he protests.16Id. 57817

18

Gathright may be a g adfly to those with views contrary to19his own, but First Amendment jurisprudence is clear that the20way to oppose offensive speech is by more speech, not21censorship, enforced silence or eviction from legitimately22occupied public space. See Terminiello v. City of Chicago,23337 U.S. 1, 4 (1949) ([A] function of free speech under our24system of government is to invite dispute.). Id. 57825

The City cannot . . . claim that ones constitutionally pro -26tected rights disappear [where] a private party is hosting an27event that remain[s] free and open to the public . Parks , 39528F.3d at 652. Id. 579 (emphasis added)29

A-1 The 2012 May 1 st CWIR 8 Event Was an Open Meeting 30

11. In their current argument, set forth in their MTD, Defendants state:31

Warden did not, and cannot, allege in his complaint that32

the May 1, 2012 CWIR rally at Armory Park was an event33

free and open to the public because the exclusive use permit34specifically reserves a specific designated closed area of the35

8 Defendant May 1 st Coalition for Worker and Immigrant Rights


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park for certain gr oups to the exclusion of others. (MTD17:12-15) (emphasis added)2

12. Plaintiff does allege the 2012 May 1 st CWIR rally in Armory Park was3

an event free and open to the public because all previous May 1 st CWIR4

events, from 2008 to 2011, were free and open to the public. 5

13. In 2010 Defendant May 1 st CWIR invited both immigrant workers and6

US born workers to discuss issues relevant to immigration reformand7

other issues that affect the community , as set forth in their 2010 May 1 st8

CWIR Exclusive Use Application 9, and set forth below:9

The purpose of the May 1 st Coalition for Worker and Immi-10grant Rights, gathering and rally is to celebrate the holiday11

known as International Workers Day, referred to as May12

Day, to provide a safe space for both immigrants workers13and US-born workers to discuss issues relevant to immi-14

gration reform, job losses, budget cuts and other issues that15affect the community . (emphasis added) (See Exhibit 3)16

14. On May 1, 2012 Plaintiff was (1) a US born worker who (2) lived in17

the community , who (3) accepted the 2012 May 1 st CWIR invitation to18

discuss issues relevant to immigration reformand other issues that19

affect the community. 20

15. Moreover; in 2010 Defendant Lt. Sayre submitted an Affidavit which21

states:22

TPDs primary goal at the event was to prevent any type of23unlawful activity in and around the permitted exclusive use24area and to ensure a safe event for all participants and25observers, to enforce parking and traffic issues, and to26

support the fundamental right of all people to peacefully27assemble and exercise their right of free speech . CIV-11-280460, DOC 93-1 Affidavit of Lt. Paul Sayre. (emphasis29

added)30

9 See Exhibit 3.


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16. Additionally; the 2010 May 1 st CWIR Exclusive Use Permit, issued on1

April 26, 2010 by Defendant Grey, 10 in pertinent part, stated the follow-2

ing:3

I have reviewed your request for exclusive use of Ar -4mory Park as indicated on the attached map for Saturday,5May 1, 2010 between 7:00a.m. and 5:00p.m. Upon further6discussion with Parks and Recreation staff, Tucson Police7

Department staff, and the City Attorneys Office, this letter8and its attached map will serve as your permit to utilize the9areas indicated on the map for the exclusive use of your10function. (emphasis added)11

In the event that you wish to deny someone access, or12request someone leave the designated exclusive use area,13

it will be your responsibility to ask them to do so. Should14

anyone refuse your request you would need to contact15Tucson Police Department staff on- site via 911. (empha-16sis added) (Exhibit 4)17

17. In their MTD Defendants offer conjecture but no evidence to support18

their suggestion (set forth above in paragraph 11) that the 2012 May19

1st CWIR event in Armory Park, (unlike previous events), might have20

been a closed meeting. Absent disclosure we dont know what the21

2012 May 1st

CWIR Exclusive Use Permit said, or what it reserved.22

18. Plaintiff awaits disclosure of the various documents 11 Defendants need23

to support their current conjecture that the 2012 May 1 st CWIR Rally in24

10 Defendants Miranda, Rankin, Judge and Ochoa received copies of the 2010CWIR Permit, prior to the May 1, 2010 event . (Exhibit 4)

11 These documents include, but are not limited to , (1) the 2012 May 1 st Coalitionapplication letter for exclusive use of Armory Park on Park on May 1, 2012

(setting forth the coalitions reasons for seeking an exclusive use permit), (2) the 2012 permit letter granting permit holders the authority to eject eventattendees on the basis of viewpoint, (3) The Special Operations Plan May 1 st Coalition March & Rally May 1, 2012 prepared by the Tucson Police Depart-ment, etc.


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Armory Park, (unlike the 2010 Rally), might have been a closed event1

and not an event free and open to the public. (See paragraphs 11 and2

12 above and Defendants MTD 7:12-15)3

B. Defendants Conduct Did Violate Plaintiffs Rights 4

19. In a second issue more appropriately raised in summary judgment pro-5

ceedings, Defendants contend: There is no affirmative link between6

Wardens alleged first amendment violation and the defendants conduct7

in authorizing an exclusive use permit. 12 (MTD 9:8 -10)8

20. Plaintiff has alleged an affirmative link, as set forth in the FAC (para-9

graphs 26, 27, 30, 34 & 37) and in subsections 20 a-g below:10

20a On April 12, 2006 Defendant Tucson City Attorney Mike Rankin is-11

sued a letter which correctly states the law regarding Armory Park,12

the 9 th Circuit decision in Gathright, exclusive use permits, and the13

proscription of permit holders conducting open events from enga-14

ging in viewpoint discrimination, as follows:15

The First Amendment protects speech and expressive16conduct even when the expression involved is offensive to17some. Courts have embraced the notion that a principal18function of free speech under our system of government is19

to invite dispute. It may indeed best serve its high purpose20when it induces a condition of unrest, creates dissatisfaction21with conditions as they are, or even stirs people to anger.22Terminiello v Chicago , 337 U.S. 1, 4, 69 S.Ct. 894, 896, 9323L.Ed. 1131 (1949). Even expressive conduct as offensive as24flag burning enjoys constitutional protection. Texas v25

Johnson , 491 U.S. 397, 109 S.Ct. 2533, (U.S. 1989). As the26United States Supreme Court stated in Johnson [I]f there is27a bedrock principle underlying the First Amendment, it is28that the government may not prohibit the expression of an29

12 Discovery will provide the necessary documents to establish the affirmative link between Plaintiffs first amendment violation and Defendants conduct., ie: the2012 CWIR application letter, the 2012 Exclusive Use Permit, etc, as set forth infootnote 11.


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idea simply because society finds the idea itself offensive or1disagreeable. Id., 491 U.S. at 414.2

Accordingly, the Border Guardians had a right to engage3in constitutionally protected expression in Armory Park yes-4

terday. The fact that representatives of the Border Action5 Network had obtained a reservation for Armory Park does6not change this analysis. As confirmed by the Parks and7Recreation Department, the Border Action representatives8had a reservation to use a particular area of the park, but not9exclusive use of the entire park. Parks and Rec does not10grant permits for the exclusive use of entire properties,11except in those circumstances where the facility itself in12enclosed (e.g. Hi Corbett). This policy is consistent with the13First Amendment protections recognized by the courts14(including the Ninth Circuit) that preclude a municipality15

from evicting certain attendees from an event open to the16 public in a public forum on the grounds that the persons17speech is contrary to that of the organizers of the event. See18Gathright v. City of Portland , 439 F.3d 573 (9 th Cir. 2006)19[holding that city could not evict controversial preacher20from park event even though his speech was upsetting to21other event participants, who had obtained a permit]. (See22Exhibit 2)23

24

20b Defendants Miranda and Grey received copies of this letter. (See25

Exhibit 2, page two.)26

20c Thus; Defendant City of Tucson and Defendants Rankin (the au-27

thor), Miranda and Grey either gave notice or got notice on April28

12, 2006 the issuance of permits authorizing permit holders to ex-29

clude members of the public from public parks, on the basis of view-30

point, was unlawful.31

20d Nevertheless; from 2007-2012 these same Tucson City Officials con-32

tinued to issue, endorsed, or acquiesced in the issuance of permits33

authorizing permit holders to exclude members of the public from34

public parks on the basis of viewpoint, knowing their conduct was35


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unlawful. (See paragraph 21 below regarding supervisorial liability1

and Starr v Baca)2

20e Sometime prior to May 1, 2012 Defendant Gray issued the 2012 May3

1st CWIR permit for exclusive use of Armory Park; the but for4

event which authorized Defendants McCarthy, Sayer and Lopez to5

violate Plaintiffs rights on May 1, 2012. 6

20f Defendants Miranda, Rankin, Judge and Ochoa either (1) participa-7

ted in the decision to issue, (2) endorsed, or (3) acquiesced in the8

permits issuance , any one of which establishes supervisorial liabil-9

ity, under 42 1983 for acquiescence, deliberate indifference10

or refusing to terminate a series of acts by others, as per Starr v11

Baca, 13 652 F.3d 1202-1203 (9 th Cir. 2011)12

20g On May 1, 2012 Defendant officers McCarthy, Sayre and Lopez,13

acting under directions given by their superiors and the authority of14

the 2012 Exclusive Use Permit, violated Plaintiff s rights by preven -15

ting him from entering Armory Park to speak on matters of com-16

munity concern.17

21. Regarding supervisorial liability, and Defendants Miranda, Rankin,18

Judge, Grey and Ochoa, the 9 th Circuit has said:19

We have long permitted plaintiffs to hold supervisors indi-20vidually liable in 42 U.S.C.S. 1983 suits when culpable21action, or inaction , is directly attributed to them. We have22never required a plaintiff to allege that a supervisor was23

physically present when the injury occurred... [T]he24supervisor's participation could include his own culpable25action or inaction in the training, supervision, or control of26his subordinates , his acquiescence in the constitutional27deprivations of which the complaint is made , or conduct that28

13 Defendants themselves cite Starr in their MTD. 4:24-5:8


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showed a reckless or callous indifference to the rights of1others . Starr at (1205-1206) emphasis added.2

Section 1983 plaintiff may state a claim against a super-3visor for deliberate indifference based upon the supervi-4

sor's knowledge of and acquiescence in unconstitutional5 conduct by his or her subordinates. Id. at 1203 (emphasis6added)7

The law clearly allows actions against supervisors under 81983 as long as a sufficient causal connection is present and9the plaintiff was deprived under color of law of a federally10secured right. The requisite causal connection can be esta-11

blished by setting in motion a series of acts by others, or by12knowingly refusing to terminate a series of acts by others,13which the supervisor knew or reasonably should have14

known would cause others to inflict a constitutional injury. 15Id. at 1207-1208 (emphasis added)16

22. Defendants have not yet disclosed the documents set forth above in foot-17

note 11 or the names of other Tucson City Officials (and potential defen-18

dants in this case) who decided to issue 2012 May 1 st CWIR permit, thus19

setting in motion a series of acts by others, or by knowingly refusing20

to terminate a series of acts by others, which the supervisor knew or rea-21

sonably should have known would cause others to inflict a constitu-22

tional injury . Id. at 1207-1208 (emphasis added)23

23. Moreover; regarding initial pleading standards and Defendants Rule24

12(b)(6) MTD, Defendants themselves cite Starr, which in pertinent part,25

also provides:26

The factual allegations of the complaint need only plausi-27 bly suggest an entitlement to relief. Fed. R. Civ. P. 8(a) does28not impose a probability requirement at the pleading stage;29

it simply calls for enough fact to raise a reasonable expec-30tation that discovery will reveal evidence to support the alle-31gations . Id. at 121732


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24. Plaintiff submits: the FAC (paragraphs 26, 27, 30, 34 & 37) and subsec-1

tions 20a-20g above set forth allegations which establish an affirmative2

link between named Defendants Tucson City, Rankin, Miranda, Grey,3

Ochoa, and Judge, and the injury Plaintiff suffered on May 1, 2012 when4

Defendant TPD officers McCarthy, Sayre, and Lopez, acting under in-5

structions given by their superiors and at the behest of Defendants May6

1st CWIR, the Tall Unidentified Political Activist and the Short Uni -7

dentified Political Activist, unlawfully excluded Plaintiff from Armory8

Park, under the authority of an exclusive use permit which violated the9

law set forth in Gathright, sufficient to withstand Defendants Rule 12(b)10

(6) MTD.11

B-1. Defendant Villaseor12

25. Plaintiff withdraws his present claim against Defendant Villaseor for13

failure to train and supervise.14

C. Defendants Violations on May 1, 2012 14 Were Retaliatory and Moti-15vated by Plaintiffs 6 Year Exposure of Cronyism and Open Border16Policy17

18

26. Defendants contend the FAC fails to allege a link between Plaintiffs 919

year investigation of Tucson City Open Border Policy and Defendants20

denying Plaintiff entry into Armory Park on May 1, 2012, stating the21

following:22

A plaintiff must show a causal connection between a defen-23dants retaliatory animus and a subsequent injury in any sort24of retaliation action. Hartman v Moore , 547 U.S. 250, 249,25126 S.Ct. 1695, 164 L.Ed.2d 441 (2006) [Plaintiff] must26ultimately prove that [Defendants] desire to cause the chil -27

14 Predating Defendants expulsion of Plaintiff from Armory Park on May 1, 2012were Defendants currently undisclosed prior actions, and their agreement to issue,and issuance of, an Exclusive Use Permit authorizing permit holders to denyentry into public parks members of the public on the basis of viewpoint, knowingthe law, as per Gathright, forbids the issuance of such permits.


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30. Additionally; On September 12, 2011 Defendants unlawfully arrested1

Plaintiff and removed him from a Tucson City Council Meeting for char-2

ging the City Council with cronyism, and, for attempting to read from3

the trial transcript of Gilmartin v City of Tucson, CV 00-352- TUC FRZ 4

which concluded in 2006 Defendant Miranda had engaged in acts5

(that) were so outrageous in character and so extreme in degree as to go6

beyond all possible bounds of decency and to be regarded as atrocious7

and utterly intolerable in a civilized society, before awarding Plaintiffs8

Gilmartin and Harris 2.9 million dollars in damages for conspiracy to9

violate first amendment rights and for first amendment retaliation .10

31. Ultimately; as finders of fact a jury will determine (1) if the factual alle-11

gations set forth in the FAC are true and (2) if the acts were retalia -12

tory. 13

D. Plaintiff States a Claim for Conspiracy14

32. In their MTD Defendants state:15

In order to establish a conspiracy among state actors for the16 purpose of 1983, the plaintiff must show an agreement or17meeting of the minds by the defendants to violate his18constitutional rights. MTD, 11:16 -1819

33. It is black letter law that c onspiracy may be defined as an agreement20

between two or more people to commit an unlawful act. 21

34. [N.B. See section B, this document, which establishes an affirmative link22

between Defendants Miranda, Rankin, Judge, Grey and Ochoa, who is -23

sued, endorsed, or acquiesced in the (unconstitutional) permits issu -24

ance , and Defendants McCarthy Sayre and Lopez who violated Plain -25

tiffs rights by blocking his entry into Armory Park on May 1, 2012.]26


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35. Regarding conspiracy in this action: the 2010 May 1 st CWIR Exclusive1

Use Permit issued on April 26, 2010 by Defendant Grey, 18 in pertinent2

part, reveals the participants of a 2010 conspiracy to issue an unlawful3

Exclusive Use Permit and deny Plaintiff his First Amendment rights:4

I have reviewed your request for exclusive use of Ar-5mory Park as indicated on the attached map for Saturday,6May 1, 2010 between 7:00a.m. and 5:00p.m. Upon further7discussion with Parks and Recreation staff, Tucson Police8

Department staff, and the City Attorneys Office, this letter9and its attached map will serve as your permit to utilize the10areas indicated on the map for the exclusive use of your11function. (emphasis added)12

In the event that you wish to deny someone access, or13

request someone leave the designated exclusive use area,14it will be your responsibility to ask them to do so. Should15anyone refuse your request you would need to contact16Tucson Police Department staff on- site via 911. (empha -17sis added) (Exhibit 4)18

36. Thus; in 2010 Defendant Grey, Parks and Recreation staff (including19

Defendant Ochoa), Tucson Police Department staff and the Tucson City20

Attorneys staff (including Defendants Rankin and Judge) discussed the21

issue of exclusive use permits and decided to issue the 2010 permit22

anyway, knowing that permits authorizing permit holders to exclude23

members of the public from public parks on the basis of viewpoint were24

unlawful as per Gathright.25

37. Even more revealing: the 2010 CWIR Teitelbaum letter (a.k.a the 201026

Exclusive Use Request ) specifically identified Plaintiff Roy Warden27

as the person Defendant 2010 May 1 st CWIR wanted to exclude from28

Armory Park on May 1, 2010. (Exhibit 3)29

18 Defendants Miranda, Rankin, Judge and Ochoa received copies of the 2010CWIR Permit. (Exhibit 4)


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38. Thus, in 2010 both the author and recipients 19 of the Fred Gray letter1

(a.k.a. the 2010 Exclusive Use Permit ) specifically knew Plaintiff Roy2

Warden would be excluded from Armory Park on May 1, 2010; neverthe-3

less, after discussion and agreement , they authored and/or approved or4

acquiesced in the issuance of the letter anyway, knowing, as per Defen-5

dant Rankin s April 12, 2006 letter 20, it was unlawful to prevent Plain-6

tiff s entry into Armory Park on May 1, 2010 as per Gathright.7

39. Regarding conspiracy, initial pleading standards and Defendants Rule8

12(b)(6) MTD; Defendants cite Starr v Baca, 21 652 F.3d 1202 (9 th Cir9

2011), which in pertinent part provides:10

The factual allegations of the complaint need only plausi-11 bly suggest an entitlement to relief. Fed. R. Civ. P. 8(a) does12not impose a probability requirement at the pleading stage;13it simply calls for enough fact to raise a reasonable ex-14

pectation that discovery will reveal evidence to support the15allegations . Starr at 121716

40. Regarding conspiracy; Plaintiff has pled enough facts to raise a rea -17

sonable expectation that discovery (in this case Defendants produc -18

tion of documents set forth with specificity in footnote 11) will reveal19

evidence to support the allegations of conspiracy, as per Starr.20

E. The Custom and Practice of Tucson City Government Permits21Tucson City Officials to Retaliate Against and Violate the Rights of22Those Who Oppose Tucson City Government Policy23

24

41. In Section III of their MTD Defendants state:25

Warden alleges the City of Tucson may be sued for con -26stitutional deprivations pursuant to governmental custom.27

19 These include Defendants Miranda, Rankin, Judge, Grey and Ochoa who areDefendants in the current action.

20 Exhibit 2

21 MTD 4:24-5:8


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This statement is insufficient to state a claim against the City1of Tucson. Plaintiff must establish that the local govern -2ment had a deliberate policy, custom or practice that was the3moving force behind the constitutional violation [they] suf-4fered. MTD 12:13 -13:15

42. [N.B. In a companion case now under appeal, 11-Civ 0460, which raises6

identical legal issues , the Court dismissed as verbose 22 Plaintiffs com -7

plaint which set forth in exacting detail, [as required by Monell v. De-8

partment of Social Services, 436 U.S. 658, 690, 691 (1978)], serial con-9

stitutional violations against (1) Plaintiff, (2) political activist and author10

of the 2004 PAN 23 state-wide initiative Kathy McKee 24, and (3) Dr.11

Kevin Gilmartin 25, whom a federal jury concluded in 2006 had been sub-12

jectted to a conspir acy to deprive him of his rights and acts of first13

amendment retaliation for speaking out against Tucson City Officials.]14

43. In 2004 the Tucson Police Department (TPD) encouraged and other -15

wise allowed members of a Pro -Raza hate group, some shouting all16

white people deserve to die, to assault and otherwise terrify PAN au-17

thor and permit holder Kathy McKee, and other attendees of a rally in18

El Presidio Plaza Park protesting Tucson City Open Border Policy. (Ex-19

hibit 5)20

44. In 2006 a federal jury returned a verdict for 2.9 million dollars against21

the City of Tucson, and Defendant Miranda, for engagement in acts of22

22 [T] he Second Amended Complaint isnot simple or concise, it is denseand verbose, with so many factual averments of such specificity re-allegedin every count, that it is impossible to discern which facts support, or areeven relevant to, which claims. Doc 135, 11-Civ 0430

23 Protect Arizona Now, which limited the services provided to illegal aliens andrequired voter identification, passed by 58% of the vote.

24 See Exhibit 5 : Affidavit of Kathy Mckee.

25 Gilmartin v City of Tucson, CV 00-352- TUC FRZ


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conspiracy and first amendment retaliation against Plaintiffs Gilmartin1

and Harris 26 .2

45. Plaintiff has set forth sufficient facts regarding the custom and prac -3

tice 27 of Tucson City Officials to retaliate against those who oppose4

Tucson City Policy.5

46. Moreover; it is not a court function but a jury function as finders of fact 6

to determine whether or not Plaintiffs allegations are random acts or7

a result of the City of Tucsons unwritten policy or custom and prac -8

tice, to permit public officials to engage in acts of first amendment re-9

taliation against opponents of Tucson City Policy. See Monell v. Depart-10

ment of Social Services, 436 U.S. 658, 690, 691 (1978).11

F. Defendant Reenie Ochoa Was Properly Served1213

47. Defendants contend Plaintiff failed to properly serve Defendant Renee14

Ochoa. (MTD 13:9-21)15

48. On August 14, 2014 the Tucson City Clerk, after carefully reading the16

summons and the complaint caption, accepted service on behalf of Renee17

Ochoa and other defendants.18

49. However; on a previous occasion, the Tucson City Clerk refused to ac-

19

cept service on behalf of (former) Mayor Walkup, no longer employed20

by the City of Tucson, or accept service on behalf of Tucson Municipal21

Court Judge Tony Riojas, who required service at the Tucson City22

Court.23

50. Nevertheless; on August 14, 2014 the Tucson City Clerk accepted the24

Summons and the First Amended Complaint on behalf of Renee Ochoa.25

26 Gilmartin v City of Tucson, CV 00-352- TUC FRZ

27 Monell v. Department of Social Services, 436 U.S. 658, 690, 691 (1978).


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51. However; should the Court find that Defendant Ochoa was not properly1

served, Plaintiff requests the Court to grant an additional 30 day time2

extension in which to effect service. (see Prayer) 3

SUMMARY4

Plaintiff submits: In this case, CIV 14-02050, Defendants have not disclosed5

the various documents 28 they need to support their current suggestion the 20126

May 1 st CWIR Rally in Armory Park, (unlike the 2010 and 2011 Rallies), might7

have been a closed ev ent and not an event free and open to the public. 8

(MTD 7:12-15)9

Therefore; as set forth above in paragraphs 11-18, Defendants Rule 12(b)(6)10

motion must fail.11

Additionally; sometime prior to May 1, 2012, when Defendants Sayre, Lo-12

pez and McCarthy unlawfully blocked Plaintiffs entry into Armory Park , De-13

fendant Grey issued and Defendants Rankin, Judge, Miranda, and Ochoa re-14

ceived copies of the 2012 CWIR Exclusive Use Permit, which all Defendants 15

knew unlawfully, (as per Gathright), conferred upon permit holder CWIR em-16

ployees the Tall Unidentified Political Activist With Cap and the Short Uni-17

dentified Political Activist the authority to bar Plaintiffs entry into Armory18

Park.19

This is the (1) causal connection between Defendants Rankin, Mira nda,20

Judge, Ochoa and Grey and Defendant TPD officers preventing Plaintiffs21

28 These documents include, but are not limited to , (1) the 2012 May 1 st Coalitionapplication letter for exclusive use of Armory Park on Park on May 1, 2012

(setting forth the coalitions reasons for seeking an exclusive use permit), (2)the 2012 permit letter granting permit holders the authority to eject eventattendees on the basis of viewpoint, (3) The Special Operations Plan May 1 st Coalition March & Rally May 1, 2012 prepared by the Tucson Police Depart-ment, etc. See footnote 11.


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entry into Armory Park on May 1, 2012 and the but -for 29 event required to1

prove retaliatory animus which resulted in TPD Defendants Sayre, Lopez and2

McCarthy preventing Plaintiff from entry into Armory Park on May 1, 2012 for3

the exercise of his First Amendment rights.4

Regarding Conspiracy: Plaintiff adequately pleads facts to support his claim5

for conspiracy in Section D above . [14:14-16:20]6

Regarding Custom and Practice: Plaintiff adequately pleads facts to support7

his claim that the custom and practice of Defendant Tucson City permits pub-8

lic officials to engage in acts of first amendment retaliation against those who9

oppose Tucson City Policy, as set forth in Section E above. [16:21 -18:10]10

Regarding service upon Defendant Ochoa: Plaintiff properly served Defen-11

dant Ochoa, as set forth in Section F above. [18:11 -26]12

CONCLUSION13

Plaintiff is disadvantaged in this case.14

He is not a member of The Fraternity, 30 nor is he a government employed,15

hundred grand a year lawyer commanding legions of paralegals to gather every16

cite, contrive every argument, check every fact submitted. 17

Moreover; Plaintiff, who has spent nearly a decade opposing Defendants 18

cronyism and Open Border Policy, has infuriated some of the most powerful19

29 A plaintiff must show a causal connection between a defendants retaliatoryanimus and a subsequent injury in any sort of retaliation action. Hartman v

Moore , 547 U.S. 250, 249, 126 S.Ct. 1695, 164 L.Ed.2d 441 (2006) [Plaintiff]must ultimately prove that [Defendants] desire to cause the chilling effect wasa but- for cause of [Defendants] action. Dietrich v John Ascuagas Nugget , 548F.3d 892, 900-01 (9 th Cir 2008) (quoting Skoog v. City of Chackamas , 469 F.3d1221, 1232 (9 th Cir 2006)). MTD 10: 5 -23 (emphasis added)

30 The Fraternity, written by former Chief Justice of the Arizona Appellate CourtsJohn Molloy, exposes the parochial interests of the legal community, and judges,who expand the scope of legal proceedings as a means of benefiting the legalcommunity and increasing employment.


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people in Pima County s legal community , especially within this Court, whose1

vested interests and livelihoods now depend upon the continuation of Defen-2

dants Open Border Policy and an endless supply of illegal aliens to prosecute,3

defend and adjudicate, create caseload, and further employment. 31 4

However; in the case at bar, Plaintiff does ha ve the benefit of the facts, no5

matter how Defendants twist or ignore them, and the law as it is clearly set forth6

in Gathright.7

And the law of Gathright is simple: in the ninth circuit it is not lawful for a8

city to grant exclusive permits to organizers of political events held in public9

parks , and use the police to exclude public speakers who express opposing view-10

points.11

Gathright permits neither the exclusion of gadflys 32 asking gay pride acti -12

vists if they got AIDS yet? 33 or, as in this case the exclusion of a member of13

the community who reminds open border activists the dreams of Emiliano Za-14

pata, who fought for land reform in Mexico, and Cesar Chavez, who fought to15

keep illegal aliens from diminishing the wages earned by union members enga-16

ged in back-breaking labor in the melon fields of Yuma County, Arizona.17

Plaintiff may not be popular; however, he does have the benefit of the law,18

as it has been clearly written and stated herein. Now he awaits the Court to apply19

it.20

21

22

31 More than 80% of the current case load of the Arizona U. S. District Court is the proximate and foreseeable consequence of Defendants Open Border Policy, with-

out which the Tucson and Yuma Federal Courthouses never would have beenbuilt .

32 Ibid., 578

33 Ibid., 575


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PRAYER1

Plaintiff prays the Court to (1) DENY Defendants Motion to Dismiss, (2)2

GRANT an additional 30 days to Plaintiff to effect service on Defendant Ochoa3

in the event the Court rules service of process on Ochoa was insufficient, and4

(3) GRANT such other relief the Court deems proper.5

6

RESPECTFULLY SUBMITTED this 27 th day of October 2014.7

BY:89

________________________10Roy Warden, Plaintiff11

12

13

14

Original and one copy filed with the Court on October 27, 2014. I hereby15certify that on October 27, 2014, I personally hand served the attached16document to the Office of the Tucson City Attorney and by email, on the17following:18

19

Viola Romero-Wright20Principal Assistant Tucson City Attorney21

[email protected]

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mailto:[email protected]:[email protected]


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EXHIBIT ONE8

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Sec. 21-3. Regulations regarding park use.12

It shall be unlawful for any person to violate any of the provisions set forth in3the following series of this section:4

Sec. 21-3(7). Relating to miscellaneous activities. No person in a park shall:5

(1) Domestic animals. Bring or escort a dog or any other domestic animal or6 pet into any area within park boundaries which is clearly marked by signs bearing7the words: "Domestic Animals and Pets Prohibited in This Area." This provision8shall not be construed as permitting the running of dogs, domestic animals or pets9at large. Bring in or escort any dog, domestic animal or pet in those areas where10such animals are permitted unless restrained at all times on leashes not to exceed11six (6) feet in length and unless they wear a collar and display thereon a valid city12license.13

(2) Fires. Build, or attempt to build, kindle or ignite a fire except in such areas14and under such rules and regulations as may be designated by the director; or drop,15throw or otherwise scatter lighted matches, burning cigarettes or cigars, charcoal or16coals, or other flammable or flaming materials within any park area.17

(3) Closed areas. Enter an area posted as "Closed to the Public," or posted "No18Trespassing," or use or abet the use of any area in violation of posted notices, except19for those places and recreational activities therein permitted by the director pursuant20to section 21-2 above.21

(4) Interfere with permittees. Disturb or interfere unreasonably with any person22or party occupying any area, or participating in any activity, under the authority of23

a permit license or reservation.2425

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http://www.amlegal.com/nxt/gateway.dll?f=jumplink$jumplink_x=Advanced$jumplink_vpc=first$jumplink_xsl=querylink.xsl$jumplink_sel=title;path;content-type;home-title;item-bookmark$jumplink_d=arizona(tucson_az)$jumplink_q=%5bfield%20folio-destination-name:%2721-2%27%5d$jumplink_md=target-id=JD_21-2http://www.amlegal.com/nxt/gateway.dll?f=jumplink$jumplink_x=Advanced$jumplink_vpc=first$jumplink_xsl=querylink.xsl$jumplink_sel=title;path;content-type;home-title;item-bookmark$jumplink_d=arizona(tucson_az)$jumplink_q=%5bfield%20folio-destination-name:%2721-2%27%5d$jumplink_md=target-id=JD_21-2http://www.amlegal.com/nxt/gateway.dll?f=jumplink$jumplink_x=Advanced$jumplink_vpc=first$jumplink_xsl=querylink.xsl$jumplink_sel=title;path;content-type;home-title;item-bookmark$jumplink_d=arizona(tucson_az)$jumplink_q=%5bfield%20folio-destination-name:%2721-2%27%5d$jumplink_md=target-id=JD_21-2http://www.amlegal.com/nxt/gateway.dll?f=jumplink$jumplink_x=Advanced$jumplink_vpc=first$jumplink_xsl=querylink.xsl$jumplink_sel=title;path;content-type;home-title;item-bookmark$jumplink_d=arizona(tucson_az)$jumplink_q=%5bfield%20folio-destination-name:%2721-2%27%5d$jumplink_md=target-id=JD_21-2


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warden opposition to defendant tucson city motion to dismiss

Documents