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IN THE UNITED STATES DISTRICT COURT

DISTRICT OF ARIZONA

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ROY WARDEN,
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Plaintiff,
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vs.
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BOB WALKUP, et al.,
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Defendants.

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CV 11-460-TUC-DCB

March 6, 2014
Tucson, Arizona

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HEARING ON SCHEDULING ORDER

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BEFORE: HONORABLE BERNARDO VELASCO

UNITED STATES MAGISTRATE JUDGE
405 W. CONGRESS
TUCSON, ARIZONA 85701

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APPEARANCES

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FOR THE PLAINTIFF: MR. ROY WARDEN.

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FOR THE DEFENDANTS: MS. VIOLA ROMERO-WRIGHT,

PRINCIPAL ASSISTANT CITY ATTORNEY.

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PROCEEDINGS WERE DIGITALLY RECORDED
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TRANSCRIBED BY: Dianne Davenport

405 W. Congress, Suite 1500
Tucson, Arizona 85701
(520)205-4266

PROCEEDINGS

(Call to order of court 1:43 p.m.)

THE CLERK: In civil matter 11-460, Warden versus

Miranda, et al, on for a scheduling conference.

Counsel, please state your appearance.

MR. WARDEN: Roy Warden, plaintiff, Your Honor.

MS. ROMERO-WRIGHT: Viola Romero-Wright for the City

of Tucson defendants.

THE COURT: Thank you.

The first thing I have is there's been a request to amend

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the caption to reflect dismissal of named party. It's not Judge Bury's

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practice to do that.

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MS. ROMERO-WRIGHT: Okay.

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THE COURT: So I'll deny it unless you can state some

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compelling reason. And I suggest you take that to him unless you have

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it now.

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With respect to the request that -- dismissal of parties

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with whom there is no claims, my suggestion is that the court's

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dismissal order, otherwise document 49, could be amended to dismiss

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the parties to which there are no pending claims.

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MR. WARDEN: Your Honor, I'm having trouble hearing.

Can you speak up, please?
THE COURT: Sure. I can -- with respect to dismissing

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parties who have no claims pending, I think the City can amend the --

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move to amend the order -- dismissal order called document 49.

MR. WARDEN: Okay. I'm not familiar with that

particular document, but I can address the issue regarding amendment

of caption and complaint.

THE COURT: Okay. Well, I'm not going to amend the

caption and complaint. If there's a party in the lawsuit that has no

claim, I'm saying that that name be added to an amended dismissal

order already in existence.

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MR. WARDEN: Okay. May I address that issue to the

court?
THE COURT: Okay. You don't have to stand. The

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microphone works better.

MR. WARDEN: Frankly, because we avoided our initial

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requirements under Rule 16, we jumped ahead for two years and

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created a bunch of orders dismissing claims which were not timely.

And so now, even though we are at the beginning of the

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case and I have a right to develop my case on the basis of notice

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pleading and discovery, it's very relevant that the original

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defendants -THE COURT: Let me ask you this. All I'm saying right

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now --

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MR. WARDEN: Okay.

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THE COURT: -- is if you have named somebody --

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MR. WARDEN: Yes.

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THE COURT: -- but haven't alleged anything against

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them, they shouldn't be in the lawsuit.

MR. WARDEN: That is correct, Your Honor. Except the

court has previously ruled even though I made allegations against

these defendants they weren't sufficient to state a claim of action.

That's a legal ruling regarding the sufficiency of complaint which has

not been -- not become subsequent to an order from the court

explaining the infirmity of my complaint and providing me with an

opportunity to amend.

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THE COURT: Here's where you are right now. Where

you are right now -- I'm not talking about your entire case. I'm talking
about part of your case.
You say Green. Okay. Okay. But you don't say Green

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did something.

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MR. WARDEN: Okay.

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THE COURT: You just have their name.

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MR. WARDEN: All right. I understand that.

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THE COURT: Okay. Good. So we'll take care of it that

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way.
Now, you have -- I've already granted you in forma
pauperis status and you filed it again.
MR. WARDEN: Only, Judge, because the rules require

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me to update the court regarding any other financial conditions which

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might affect that status so I did. I don't know of any other way to

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provide that information.

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THE COURT: Okay. Thank you. And if your -- if you end

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up hiring a lawyer, there might be some inquiry about how you can hire

a lawyer but you can't pay the fees.

MR. WARDEN: Certainly.

THE COURT: Okay. Thank you.

Now, with respect to -- I'm going -- other than the

defendants' objection, is there any reason why I shouldn't order

allowing you 30 days to amend the complaint?

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MR. WARDEN: I'm sorry. Can I address the court on

that issue?
THE COURT: Sure.
MR. WARDEN: Okay. We had a motion for summary

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judgment in which documents for the first time were disclosed to me.

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The documents disclosed provided the names of defendants who

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previously had been identified as John Does, so forth and so on. I

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would greatly appreciate being able to amend the present complaint

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within the next 30 days on the basis of this disclosed information.

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THE COURT: That's what I am saying.

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MR. WARDEN: Yes.

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THE COURT: Okay. Next thing. Mr. Warden, do you

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understand that at the present time there's only one claim against one

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party left in the case?

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MR. WARDEN: Well, I agree that may in a sense be

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accurate except the motion to amend will set forth the additional

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parties. Now we're dealing with my exclusion from Armory Park on

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May 1, 2010. And that is the focal issue in the case. And the use of

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the exclusive use permit to deny me entry is also a focal point. And I

believe all of that is intact.

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THE COURT: Okay. As long as we know, one claim, one

party.

MR. WARDEN: Okay.

THE COURT: And that's right now.

MR. WARDEN: Okay.

THE COURT: I'm not telling you about what is going to

happen 31 days from now.

MR. WARDEN: I understand.

THE COURT: But right now you know it's one claim, one

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party.
MR. WARDEN: For clarification would that be the

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unidentified officer who denied me entry into Armory Park on that day?

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THE COURT: I believe that's -- it's a violation of freedom

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of speech under the First Amendment when an unidentified Tucson

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Police Department officer threatened the plaintiff with arrest.

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MR. WARDEN: Right. I agree.

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THE COURT: Okay. Now, is seven days enough time for

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you to file a notice of substitution of a party name for the unidentified

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police officer in Count 1?

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MR. WARDEN: May I have two weeks on that, Your

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Honor? I'm just simply not familiar with the process and I will diligently

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get on it tomorrow.

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THE COURT: Any objection, counsel?

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MS. ROMERO-WRIGHT: No, Your Honor. No objection.

MR. WARDEN: Again, it's notice of substitution of party?

THE COURT: Right.

MR. WARDEN: Okay.

THE COURT: In other words, John Doe is now

identified -- I now identify as whoever.

MR. WARDEN: Thank you, Your Honor.

MS. ROMERO-WRIGHT: May I clarify something, Your

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Honor?
THE COURT: Uh-huh.
MS. ROMERO-WRIGHT: On the remaining allegation,

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Mr. Warden keeps saying the person who denied him entry into Armory

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Park, but the remaining charge does not say that he denied -- this

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unidentified officer denied him entry. It says that the unidentified

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officer threatened plaintiff with arrest if he did not move more than a

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thousand feet away from Armory Park. I just wanted to clarify that.

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THE COURT: Okay. And in that regard I want to tell

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you, Mr. Warden, that you can substitute a name. Anything else you

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add will be treated as a motion to amend and treated that way.

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Do you understand that?

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MR. WARDEN: I understand that. I might not

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understand the nuance between what Your Honor has just said.
THE COURT: Here's what the nuance is. I'm not going
to be explaining this to you after today's hearing.
The City contends that whatever you say happened
involved a threat to arrest you. Okay. So if you say anything else in

your papers that you submit in 14 days, they'll be filed, but they --

they are going to be treated as a motion to amend.

In other words, if you just say John Doe yellow is now

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John Doe orange, that's great. Let's start over. Okay. But if you file

something that names somebody else and you request some other

relief, that doesn't come in without a motion to amend or a response

objecting.

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MR. WARDEN: I understand and agree, Your Honor.

Although, I would say I believe my original complaint and the present

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complaint now before the court adequately pleads what happened in

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Armory Park on that date, not merely a threat to arrest me but

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preventing me from entering Armory Park.

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THE COURT: Okay. We have some indication or reason

to believe that you're going to name and serve 14 new parties.
Do you understand that you can't serve and name 14

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new parties unless you're granted leave to amend the complaint and to

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add new parties?

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MR. WARDEN: I understand, Your Honor, but those

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parties were named in the original complaint as unidentified officer and

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others, TPD officers and members of the public, who engaged in that

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unlawful conduct on May 1, 2010. They're already named. They are

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simply not identified. By substituting in the names, the original

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complaint is correct.

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THE COURT: Well, the place where you are going to

have problems is probably "others" because "others" means everybody.

But be that as it may, you think one thing, I'm saying a different thing,

and we'll treat it that way.

MR. WARDEN: Okay.

THE COURT: Okay. What I'm going to do with respect

to your suggested deadlines and those of the defendant, I'm going to

adopt the defendants' proposed deadlines for discovery on the case as

it exists today.

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With respect to -- one of the things you need to do is you

need to do a little bit of research on not so much what the law is

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because I think I'm sure you feel you know what the law is. What you

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need to do is find something that will inform you about how things are

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done in court. Okay?

MR. WARDEN: Are these things other than what is set

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forth in the Rules of Civil Procedure?

THE COURT: In some respects. In other words, almost

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every trade or practice has a way of doing things. And they are not

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necessarily -- for example, an instruction -- you can add the

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ingredients for baking a cake. They list them out. But they don't

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necessarily tell you how to mix them, when to mix them, things like

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that.

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So you need to look at the rules of procedure to see what

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the rules are, figure out what the law is, and then read something that

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gives you some idea of how lawyers practice

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MR. WARDEN: May I respond to that just briefly?

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THE COURT: Sure.

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MR. WARDEN: I think what we are talking about is the

custom and practice of the court as it might potentially deviate from

the rules. And that's exactly the nature of this complaint against

Tucson city officials. That they engaged in a custom and practice not

covered by the rules and therefore we have legal contentions before

Your Honor today.

So I would read anything Your Honor would offer to me

to read, but other than to read the rules and the case law supporting

those rules, I wouldn't know how else to proceed.

THE COURT: Okay. Okay. As long as you understand

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that there's a certain decorum expected.

MR. WARDEN: Are you talking about decorum in front of

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Your Honor and the court?

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THE COURT: Right.

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MR. WARDEN: Certainly. I would not -- if there's

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anything specific I can read. I would never do anything to interfere

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with that. Certainly not knowingly.

THE COURT: Okay. Do we have anything else we need

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to discuss?
MS. ROMERO-WRIGHT: I don't believe so, Your Honor,

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no.
MR. WARDEN: Other than I think both of these reports

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there's a lot of, you know, things we agreed on. But I know exactly

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what is going to happen. My discovery time will be eaten by motions,

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claims to publish, so forth and so on.

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And that's what I'm really concerned about; having a

short discovery time and then allowing defendants to eat that up with

dispositive motions and claims of privilege simply means I'm not having

discovery at all. To that I object and I think I've set it forth clearly in

the report itself.

THE COURT: One of the things -- I set deadlines. And I

try not to change deadlines, but I can. But I'm going to have to find

diligence on both parties or I'm going to have to find some attempts to

obstruct on other parties.

So these deadlines are set with the idea that people can

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cooperate and get it done. If people don't cooperate, there will be

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some consequences. And it will, of course, be to the party that isn't

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cooperating.
MR. WARDEN: I understand that and I will address that

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issue for clarification because we've already had a lack of cooperation

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in an affidavit submitted to the court making certain representations

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about me which I will refute with this motion for sanctions because I

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believe attempts were made successfully to avoid the spirit and

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meaning of Your Honor's order which required pretrial or a presettled

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conference, communications, and so forth and so on.

So I would be happy to address that issue so Your Honor

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is brought up to date on the nature of our communications up until

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now.

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THE COURT: Here's what I'd like to do. This is the

beginning of the case, at least in terms of my seeing the parties. Why

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don't we hold in abeyance motions for sanctions and things like that.

Why don't we let bygones be bygones. We'll start out with a clean

slate. And then if it's necessary to call each other names later, we'll do

it.

MR. WARDEN: Sounds good to me, Your Honor.

THE COURT: Okay.

MS. ROMERO-WRIGHT: That's fine, Your Honor. I did

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have one question for clarification.

THE COURT: Sure.
MS. ROMERO-WRIGHT: In the plaintiff's case

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management report, he said that he will seek and present evidence

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regarding all prior violations of plaintiff's rights. And my concern about

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that, Your Honor, is that he's going to go beyond 2010 which is the

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remaining allegation to any time he believes there was any prior

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violation of his rights. And he's got numerous cases already previously

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filed. So I don't know if there is any limitation.

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THE COURT: I think this lawsuit is going to involve

Armory Park, May 1 of 2010.

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MR. WARDEN: That's correct, Your Honor.

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But on the other hand, my requirements under Monell is

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to establish a pattern or practice of Tucson city officials who deny my

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rights of speech. It didn't happen one time on the basis of an

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uninformed or uneducated officer. It has happened many times under

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the policy of Tucson city officials.

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And they even knew they were wrong as set forth by

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Mike Rankin's letter dated April 12, 2006, in which he agreed, "We

can't keep him out of Armory Park because of a law set forth in

(unintelligible)." Yet after he wrote that letter, that's exactly what they

did.
So that goes to the heart of the responsibility for Tucson

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city officials regarding their actions in this case.

THE COURT: Well, without having thought about it a lot,

what you may be proposing is to submit evidence in support of your

cause of action for May 1st. That evidence may or may not be

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admissible.

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MR. WARDEN: Okay.

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THE COURT: So there are some things you can hope to

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prove that don't have to go into the complaint. In other words, rather

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than muddy up the complaint with things that may be past the statute

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of limitations, things that may have already been resolved, whatever,

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we're going to concentrate on this claim, treat what you would like to

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add not as independent causes of action but as possibly testimonial

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evidence to prove the allegation. And I say that without telling you it is

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or is not admissible.
MR. WARDEN: Your Honor, I agree with that. I think

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that's the spirit and meaning of National Railroad v. Morgan that

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actions that fall outside the statute of limitations may be pled for the

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purposes of establishing damages and a pattern or practice of Tucson

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city officials.

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I certainly don't have the resources to go look under

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every rock and engage in every discovery practice to find out

everything they did. But to the extent that they have engaged in this

practice, and even though these things fall outside the statute of

limitations, I will need to prove them or establish proof in order to

further my claim.

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Again, not as causes of action but simply to support the

one cause of action which does fall within the statute of limitations.
THE COURT: Well, as long as we are dealing with one
cause of action, we'll deal with everything else on an evidentiary basis.

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MR. WARDEN: Thank you.

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THE COURT: Anything further?

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MS. ROMERO-WRIGHT: No, Your Honor.

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THE COURT: Okay. Thank you. We'll stand at recess.

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(The proceedings concluded at 2:05 p.m.)

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CERTIFICATE

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I, Dianne Davenport, certify that the foregoing is a correct

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transcript from the record of proceedings in the above-entitled matter.

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/s/ Dianne Davenport

May 28, 2014