You are on page 1of 12

1 2 3 4 5 6 7 8 9

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 ROY WARDEN, Plaintiff, IN FORMA PAUPERIS Vs RICHARD MIRANDA, individually and in his official capacity as Chief of the Tucson Police Department; MICHAEL RANKIN, individually and in his capacity as Tucson City Attorney; KATHLEEN ROBINSON, individually and in her official capacity as Assistant Chief of the Tucson Police Department; DORMAND, individually and in her capacity as Officer of the Tucson Police Department; FRIEDMAN, individually and in his capacity as Officer of the Tucson Police Department; FLORES, individually and in his capacity as Officer of the Tucson Police Department; KUGLER, individually and in his capacity as Officer of the Tucson Police Department; THE CITY OF TUCSON; THE TUCSON POLICE DEPARTMENT, a legal entity of the City of Tucson, and DOES 1-100, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) CV-11-0460-TUC-CKJ PLAINTIFFS OBJECTIONS TO MAGISTRATE JUDGE REPORT AND RECOMMENDATION

ORAL ARGUMENT REQUESTED

THE HON. CINDY K. JORGENSON

10 11 12 13 14 15 16 17

Pursuant to the Order of the Court, Plaintiff herein submits his Objections to the Magistrate Judges Report and Recommendation (hereinafter referred to as MJRR). Plaintiff states his objections by presenting four separate issues set forth in sections I-IV below: (1) does the First Amended Complaint meet the minimum pleading standards set forth by Fed.R.Civ.P. 8(a)(2) and Starr v Baca, 652 F.3d 1202 (9th Cir. 2011); (2) does National R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113, (2002) permit Plaintiff to plead facts falling outside the 2 year limitations period to support

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31

causes of actions which fall within the two year limitations period for the purpose of proving liability1; (3) has Plaintiff pled adequate facts to support his contention that Defendants Dormand and Friedmans actions on August 3, 2009, were (a) intended to punish Plaintiff for criticizing Tucson City Policy, and (b) intended to deter Plaintiff from future exercise of his First Amendment rights, and (4) if the Court finds Plaintiffs First Amended Complaint is defective, may Plaintiff amend his complaint?
I

PLAINTIFF HAS MET THE REQUISITE PLEADING STANDARDS SET FORTH BY RULE 8(a)(2)

In Starr, the Court explained Rule 8(a)(2) pleading standards and the basic premise of notice pleading: The theory of Rule 8(a), and of the federal rules in general, is notice pleading (U)nder the federal rules a complaint is required only to give the notice of the claim such that the opposing party may defend himself or herself effectively. The theory of the federal rules is that once notice-giving pleadings have been served, the parties are to conduct discovery in order to learn more about the underlying facts. When they have learned the facts, the parties can settle or seek judgment. If the case does not settle but the material facts are clear, the court will grant summary judgment. If material facts are genuinely disputed, the case will go to trial. (Starr at 1212) Regarding pleading standards required by Rule 8(a)(2) and Motions to Dismiss as per Rule 12(b)(6), the 9th Circuit in Starr provides additional clarification and direction for this Court, post Ashcroft v Iqbal, 129 S. Ct. 1937 (2009). In Iqbal, a case arising in the immediate aftermath of the 911 terrorist attack on the Twin Towers, Respondent Iqbal alleged that government defendants knew of, condoned, and willfully and maliciously agreed to subject [him] to harsh conditions of confinement as a matter of policy, solely on account of [his] religion, race, and/or national origin and for no legitimate penological interest. (Starr citing Iqbal at 1214)

National R.R. Passenger Corp. v. Morgan , 536 U.S. 101, 113, (2002) establishes the basis for Plaintiffs contentions set forth in number 2, page 1.

1 2 3 4 5 6 7 8 9 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 38

Moreover; Iqbal alleged that the government had purposefully designat[ed] detainees of high interest because of their race, religion, or national origin. (Star at 1214 citing Iqbal.) After a comprehensive analysis, the Iqbal Court proscribed Iqbals conclusory and formulaic pleading because there was an obvious alternative explanation for the facts pled. Id. (quoting Towmbly, 550 U.S. at 567). In the Court's view, the obvious alternative explanation was that the "(s)eptember 11 attacks were perpetrated by 19 Arab Muslim hijackers who counted themselves members in good standing of al Qaeda, an Islamic fundamentalist group." Id. "It should come as no surprise that a legitimate policy directing law enforcement to arrest and detain individuals because of their suspected link to the attacks would produce a disparate, incidental impact on Arab Muslims, even though the purpose of the policy was to target neither Arabs nor MuslimsThe (Iqbal) Court concluded this alternative explanation was so likely to be true that, as between the two explanations, Iqbals explanation was not plausible. (Star at 1214 citing Iqbal) If there are two alternative explanations, one advanced by defendant and the other advanced by plaintiff, both of which are plausible, plaintiff's complaint survives a motion to dismiss under Rule 12(b)(6). Plaintiff's complaint may be dismissed only when defendant's plausible alternative explanation is so convincing that plaintiff's explanation is implausible. The standard at this stage of the litigation is not that plaintiff's explanation must be true or even probable. The factual allegations of the complaint need only "plausibly suggest an entitlement to relief." Id. at 1951. As the Court wrote in Twombly, Rule 8(a) "does not impose a probability requirement at the pleading stage; it simply calls for enough fact to raise a reasonable expectation that discovery will reveal evidence" to support the allegations. (emphasis added). (Starr at 12161217) However; here neither Defendants nor the Court supply an alternative theory explaining Defendants outrageous conduct towards Plaintiff so likely to be true that as between the two explanations (Plaintiffs) explanation (is) just not plausible, as required by Iqbal. Moreover; the Star Court devoted 5 pages to analyze Starrs allegations before determining Starrs allegations were not formulaic or conclusory; the MJRR offers no analysis whatsoever.

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33
2

Plaintiff respectfully submits; the MJRR has (1) incorrectly cited and applied the law as stated in Iqbal, (2) incorrectly concluded that the First Amended Complaint does not meet the requisite pleading standards, and (3) incorrectly concludes that Defendants are entitled to a dismissal as per as per Fed.R.Civ.P. 12(b)(6).
II

NATIONAL RAILROAD v MORGAN PERMITS PLAINTIFF TO PLEAD FACTS AND ACTIONS THAT OTHERWISE MIGHT BE BARRED BY THE STATUTE OF LIMITATIONS.

A substantial portion of the MJRR Report concerns statute of limitations issues, claiming the majority of Plaintiffs claims should be dismissed because they fall outside the requisite 2 year statute of limitations for Title 42, Section 1983 actions. In pertinent part, the MJRR cites National R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113, (2002) to state: Moreover, though Plaintiff has not raised a continuing violations argument2 he would not benefit from such an assertion. The Supreme Court has rejected the serial violation basis for a continuing violation claim, holding that discrete discriminatory acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges (MJRR 8:24-28) However; the MJRR fails to note that Morgan carved out three exceptions which apply here: (1) hostile environment claims, (2) pattern or practice claims, and (3) the use of background events and facts to support a timely claim. Hostile Environment Claims: We hold that the statute precludes recovery for discrete acts of discrimination or retaliation that occur outside the statutory time period. We also hold that consideration of the entire scope of a hostile work environment claim, including behavior alleged outside the statutory time period, is permissible for the purposes of assessing liability, so long as any act contributing to that hostile environment takes place within the statutory time period. (Morgan at 105) With respect to Morgan's hostile environment claim, the Court of Appeals concluded that "the pre-and post-limitations period incidents involved the The MJRR is incorrect: Plaintiff did raise continuing violations theory in his Motion to Amend Complaint (DOC 40) and his Second Amended Complaint.

1 2 3 4 5 6 7 8 9 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

same type of employment actions, occurred relatively frequently, and were perpetrated by the same managers...Morgan presented evidence from a number of other employees that managers made racial jokes, performed racially derogatory acts, made negative comments regarding the capacity of blacks to be supervisors, and used various racial epithets. Id., 232 F.3d at 1013. Although many of the acts upon which his claim depends occurred outside the 300 day filing period we cannot say that they are not part of the same actionable hostile environment claim. On this point, we affirm. (Morgan at 120, 121) Pattern or Practice Claims: We have no occasion here to consider the timely filing question with respect to "pattern-or-practice" claims brought by private litigants as none are at issue here. (Morgan at 115 Footnote 9) Use of Background Events to Support a Timely Claim: The existence of past acts and the employee's prior knowledge of their occurrence, however, do not bar employees from filing charges about related discrete acts so long as the acts are independently discriminatory and charges addressing those acts are themselves timely filed. Nor does the statute bar an employee from using the prior acts as background evidence in support of a timely claim. (Morgan at 113) Thus: the five year list of horribles set forth in the First and Second Amended Complaints, are not the separate and discrete acts proscribed by Morgan; instead they are strikingly similar to the hostile environment claims and identical to the pattern or practice claims excepted by Morgan. Moreover; they are identical to the provisions of Monell v. Department of Social Services, 436 U.S. 658, 690, 691 (1978), which require Plaintiff to convince a jury that Defendants actions were part of the unwritten custom or practice and policy of Tucson City government. Plaintiff submits; the MJRR incorrectly states the law set forth in Morgan and incurrectly concludes Plaintiff may not plead allegations which fall outside the two year statute of limitations to support timely claims.
III DEFENDANTS DORMAND AND FRIEDMAN CONDUCT CONSTITUTE RETALIATION FOR PLAINTIFFS POLITICAL CONDUCT

Plaintiff contends Defendants Dormand and Friedmans actions on August 03, 2009 were retaliation for Plaintiffs previous political conduct and expressly intended

1 2 3 4 5 6 7 8 9 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 38

to deter Plaintiffs future political conduct. Plaintiff does not contend, nor is he obliged to contend, that he was engaged in political conduct on the night in question. Regarding First Amendment Retaliation, the MJRR states the law: To establish a First Amendment Claim under Section 1983, the plaintiff must show that: (1) he was engaged in a constitutionally protected activity; (2) the defendants retaliatory action caused the plaintiff to suffer an injury that would likely deter a person of ordinary firmness from engaging in that protected activity; (3) the retaliatory action was motivated, at least in part, by the plaintiffs protected activity. Worrell v. Henry, 219 F.3d 1197, 1212 (10th Cir.2000). A plaintiff must show a causal connection between a defendants retaliatory animus and subsequent injury in any sort of retaliation action. Hartman v. Moore, 547 U.S. 250, 259 (2006). [Plaintiff] must ultimately prove that [Defendants] desire to cause the chilling effect was a but-for cause of [Defendants] action. Dietrich v John Ascuagas Nugget , 548 F.3d 892, 900-01 (9th Cir.2008) (quoting Skoog v. Cnty. of Clackamas, 469 F.3d 1221 (9th Cir.2006)). (MJRR 13:18-14:4.) The MJRR states the following conclusions on how the facts stated in Plaintiffs First Amended Complaint fail to fulfill Plaintiffs obligation under Rule 8(a)(2): Having reviewed Count Two of the Amended Complaint, the Magistrate Judge finds that the allegations do not establish that Officers Friedman and Dormands citation of Plaintiff was motivated in any way by the Plaintiffs exercise of constitutionally protected activity. Plaintiff does not allege he was engaged in a constitutionally protected activity on the date of his encounter with Officers Friedman and Dormand, nor does he allege facts to support his position that the officers induced Plaintiff to drive an unregistered vehicle on a suspended license for the purpose of citing him and impounding his vehicle with the intent to chill his speech or punish him based on his exercise of protected speech. MJRR 14:5-15) Plaintiff submits: the MJRR substitutes summary judgment and trial standards for initial pleading standards; we are not now concerned with summary judgment. Moreover; Defendant Officers Dormand and Friedmans state-of-mind motivation on August 03, 2012 for egregious violations of departmental policy, including avoiding official channels to communicate privately, is a factual matter for a jury to decide. Here Plaintiff is only required to meet the notice pleading standards set forth in Starr, to wit: under the federal rules a complaint is required only to give notice of the claim such that the opposing party may defend himself or herself effectively.

1 2 3 4 5 6 7 8 9 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

Moreover; Plaintiff possesses additional facts which support his Conspiracy and First Amendment Retaliation claims against Defendants Dormand and Friedman.
IV THE LAW SET FORTH IN ELDRIDGE V BLOCK PROVIDES PLAINTIFF THE RIGHT TO AMEND HIS COMPLAINT

In Eldridge v. Block, 832 F.2d 1132 (9th Cir 1987) the Court stated: This court has noted on several occasionsthat the Supreme Court has instructed the lower federal courts to heed carefully the command of Rule 15(a), by freely granting leave to amend when justice so requiresThus Rule 15s policy of favoring amendments to pleadings should be applied with extreme liberality. This policy is applied even more liberally to pro se litigants(A) pro se litigant bringing a civil rights suit must have an opportunity to amend the complaint to overcome deficiencies. (Eldridge at 1132, 1136, 1137) Additionally; in pertinent part, the Magistrate Judge cites Neitzke v Williams, 490 U.S. 319, 325 (1989) to state: A pro se litigant must be given leave to amend his or her complaint unless it is absolutely clear that the deficiencies of the complaint could not be cured by amendment. Id. At 623. (citations omitted). Moreover; before dismissing a pro se complaint for failure to state a claim, the district court must give the plaintiff a statement of the complaints deficiencies. Id at 623-624 (citations omitted) (MJRR 21:1-8.) Regarding the question: Why did Plaintiff submit a (proposed) Second Amended Complaint prior to the Court ruling his First Amended Complaint was defective: On August 02, 2012 Plaintiff, acting with the erroneous belief he could amicably resolve Defendants contentions that his First Amended Complaint was vague and conclusory, and otherwise did not contain sufficient factual matter as they alleged (Doc 28, page 6:3-24), asked counsel Ms. Romero Wright for a meeting so they could at least resolve the factual elements set forth in Judge Pyles Order dated April 03, 2009, which did, in fact, dismiss minor portions of Plaintiffs action. However; Ms. Romero Wright rebuffed Plaintiff on August 03, 2012. (Exhibit One) Subsequently; Plaintiff, acting in good faith to address Defendants legitimate concerns, submitted his (proposed) Second Amended Complaint, which (1) added considerably more heft and factual matter, (2) omitted causes of action proscribed by

1 2 3 4 5 6 7 8 9 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 38

Judge Pyles Order, (3) omitted Defendants barred by law (e.g. the non-jural entity Tucson Police Department) or the statute of limitations (e.g. False Arrest, Defendants Flores & Kugler), (4) added continuing violation theory to support claims otherwise time barred, and (5) added Malicious Prosecution as a cause of action. Regarding Plaintiffs good faith efforts: Please review paragraphs 20-25 of Plaintiffs Response to Objection to Motion for Leave to Amend the Complaint, filed August 07, 2012 (Doc 45 pg 5:25-7:7) Therein Plaintiff stated: Plaintiff carefully crafted his Second Amended Complaint to accommodate Defendants following legitimate concerns: (1) to delete causes of action already decided by Judge Pyle in CV 00190-CRP, (2) to delete (Defendants and) causes of action time barred by the statute of limitations, (e.g. Flores and Kugler, and False Arrest) and (3) to provide Defendants and the Court with a more comprehensive list of specific factual allegationseach fact supported by either a Tucson Police Department Incident Report, the trial testimony of Tucson Police Officers, trial testimony taken from Gilmartin v Miranda, an affidavit, television or newsprint story, or video recordings of Plaintiffs rallies. However; now that Plaintiff has diligently addressed Defendants (legitimate) concerns, they (now) claim Plaintiffs Second Amended Complaint is prolix, redundant, irrelevant, etc. Plaintiff respectfully submits: within their various Answers to the First Amended Complaint, Motion to Dismiss, (Response in Opposition to Motion to Amend, Doc 43) etc., Defendants have regurgitated a virtual torrent of stereotypical boilerplate and formulaic incantations in an effort to overwhelm an admittedly inexperienced Plaintiff, to misdirect an overburdened Court, to obscure the legal issues and to disguise the reprehensible conduct of Tucson City Officials, who, as a matter of policy over a five year period of time, have committed a comprehensive and horrifying series of actionable constitutional violations (perhaps) unmatched in modern legal history. (Doc 45 paragraph 23-25, page 6:16-7:7) Nevertheless, with regard to Plaintiffs (proposed) Second Amended Complaint, and without the Court ever giv(ing) the plaintiff a statement of the complaints deficiencies, a requirement acknowledged and ignored by the Magistrate Judge on page 21:5-8 of the MJRR, the Magistrate Judge dismisses the (proposed) Second Amended Complaint in its entirety simply by stating:

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31

Because the Magistrate Judge finds that the Second Amended Complaint fails to cure the pleading deficiencies of the (First) Amended Complaint and the proposed amendments would be futile, the Magistrate Judge recommends that the District Court deny Plaintiffs motion to amend. (See MJRR 26:2527:1) Therefore, Plaintiff respectfully submits: whatever the Courts final determination regarding whether or not Plaintiffs First Amended Complaint sufficiently meets the standards set forth in Rule 8(a)(2) and clarified by Starr, Plaintiff, in the absence of a court ruling his First Amended Complaint is deficient maintains (1) his right to have this Court rule on the merits of the First Amended Complaint and issue an order stating its Rule 8(a)(2) deficiencies, (if any), a duty acknowledged and ignored by the Magistrate Judge (MJRR 21:1-7), and; (2) allow Plaintiff to amend his complaint, as provided by Eldridge, in response to the Courts ruling. CONCLUSION Plaintiff respectfully submits: the MJRR should be rejected by the Court for the following reasons:
1

Regarding Starr: the MJRR misapplies initial pleading standards, fails to provide analysis regarding conclusory claims, and fails to provide an obvious alternative explanationso convincing as to make Plaintiffs claims implausible, as required by Iqbal;

Regarding Morgan and the statute of limitations: the MJRR misstates the law. Plaintiff may plead facts otherwise time barred to support timely claims;

Regarding Defendants Dormand and Friedman: the MJRR assumes the jurys duty regarding state of mind determinations, ignores initial pleading standards set forth in Starr, and fails to supply an obvious alternative explanation for Defendants egregious violations of departmental standard orders on the night of August 03, 2009;

Regarding Eldridge and amended complaints: prior to dismissal, the Court is required to set forth the current pleadings deficiencies (if any) and allow Plaintiff the opportunity to amend his complaint.

1 2 3 4 5 6 7 8 9 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
E D C B

PRAYER THEREFORE; in the interests of justice, Plaintiff now prays this Court to:
A

Review all documents submitted by both parties regarding Defendants Motion to Dismiss and Plaintiffs Motion to Amend Complaint, including the Second Amended Complaint; Order both parties to fully brief the following question: Regarding the factual contentions set forth in the First and the Second Amended Complaints: does the ruling in Morgan prevent Plaintiff from pleading facts and acts which otherwise would fall outside the statute of limitations; Set a date for Oral Argument so both parties have ample opportunity to clarify their respective legal arguments, or in the alternative; Reject the findings, conclusions and recommendations of the MJRR in its entirety and accept the Second Amended Complaint as the operative complaint in this action, and; Provide such other relief the Court deems proper. RESPECTFULLY SUBMITTED this 19th day of October 2012. BY: ____________________________ Roy Warden, Plaintiff

Original and one copy filed with the Court on October 19, 2012. I hereby certify that on October 19, 2012, I served the attached document by mail, and by email, on the following: Viola Romero-Wright Principal Assistant Tucson City Attorney P.O. Box 27210 Tucson, Arizona 85726-7210 Viola.romero@tucsonaz.gov BY:

_____________________ Roy Warden, Plaintiff

10

1 2 3 4 5 6 7 8 9 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 38 39 40 41 42 43 44 45

August 02, 2012 Viola Romero Wright City Attorney PO Box 27210 Tucson AZ 85726 Via email and U.S. Post Re: Warden v Miranda, et al Dear Ms. Wright: Regarding your Opposition to my Motion to Amend, I would like to make the following comment: Regarding Judge Pyles Order dated April 06, 2009, I am dismayed you continue to advance res judicata and statute of limitation issues when I believe there are none. I never make a pleading or advance an argument unless I am convinced binding precedent, clearly worded case law, and the facts support my position. It is not my practice to advance a frivolous argument or to annoy the court by advancing a claim that has already been decided or is otherwise void. However; I am quite capable of overlooking the obvious or making a mistake. Therefore; in the interests of judicial economy, I would like to meet with you as soon as possible to go over my newly submitted pleading. If Ive made errors I will correct them; if claims have already been decided I will delete them. With thousands upon thousands of immigration, smuggling, and other border related cases now before the courtdirectly consequent to decades of your clients promotion of Open Border Policy I might addI respectfully submit: The honorable judges Jorgenson and Velasco have more than enough on their respective plates to now have to spend time parsing my Second Amended Complaint, paragraph by paragraph, line by line, as you are clearly inviting them to do. I will call your office tomorrow to set up an appointment. Yours Truly, /s Roy Warden

11

12