warden v. walkup 14-16440 filed opening brief

8/10/2019 WARDEN v. WALKUP 14-16440 FILED OPENING BRIEF

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UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 14-16440

ROY WARDEN,

Plaintiff-Appellant,

v.

BOB WALKUP, et al,

Defendant – Appellee

ON APPEAL FROM THE UNITED STATES DISTRICT

COURT FOR THE DISTRICT OF ARIZONA

Case No. 4:13-cv-01067 - DCB

Honorable David Bury, United States District Court Judge

________________________________________________________

APPELLANT’S OPENING BRIEF

Roy Warden, Appellant, in pro-se

3700 South Calle PolarTucson Arizona 85730

[email protected]

(520) 551-3496

Case = 14-16440, 11/30/2014, ID = 9330028, DktEntry = 5, of 20

mailto:[email protected]

mailto:[email protected]



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TABLE OF CONTENTS

Table of Authorities………………………………..………… 3

Statement of Subject Matter and Appellate Jurisdiction……… 4

Statement of the Issue.……………………………..………… 5

Statement of the Case………………………………..……….. 5-7

Statement of Facts…………………………………..………... 7-12

Statement of Related Cases and Proceedings………………… 13-15

Argument Summary………………………………………….. 15

Scope of Review……………………………………………... 15

Argument:

I. The District Court Committed Reversible Error by Dis-

missing Appellant’s in pro se First Amended Complaint

Under the Doctrine of Res Judicata, When the Previous

Case,1 Dismissed Without Prejudice, Had Not Come toa Final Determination on the Merits and Res Judicata

Did Not Apply 15-17

Conclusion…………………………………………………… 17-19

Proof of Service……………………………………………… 20

Certificate of Compliance……………………………………. 20

1 Warden v. Robinson, 4:13-cv-00283, is now pending review as 14-

15803.




3

TABLE OF AUTHORITIES

Cases: Page:

Federated Dept. Stores, Inc., v. Moitie, 101 S.Ct. 2424

(1981)

7, 16, 18

Hernandez v. County of Tulare, 666 F.3d 631, 636 (9th Cir.

2012)

15

Mathews v. Chevron Corp., 362 F.3d 1172, 1180 (9th Cir.

2004) 15

Rules:

F.R.Civ.P. 12(b)(6) 5, 11, 12

L.R.Civ.P 3.7 6, 8, 10

Statutes:

42 U.S.C. § 1983 4, 8

42 U.S.C. § 1985 4, 8

28 U.S.C. § 1343(a)(3) 4

28 U.S.C. § 1291 4

Other Authorities:

The Nature of the Judicial Process, B. Cardozo 168 (1921) 5

Sheldon Nahmod, Civil Rights and Civil Liberties Litiga-

tion: The Law of Section 1983 (4th

edition)

17

Winning on Appeal, Ruggero J. Aldisert, Senior United

States Circuit Judge

18




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JURISDICTIONAL STATEMENT1

Appellant, a political activist, director of the Tucson Weekly Public2

Forum, and the publisher of Arizona Common Sense, filed the case un-3

der appeal2 against former Tucson Mayor Bob Walkup, Tucson City4

Councilman Steve Kozachik, Tucson City Manager Richard Miranda,5

Tucson City Attorney Mike Rankin, and other Tucson officials, on Sep-6

tember 5, 2013 in the U.S. Court, District of Arizona, under 28 U.S.C.7

§ 1343(a)(3) alleging negligent and intentional violations of constitu-8

tional rights, as provided by 42 U.S.C. § 1983 and 42 U.S.C. § 1985.9

(Doc. 1)10

The court clerk entered the final order dismissing all Appellant’s11

claims on July 2, 2014. (Doc. 36)12

Appellant filed his Notice of Appeal on July 25, 2014. (Doc. 37)13

The Ninth Circuit Court of Appeals has jurisdiction to hear appeals14

from a final decision of the U.S. District Court as provided by 28 U.S.C.15

§ 1291.16

Appellant appeals U.S. District Court Judge David Bury’s Order17

dated July 1, 2014 which dismissed Defendants Walkup, Kozachik, Mi-18

2 Warden v. Bob Walkup, et al, 4:13-cv-01067




5

randa, Rankin, Riojas, Villaseñor, Couch, the City of Tucson, Un-1

known Parties, Unidentified Officer, and Does 1-100, with prejudice,2

for “failure to state a claim,” under the provisions of Fed.R.Civ.P.3

12(b)(6). (Doc. 35)4

STATEMENT OF THE ISSUE5

I Did the District Court Commit Reversible Error by Dismiss-6

ing Appellant’s in pro se First Amended Complaint Under the7

Doctrine of Res Judicata , When the Previous Case,3 Dismissed8

Without Prejudice, Had Not Come to a Final Determination9

on the Merits and Res Judicata Did Not Apply?10

STATEMENT OF THE CASE11

“The great tides and currents which engulf the rest of men, do not12

turn aside in their course and pass the judges by.”4 13

It is impossible to separate Judge Bury’s July 1, 2014 ruling, which14

is the subject of this appeal, from the underlying community politics15

inspiring the contentious border issues which have rocked this state16

since the passing of the Arizona Citizen’s Initiative PAN in 2004, the17

April 10, 2006 Riot in Armory Park, the Arizona Legislature passing of18

SB 1070 and HB 2281 in 2010, and Appellant’s excoriations of Tucson19

3 Warden v. Robinson, 4:13-cv-00283; now pending review as 14-

15803.

4 The Nature of the Judicial Process, B. Cardozo 168 (1921)




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City Open Border Policy in front of the Tucson City Council, and in1

street demonstrations, including the U.S. Court, District of Arizona,2

which continue to this date.3

Inexplicably, and in spite of L.R.Civ.P. 3.7 which requires random,4

automated judge selection, Judge Bury has been assigned to, and has5

dismissed for “failure to state a claim” (without right to amend), four6

consecutive cases5 Appellant has filed in U.S. Court, District of Ari-7

zona.8

Judge Bury now presides over a fifth case, Warden v. Miranda, 4:14-9

cv-02050.10

On July 1, 2014 Judge Bury dismissed 4:13-cv-01067, the case sub-11

ject to this appeal, under the doctrine of “res judicata.” However; the12

causes of action which were dismissed by Judge Bury on August 23,13

2013 in underlying case, Warden v. Robinson 4:13-cv-002836 were (1)14

dismissed without prejudice, (2) the dismissal was not final on Septem-15

ber 5, 2013 when Appellant filed the case at bar, and (3) Warden v.16

5 Appellant writes a political newsletter, Arizona Common Sense,

which is sent to the media and 1,200 legal professionals residing in

Pima County. Several readers have commented, “it looks like you got

your own personal judge!”

6 Warden v. Robinson is now under appeal, action number 14-15803




7

Robinson has not yet come to a “final determination on the merits,” as1

required by the U.S. Supreme Court before res judicata applies. Feder-2

ated Dept. Stores, Inc., v. Moitie, 101 S.Ct. 2424 (1981).3

STATEMENT OF FACTS4

1. Appellant is an unpaid political activist, the publisher of Com-5

mon Sense II, CSII Press, Arizona Common Sense and the Di-6

rector of the Tucson Weekly Public Forum.7

2.

Appellant has spent the last 9 years investigating allegations of8

malfeasance within the legal and political institutions of Pima9

County, including the malfeasance of Tucson city officials,10

whom Appellant alleges, have used their public offices (1) to aid11

and abet, entice and invite, and otherwise encourage the unlaw-12

ful entry of impoverished Mexican citizens to supply local con-13

tractors with low cost labor, (2) to advance the policy of the14

Mexican government to exclude their poor so they may come to15

America to earn and send home remittances, and (3) to employ16

city administrators on the basis of cronyism and not on the basis17

of their fitness to hold public office.18




8

3. Appellant’s political activities, including street demonstrations7 1

internet publications, and the email distribution of the legal2

newsletter Arizona Common Sense8, have so infuriated the most3

prominent special interests residing in Tucson Arizona, includ-4

ing high profile public officials and members of the legal com-5

munity, (including judges9), that Appellant has been subjected6

to a long series of arrests, prosecutions, etc., and, based on stat-7

ute of limitations considerations, Appellant’s filing of a number8

of federal claims under U.S.C. 42 § 1983 and § 1985.9

7 Appellant held his most recent demonstration in front of the Tucson

Mexican Consulate on July 18, 2014. Appellant is now consulting

with U.S. Marshalls and filing paperwork to engage in a series of dem-onstrations on the grounds of the U.S. District Court, Tucson Arizona.

8 Arizona Common Sense, offering commentary on improprieties oc-

curring within the local legal community, is received by 1,200 mem-

bers of the Pima County Bar.9 On January 29, 2013 Appellant published “Is the Federal Court ‘Judge

Shopping’ in Warden v. Miranda, Rankin, et al?” regarding the ap-

parent violation of L.R.Civ.P. 3.7 which requires random judge selec-

tion; on February 4, 2013 Appellant published “Pima County BarAdvises Warden on Judge Shopping.”




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B. September 13, 2011, when Tucson Mayor Walkup acted on1

advice and directions provided him by Tucson City Council-2

man Kozachik, Tucson City Attorney Rankin, Tucson City3

Manager Miranda, Tucson City Employee Antonio Riojas,4

etc., invoked the name of Congresswoman Gabriele Gif-5

fords,12 issued a new directive he called “The Civility Ac-6

cord,” claimed authority to proscribe speech before the mayor7

and council he deemed “slanderous or impertinent,” and or-8

dered a Tucson Police Officer to arrest Appellant in his lawful9

speech and remove him from the council chambers. (Doc. 1)10

5. The case was assigned to the Honorable Cindy Jorgenson. How-11

ever; on September 20, 2013 Judge Jorgenson recused13 herself12

on the alleged basis of a “conflict of interest,” and the case was13

“assigned by random lot” to Judge Bury.14 (Doc. 3)14

12 On January 8, 2011 District Court Judge John Roll and 4 others weremurdered, and Congresswoman Giffords was severely wounded.

13 There is no personal connection or history whatsoever between Plain-

tiff and Judge Jorgenson which would justify her recusal under 28

U.S.C. § 455.

14 Inexplicably, and in spite of L.R.Civ.P. 3.7 which requires random,automated judge selection, Judge Bury was assigned to, and has dis-

missed for “failure to state a claim” (without right to amend) four




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6. On December 16, 2013 Appellant filed his First Amended Com-1

plaint and defendants were subsequently served; however, all2

defendants failed to respond. (Doc 4)3

7. Subsequently; on January 29, 2014 Appellant filed Applications4

for Entry of Default against all defendants. (Docs. 9-17)5

8. On January 30, 2014 the Clerk entered default against defend-6

ants Couch, Kozachik, Miranda, Riojas, City of Tucson, Uni-7

dentified Officer, Villaseñor and Walkup (Docs. 18-25), and en-8

tered default on the remaining defendant Rankin on February9

27, 2014. (Doc. 26)10

9. On February 28, 2014 defendants (“the government”) filed a11

Motion to Set Aside Judgment (Doc. 29) which the Court gran-12

ted on March 10, 2014 (Doc. 31)13

10. On March 28, 2014 the government filed a F.R.Civ.P. 12(b)(6)14

Motion to Dismiss, on the basis the underlying causes of actions15

against all defendants, for constitutional violations occurring on16

September 7, 2011 and September 13, 2011, had already been17

consecutive cases Appellant has filed in U.S. Court, District of Ari-zona. Three cases are now under appeal. Judge Bury now presides

over a fifth case, Warden v. Miranda, 4:14-cv-02050.




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decided in a previous case, Warden v. Robinson, 4:13-cv-1

00283.15 (Doc. 32)2

11.

Subsequently; on April 4, 2014 Appellant filed his Opposition3

to Motion to Dismiss, (Doc. 33) pointing out the Magistrate’s4

R&R in Warden v. Robinson, which the court adopted on Au-5

gust 23, 2013, had dismissed Appellant’s claims against govern-6

ment officials in that action without prejudice; therefore Appel-7

lant was entitled to file a new action, which he did on September8

5, 201316 in Warden v. Walkup, 4:13-cv-01067, the present case9

now under review.10

12. On April 11, 2014 the government filed its Reply. (Doc. 34)11

13. On July 2, 2014 the Court dismissed Appellant’s First Amended12

Complaint, under the provisions of F.R.Civ.P. 12 (b)(6), citing13

the doctrine of res judicata. (Doc 35)14

15

16

17

15 This case in now under review, action number 14-15803.

16 Warden v. Walkup, 4:13-cv-01067, was filed 2 days prior to the ex- piration of the statute of limitations for constitutional violations oc-

curring on September 7, 2011, and Sept 13, 2011.




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STATEMENT OF RELATED CASES1

14. On April 25, 2013 Appellant filed his Original Complaint (OC)2

Warden v. Robinson, 4:13-cv-00283 in the U.S. Court, District3

of Arizona, alleging Tucson City Officials had committed con-4

stitutional violations on three occasions; May 1, 2011, Sep-5

tember 7, 2011 and September 13, 2011, together with an Ap-6

plication to Proceed In Forma Pauperis (IFP). (4:13-cv-00283,7

Docs. 1-2) 8

15. Subsequently; on August 8, 2013, prior to service of complaint,9

the Magistrate issued a Report (“R&R”), recommending, in10

pertinent part, the Court (1) maintain Appellant’s causes of ac-11

tion against Defendant Robinson who allegedly had committed12

constitutional violations on May 1, 2011 and (2) to dismiss,13

without prejudice, for “failure to state a claim,” all Tucson City14

Officials who had allegedly committed constitutional viola-15

tions on September 7, 2011 and September 13, 2011. (4:13-cv-16

00283, Doc. 6) 17

16. On August 22, 2013 Appellant filed a First Amended Com-18

plaint (FAC) in Warden v. Robinson, which did link specific19




14

defendants to specific causes of action for the violations occur-1

ring on September 7, 2011 and September 13, 2011, thus ad-2

dressing the issue of “failure to state a claim.” (4:13-cv-00283,3

Doc. 817)4

17. However; on August 23, 2013 the Court accepted and adopted5

the Magistrate’s R&R , and (1) allowed service of the OC and6

FAC18 upon Defendant Robinson for the violation occurring on7

May 1, 2011, and (2) dismissed from the OC and the FAC the8

Tucson City Officials who had committed violations on Sep-9

tember 7, 2011 and September 13, 2011. (4:13-cv-00283, Doc.10

7)11

18. Thereupon; on September 5, 2013, two days before the statute12

of limitations was to expire for constitutional violations occur-13

ring on September 7, 2011 and September 13, 2011, Appellant14

17 N.B. In 4:13-cv-00283 the court clerk has, (apparently), engaged in

“irregularities” by assigning docket numbers which are out of se-

quence with filing dates. For example; Appellant’s First Amended

Complaint, filed and served on August 22, 2013, was assigned docket

number 8. However; Judge Bury’s Order dismissing Appellant’s

First Amended Complaint, filed a day later on August 23, 2013, wasassigned docket number 7.

18 Inexplicably, Judge Bury’s Order in Warden v. Robinson, 4:13-cv-0283, dated August 23, 2013, ordered service of the OC and the FAC

on Defendant Robinson. (Warden v. Robinson, Doc. 7)




15

filed the current action now under review, Warden v. Walkup,1

4:13-cv-01067. 2

ARGUMENT SUMMARY3

The venerable doctrine of res judicata, undeniably a cornerstone of4

American jurisprudence, provides “finality” to causes of action which5

have come to a final determination on their merits.6

However; in the case at bar, the underlying case, Warden v. Robin-7

son, 4:13-cv-00283 is now under review by this Court (14-15803), and8

has not yet come to a final determination on the merits; therefore; res9

judicata does not apply and Judge Bury’s order must be overruled. 10

SCOPE OF REVIEW11

Standard of review: “Court of Appeals reviews de novo the district12

court’s dismissal of a complaint for failure to state a claim.” Hernandez13

v. County of Tulare, 666 F.3d 631, 636 (9th Cir. 2012)14

LEGAL ARGUMENT15

I. The District Court Committed Reversible Error by Dismiss-16

ing Appellant’s in pro se First Amended Complaint, Under17

the Doctrine of Res Judicata , When the Underlying Case Had18

Not Come to a Final Determination on the Merits and Res19

Judicata Did Not Apply.20

The Court of Appeals reviews de novo mixed questions of law and21

fact. Mathews v. Chevron Corp., 362 F.3d 1172, 1180 (9th Cir. 2004)22




16

In 1981 the U.S. Supreme Court,19 in overturning a decision by this1

Court to create an exception, spoke to how the venerable doctrine of res2

judicata applies to the facts of this case:3

“Res judicata bars relitigation of the unappealed adverse4

judgments against respondents…The res judicata conse-5

quences of a final, unappealed judgment on the merits 6

are not altered by the fact that the judgment may have7

been wrong.” Moitie at 2426 (emphasis added)8

9

“There is little to be added to the doctrine of res judicata10

as developed in the case law of this Court. A final judg-11

ment on the merits of an action precludes the parties or12

their privies from relitigating issues that were or could13

have been raised in that action.” Id. at 2428 (emphasis14

added)15

16

“Simple justice is achieved when a complex body of law17

developed over a period of years is evenhandedly ap-18

plied. The doctrine of res judicata serves vital public in-19

terests beyond any judge’s ad hoc determination of the20

equities in a particular case.” Id. at 2429 (emphasis21

added)22

23

Here, Appellant presents (perhaps) the shortest legal argument this24

Court may entertain this year.25

Judge Bury’s August 23, 2013 dismissal in the underlying case,26

Warden v. Robinson, 4:13-cv-00283, was not a “final determination on27

the merits” for constitutional violations occurring on September 7, 201128

and September 13, 2011; moreover; those causes of action had not29

19 Federated Dept. Stores, Inc., v. Moitie, 101 S.Ct. 2424 (1981)




17

come to a “final determination” on September 5, 2013 when Appellant1

filed the present case, 4:13-cv-01067, now under review.2

Even now, on the date this Court first considers the issue of whether3

or not the doctrine of res judicata may lawfully be applied in this case,4

those causes of actions,20 have not yet come to a “final determination.”5

Regarding res judicata the law is clear; this Court must reverse6

Judge Bury’s Order dated July 1, 2014 and return this case to the lower7

court for further proceedings. 8

CONCLUSION 9

“To the federal judiciary, guardians of the rule of law.21”10

However; in four consecutive cases, going back to Warden v. Gar-11

cia, 4:07-cv-00664 in 2008, U.S. District Court Judge David Bury has12

been nothing more than a rubber stamp for the government.13

Appellant respectfully repeats the promise the Constitution, and the14

courts, have made to We the People of America, the stirring words15

chiseled in stone over the entrance to the U. S. Supreme Court: “Equal16

Justice Under Law.” 17

20 Warden v. Robinson is now before this court, 14-15803

21 Sheldon Nahmod, Civil Rights and Civil Liberties Litigation: TheLaw of Section 1983 (4th edition)




18

In this case Appellant wasn’t afforded “equal justice” or even the1

appearance of equal justice. Quite simply; the district court judge ig-2

nored the law as clearly stated by the U.S. Supreme Court in Moitie,3

put his thumb on the scales of justice and denied Appellant his day in4

court.5

We the People, through our congress and our judiciary, invest dis-6

trict court judges with discretion or, “the power exercised by courts to7

determine questions to which no strict rule of law is applicable but8

which, from their nature, and the circumstances of the case, are con-9

trolled by the personal judgment of the court.22”10

However; the law does not permit a district court judge to claim au-11

thority under the venerable doctrine of res judicata, with authority and12

purpose defined by the U.S. Supreme Court in Moitie, to dismiss an in13

pro se civil rights claim against the government, when the underlying14

case has not come to a final determination and res judicata simply does15

not apply.16

22 Winning on Appeal pg. 67. Ruggero J. Aldisert, Senior United States

Circuit Judge, The United States Court of Appeals for the Third Cir-cuit, citing Bouvier’s Law Dictionary (1914).




19

Both we the people and our legal establishment hold mutual respect1

and expectations for each other: in America, all of us — citizen and gov-2

ernment official alike — are (theoretically) bound by the rule of law.3

Our government holds we the people to that standard. For a free4

people to expect anything less than “equal justice under law” from their5

government, and their honored judiciary, is to submit to the rule of men,6

and tyranny.7

RESPECTFULLY SUBMITTED November 30, 2014.8

/s/ Roy Warden, Appellant in forma pauperis9

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32




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CERTIFICATION OF SERVICE 1

2

3

I hereby certify that I electronically filed the foregoing with the4

Clerk of the Court for the United States Court of Appeals for the Ninth5

Circuit by using the appellate CM/ECF system on November 30, 2014.6

I certify that all participants in the case are registered CM/ECF users7

and that service will be accomplished by the appellate CM/ECF system8

on November 30, 2014.9

10

/s/ Roy Warden11

12

CERTIFICATION OF COMPLIANCE13

14

I Roy Warden, Appellant appearing in pro se in 14-16440, do herein15

declare, swear and affirm as follows:16

The foregoing Appellant Opening Brief complies with the Rules of17

Civil Appellate Procedure for the 9th Circuit Court of Appeals.18

The font used is Times New Roman, font size 14.19

This document contains 2966 words, including footnotes and ex-20

cluding the Cover Page, Table of Contents and Table of Authorities.21

22

/s/ Roy Warden23

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warden v. walkup 14-16440 filed opening brief

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