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
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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,
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)
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
under color of state law, regulations, customs and policies at all times relevant 17
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
under color of state law, regulations, customs and policies at all times relevant 26
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
under color of state law, regulations, customs and policies at all times relevant 18
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