Roy Warden, Publisher Common Sense II 3700 S Calle Polar Tucson Arizona 85730 roywarden@hotmail.

com

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA ) ) CV-11-0460-TUC-DCB ROY WARDEN, ) ) Plaintiff, IN FORMA ) PLAINTIFFS CASE MANAGE) MENT REPORT PAUPERIS ) vs ) ) UNIDENTIFIED OFFICER, individu- ) THE HON. DAVID BURY ally and in his official capacity as Officer ) of the Tucson Police Department; THE ) CITY OF TUCSON; and DOES 1-100, ) ) Defendants. )
On February 24, 2014 counsel for Defendants informed Plaintiff she elected to file her report separately. Therefore, pursuant to the Order of this Court dated February 5, 2014, Plaintiff hereby submits his portion of the Joint Management Plan: 1. NATURE OF THE CASE, FACTUAL AND LEGAL BASIS OF CLAIMS AND DEFENSES: Factual Claim: The foundational claim in this case revolves around two separate but connected incidents which occurred in Armory Park, Tucson Arizona, on May 1, 2010. The first incident occurred when a previously unidentified TPD officer, now identified as Lt. David Azuelo,1 prevented Plaintiffs entry into Armory

The sound on Plaintiffs video recording is indistinct. Lt. David.is clear. The only Lt. David identified on The Special Operations Plan May 1st Coalition March & Rally is David Azuelo.
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Park on the basis of (1) an unlawful order of prior restraint issued by the Tucson Municipal Court which proscribed Plaintiff from engaging in political commentary within 1,000 feet of any rally, and (2) a Tucson City Ordinance which unlawfully permits City Defendants to issue exclusive use permits which allow permit holders to deny, on the basis of viewpoint, entry into public parks members of the public who wish to speak on political issues. The second incident occurred when several other unidentified TPD officers ordered Plaintiff, who was standing across the street from Armory Park in an area City Defendants contend was reserved for counter protestors, to move 1,000 feet away from Armory Park or face arrest. These two previously unidentified TPD officers are now identified as Sgt. Wooldridge and Sgt. Johnson. The above events are not singular; they are part of a pattern of intentional violations of Plaintiffs rights which Defendant Tucson City Officials began in 2006 and continue to this day. First Legal Claim: Plaintiff contends that the law set forth by the Ninth Circuit in Gathright v City of Portland, 439 F.3d 573 (9th Cir 2006), expressly prohibits government from issuing exclusive use permits which authorize permit holders to exclude members of the public from political speech within public parks on the basis of viewpoint, a legal position Tucson City Attorney Mike Rankin himself endorsed in a letter to Tucson City Manager Mike Hein dated April 12, 2006. Thus; Plaintiffs exclusion from Armory Park on May 1, 2010 was an intentional violation of Plaintiffs First Amendment rights. Additionally; Plaintiff contends that a Tucson City Court order which constituted a prior restraint of Plaintiffs rights to enter Armory Park on May 1, 2010 to engage in pure political speech was a direct violation of Plaintiffs First Amendment rights as set forth by the Arizona Supreme Court in Phoenix Newspapers Inc. v Superior Court, 101 Ariz. 257 (1966), the U.S. Supreme
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Court in Walker v. City of Birmingham, 388 U.S. 307 (1967), the U.S. Supreme Court in New York Times v United States, 91 S.Ct 2140 (1971), the Arizona Appellate Court in State v. Chavez, 123 Ariz. 538 (App.) (1979), and by the First Circuit Court of Appeals In the Matter of Providence Journal Co., 820 F.2d 1342 (1st Cir. 1986). Court orders enjoining pure political speech (as opposed to first amendment related conduct such as marching and picketing) exceed the jurisdiction of the issuing court, are transparently invalid, and may be disobeyed with impunity. Second Legal Claim: Plaintiff contends the law set forth by the U. S. Supreme Court in National Railroad Passenger Corp. v. Morgan, 122 S.Ct. 2061 permits Plaintiff to plead, and argue to the jury for the purpose of establishing damages, retaliatory acts and other unlawful violations which are plausibly or sufficiently related to Plaintiffs claim regarding unconstitutional violations of Plaintiffs rights which occurred on May 1, 2010, even if they otherwise would be barred by the statute of limitations. Thus; Plaintiff will seek discovery, and present evidence, regarding all prior violations of Plaintiffs rights. Third Legal Claim: Plaintiff contends Tucson City Officials including, but not limited to, Director of Tucson Parks and Recreation Fred Gray, Tucson Assistant City Manager Richard Miranda, Tucson City Attorney Mike Rankin, City Attorney L. Judge, Tucson Parks and Recreation Director Reenie Ochoa, Tucson Police Department Lt. David Azueloall participants in the unlawful decision to deny Plaintiff his First Amendment rights on May 1, 2010 and recipients of Fred Grays Letter dated April 26, 2010 which granted exclusive use of Armory Park on May 1, 2010 to permit holder Paul Teitelbaum in express violation of the Ninth Cir-

cuit Court of Appeals 2006 decision in Gathrightare liable to Plaintiff for acting in concert with exclusive use permit holder Paul Teitelbaum to violate Plaintiffs constitutional rights on May 1, 2010. Moreover; Tucson Police Department Lt. Paul Sayre, who swears by affidavit dated November 18, 2013 that he was present during meetings between TPD officers, Tucson May 1, 2010 Coalition organizersassociate co-sponsors of the eventand counter-protestors is liable to Plaintiff for acting in concert with exclusive use permit holder Paul Teitelbaum to violate Plaintiffs constitutional rights on May 1, 2010. Additionally; TPD Incident Commander Terra Rozema, Operations Section Chief Capt. Stamatopoulous, Op Section Chief XO Sgt. Wes Disonall command level TPD Officials identified in the Special Operations Planare liable to Plaintiff for acting in concert with exclusive use permit holder Paul Teitelbaum to violate Plaintiffs constitutional rights on May 1, 2010. Fourth Legal Claim: Plaintiff claims that the custom, policy and practice of Tucson City permits City Officials to use members of the Tucson Police Department to violate rights or otherwise commit acts of first amendment retaliation against those who speak out against Tucson City Officials, or Policy.

Municipalities may be sued for constitutional deprivations visited pursuant to governmental custom even though such a custom has not received formal approval through the bodys official decision-making channels. Monell v. Department of Social Services, 436 U.S. 658, 690, 691 (1978).
Therefore; Plaintiff will seek testimony from several persons identified in the First Amended Complaint, including but not limited to the author of the Arizona Taxpayer and Citizen Protection Act Kathy McKee, as well as Dr. Kevin Gilmartin and Jack Harris, both Plaintiffs in action #CV 00-352- TUC

FRZ, as set forth in paragraphs 19-26 in the First Amended Complaint.

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Fifth Legal Claim: I was just following orders, is not a lawful defense. Therefore; Plaintiff claims that Tucson City Police Chief Roberto Villasenor failed to instruct, or properly train, TPD officers to ignore unlawful orders issued by their superiors, and, failed to train TPD officers to protect the lawful rights of Tucson Citizens, a duty set forth in the Arizona Constitution, foreseeably resulting in the violation of Plaintiffs rights on May 1, 2010. 2. FACTUAL AND LEGAL ISSUES GENUINELY IN DISPUTE AND WHETHER THEY CAN BE NARROWED BY STIPULATION AND MOTION Plaintiff contends that several video records, one possessed by Plaintiff, one possessed by Defendants and a third possessed by exclusive use permit holder Paul Teitelbaum, conclusively show the unlawful conduct of Lt. David Azuelo, Sgt. Johnson and Sgt. Woolridge (previously identified as John Does or unidentified) who violated Plaintiffs rights on May 1, 2010. Thus; there should be no factual issue disputes as to Defendants violations of Plaintiffs rights on May 1, 2010. However; in the absence of discovery Plaintiff does not yet have the identities of all other parties, including civilians, Tucson City Officials, and Tucson City Employees, (previously identified as John Does) who worked in concert to violate Plaintiffs rights on May 1, 2010. Plaintiff contends that the facts and legal issues in this case are on point with the factual and legal issues set forth in Gathright, cited above. Moreover; any Tucson Municipal Court Order, or condition of probation, imposing a prior restraint on Plaintiffs right to engage in pure political speech, as opposed to first amendment related conduct2, was transparently invalid, and did not have to be obeyed, as set forth by the U.S. Supreme Court
Pure political speech may never be proscribed; first amendment related conduct, such as marching and picketing, may be temporarily enjoined by injunction issued from a court of general jurisdiction, as per Walker.
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in Walker v. City of Birmingham, 388 U.S. 307 (1967), the U.S. Supreme Court in New York Times v United States, 91 S.Ct 2140 (1971), the Arizona Supreme Court in Phoenix Newspapers Inc. v Superior Court, 101 Ariz. 257 (1966), the Arizona Appellate Court in State v. Chavez, 123 Ariz. 538 (App.) (1979), and by the First Circuit Court of Appeals In the Matter of Providence Journal Co., 820 F.2d 1342 (1st Cir. 1986). Thus; the parties should be able to stipulate as to both the facts of what happened in Armory Park on May 1, 2010 and the legal issues regarding exclusive use permits and orders of prior restraint. 3. JURISDICTIONAL BASIS OF THE CASE The Court has jurisdiction over this action pursuant to 28 U.S.C. 1343, 42 U.S.C. 1983, 1985, and 1988, and the Civil Rights Act of 1871. 4. PARTIES NOT SERVED OR HAVE NOT FILED AN ANSWER OR OTHER APPEARANCE Plaintiff will name and serve new parties identified in sections 1 and 11. All previously named parties have been served. 5. PARTIES NOT SUBJECT TO THE COURTS JURISDICTION None. 6. DISPOSITIVE ISSUES TO BE DECIDED BY PRETRIAL MOTIONS AND LEGAL ISSUES ABOUT WHICH ANY PRETRIAL MOTIONS ARE CONTEMPLATED Plaintiff contends that the law set forth by the Ninth Circuit in Gathright v City of Portland, 439 F.3d 573 (9th Cir 2006), expressly prohibits government from using exclusive use permits which unlawfully authorize permit holders to exclude members of the public from engaging in political speech within public parks on the basis of viewpoint, a legal position Tucson City Attorney Mike Rankin himself endorsed in a letter to Tucson City Manager Mike Hein dated April 12, 2006.

Plaintiff also contends the law, as set forth by the Arizona Supreme Court in Phoenix Newspapers Inc. v Superior Court, 101 Ariz. 257 (1966), the U.S. Supreme Court in Walker v. City of Birmingham, 388 U.S. 307 (1967), the U.S. Supreme Court in New York Times v United States, 91 S.Ct 2140 (1971), the Arizona Appellate Court in State v. Chavez, 123 Ariz. 538 (App.) (1979), and by the First Circuit Court of Appeals In the Matter of Providence Journal Co., 820 F.2d 1342 (1st Cir. 1986), expressly proscribe any prior restraint of Plaintiffs right to engage in pure political speech, proscribe TPD officers from blocking Plaintiffs entry into Armory Park on May 1, 2010 and proscribe TPDs demand that Plaintiff move 1000 feet away or face arrest. Court orders forbidding pure political speech (as opposed to first amendment related conduct such as marching and picketing) exceed the jurisdiction of the issuing court, are transparently invalid, and may be disobeyed with impunity. Should Defendants dispute Plaintiffs claims as set forth above Plaintiff will file dispositive motions with the Court after discovery reveals the identity of all those who engaged in conduct to violate Plaintiffs expressive rights. 7. WHETHER THIS CASE IS SUITABLE FOR ARBITRATION OR SPECIAL MASTER, OR WHETHER PARTIES CONSENT TO TRIAL BEFORE A U.S. MAGISTRATE JUDGE PURSUANT TO 28 USC 636(c) Plaintiff has already consented to trial by Magistrate Judge; Defendants have demanded trial by U.S. District Court Judge. 8. STATUS OF RELATED PENDING CASES The parties await a Ruling on Defendants Motion for Summary Judgment in 13-CV-00283-TUC-DCB. 9. WHEN INITIAL DISCLOSURES WERE OR WILL BE MADE OR PROPOSED CHANGES IN REQUIREMENTS SET FORTH IN RULE 26(a), FEDERAL RULES OF CIVIL PROCEDURE Plaintiff, who will make initial disclosures on or before March 20, 2014, does not propose changes to Rule 26(a).

10. ELECTRONIC MEDIA TO BE DISCOVERED Plaintiff contends (1) the custom and practice of Tucson City permits public officials to use the police department to engage in acts of first amendment retaliation (as set forth with particularity above), and (2) ever since the Riot in Armory Park on April 10, 2006, still unidentified parties and the parties identified in sections 1 and 11, worked in concert with each other and with proraza activist groups to prevent Plaintiff from engaging in the free exercise of his first amendment rights. Moreover; Plaintiff contends the parties who participated in the decisionmaking process, or were notified by the application for the exclusive use permit, which was granted by Tucson Parks Director Fred Gray on April 26, 2010, knew the law set forth in Gathright proscribed the issuance and enforcement of such permits. Therefore; Plaintiff will seek access to the original email communications, and printed copies, between the various parties identified in section 1 and 11, as they pertain to the granting of the exclusive use permit, and other email communications as they pertain to the intentional violation of Plaintiffs rights on other occasions, including but not limited to, Defendants actions set forth in the First Amended Complaint. 11. PARTIES TO BE NAMED Plaintiff now names exclusive use permit holder Paul Teitelbaum, Lt. Azuelo, Sgt. Wooldridge, Sgt. Johnson, TPD Incident Commander Terra Rozema, Operations Section Chief Capt. Stamatopoulous, Lt. Paul Sayre, Op Section Chief XO Sgt. Wes Dison, Tucson Park Director Fred Gray, Tucson City Police Chief Roberto Villasenor, Tucson Assistant City Manager Richard Miranda, Tucson City Attorney Mike Rankin, City Attorney L. Judge, Tucson Parks and Recreation Director Reenie Ochoa, all previously named or identified in the First Amended Complaint as John Does, who Plaintiff alleges, worked in concert to violate Plaintiffs rights on May 1, 2010.

12. PROPOSED DEADLINES: (a) motions to amend complaint and join additional parties 12 months, assuming Defendants do not engage in delaying tactics to frustrate Plaintiffs discovery. (b) pretrial disclosure of lay witnesses, expert witnesses, and expert testimony pursuant to Rule 26(a)(2) and (3), Federal Rules of Civil Procedure. 15 months, assuming Defendants do not engage in delaying tactics to frustrate Plaintiffs discovery. (c) completing discovery 18 months, assuming Defendants do not engage in delaying tactics to frustrate Plaintiffs discovery. (d) filing dispositive motions 19 months, assuming Defendants do not engage in delaying tactics to frustrate Plaintiffs discovery. (e) lodging proposed joint pretrial order 21 months, assuming Defendants do not engage in delaying tactics to frustrate Plaintiffs discovery. (f) filing a joint letter to the court concerning the status of settlement discusions 4 months after scheduling conference; every two month thereafter. 13. SUGGESTED CHANGES IN LIMITATIONS ON DISCOVERY IMPOSED BY RULE 26(b)(2) DISCOVERY None 14. ESTIMATED DATE AND LENGTH OF TRIAL 4 weeks. 15. WHETHER A JURY TRIAL HAS BEEN REQUESTED Plaintiff has requested trial by jury.

16. PROSPECTS FOR SETTLEMENT, INCLUDING ANY REQUEST FROM THE COURT FOR ASSISTANCE IN SETTLEMENT EFFORTS Plaintiff would be agreeable to a settlement conference with another judge.

17. WHETHER ANY UNUSUAL, DIFFICULT, OR COMPLEX PROBLEMS EXIST WHICH WOULD REQUIRE THIS CASE TO BE PLACED ON THE COMPLEX TRACK FOR CASE MANAGEMENT PURPOSES PURSUANT TO LRCiv 16.2 No.

18. WHY THIS CASE REQUIRES MORE THAN SIX MONTHS TO COMPLETE DISCOVERY
The express language of Rule 163 required the Court to set forth a scheduling hearing within 120 days of service of complaint, which occurred on November 22, 2011. Nevertheless and in spite of Rule 16, this Court helped Defendants to jack Plaintiffs cause for 2 years, diminish his resources and engage in the sort of wasteful pretrial activities the authors of Rule 16 expressly intended to avoid. Defendants obstructionist tactics have significantly eroded Plaintiffs resources; therefore the scope and method of Plaintiffs discovery will be limited.

Moreover; Plaintiff alleges that higher level Tucson City Officials (City Attorney Mike Rankin, Assistant City Manager Richard Miranda, and others not yet disclosed), directed lower level employees to violate Plaintiffs rights on May 1, 2010, knowing Plaintiffs exclusion from Armory Park on May 1, 2010, on the basis of viewpoint, was illegal as per Gathright. Significant to the issue of damages; Tucson higher level Officials knew the law expressly prohibited City Court Judges from issuing orders of prior restraint.
LRCiv 16.2 mandates scheduling conference to be set within180 days of filing of complaint. Plaintiff filed his initial complaint on July 29, 2011.
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Defendants will maintain, we did nothing wrong, and if we did it was the unintentional action of lower level police officers who lacked sufficient training, etc., etc. Plaintiff needs additional time to complete discovery because he reasonably anticipates Defendants will delay responding to discovery requests and continue to advance frivolous arguments, including but not limited to Gathright does not proscribe the issuance of exclusive use permits to exclude public speakers from public parks on the basis of viewpoint, and frivolous defenses such as attorney client privilege to protect Defendants from disclosing their communications with City Attorneys Mike Rankin and L. Judge, both of whom participated in the decision to grant Paul Teitelbaum an exclusive use permit for Armory Park on May 1, 2010, even though both City Attorneys knew the use of such permits to exclude political speakers from speaking in public parks, on the basis of viewpoint, is unlawful as per Gathright.
In the interests of justice Plaintiff prays the Court to grant him at least as much time to complete discovery and prepare his case as it granted Defendants to engage in wasteful pretrial activities, in violation of Rule 16. 19. OTHER MATTERS WHICH COUNSEL FEELS WILL AID THE COURT IN EXPEDITING THE DISPOSITION OF THIS MATTER EFFICIENTLY In the interest of justice and judicial economy, Plaintiff respectfully suggests the Court can best expedite the disposition of this case by following the spirit and letter of the law and the Rules of Civil Procedure. The express language of Rule 164 required the Court to set forth a scheduling hearing within 120 days of service of complaint, which occurred on November 22, 2011.

LRCiv 16.2 mandates scheduling conference to be set within180 days of filing of complaint. Plaintiff filed his initial complaint on July 29, 2011.
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Nevertheless and in spite of Rule 16, this Court helped Defendants to jack Plaintiffs cause for 2 years, diminish his resources and engage in the sort of wasteful pretrial activities the authors of Rule 16 expressly intended to avoid. In the interest of avoiding more wasteful pretrial activities, effecting true case management, and improving the quality of the trial through more thorough preparation, the express purpose of Rule 16, Plaintiff respectfully asks the Court to (1) permit Plaintiff to add as Defendants the previously unidentified or John Doe parties now named in sections 1 and 11, (2), enjoin Defendants from objecting to the addition of the newly identified parties until discovery is complete, (3) issue an order that any action employed by Defendants which delays discovery also tolls deadlines regarding discovery, amendment of complaint and joining new parties, and (4) allow Plaintiff to amend complaint to name new parties and state additional causes of actions should discovery reveal new parties, or new violations. Defendants obstructionist tactics have significantly eroded Plaintiffs resources; therefore the scope and method of Plaintiffs discovery will be limited. In the interests of justice Plaintiff prays the Court to grant him as much time to prepare his case as it granted Defendants to engage is wasteful pretrial activities, in violation of Rule 16. 20. CLASS ACTIONS N/A. DATED this 26th of February, 2014. _________________________ Roy Warden, Plaintiff On February 26, 2014 I emailed a copy to Defendants and filed the original and 1 copy of the Joint Management Plan with the Clerk of the U.S. District Court, Tucson Arizona. _________________________ Roy Warden, Plaintiff
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