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

.com

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UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA Case No. CIV 11-460 TUC CKJ Plaintiff, IN FORMA PAUPERIS LRCiv 7.2: MOTION FOR RECONSIDERA TION OF THE ORDER OF RICHARD MIRANDA, individually and in THIS COURT DATED NOVEMBER his official capacity as Chief of the Tucson 16,2012 Police Department; MICHAEL RANKIN, individually and in his caj'>acityas Tucson City Attorney; KATHLEEN ROBINSON, individually and in her official capacity as Assistant Chief of the Tucson Police Department; DORMAND, individually and ORAL ARGUMENT REQUESTED 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 Depart- THE HON. CINDY K. JORGENSON ment; THE CITY OF TUCSON; THE TUCSON POLICE DEPARTMENT, a legal entity of the City of Tucson, and DOES 1-100, Defendants. Vs

ROY WARDEN,

As provided by LRCiv 7.2, comes now the Plaintiff Roy Warden, appearing in forma pauperis, who respectfully submits a Motion For Reconsideration of the Order of this Court (doc 49) dated November 16,2012 for reasons set forth below: LRCiv.7.2

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LRCiv 7.2 (g) Motions for Reconsideration. Form and Content of Motion. "The Court will ordinarily deny a motion for reconsideration of an Order absent a showing of manifest error or a showing of new facts or legal authority that could not have been brought to its attention earlier with reasonable diligence. "Any such motion shall point out with specificity the matters that the movant believes were overlooked or misapprehended by the Court, any new matters being brought to the Court's attention for the first time and the reasons they were not presented earlier, and any specific modifications being sought in the Court's Order. No motion for reconsideration of an Order may repeat any oral or written argument made by the movant in support of or in opposition to the motion that resulted in the Order. (emphasis added) "Failure to comply with this subsection may be grounds for denial of the motion. "Procedure. No response to a motion for reconsideration and no reply to the response may be filed unless ordered by the Court, but no motion for reconsideration may be granted unless the Court provides an opportunity for response. Absent good cause shown, any motion for reconsideration shall be filed no later than fourteen (14) days after the date of the filing of the Order that is the subject of the motion." INTRODUCTION Plaintiffs motion is limited to this Court's reconsideration of its

Order (Doc 49) dismissing Count One Paragraph A of Plaintiffs action against Defendant Robinson for her violation of Plaintiffs rights on May 01, 2010 when she prevented Plaintiff s entry into

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Armory Park, Tucson Arizona, for the purposes of engaging activity protected by the First Amendment. STATEMENT OF FACTS
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III

The First Amended Complaint, Count One, Paragraph A states: "Plaintiff alleges that the following Defendants violated Plaintiffs rights under the First Amendment as set forth below: A. Defendant Robinson on May 01, 2008, May 01, 2009 and May 01, 2010 when she prevented Plaintiff from entering Armory Park, Tucson Arizona, to exercise his First Amendment rights;" (First Amended Complaint, 25:1115) (emphasis added)

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On November 16, 2012 this Court dismissed Count One, Paragraph A of the First Amended Complaint for Plaintiff s " ... failure to comply with the two year statute of limitations applicable to Plaintiffs claims" (Doc 49, 3:8-11; 6: 14-17) ARGUMENT

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Regarding Count One, Paragraph A, Plaintiff readily concedes: his inartful pleading of Robinson's violative conduct on three separate dates-May 01, 2008, May 01, 2009 and May 01, 201O-within a

single count, is unnecessarily cumbersome and confusing.
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Plaintiff also concedes: Robinson's acts on May 01, 2008 and May 01, 2009 do fail to comply with the two year statute of limitations, and were properly dismissed.

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However; Plaintiff pleading Robinson's act on May 01, 2010, as set forth in Count One Paragraph A, is timely because it does fall within the requisite two year statute of limitations.

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Moreover; this Court's Order, and the Magistrate's

Report, does

permit Plaintiff s action in Count One Paragraph C against the "un- . identified Defendant TPD officer who, on May 01, 2010, threatened

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Plaintiff with arrest if Plaintiff did not move more than 1,000 feet away from Armory Park, as set forth in paragraph 86." (First Amended Complaint, 25: 18-21)
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Significantly; this Court has ordered Plaintiff to (1) " .. .learn the names of the unnamed Defendants in Count One, Paragraph C," (2) describe " ... what discovery he would undertake to learn their names," and (3) state " ... the identity of at least one person who could be served with discovery." (doc 496:25-7:2)

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Plaintiff respectfully submits: it is inconsistent for the Court to permit Plaintiff to proceed with his action against the "unidentified Defendant TPD officer" for his conduct on May 01, 2010, and at the same time, dismiss Plaintiffs claim against that Defendant Officer's superior, Defendant Robinson, who similarly violated Plaintiffs rights on that same date. LRCiv 7.2 ADDITIONAL REQUIREMENT

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Regarding the additional requirement of LRCiv 7.2: Plaintiff did not present this matter to the Court on a prior occasion because (1) the rule regarding space limitations for his Objection to the Magistrate's Report required Plaintiff to choose his issues carefully; (2) Plaintiff did not receive the benefit of a statement from the Court identifying his complaint's deficiencies as provided by Neitzke v Williams, 490 U.S. 319, 325 (1989) and allowed to amend his complaint; and (3) the Court did not grant Plaintiff Oral Argument whereupon the issue could have been addressed and resolved. CONCLUSION Regarding the Court's dismissal of Plaintiffs action against Defen-

dant Robinson, on the basis of the statute of limitations, for her violation of Plaintiffs rights on May 01, 2010, Plaintiff respectfully submits: this issue

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was "overlooked or misapprehended by the Court," due to Plaintiffs

in-

artful pleading. Nevertheless; Defendant Robinson's conduct on May 01, 2010 (1) did violate Plaintiff s rights, (2) clearly falls within the 2 year statute of limitations, and (3) Plaintiff should be afforded the opportunity to proceed accordingly. PRAYER THEREFORE; in the interests of justice, Plaintiff now prays this Court to:
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Modify its Order dated November 16, 2012 (doc 49) and permit Plaintiff to proceed in his action against Defendant Robinson for her conduct on May 01, 2010 which did violate Plaintiffs rights secured by the First Amendment, and;

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Provide such other relief the Court deems proper. RESPECTFULL Y SUBMITTED this 30th da BY:

Original and one copy filed with the Court on November 30,2012. I hereby certify that on November 30, 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

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