Case 4:11-cv-00460-DCB-BPV Document 106 Filed 02/26/14 Page 1 of 8

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Viola Romero-Wright Principal Assistant City Attorney for MICHAEL G. RANKIN City Attorney P.O. Box 27210 Tucson, AZ 85726-7210 Viola.Romero@tucsonaz.gov Telephone: (520) 791-4221 Fax: (520) 791-4188 State Bar Computer No. 15989 Attorneys for: Defendants

IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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ROY WARDEN,

11-CV-0460-TUC-DCB (BPV)
Plaintiff, vs. BOB WALKUP, et al., Defendants.

DEFENDANTS CASE MANAGEMENT PLAN

(Hon. Judge David C. Bury)

(Hon. Magistrate Bernardo P. Velasco)

Pursuant to the Courts Order dated February 5, 2014 (DOC 105) the
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Defendant 1 hereby submit the following Case Management Plan: 1. NATURE OF THE CASE, FACTUAL AND LEGAL BASIS OF CLAIMS AND DEFENSES Defendant: The only remaining party in this case appears to be an unidentified police officer who has not been served with a complaint. The only remaining allegation

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See Exhibit 1, Affidavit of Viola Romero-Wright attached.

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in this case is 118(C) of the First Amended Complaint (Doc. 6), in which Plaintiff alleges that an unidentified police officer violated his rights under the First Amendment as set forth below: Count 1, Plaintiff alleges that the following Defendants violated Plaintiffs rights under the First Amendment as set forth below: *** C. The unidentified Defendant TPD officer who, on May 1, 2010 threatened Plaintiff with arrest if Plaintiff did not move more than 1,000 ft. away from Armory Park (Doc. 6 118(C)). Defendant denies this allegation. Discovery is necessary to determine whether this incident as Plaintiff alleges occurred on May 1, 2010, and if it did, the identity of the unidentified police officer and whether any order to move 1000 ft. away was done pursuant to a valid court order. Defendant objects to Plaintiffs Joint Management Plan because Plaintiff is attempting to use this plan as a means to amend his 1st Amended Complaint by naming parties not previously named or served with the complaint, resurrecting allegations and parties that this Court has already dismissed, and alleging new allegations not previously raised in his complaint. On November 16, 2012, this Court denied Plaintiffs request to amend his complaint. See Doc. 49. The time to amend the complaint, serve parties not previously served, and to reallege dismissed allegations is improper and Defendant objects.

City Defendant asserts the following defenses: A) The unidentified Tucson Police Department Officer defendant was not personally served any legally sufficient and timely claim pursuant to A.R.S. 12-821.01. B) The unidentified TPD Officer Defendant is entitled to qualified immunity.
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C) Defendants actions were reasonable, lawful, necessary, and proper under the circumstances. D) Defendant had probable cause to have Plaintiff removed from the area in which he had been counter-protesting. E) Defendant had legal authority to tell Plaintiff pursuant to a court-order to move 1000 ft. away from Armory Park. F) Plaintiff cannot prove the elements necessary to sustain the allegations of his Complaint. G) Plaintiffs alleged injuries or damages were caused by the acts, omissions, unlawful conduct, and/or unreasonable conduct of the Plaintiff. H) Plaintiff was comparatively, contributory, or otherwise negligent with respect to the incident as alleged. I) Plaintiff has not, or may not have, mitigated his claimed damages.

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J) Punitive or exemplary damages are prohibited by A.R.S. 12-820, et seq., and other applicable law. K) Plaintiffs Complaint fails to state a claim upon which relief can be granted. L) Plaintiff has not stated and/or cannot prove a constitutional claim against Defendant. M) The time to amend the complaint and serve parties not previously served has run.

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2. FACTUAL AND LEGAL ISSUES GENUINELY IN DISPUTE AND WHETHER THEY CAN BE NARROWED BY STIPULATION AND MOTION Defendant: All factual and legal issues are in dispute at this time. It is unknown and unlikely that any issues can be narrowed by stipulation. Specific issues in dispute are: A. The date of incident is in dispute. The factual issue is whether Plaintiffs allegation is correct and actually occurred on May 1, 2010. B. The identity of the police officer defendant is unknown and is therefore a factual issue in dispute. C. Whether Plaintiff can identify and name the alleged police officer and show personal participation by that individual is a legal issue in dispute. D. Whether the unidentified police officer actually threatened Plaintiff with arrest. E. Whether the Plaintiff can amend the complaint to add the name of the unidentified police officer. F. Whether the unidentified police officer who allegedly asked Plaintiff to move 1000 ft. away from the Armory Park on May 1, 2010 did so pursuant to a valid court order. D. Whether Plaintiff has already legally challenged a valid court order and is therefore prevented by res judicata and collateral estoppel from challenging that valid court order in this forum. E. Whether the alleged restriction was narrowly tailored to serve a significant government interest which is protecting the safety and convenience of persons using a public forum. F. Whether the unidentified police officer committed a First Amendment violation.

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G. Whether the unidentified police officer is entitled to qualified immunity.

3. JURISDICTIONAL BASIS OF THE CASE The Court has jurisdiction over this action pursuant to 28 U.S.C. 1343, 1983, 1985, and 1988, and Civil Rights Act of 1871. 4. PARTIES NOT SERVED OR HAVE NOT FILED AN ANSWER OR OTHER APPEARANCE The unidentified officer of the Tucson Police Department has not been identified or served with this lawsuit.

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 The City Defendant anticipates filing a motion for summary judgment on the

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issues of qualified immunity, failure to prove the elements of the allegations, and
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res judicata and collateral estoppel.

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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) Defendant does not believe this case is suitable for arbitration or special master. Defendant requested a trial before a U.S. District Court Judge.

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8. STATUS OF RELATED PENDING CASES Plaintiff Roy Warden has a related case in this Court under cause number 13CV-00283-DCB. The Defendants filed a motion for summary judgment on December 3, 2013. The Court has not yet made a decision on that motion.

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 Initial disclosures will be made pursuant to FRCP 26(a) and this Courts Order dated February 5, 2014 (DOC105). Defendant will exchange initial disclosure with the Plaintiff at or within 14 days after the scheduling conference.

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SUGGESTED CHANGES IN LIMITATIONS ON DISCOVERY IMPOSED BY RULE 26(b)(2) DISCOVERY

Defendant does not believe any changes in the limitations on discovery imposed by Rule 26(b)(2) are necessary.

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PROPOSED DEADLINES (a) Filing motions to amend the complaint and to join additional parties: (b) Pretrial disclosure of lay witnesses, expert witnesses, and expert testimony: Rebuttal witnesses:

Defendant Objects

Aug. 6, 2014 Sept. 8, 2014 Oct. 24, 2014

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(c) Completing discovery:

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(d) Filing dispositive motions: (e) Lodging proposed joint pretrial order: (f) Filing joint letter to the Court concerning Status of settlement discussions: Continuing every two months thereafter

Nov. 24, 2014 Dec. 29, 2014

Nov. 24, 2014

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ESTIMATED DATE AND LENGTH OF TRIAL

Defendant believes this case will be ready for trial within 15 months of the date
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of the scheduling conference. Defendant estimates that the length of trial will be 3
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days.
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13.
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WHETHER A JURY TRIAL HAS BEEN REQUESTED

A jury trial has been requested by the Plaintiff.

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PROSPECTS FOR SETTLEMENT, INCLUDING ANY REQUEST FROM THE COURT FOR ASSISTANCE IN SETTLEMENT EFFORTS

There is no real prospect of a settlement at this time, and discovery needs to be done before that changes. 15. 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

This case is not appropriate for placement on the complex track.

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16.

CLASS ACTIONS

Not applicable. This case is not a class action.

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OTHER MATTERS WHICH PLAINTIFF PRO SE/COUNSEL FEEL WILL AID THE COURT IN EXPEDITING THE DISPOSITION OF THIS MATTER EFFICIENTLY

None.

DATED this 26th of February, 2014.

__s/Viola Romero-Wright______ Viola Romero-Wright Principal Assistant City Attorney Attorney for Defendant

I hereby certify that on February 26, 2014, I served the attached document by mail on the following who is not a registered participant of the CM/ECF System: Roy Warden 3700 S. Calle Polar Tucson, Arizona 85730 roywarden@hotmail.com Plaintiff Pro Se By: __s/ Viola Romero-Wright __

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