Case 4:14-cv-02050-DCB Document 54 Filed 03/31/16 Page 1 of 8

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Roy Warden, Publisher

Arizona Common Sense
6502 E. Golf Links Road #129
Tucson Arizona 85730
roywarden@hotmail.com

UNITED STATES DISTRICT COURT

DISTRICT OF ARIZONA
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) Case No. CV-14-2050 TUC (DCB)

ROY WARDEN,
Plaintiff, IN PRO SE
Vs
RICHARD MIRANDA, etc.,
Defendants.

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MEMORANDUM OF POINTS AND

AUTHORITIES AND AFFIDAVIT
OF ROY WARDEN IN SUPPORT
OF MOTION FOR LEAVE TO
AMEND COMPLAINT PURSUANT
TO FED. R. CIV. P. 15(a)(2)
ORAL ARGUMENT REQUESTED
THE HONORABLE DAVID BURY

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Plaintiff respectfully submits this Memorandum of Points and Authorities

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and Affidavit in Support of his Motion for Leave to Amend Complaint.

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Also submitted: Exhibit One; the Proposed Third Amended Complaint, with

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underlined new text and stricken text, and Exhibit Two; The Proposed Third

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Amended Complaint.

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I.

INTRODUCTION

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The Court should grant Plaintiffs motion for leave to amend complaint be-

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cause Plaintiff meets the requirements under Fed. R. Civ. P. 15(a)(2) and

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because Plaintiff is a pro se litigant.

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Case 4:14-cv-02050-DCB Document 54 Filed 03/31/16 Page 2 of 8

II.

PROCEDURAL HISTORY

Under penalty of perjury, Plaintiff Roy Warden does herein declare, swear

and affirm as follows:

CWIR1:

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Plaintiff filed an original complaint against Defendants on April 25,

2014, (Doc. 1), and filed & served the First Amended Complaint on

August 14, 2014. (Doc. 6)

2.

Defendant Tucson May 1st Coalition for Worker and Immigrant Rights
(CWIR) failed to answer complaint and Plaintiff filed for Entry of De-

fault on October 17, 2014. (Doc. 18)

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3.

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On December 10, 2014 the Court denied Entry of Default and found

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good cause to extend Plaintiffs time to effect service on Defendant

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CWIR to December 31, 2014. (Doc. 24)

4.

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Accordingly, Plaintiff again served Defendant CWIR by Publication,

as directed by the Court. (Doc. 26)

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5.

Defendant CWIR again failed to answer summons and complaint.

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6.

On September 30, 2015 Plaintiff again filed for entry of Default, (Doc.
38) which the Court granted on December 12, 2015. (Doc 39)

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7.

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Subsequently Plaintiff made inquiry of the readership of Arizona Com-

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mon Sense2 and learned that Defendant CWIR merely served as one of

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many front organizations under direction and control of (former)

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Pima County Legal Defender Isabel Garcia, a prominent local pro-

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raza activist often quoted in the local media as Director of Derechos

Tucson May 1st Coalition for Worker and Immigrant Rights.

Arizona Common Sense, which documents and reports incidents of impropriety

within Pima County legal community, has a readership of some 2,000, including
approximately 1,250 members of the Pima County Bar.

Case 4:14-cv-02050-DCB Document 54 Filed 03/31/16 Page 3 of 8

Humanos, who has led Arizonas Open Border movement for several

decades.

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TUCSON CITY OFFICIALS:

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On February 9, 2914 Defendant City of Tucson filed their Initial

Disclosure Statement (Doc. 50); subsequently Plaintiff received a

written outline and a CD containing the following disclosures:

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a) Confidential Memorandum Subject Guidelines, April 27, 2006.

(15-252COT0032 to 39)
b) Incident Action Plan for May Day March 2012. (15252COT0002 to 16);

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c) Letter, March 14, 2012, Medina to Weber. (15-252COT0019);

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d) Letter, March 14, 2012, Medina to Grey. (15-252COT0020);

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e) Letter, March 19, 2012, Medina to Grey & Ochoa. (15-

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252COT0029 to 30);
f) Tucson Parks and Recreation Rental Permit, March 26, 2012.
(15-252COT0025);
g) Letter, March 26 2012, Ochoa to Pancho Medina. (15252COT0017 to 18);
h) Civic Events Meeting April 10, 2012 Sign in Sheet. (15252COT0026);

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i) Letter, April 27, 2012, Grey to Medina. (15-252COT0021 to 22);

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j) Fax Cover Sheet. (15-252COT0023);

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k) Email Thread, April 27, 2012, between various Tucson City offi-

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cials. (15-252COT0024).

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9. Item h (the April 10, 2012 Civic Events Meeting Sign In Sheet)

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reveals that newly named Tucson Defendants, Janet Nickell (Tucson

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City Finance) , and TPD Officers Patterson, Hickman and Beecroft,

Case 4:14-cv-02050-DCB Document 54 Filed 03/31/16 Page 4 of 8

and newly named CWIR3 Defendants Medina, Miles and Teitel-

baum4, met with newly named Pima County Defendants Faas (Pima

County Risk Management), Armstrong (Pima County Facilities

Management) and Loeschen5 (Pima County Facilities Management),

on April 10, 2012 and conspired to violate Plaintiffs rights in Ar-

mory Park, Tucson Arizona on May 1, 2012.

10. Moreover; the Confidential Memorandum Subject Guidelines6,

April 27, 2006. (15-252COT0032 to 39) reveals that subsequent to

Defendants Miranda and Rankin meeting with Defendant Garcia on

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April 13, 2006 as set forth in the Third Amended Complaint para-

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graph 36, Defendant Rankin began constructing a legal strategy to

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exclude Plaintiff from Armory Park in express violation of the Ninth

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Circuit Court of Appeals ruling in Gathright.

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11. Finally; the newly disclosed evidence reveals Defendant Garcia used

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her public office as Pima County Legal Defender, and used public

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property (the snow fence barrier) to further the interests and political

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agenda of Arizona Border Rights Foundation. Plaintiff intends to

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submit this evidence to the proper federal and state authorities.

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Tucson May 1st Coalition for Worker and Immigrant Rights

Teitelbaum and Miles are also believed to be the previously unnamed defendants who blocked Plaintiffs access to Armory Park on May 1st 2012.

Pima County Facilities Management also provided the plastic snow barrier fencing that Defendant CWIR used to temporarily encircle Armory Park during the
CWIR May Day demonstrations from 2007 to 2012.

This astonishing document, written several weeks subsequent to the Mike Rankin
Letter dated April 12, 2006 (Exhibit One in All Complaints) might also be called
the Mike Rankins How Do We Violate Gathright to Exclude Warden from
Armory Park Memorandum.

Case 4:14-cv-02050-DCB Document 54 Filed 03/31/16 Page 5 of 8

III. ARGUMENT

Federal Rule of Civil Procedure 15(a)(2) provides that [t]he court should

freely give leave [to amend a complaint] when justice so requires. Fed. R.

Civ. P. 15(a)(2). The district court has the discretion to decide whether to

grant Plaintiff leave to amend. See Swanson v. U.S. Forest Serv., 87 F.3d

339, 343 (9th Cir. 1996); Jordan v. County of Los Angeles, 669 F.2d 1311,

1324 (9th Cir.1982), vacated on other grounds, 459 U.S. 810 (1982). In its

exercise of this discretion, the court applies Rule 15 to facilitate [a] decision

on the merits, rather than on the pleadings or technicalities. U.S. v. Webb,

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655 F.2d 977, 979 (9th Cir. 1981). Furthermore, the court interprets the lan-

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guage for granting amendments under Rule 15 with extreme liberality. Id.

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A. Under the Ninth Circuit Standard Plaintiff Should Be

Granted Leave to Amend.

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Under the Ninth Circuit Standard Plaintiff Should Be Granted Leave to

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Amend. When deciding whether to grant leave to amend, a court must con-

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sider: (1) whether the amendment was filed with undue delay; (2) whether

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the movant has requested the amendment in bad faith or as a dilatory tactic;

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(3) whether movant was allowed to make previous amendments which failed

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to correct deficiencies of the complaint; (4) whether the amendment will un-

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duly prejudice the opposing party and; (5) whether the amendment is futile.

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See Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir.

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2003) (citing Foman v. Davis, 371 US 178, 182 (1962)). The five factors are

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not considered equally. Prejudice is the most important factor and is given

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the most weight. Eminence, 316 F.3d at 1052. Therefore, [a]bsent preju-

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dice, or a strong showing of any of the remaining Foman factors, there exists

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a presumption under Rule 15(a) in favor of granting leave to amend. Id. See

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also Talwar v. Creative Labs, Inc., No. CV 05-3375, 2007 WL 1723609

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(C.D. Cal. June 14, 2006) (finding the plaintiffs should be granted leave to

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amend because additional discovery would not unduly prejudice the defend-

ant and the defendant did not make a strong enough showing of bad faith on

the part of the plaintiffs or that the plaintiffs requested leave to amend as a

dilatory tactic, despite the suspect timing of the filing). The Ninth Circuit

has also held that one of the five Foman factors alone is not sufficient to

justify the denial of a request for leave to amend. The Ninth Circuit has

found that undue delay alone is insufficient to justify denying a motion to

amend and has reversed the denial of a motion for leave to amend where

the district court did not provide a contemporaneous specific finding of prej-

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udice to the opposing party, bad faith by the moving party, or futility of the

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amendment. Bowles v. Reade, 198 F.3d 752, 758 (9th Cir. 1999).

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As a consequence of documents provided by Defendant Tucson City Offi-

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cials on February 9, 2016, Plaintiffs proposed complaint amendments con-

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cerns (1) Defendant (CWIR) which is already in default7 and therefore has

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waived its right to plead or otherwise defend, (Doc. 39; Entry of Default),

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(2) adds new Defendant Tucson City employees, (15-252COT0026), (3)

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adds Arizona Border Rights Foundation, (15-252COT0025), and finally (4)

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adds Pima County Defendants Garcia, Faas, Armstrong, Loeschen and Pima

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County (15-252COT0026).

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Plaintiffs proposed complaint amendment should not unduly prejudice Tuc-

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son City Defendants, but it will interfere with the Courts Scheduling Order.

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Plaintiff filed the amendment without undue delay. Rather, Plaintiff filed the

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amendment in the following fashion:

See the Courts order granting Plaintiffs Request for Entry of Default. (Doc. 39)

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7.

On October 6, 2015, subsequent to the Court entry of Default, Plaintiff

made inquiry to 1,250 members of the Pima County Bar who are sub-

scribers to Arizona Common Sense.

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Plaintiff was informed that Defendant CWIR merely serves as one of

many front organizations under the direction and control of (former)

Pima County Legal Defender Isabel Garcia8, and the Arizona Border

Rights Foundation, a not for profit Arizona corporation.

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The Arizona Corporation Commission lists (former) Pima County Le-

gal Defender Isabel Garcia as Director of the Arizona Border Rights

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Foundation with an office address listed at P.O. Box 1286, the second

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of two addresses this Court authorized service of Complaint by Publi-

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cation upon Defendant CWIR. (Doc. 26; 1:20-24)

10. The Arizona Corporation Commissioner has no record for Defendant

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CWIR or Derechos Humanos.

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11. The Clerk of Tucson Business Licenses informed Plaintiff he had no

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listing for Derechos Humanos or Defendant CWIR.

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12. Derechos Humanos has its address publically listed at 225 E, 26th

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Street, South Tucson, the first of two addresses which the court author-

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ized service of complaint upon Defendant CWIR. (Doc. 26; 1:20-24)

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13. The Arizona Corporation Commission records reveal that between the

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years 2003-2006, Derechos Humanos received nearly half a million

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dollars in funding from Arizona Border Rights Foundation.

(Former) Pima County Legal Defender Isabel Garcia is publically known to direct
Derechos Humanos, a local pro-raza group advocating permanent open borders, amnesty, and a quick path to citizenship for the estimated 20 million illegal
aliens now residing in the United States.

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14. The Arizona Corporation Commission lists Jeffrey A. Imig, 1 South

Church Ave, Tucson Arizona, as the statutory agent for Arizona Bor-

der Rights Foundation.

Plaintiffs request to amend complaint is not made in bad faith or for dilatory

reasons. Nor is it futile. Plaintiff requests leave to amend to correctly iden-

tify the principals who, behind the scenes, directed the activities of Defend-

ant CWIR on May 1st 2012, the incident date of this action, and who con-

tinue to operate as Defendant CWIR, now in Default for failure to plead or

otherwise defend by order of this Court (Doc. 39)

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Plaintiff previously amended the complaint by the invitation of this Court

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(Doc. 29)

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B. Plaintiff Is a Pro Se Litigant and Should Be

Granted Leave to Amend.

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Courts give special consideration to pro se litigants requesting leave to

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amend a complaint. Courts are particularly reluctant to deny leave to amend

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to pro se litigants. Flowers v. First Hawaiian Bank, 295 F.3d 966, 976 (9th

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Cir. 2002)

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IV. PRAYER

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Based on the above reasons, Plaintiff respectfully prays this Court to grant

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Plaintiffs Motion to Amend Complaint.

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Further Affiant sayeth not.

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March 31, 2016

/Roy Warden/

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Original and one copy filed with the Court on March 31, 2016. I hereby
certify that on March 31, 2016, I personally served the attached document, and a copy of the Proposed Second Amended Complaint, and exhibits, by email, on the following:

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Baird Greene, Assistant Tucson City Attorney, Baird.Greene@tucsonaz.gov