Warden v. Miranda, CV-14-02050-TUC-DCB

CourtUnited States District Courts. 9th Circuit. United States District Courts. 9th Circuit. District of Arizona
Writing for the CourtHonorable David C. Bury United States District Judge
PartiesRoy Warden, Plaintiff, v. Richard Miranda, et al., Defendants.
Docket NumberNo. CV-14-02050-TUC-DCB,CV-14-02050-TUC-DCB
Decision Date21 July 2017

Roy Warden, Plaintiff,
Richard Miranda, et al., Defendants.

No. CV-14-02050-TUC-DCB


July 21, 2017


April 10, 2006, was a national day of protest for workers and immigrants' rights across the United States, and an estimated 12,000-14,000 people marched in Tucson to protest the treatment of immigrants in this country. The march ended in a rally at Armory Park, which was open to all members of the public. The Plaintiff and several associates were counter-protesting that day against illegal immigrants. They went into Armory Park in the midst of the pro-immigrant marchers and burned two Mexican flags while denouncing illegal immigrants. (P's Response, SOF (Doc. 116) ¶ 6). The crowd of pro-immigration marchers became agitated and violent. According to the Plaintiff, "the 'pro-raza' participants rioted in 2006" because of "Plaintiff's speech." Id. at ¶ 4) (emphasis in original). The police arrested several marchers, but did not arrest the Plaintiff. He was escorted away from the violent crowd. (Ds' MSJ, SOF (Doc. 102) ¶2.)

Plaintiff filed two law suits arising from the events of that day, CV 07-190 TUC CRP and CV 07-664 TUC DCB. In both, Judgement was entered against the Plaintiff.

Following the 2006 "riot," the May 1st Coalition for Worker and Immigrant Rights

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(the Coalition/CWRI),1 which organizes the annual May Day march and rally, began applying for and obtaining exclusive use permits for all future May Day rallies. "The Coalition planned to exclude Mr. Warden and any others the Coalition thought did not share [their] peaceful message of worker and immigrants' rights in order to prevent another disturbance like the one that occurred on April 10, 2006." (Ds' SOF at ¶ 5; Ex. C: Miles Decl. ¶ 3 (peacekeeping and security coordinator for the Coalition). In 2010 and 2011, Plaintiff filed a lawsuit complaining about being precluded from the May Day Armory Park rally, CV 11-460 TUC DCB (BPV), which was dismissed without leave to amend because the Plaintiff was not diligent in seeking the identity of unknown TPD officers he sought to name.2

On April 25, 2014, the Plaintiff filed the Complaint in this case alleging intentional and negligent violations of the First Amendment to the United States Constitution because he was refused access to Armory Park on May 1,3 2012. Plaintiff argues that under Gathright v. City of Portland, 439 F.3d 573 (9th Cir. 2006), the City of Tucson Defendants (the City), pursuant to an exclusive use permit, improperly precluded his entry to the May Day rally. On August 10, 2015, this Court denied a Motion to Dismiss filed by the City, finding the Plaintiff alleged sufficient facts to state his claim, and allowed the case to go forward for disposition on the merits. The parties have completed discovery and file cross motions for summary judgment.

The Court denies the Plaintiff's Motion for Summary Judgement and grants the Defendants' Motion for Summary Judgment. The Court denies the Defendants' Motion

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to Preclude Witnesses as moot. It denies the Plaintiff's Motion for Sanctions as meritless.

The Court denies the Plaintiff's request for oral argument because the parties submitted memoranda thoroughly discussing the law and evidence in support of their positions. The Court finds no material questions of fact in dispute relevant to whether Plaintiff's First Amendment rights were violated. This is a case where both sides draw different legal conclusions based on essentially the same facts. Oral argument will not aid the court's decisional process which is based on a question of law. See Mahon v. Credit Bur. of Placer County, Inc., 171 F.3d 1197, 1200 (9th Cir. 1999) (explaining that if the parties provided the district court with complete memoranda of the law and evidence in support of their positions, ordinarily oral argument would not be required).

For reasons explained below, the Court finds that as a matter of law, Defendants did not violate the Plaintiff's First Amendment rights nor did they retaliate against him for exercising them.

1. Standard of Review for Summary Judgment

On summary judgment, the moving party is entitled to judgment as a matter of law if the Court determines that in the record before it there exists "no genuine issue as to material fact." Fed.R.Civ.P. 56(a). When considering a summary judgment motion, the court examines the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits or declarations, if any. Fed. R. Civ. P. 56(c). The Plaintiff incorporates by reference arguments and evidence presented previously during briefing of Defendants' Motion to Dismiss. See (P's MSJ (Doc. 100) at 2, ¶ 2 (incorporating Response to MD (Doc. 22)). While a party may call the Court's attention to anything contained in a previous pleading or motion by incorporation by reference, LRCiv. 7.1(d)(2), "'Judges are not like pigs, hunting for truffles buried in briefs,'" Christian Legal Soc. Chapter of Univ. of Calif. V. Wu, 626 F.3d 483, 488 (9th Cir. 2010) (quoting Greenwood v. FAA, 28 F.3d 971, 977 (9th Cir. 1994) (quoting United States v Dunkel,

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927 F.2d 955, 956 (7th Cir. 1991) (per curiam)). Therefore, broad generalized references do not suffice. Any incorporation by reference must be made specifically and distinctly.

Accordingly, the Court considers Plaintiff's incorporation by reference of this Court's findings and conclusions of law made in the Order denying Defendants' Motion to Dismiss. See (P's MSJ (Doc. 100) at 3-7, ¶¶ 4.A-H.) They are, however, not determinative of the cross motions for summary judgment. When considering the Defendants' Motion to Dismiss, this Court was applying a liberal pleading standard. Fed. R. Civ. P. 8, (Order (Doc. 29) 4-5). The Court considered only whether the Plaintiff alleged facts which plausibly suggested a constitutional violation. The Court took the facts alleged by the Plaintiff as being true, even if doubtful, and construed them in the light most favorable to the non-moving, the Plaintiff. Id.

The assumptions made by the Court when denying Defendants' Motion to Dismiss are not evidence. See e.g., (P's MSJ (Doc. 100) at 7 ¶ 4.H, 5 (citing Court's assumptions made related to procedures for permit approval as "correct"). A motion to dismiss is filed prior to discovery, whereas summary judgment comes after the parties have marshalled the evidence through discovery to support a claim. The Defendants correctly explain that on summary judgment, the parties must "put up" their evidence. (Ds' Reply (Doc. 119) at 2.)

The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact, but is not required to support its motion with affidavits or other similar materials negating the opponent's claim. Celotex Corp. v. Catrett, 477 U.S. 317, 323-325 (1986). In determining whether to grant summary judgment, the Court views the facts and inferences from these facts in the light most favorable to the non-moving party. Matsushita Elec. Co. v. Zenith Radio Corp., 475 U.S. 574, 577 (1986).

The mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). A material fact is any factual dispute that might affect the outcome

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of the case under the governing substantive law. Id. at 248. A factual dispute is genuine if the evidence is such that a reasonable jury could resolve the dispute in favor of the non-moving party. Id.

The moving party is under no obligation to negate or disprove matters on which the non-moving party bears the burden of proof at trial. Id. at 325. Rather, the moving party need only demonstrate that there is an absence of evidence to support the non-moving party's case. Id. If the moving party meets its burden, it then shifts to the non-moving party to "designate 'specific facts showing that there is a genuine issue for trial.'" Id. at 324 (quoting Fed.R.Civ.P. 56(e)). To carry this burden, the party opposing a motion for summary judgment cannot rest upon mere allegations or denials in the pleadings or papers. Anderson, 477 U.S. at 252. The non-moving party must "do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita, 475 U.S. at 586. "The mere existence of a scintilla of evidence ... will be insufficient; there must be evidence on which the jury could reasonably find for the [non-moving party]." Anderson, 477 U.S. at 252.

Here, because the parties file cross motions for summary judgment, both must "put up or shut up." (Ds' Reply (Doc. 119) at 2 (quoting Harney v. Speedway Super-America, 526 F.3d 1099, 1104 (7th Cir. 2008)).

The Supreme Court's trilogy of cases, cited above, opened the door for the district courts to rely on summary judgment to weed out frivolous lawsuits and avoid wasteful trials. Rand v. Rowland, 154 F.3d 952, 956 -957 (9th Cir. 1998);10A Charles A Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice & Procedure, § 2727, at 468 (1998). As explained in Celotex: "the plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322. The Judge's role on a motion for summary judgment is not to

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determine the truth of the matter or to weigh the evidence, or determine credibility, but to determine whether there is a genuine issue for trial. Anderson, 477 U.S. at 252.

2. Plaintiff's Motion for Summary Judgment
The Exclusive Use Permit

Plaintiff argues that "on March 14, 2012, Pancho Medina, acting under the direction of Isabel Garcia4...

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