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Roy Warden, Publisher Common Sense II 1015 West Prince Road #131-182 Tucson Arizona 85705 roywarden@hotmail.com

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA

) ) ) ) ) RICHARD MIRANDA, individually ) and in his official capacity as Chief of ) the Tucson Police Department; ) MICHAEL RANKIN, individually and ) in his official capacity as Tucson City ) Attorney; KATHLEEN ROBINSON, ) individually and in her official capacity ) as Assistant Chief of the Tucson Police ) Department; KATHRYN DORMAN, ) individually and in her capacity as ) Officer of the Tucson Police Depart- ) ment; YORL FRIEDMAN, indivi- ) dually and in his capacity as Officer of ) the Tucson Police Department; THE ) CITY OF TUCSON; and DOES 1-100, ) ) ) Defendants. ) ROY WARDEN, Plaintiff, IN PRO-SE Vs CV-11-0460-TUC-CKJ (BPV)

RESPONSE TO MOTION TO DISMISS

ORAL ARGUMENT REQUESTED

THE HON. BERNARDO P. VELASCO

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COMES NOW the Plaintiff, Roy Warden, pursuant to the Order of this Court, with his Response and Request that this Court DENY the Defendants Motion to Dismiss as (I) untimely under Rule 12(b), and for additional reasons set forth in sections II, III, IV, and V below: I. Defendants Motion Violates the Time Provision of Rule 12(b) STATEMENT OF FACTS
1.

On November 22, 2011 Plaintiff filed his First Amended Complaint in the above captioned action.

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2.

On December 12, 2011 counsel for Defendant City of Tucson filed an Answer to the complaint.

3.

On January 18, 2012 counsel for Defendants Miranda. Rankin, Robinson, Dorman, Friedman and the Tucson Police Department filed their Answer to the complaint.

4.

On April 04, 2012 counsel for Defendant James Kugler filed an Answer to the complaint.

5.

On April 06, 2012 counsel for all Defendants filled a Motion to Dismiss. LEGAL ARGUMENT Counsel for Defendants filed separate answers to the First Amended

Complaint because Plaintiff served the various Defendants on different occasions. However; Plaintiffs delayed service has no bearing on the legal issues now before the Court. Thus; by April 06, 2012, the date counsel for all Defendants filed the present Motion to Dismiss, all Defendants still a party to this action had been served, and all Defendants, through counsel, had already answered the First Amended Complaint. However; F.R.Civ.P. 12(b), in pertinent part, provides as follows: Rule 12(b) motions must be filed before a responsive pleading (because, by their nature, the relief sought by such motions is a pre-answer dismissal of the claim F.R.Civ.P. page 425. Plaintiff respectfully submits Rule 12(b) seems clear: Defendants, by filing their Motion to Dismiss subsequent to filing their various Answers to the First Amended Complaint, have waived their right to move the Court to dismiss Plaintiffs claim under Rule 121(b). Therefore; Plaintiff requests this Court to deny Defendants present motion on the basis it is untimely.

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II. Statute of Limitations Issues: In an excess of caution, Plaintiff now responds to the various points regarding the statute of limitations raised in Defendants Motion to Dismiss, as set forth in Section A below: A. Count 1: Defendants raise a statute of limitations defense for Plaintiffs allegation that Defendant Robinson, in furtherance of Tucson City Policy and otherwise acting upon orders of her superiors, intentionally violated Plaintiffs rights and the law, as set forth in Garthright v. City of Portland, 439 F.3d 573 ( 9th Cir 2006), on May 01, 2008 and May 01, 2009 by barring Plaintiffs entry into Armory Park to speak on issues of community concern, even though Plaintiff showed her Exhibit One of the First Amended Complaint, the April 12, 2006 letter written by Defendant City Attorney Mike Rankin, which cited Garthright. Significantly; members of the Tucson Police Department not named in the First Amended Complaint have continued to act in furtherance of Tucson City Policy. As recently as May 01, 2012 unnamed officers acting upon orders from Defendant Robinson, prevented Plaintiffs entry into Armory Park for the purpose of public speech. It is well settled that conspiracy claims accrue upon commission of the last act of the conspiracy. Plaintiff has filed a Motion to Extend Time to Amend Complaint, along with this Response, and, with permission from this Court, will re-plead Defendant Robinsons acts of May 01, 2008 and May 01, 2009 accordingly. A. Count 3: Defendants raise a statute of limitations defense for Plaintiffs claim against Defendants Kugler and Flores for arresting Plaintiff on February 04, 2008 for burning the Mexican flag. Plaintiff was prosecuted in Tucson City Court for more than two years, until the criminal case was dismissed on April 09, 2010 consequent to Judge

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Bernings ruling that Plaintiffs act on February 04, 2008 was constitutionally protected conduct. Defendants Kugler and Flores, whom Plaintiff did not serve, will be dismissed from this lawsuit. However; claims for Malicious Prosecution and Abuse of Process accrued when criminal proceedings against Plaintiff terminated in Plaintiffs favor on April 09, 2010. (Owen v. Shores, 24 Ariz.App.250) Plaintiff has filed a Motion to Extend Time to Amend Complaint, along with this Response. Regarding Conspiracy, Abuse of Process and Malicious Prosecution claims: Plaintiff, with permission from this Court, will amend his complaint accordingly. A. Count 4: Defendants raise a statute of limitations defense for Plaintiffs claims of constitutional violations occurring on April 11, 2006, May 01, 2006, May 06, 2006, February 04, 2008, May 1, 2008, and May 09, 2009. It is well settled that conspiracy claims accrue upon commission of the last act of the conspiracy. Plaintiff has alleged that Defendants, in furtherance of the long-standing custom and practice of Tucson City Officials to engage in acts of First Amendment Retaliation against those who, by the lawful exercise of rights secured by the First Amendment, oppose them or their policy. Plaintiff has filed a Motion to Extend Time to Amend Complaint, along with this Response, and, with permission from this Court, will re-plead Defendants acts occurring on April 11, 2006, May 06, 2006, February 04, 2008, May 1, 2008, and May 9, 2009 accordingly. III. Res Judicata/Claim Preclusion/Collateral Estoppel Issues: Defendants raise res judicata/claim preclusion/collateral estoppel issues on the basis of Judge Pyles Order dated April 06, 2009 in action number CV 00190-CRP. Defendants argue: Once an issue is actually and necessarily determined by a court of competent jurisdiction, that determination is conclusive in

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subsequent suits based on different cause of action involving a party to a prior litigationA party invoking issue preclusion must show: 1) the issue at stake is identical to an issue raised in the prior litigation; 2) the issue was actually litigated; and 3) the determination in the prior litigation must have been a critical and necessary part of the judgment. Littlejohn v, United States, 321 F.3d 915, 919 (9th Cir. 2003). Plaintiff made factual allegations in his First Amended Complaint about the events of April 11, 2006, and May 01, 2006The factual allegations related to the dates listed above were resolved by Judge Pyle in his order dated April 06, 2009 and therefore Plaintiff is collaterally estopped from raising those issues in this lawsuit. Plaintiff makes factual allegations in his First Amended Complaint about the events of March 19, 2007 Judge Pyle resolved the factual allegations related to the March 19, 2007incident and therefore Plaintiff is collaterally estopped from raising those issues in this lawsuit. (Motion to Dismiss, page 9: 3-21. Internal citations omitted) Plaintiff respectfully submits: At best, Defendants are partially correct. However; they have misstated some of the facts and much of the substance of Judge Pyles Order dated April 06, 2009, (Defendants Exhibit 1) as set forth in sections B through D below: Events Occurring on April l 1, 2006: B. Judge Pyles Order dismissed Officer Brian Moore (without prejudice)

from Plaintiffs previous suit on the basis Plaintiff had failed to serve Defendant Moore; the order did not grant summary judgment or otherwise resolve any of the factual allegations that Plaintiff set forth in his claim. (Defendants Exhibit 1, page 6:13-22.) Events Occurring on May 01, 2006: C. Defendants are correct: Judge Pyle did grant summary judgment for the

events which occurred during Defendant Robinsons visit to Plaintiffs home. Plaintiff has filed a Motion to Extend Time to Amend Complaint, along with this Response, and, with permission from this Court, will omit Defendant

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Robinsons acts, which occurred sometime in late April 2006, from the statement of facts and various causes of actions. Events Occurring on March 19, 2007: D. Regarding a series of events which occurred during one of Plaintiffs

rallies on March 19, 2007; Judge Pyles Order dated April 06, 2009 did grant summary judgment for Defendant Gilhooly issuing a citation for alleged violations of decibel levels proscribed in TCC 16-31(A). (Defendants Exhibit 1, pages 8:20-10:2.) However; Plaintiff filed a motion to dismiss, without prejudice, claims for additional constitutional violations occurring on March 19, 2007. Regarding the March 19, 2007 events; Judge Pyles Order dated April 06, 2009 granted Plaintiffs motion to dismiss, without prejudice, Plaintiffs claim of First Amendment violations for Defendant Gilhoolys failure to protect public order and Plaintiff from assault during Plaintiffs rally on that date and denied Defendants motion for summary judgment on this issue. (Defendants Exhibit 1, pages 11:4-11:27.) Judge Pyle wrote: Warden alleges that on March 19, 2007, he convened at the Tucson Weekly Public Forum where individuals swore at him, spit on him, and threatened him in front of TPD Officers, who failed to arrest the offending individuals, thus violating his First Amendment rights. Officers Gilhooly and Coleman stood idly by and made no effort to stop the assaults or maintain public order. Due to Defendants failure to adequately address this claim, the Court grants Plaintiffs Motion to Dismiss Without Prejudice. IV. Failure to State a Claim Regarding Entrapment Issue: In the First Amended Complaint (20:24-24:23) Plaintiff set forth an alarming series of events which led to Plaintiffs arrest on August 03, 2009 and prosecution for driving with a suspended drivers license, failure to register his vehicle, etc., and the confiscation of his vehicle, causing Plaintiff significant economic loss.

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Defendants argue that Plaintiffs claim for first amendment retaliation should be dismissed on the basis Plaintiff was not engaged in constitutionally protected activity on the night of August 03, 2009 when he was arrested and his vehicle confiscated. Plaintiff alleges the following:
1.

It is the long-standing custom and practice of Tucson City Officials to use the apparatus of their government offices, and the color of law, to engage in acts of retaliation against those who, by the lawful exercise of rights secured by the First Amendment, either oppose them personally (Gilmartin v Miranda, Smith and Ochoa), or those who oppose Tucson City Policy generally.

2.

On August 03, 2009 Defendant Officers Dorman and Friedman violated departmental guidelines in order to effect Plaintiffs arrest.

3.

Plaintiff has trial transcripts where Tucson Police Officers testified to attending a series of Tucson Police Department meetings when high ranking officials instructed field officers in various ways to deal with Roy Warden, whom they considered to be a troublemaker.

4.

On August 03, 2009 Defendant Officer Friedman familiarly addressed Plaintiff as Roy even though Plaintiff, to the best of his knowledge, had never met Officer Friedman before.

5.

On August 03, 2009 Defendant Officers Dorman and Friedman used their personal cell phones to communicate outside of official channels with each other and high ranking Tucson City Officials.

6.

On August 03, 2009 Defendant Officer Friedman expressed his disagreement with Plaintiffs political viewpoints. Plaintiff respectfully submits: The events which occurred on August

03, 2009 were an exercise of the long standing custom and policy of Tucson City Officials to use their public office, and the color of law, to engage in re-

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taliatory acts against those who, by the lawful exercise of rights secured by the First Amendment, oppose them or their policy, as set forth in paragraph 1. Regarding Conspiracy, False Arrest, Abuse of Process and Malicious Prosecution claims: with permission from this Court, Plaintiff will amend his complaint accordingly. V. Tucson Police Department is a Non Jural Entity: Defendants have correctly argued the Tucson Police Department is a non-jural entity. With permission from this Court, Plaintiff will amend his complaint accordingly. CONCLUSION Regarding the claims Plaintiff presented in his First Amended Complaint the United States Supreme Court has said: Section 1983 affords protection of a federal right in federal courts because, by reason of prejudice, passion, neglect, intolerance, or otherwise, state laws might not be enforced and the claims of citizens to the enjoyment of rights, privileges, and immunities guaranteed by the Fourteenth Amendment might be denied by the state agencies. Monroe v Pape, 365 U.S. 167, 181 (1961) Defendants have pointed out several deficiencies in the First Amended Complaint regarding (1) statute of limitations issues on Plaintiffs False Arrest Claims against Defendants Flores and Kugler, (2) several res judicata issues resolved by Judge Pyles order dated April 06 2009, (Defendants Exhibit 1), (3) Defendant Tucson Police Departments status as a non jural entity, etc., all of which Plaintiff, with permission from this Court, intends to remedy by filing an amended complaint. PRAYER For reasons set forth above, Plaintiff respectfully requests this Court to DENY Defendants Motion to Dismiss, and to GRANT Plaintiffs Motion to Extend Time to File Amended Complaint.

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RESPECTFULLY SUBMITTED, this 18th day of May, 2012. BY: _______________________ Roy Warden, Plaintiff

I hereby certify that on May 18, 2012, I served the attached document by mail, and by email, on the following: Viola Romero-Wright Principal Assistant City Attorney for Michael Rankin City Attorney P.O. Box 27210 Tucson, Arizona 85726-7210 Viola.romero@tucsonaz.gov

BY:

_______________________ Roy Warden, Plaintiff