WARDEN APPEAL TO THE 9TH CIRCUIT

1

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 14-15803

ROY WARDEN,

Plaintiff-Appellant,

v.

KATHLEEN ROBINSON,

Defendant – Appellee

ON APPEAL FROM THE UNITED STATES DISTRICT

COURT

FOR THE DISTRICT OF ARIZONA

Case No. 4:13-cv-00283 - DCB

Honorable David Bury, United States District Court Judge

________________________________________________________

APPELLANT’S OPENING BRIEF

Roy Warden, Appellant, in forma pauperis

3700 South Calle Polar

Tucson Arizona 85730

[email protected]

(520) 551-3496

Case: 14-15803 08/31/2014 ID: 9224887 DktEntry: 5 Page: 1 of 26

mailto:[email protected]

2

TABLE OF CONTENTS

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

Statement of Subject Matter and Appellate Jurisdiction……… 4

Statement of the Issues……………………………..………… 5

Statement of the Case………………………………..……….. 6

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

Statement of Related Cases and Proceedings………………… 13-14

Argument Summary………………………………………….. 14-15

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

Argument:

I. The district court committed reversible error by screen-

ing and dismissing for “failure to state a claim” Appel-

lant’s non-prisoner civil rights claim filed in forma pau-

peris ..……………..….......................................................

16-19

II. The district court committed reversible error by screen-

ing and dismissing appellant’s in pro se First Amended

Complaint after Appellant paid filing fees, had the com-

plaint served and was no longer subject to screening and

dismissal as per 28 U.S.C. § 1915….……..……..……..

19-21

III. The district court committed reversible error by failing

to provide Appellant a statement of the First Amended

Complaint’s alleged deficiencies and an opportunity to

amend, as required by Noll v. Carlson, 809 F.2d 1446….

21-22

Summary……………………………………………………... 22-23

Conclusion…………………………………………………… 23-25

Proof of Service……………………………………………… 25

Certificate of Compliance……………………………………. 26


3

TABLE OF AUTHORITIES

Cases: Page

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

15

Kane v. Lancaster County Dept. of Corrections,

960 F.Supp. 219 (D.Neb. 1997) 7, 18, 19

McKeever v. Block, 932 F.2d 795 (9th Cir. 1991) 14, 18, 22,

23

Neitzke v. Williams, 109 S.Ct. 1827 (1989) 7, 16, 17,

18, 22

Noll v Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987) 5, 7, 12 ,

13, 15, 21,

22

Rules:

F.R.Civ.P. 12(b)(6) 16, 17, 19

Statutes:

28 U.S.C. § 1915 & § 1915(A) 4, 5, 6, 7,

13, 15, 16,

17, 18, 20,

21, 22, 23

Other Authorities:

Winning on Appeal by Ruggero J. Aldisert, Senior United States

Circuit Judge The United States Court of Appeal for the Third Cir-

cuit

24

Civil Rights and Civil Liberties Litigation by Sheldon Nahmod 23

The Nature of the Judicial Process by Benjamin Cardozo 6


4

JURISDICTIONAL STATEMENT 1

Appellant, a political activist, director of the Tucson Weekly 2

Public Forum, publisher of Arizona Common Sense, (and a non-3

prisoner for the purpose of this appeal), filed the underlying case1 4

against Tucson city officials on April 25, 2013 in the U.S. Court, 5

District of Arizona, under 28 U.S.C. § 1343(a)(3) alleging negligent 6

and intentional violations of constitutional rights, as provided by 42 7

U.S.C. § 1983 and 42 U.S.C. § 1985. 8

The final order dismissing all Appellant’s claims was entered by 9

the court clerk on April 1, 2014. 10

Appellant filed his Notice of Appeal on April 23, 2014. 11

The Ninth Circuit Court of Appeals has jurisdiction to hear ap-12

peals from a final decision of the U.S. District Court as provided by 13

28 U.S.C. § 1291. 14

Appellant appeals an Order of the Court dated August 23, 2013 15

which dismissed Defendant Tucson city officials Walkup, Koza-16

chik, Miranda, Rankin, Riojas, Villaseñor, Couch, the City of Tuc-17

son, and Does 1-100, without prejudice, for “failure to state a claim,” 18

under the provisions of 28 U.S.C. § 1915, even though Appellant 19

1 Warden v. Tucson City Officials, 4:13 cv-00283 DCB


5

paid filing fees, the clerk issued summons, and defendant Tucson 1

city government officials were served the First Amended Complaint 2

on August 22, 2013. 3

STATEMENT OF THE ISSUES 4

I. Does 28 U.S.C. § 1915 grant the district court the jurisdiction to 5

screen and dismiss, prior to service, the 42 U.S.C. § 1983 civil 6

rights claim of a nonprisoner filed in forma pauperis for “failure 7

to state a claim?” 8

II. Did U.S. District Court Judge David Bury commit reversible er-9

ror when he dismissed Appellant’s in pro se, nonprisoner filed 10

First Amended Complaint under the provisions of the 28 U.S.C. 11

§ 1915, after Appellant paid the filing fees, the clerk issued sum-12

mons, and the complaint was served? 13

III. Did U.S. District Court Judge David Bury commit reversible er-14

ror when he dismissed Appellant’s in pro se, nonprisoner filed 15

First Amended Complaint without (1) identifying the com-16

plaint’s deficiencies and (2) without providing Appellant an op-17

portunity to amend complaint, as required by Noll v Carlson, 809 18

F.2d 1446? 19

20


6

STATEMENT OF THE CASE 1

“The great tides and currents which engulf the rest of men, do 2

not turn aside in their course and pass the judges by.”2 3

It is impossible to separate the district court’s rulings, which are 4

the subject of this appeal, from the underlying community politics 5

inspiring the contentious border issues which have rocked this state 6

since the passing of the Arizona Citizen’s Initiative PAN in 2004, 7

the April 10, 2006 Riot in Armory Park, the Arizona Legislature 8

passing of SB 1070 and HB 2281 in 2010, and Appellant’s excoria-9

tions of Tucson City Open Border Policy in front of the Tucson City 10

Council, and in street demonstrations, which continue to this date. 11

28 U.S.C. § 1915 provides for the pre-service screening of in 12

forma pauperis suits against government officials and the lawful 13

dismissal of those suits on the basis of frivolity and malice. How-14

ever, the 9th Circuit Court of Appeals has not yet addressed the ques-15

tion as to whether such pre-service screening for nonprisoners may 16

include dismissal for “failure to state a claim,” even though the U.S 17

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


7

Supreme Court3 and the District Court, D. Nebraska4 have ruled that 1

such pre service screening and dismissal is unconstitutional. 2

Moreover; 28 U.S.C. § 1915 does not authorize the Court to 3

screen and dismiss, sua sponte, in pro se, nonprisoner filed com-4

plaints after filing fees are paid, the clerk issues summons, govern-5

ment defendants are served and the plaintiff is no longer subject to 6

the provisions of 28 U.S.C. §1915. 7

Finally; the Court dismissed Appellant’s in pro se First Amended 8

Complaint without (1) providing Appellant with a short statement 9

of the complaint’s deficiencies and (2) providing Appellant with an 10

opportunity to amend complaint, as required by Noll v Carlson, 809 11

F.2d 1446. 12

STATEMENT OF FACTS 13

1. Appellant, a nonprisoner, is an unpaid political activist, the 14

publisher of Common Sense II, CSII Press, Arizona Common 15

Sense and the Director of the Tucson Weekly Public Forum. 16

2. Appellant has spent the last 9 years investigating allegations of 17

malfeasance within the legal and political institutions of Pima 18

3 Neitzke v. Williams, 109 S.Ct. 1827-1829, 1832 (1989)

4 Kane v. Lancaster County Dept. of Corrections, 960 F.Supp. 210 (D.Neb. 1997)


8

County, including the malfeasance of Tucson city officials, 1

whom Appellant alleges, have used their public offices (1) to 2

aid and abet, entice and invite, and otherwise encourage the 3

unlawful entry of impoverished Mexican citizens to supply lo-4

cal contractors with low cost labor, (2) to advance the policy of 5

the Mexican government to exclude their poor so they may 6

come to America to earn and send home remittances, and (3) 7

to employ city administrators on the basis of cronyism and not 8

on the basis of their fitness to hold public office. 9

3. Appellant’s political activities, including street demonstra-10

tions5 and internet publications, have so infuriated the most 11

prominent special interests residing in Tucson Arizona, includ-12

ing high profile public officials and members of the legal com-13

munity, (including judges6), that Appellant has been subjected 14

5 Appellant held his most recent demonstration in front of the Tucson Mexican

Consulate on July 18, 2014.

6 In 2009 Appellant wrote several articles excoriating Ruth McGregor, Chief Jus-

tice of the Arizona Supreme Court, regarding the appearance of judicial impro-

prieties and her apparent support for “pro-raza” politics, held a rally in front of

the Arizona Supreme Court, lobbied the Arizona Legislature, and, on March 24,

2009 published “Arizona Supreme Court Chief Justice Ruth McGregor Resigns

in Disgrace.”

On January 29, 2013 Appellant published “Is the Federal Court ‘Judge Shop-

ping’ in Warden v. Miranda, Rankin, et al?” regarding the apparent violation of

LRCiv 3.7 which requires random judge selection.


9

to a long series of arrests, prosecutions, etc., and, based on stat-1

ute of limitations considerations, Appellant’s filing of a num-2

ber of federal claims under U.S.C. 42 § 1983 and § 1985. 3

4. On April 25, 2013 Appellant filed the underlying case, Warden 4

v. Tucson City Officials, 4:13 CIV-00283 CKJ (Doc 1) and an 5

application to proceed in forma pauperis, (Doc 2) assigned to 6

the Honorable Cindy Jorgenson. However; on May 6, 2013 7

Judge Jorgenson recused7 herself on the alleged basis of a 8

“conflict of interest,” and the case was “assigned by random 9

lot” to Judge Bury. (Doc 4) 10

5. On May 10, 2013 Judge Bury, without ruling on Appellant’s 11

application to proceed in forma pauperis, assigned the case to 12

Magistrate Judge Bernard Velasco for “pretrial proceedings 13

and Report and Recommendation,” (Doc 5). 14

6. On August 5, 2013 Appellant presented the court clerk his 15

summons forms; however, the clerk was unable to issue sum-16

On February 4, 2013 Appellant published “Pima County Bar Advises Warden

on Judge Shopping.”

7 There is no personal connection or history whatsoever between Plaintiff and

Judge Jorgenson which would justify her recusal under 28 U.S.C. § 455.


10

mons because the court had not yet ruled on Appellant’s appli-1

cation for in forma pauperis status. The clerk said “this delay 2

is unusual” and advised Appellant to contact Judge Bury’s of-3

fice. Appellant called from the clerk’s office and left a 4

voicemail he was concerned time for service was running out. 5

7. On August 8, 2013 Appellant left another voicemail with Judge 6

Bury’s office expressing concern regarding service of com-7

plaint. 8

8. On August 8, 2013 Magistrate Judge Velasco issued his Report 9

and Recommendation (R&R) advising the Court to (1) grant 10

in forma pauperis status, and (2) dismiss, without prejudice, 11

Defendants Walkup, Kozachik, Miranda, Rankin, Riojas, Vil-12

laseñor, Couch, the City of Tucson, and Does 1-100 for “failure 13

to state a claim.8” (Doc 6) 14

9. On August 22, 2013, having three days left to serve Defendants 15

as per F.R.Civ.P. 4, Appellant (1) paid the $400.00 filing fee, 16

8 Appellant’s initial complaint failed to state specific claims and link individual

defendants to specific causes of action. However; Appellant’s First Amended

Complaint, filed and served on August 23, 2013, did state specific claims

and did link individual defendants to specific causes of actions, thus address-

ing the issue raised in the Magistrate’s Report.


11

(2) filed his First Amended Complaint (Doc 8) which made 1

specific claims and specific links from individual defendants 2

to specific causes of action, thus addressing the “failure to state 3

a claim” issue raised by Magistrate Judge Velasco in his 4

“R&R,” and (3) had his summons form stamped by court clerk. 5

10. On August 22, 2013 the Tucson city clerk accepted service of 6

the First Amended Complaint on behalf of Defendants Koza-7

chik, Miranda, Rankin, Villaseñor, and City of Tucson, except-8

ing (1) Defendant Riojas, who required service at City Court, 9

(2) Defendant (former) Mayor Walkup and (3) Defendant Of-10

ficer Couch who required service at the Tucson Police Depart-11

ment. 12

11. Around noon on August 22, 2013 Defendant Riojas was 13

served; however, Defendant Officer Couch had ceased em-14

ployment with TPD. 15

12. On August 23, 2013 Appellant filed his Objection to the Mag-16

istrate’s Report and Recommendation (Doc 10)9 17

9 N.B. The court clerk has, (apparently), engaged in “irregularities” by assigning

docket numbers which are out of sequence with filing dates. For example; Ap-

pellant’s First Amended Complaint, filed and served on August 22, 2013, was

assigned docket number 8. However; Judge Bury’s Order dismissing Appel-

lant’s First Amended Complaint, filed a day later on August 23, 2013, was as-

signed docket number 7.


12

13. On August 23, 2013 Judge Bury issued an order which (1) 1

granted Appellant in forma pauperis status, (2) stated the First 2

Amended Complaint was “substantially similar to the original 3

Complaint and contains the same legal infirmities,10” (3) failed 4

to state Appellant’s First Amended Complaint’s alleged defi-5

ciencies, as required by Noll v Carlson, 809 F.2d 1446 and, (4) 6

dismissed all defendants except Robinson, even though filing 7

fees had been paid, summons issued, and the complaint had 8

been served. (Doc 7) 9

14. On April 1, 2014 the court issued its final order dismissing all 10

claims in CIV 00283 and the clerk entered final judgment. 11

(Docs 32, 33) 12

15. On April 23, 2014 Appellant filed his Notice of Appeal (Doc 13

34) 14

16. The ruling under review is: Judge Bury’s Order dated August 15

23, 2013 dismissing Appellant’s First Amended Complaint and 16

claims against all defendants except Robinson. (Doc 7) 17

10 This is demonstrably untrue. Compare the Original Complaint, filed on April

25, 2013 (Doc 1), which fails to state specific causes of actions, to the First

Amended Complaint, filed on August 22, 2013. (Doc 8) which does state spe-

cific causes of actions.


13

STATEMENT OF RELATED CASES 1

17. On September 5, 2013 Appellant filed a new case in pro se, 2

Warden v. Walkup, CIV 01067, against all defendants which 3

the court dismissed without prejudice on August 23, 2013, the 4

case assigned to the Honorable Cindy Jorgenson. 5

18. Appellant, an indigent, paid the filing fee even though it caused 6

significant hardship, in the mistaken belief it would motivate 7

the district court to “respect” the rule of law regarding (1) the 8

random selection of judges as required by L.R.Civ.P. 3.7, (2) 9

the application, screening and pre-service dismissal provisions 10

of 28 U.S.C. § 1915 being limited to complaints which were 11

malicious or frivolous, and (3) the right of a nonprisoner pro 12

se to amend complaint as per Noll v Carlson, 809 F.2d 1446. 13

19. However; on September 20, 2013 Judge Jorgenson again re-14

cused11 herself on the basis of “conflict of interest,” and the 15

case was “assigned by random lot” to Judge Bury. 16

20. Appellant’s complaint in Warden v. Walkup, CIV 01067 made 17

specific claims and specific links from individual defendants 18

11 There is no personal connection or history whatsoever between Plaintiff and

Judge Jorgenson which would justify her recusal under 28 U.S.C. § 455.


14

to specific causes of action, thus addressing the “failure to state 1

a claim” issue raised by Magistrate Judge Velasco on August 2

8, 2013. 3

21. Nevertheless; on July 2, 2014 Judge Bury dismissed Warden v. 4

Walkup, CIV 01067 for “failure to state a claim,” with preju-5

dice, without a statement regarding the complaint’s alleged in-6

firmities, and without leave to amend. 7

22. Plaintiff filed his Notice of Appeal in CIV 01067 on July 25, 8

2014. 9

ARGUMENT SUMMARY 10

In the 9th Circuit “(appellant’s in forma pauperis) complaint could 11

properly be dismissed sua sponte and before the filing of responsive 12

pleadings only if it were frivolous. (A) complaint is frivolous only if it 13

contains inarguable legal conclusions or fanciful factual allegations.” 14

McKeever v. Block, 932 F.2d 795, 798 (9th Cir. 1991) internal citations 15

omitted. 16

Nevertheless; on August 23, 2013 the district court applied a differ-17

ent standard when it dismissed Appellant’s First Amended Complaint 18

for “failure to state a claim.” 19


15

Moreover; on August 23, 2013 the district court dismissed Appel-1

lant’s First Amended Complaint under the ostensible authority of 28 2

U.S.C. § 1915 even though the day before Appellant paid the filing fees, 3

summons was issued, the complaint was served upon Tucson city offi-4

cials and Appellant was no longer subject to the provisions of 28 U.S.C. 5

§ 1915. 6

Finally; the District Court dismissed Appellant’s in pro se First 7

Amended Complaint without (1) identifying the complaint’s deficien-8

cies and (2) without providing Appellant an opportunity to amend com-9

plaint, as required by Noll v Carlson, 809 F.2d 1446. 10

Simply stated: the Court’s sua sponte dismissal of Appellant’s First 11

Amended Complaint for failure to state a claim and without right to 12

amend, after Appellant paid filing fees, the Clerk issued summons, ser-13

vice of complaint had been effected upon Tucson city government of-14

ficials, etc., was a violation of Appellant’s procedural rights and of 15

clearly established law. 16

SCOPE OF REVIEW 17

Standard of review: “Court of Appeals reviews de novo the district 18

court’s dismissal of a complaint for failure to state a claim.” Hernandez 19

v. County of Tulare, 666 F.3d 631, 636 (9th Cir. 2012) 20


16

LEGAL ARGUMENT 1

I. The district court committed reversible error by screening 2

and dismissing, sua sponte, Appellant’s nonprisoner civil 3

rights claim, originally filed in forma pauperis, for “failure to 4

state a claim.” 5

Appellant respectfully contends: 28 U.S.C. § 1915 grants the district 6

court the authority to screen and dismiss in forma pauperis civil rights 7

claims on the basis of “frivolity,” or “malice;” it does not grant the dis-8

trict court authority to dismiss a complaint, sua sponte and prior to ser-9

vice, for “failure to state a claim” under F.R.Civ.P. 12(b)(6). 10

Appellant’s contention is based on the decision of the U.S. Supreme 11

Court in Neitzke v. Williams, 109 S.Ct. 1827, 1828 (1989) which 12

stated: “a provision in the federal in forma pauperis statute, 28 U.S.C. 13

§ 1915(d) authorizes courts to dismiss an in forma pauperis claim if, 14

inter alia, ‘the action is frivolous or malicious.’” Neitzke at 1828 15

The Neitzke Court explained the purpose of 28 U.S.C. § 1915 was 16

to “…halt the ‘flood of frivolous litigation’…the growing number of 17

prisoner civil rights complaints, the burden which disposing of merit-18

less complaints imposes on judicial administration, and the need to dis-19

courage prisoners from filing frivolous complaints as a means of gain-20

ing a ‘short sabbatical in the nearest federal courthouse.’” Neitzke at 21

1832 (internal citations omitted) 22


17

However; the Neitzke Court drew a clear distinction between friv-1

olous complaints and complaints which fail to state a claim: 2

“Where the appellate courts have diverged…is on the 3

question whether a complaint which fails to state a claim 4

under Federal Rule of Civil Procedure 12(b)(6) automati-5

cally satisfies this frivolousness standard. 6

“It is evident that the failure to state a claim standard of 7

Rule 12(b)(6) and the frivolousness standard of § 1915(d) 8

were devised to serve distinctive goals, and that while the 9

overlap between these two standards is considerable, it 10

does not follow that a complaint which falls afoul of the 11

former standard will invariable fall afoul of the latter..” 12

Neitzke at 1832 13

14

The Neitzke Court concluded that regarding in forma pauperis suits 15

“dismissal is proper only if the legal theory…or the factual contentions 16

lack an arguable basis,”12 and stated the rationale for their ruling: 17

“It is…consonant with Congress’ goal in enacting the in 18

forma pauperis statute of assuring equality of considera-19

tion for all litigants. To conflate these standards would 20

deny indigent plaintiffs the practical protections of Rule 21

12(b)(6)—notice of a pending motion to dismiss and an 22

opportunity to amend the complaint before the motion is 23

ruled on—which are not provided when the complaints 24

are dismissed sua sponte under § 1915(d).” Neitzke at 25

1829 26

Two years subsequent to Neitzke the 9th Circuit held: 27

(An in forma pauperis complaint) “…could properly be 28

dismissed sua sponte and before the filing of responsive 29

pleadings only if it were frivolous. See 28 U.S.C. § 30

1915(d). See also Neitzke v. Williams, 490 U.S. 319, 109 31

12 Neitzke at 1829


18

S.Ct. 1827, 1831… . A complaint is frivolous only if it 1

contains ‘inarguable legal conclusion[s]’ or ‘fanciful 2

factual allegations.’ Neitzke, 109 S. St. at 1833.” 3

McKeever v Block, 932 F.2d 795, 798 (9th Cir. 1991) 4

Regarding in forma pauperis § 1983 suits brought by nonprisoners: 5

eight years subsequent to the decision in Neitzke, the US Court of Ap-6

peals District of Nebraska stated: 7

“(Appellant) is not a ‘prisoner’ for purposes of 28 U.S.C. 8

§ 1915 and 28 U.S.C. § 1915A because (Appellant” was 9

not in jail or otherwise in custody when he filed the com-10

plaint… . (T)he statutes speak of “prisoner” in the present 11

tense. For example, 28 U.S.C. § 1915(a)(2) refers to a 12

‘prisoner seeking to bring a civil action…’ Likewise, 28 13

U.S.C. § 1915A(a) requires judicial screening of ‘a com-14

plaint in a civil action in which a prisoner seeks re-15

dress….” Moreover; the statutes define a ‘prisoner’ as 16

‘any person incarcerated or detained in any facility who is 17

accused of, convicted of, sentenced for, or adjudicated de-18

linquent for, violations of criminal law…” Kane v. Lan-19

caster County Dept. of Corrections, 960 F.Supp. 219, 220, 20

221 (D.Neb. 1997) 21

“In contrast to section 1915A that pertains to prisoners 22

only, there is no explicit authorization in 28 U.S.C. § 23

1915, which pertains to prisoners and nonprisoners alike, 24

for the courts to conduct preanswer screening for any pur-25

pose. (emphasis added) Kane at 221 26

“(A)lthough 28 U.S.C. § 1915, as amended in 1996, does 27

not explicitly authorize preanswer screening to decide 28

whether a nonprisoner complaint is “frivolous or mali-29

cious,” such preanswer screening has long been a part of 30

the in forma pauperis process for prisoner and nonprisoner 31

cases alike, See Neitzke v. Williams, 490 U.S. 319, 109 32

S.Ct. 1827….” Kane at 221 33


19

“Stated simply, sua sponte initial review for Rule 12(b)(6) 1

purposes is limited to prisoner cases pursuant to 28 U.S.C. 2

§ 1915A(a) & (b).” Kane at 221 3

Unlike in Kane, the district court in this case had no reason for 4

confusion regarding a change in Appellant’s status during the course of 5

the proceedings, because in the instant case, Appellant was not, and 6

never has been, a prisoner for violations of criminal law. 7

Appellant respectfully asks the 9th Circuit Court of Appeals to rule 8

that, for Rule 12(b)(6) purposes, sua sponte initial screening of 42 9

U.S.C. § 1983 cases, filed in forma pauperis or in pro se, is limited to 10

prisoner cases pursuant to 28 U.S.C. § 1915A(a) & (b). 11

II. The district court committed reversible error by screening 12

and dismissing Appellant’s in pro se First Amended Com-13

plaint after Appellant paid filing fees, had the complaint 14

served and Appellant was not a prisoner subject to screening 15

and dismissal as per 28 U.S.C. § 1915A 16

The Court of Appeals reviews de novo mixed questions of law and 17

fact. Mathews v. Chevron Corp., 362 F.3d 1172, 1180 (9th Cir. 2004) 18

Plaintiff’s filing of the First Amended Complaint, and the district 19

court’s ruling dismissing both the original complaint and the First 20

Amended Complaint, did not simultaneously arrive on the clerk’s desk. 21

First to arrive, on the morning of August 22, 2013, was Appellant’s 22

First Amended Complaint; the district court ruling was issued a day 23


20

later on August 23, 2013.13 Moreover; the district court’s order dismiss-1

ing both complaints acknowledged receipt of the First Amended Com-2

plaint by stating Appellant’s First Amended Complaint was …“sub-3

stantially similar to the original Complaint and contains the same legal 4

infirmities.” 5

Regarding complaint “similarities:” The district court is entitled to 6

its own opinion but it is not entitled to its own facts. 7

Appellant’s original complaint, (Doc 1) does fail to state specific 8

claims and does fail to link individual defendants to specific causes of 9

action, as set forth in the Magistrate’ R&R. 10

However; Appellant’s First Amended Complaint (Doc 8), does state 11

specific claims and does link individual defendants to specific causes 12

of actions, thus curing the original complaint’s infirmities and address-13

ing the issue raised in the Magistrate’s Report. 14

Irrespective of the court’s erroneous conclusion that the First 15

Amended Complaint is …“substantially similar to the original Com-16

plaint and contains the same legal infirmities,” as set forth in the Order 17

dated August 23, 2013, the court’s lawful authority to dismiss Appel-18

13 Please see footnote #8 page 11 regarding the clerk’s docketing “irregularities.”


21

lant’s case—under the provisions of 28 U.S.C. § 1915—ended on Au-1

gust 22, 2013 when Appellant paid filing fees, the clerk issued sum-2

mons and the First Amended Complaint was served on Tucson city of-3

ficials. 4

In this case the district court committed reversible error by dismiss-5

ing Appellant’s case, under the provisions of 28 U.S.C. § 1915, after 6

authority to so act had expired. 7

III. The district court committed reversible error by failing to 8

provide Appellant a statement of the First Amended Com-9

plaint’s alleged deficiencies and an opportunity to amend, as 10

required by Noll v. Carlson, 809 F.2d 1446 11

12

The Court of Appeals reviews de novo questions of law and the in-13

terpretation of federal rules. United States v. Urena, 659 F.3d 903, 908 14

(9th Cir. 2011) 15

Noll v Carlson, in pertinent part, provides: 16

“In Armstrong v. Rushing, 352 F.2d 836, 837 (9th Cir. 17

1965), we established that a pro se litigant bringing a civil 18

rights suit in forma pauperis is entitled to five procedural 19

protections. These (include): 20

“…(4) in the event of dismissal, a statement of the grounds 21

therefor, and (5) an opportunity to amend the complaint to 22

overcome the deficiency unless it clearly appears from the 23

complaint that the deficiency cannot be overcome by 24

amendment. 25

“While Fed.R.Civ.P. 15 places leave to amend within the 26

sound discretion of the trial court, we have stressed that a 27

court must remain guided by "the underlying purpose of 28


22

Rule 15 ... to facilitate decision on the merits, rather than 1

on the pleadings or technicalities." United States v. Webb, 2

655 F.2d 977, 979 (9th Cir.1981); see also Conley v. Gib-3

son, 78 S.Ct. 99, 103, (1957). A pro se litigant must be 4

given leave to amend his or her complaint unless it is "ab-5

solutely clear that the deficiencies of the complaint could 6

not be cured by amendment." Broughton v. Cutter Labor-7

atories, 622 F.2d 458, 460 (9th Cir.1980) (Per Curiam). 8

9

“The rule favoring liberality in amendments to pleadings 10

is particularly important for the pro se litigant. Presumably 11

unskilled in the law, the pro se litigant is far more prone to 12

making errors in pleading than the person who benefits 13

from the representation of counsel. Indeed, the Supreme 14

Court has held that allegations of a pro se complaint are 15

held to less stringent standards than formal pleadings 16

drafted by lawyers. Haines v. Kerner, 92 S.Ct. 594, 595-17

96. 18

“The requirement that courts provide a pro se litigant with 19

notice of the deficiencies in his or her complaint helps en-20

sure that the pro se litigant can use the opportunity to 21

amend effectively.” Noll at 1148 22

In this case the district court committed reversible error by failing to 23

provide Appellant with “… a statement of the grounds (for the dismis-24

sal) and “…an opportunity to amend the complaint,” as provided by 25

Noll. 26

SUMMARY 27

The district court committed reversible error by its order dated Au-28

gust 23, 2013 which violated 28 U.S.C § 1915 & § 1915(A), the law set 29

forth by the U.S. Supreme Court in Neitzke and the law set forth by the 30


23

9th Circuit in McKeever, by dismissing Appellant’s claim for “failure 1

to state a claim.” 2

Moreover; the district court committed reversible error by sua 3

sponte, dismissing Appellant’s First Amended Complaint, under the os-4

tensible authority of 28 U.S.C. § 1915 and § 1915(A), after Appellant 5

paid filing fees, the clerk issued summons, and the Tucson city govern-6

ment defendants had been served. 7

Finally; the district court committed reversible error by dismissing 8

Appellant’s First Amended Complaint without (1) issuing a short state-9

ment identifying the complaint’s infirmities, and (2) providing Appel-10

lant an opportunity to amend, as required by Noll. 11

CONCLUSION 12

13

“To the federal judiciary, guardians of the rule of law.14” 14

Appellant respectfully repeats the stirring words chiseled in stone 15

over the entrance to the U. S. Supreme Court: “Equal Justice Under 16

Law.” 17

14 Sheldon Nahmod, Civil Rights and Civil Liberties Litigation: The Law of Section

1983 (4th edition)


24

In this case Appellant wasn’t afforded “equal justice” or even the 1

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 Neitzke 3

(and the 9th Circuit in Noll and McKeever), put his thumb on the scales 4

of justice and denied Appellant his day in 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 to 7

determine questions to which no strict rule of law is applicable but 8

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

trolled by the personal judgment of the court.15” 10

However; we do not invest district court judges with the lawful au-11

thority to ignore statutes intended to protect the rights of the indigent, 12

prisoner and non-prisoner alike, who file in forma pauperis and in pro 13

se civil rights claims against their government. 14

Nor does our legal establishment, acting under authority granted by 15

we the people, invest district court judges with the lawful authority to 16

rule contrary to case law defining the F.R.Civ.P., as set forth by the U.S. 17

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

Judge, The United States Court of Appeals for the Third Circuit, citing Bouvier’s

Law Dictionary (1914).


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Supreme Court16 and, in the instant case, the 9th Circuit Court of Ap-1

peals.17 2

Both we the people and our legal establishment hold mutual respect 3

and expectations for each other: in America, all of us—citizen and gov-4

ernment official alike—are (theoretically) bound by the rule of law. 5

Our government holds we the people to that standard. For a free 6

people to expect anything less than “equal justice under law” from their 7

government, and their honored judiciary, is to submit to the rule of men, 8

and tyranny. 9

RESPECTFULLY SUBMITTED this 31st day of August 2014. 10

/s/ Roy Warden, Appellant in forma pauperis 11

12

13

14

I hereby certify that I electronically filed the foregoing with the 15

Clerk of the Court for the United States Court of Appeals for the Ninth 16

Circuit by using the appellate CM/ECF system on August 31, 2014. 17

I certify that all participants in the case are registered CM/ECF users 18

and that service will be accomplished by the appellate CM/ECF system 19

on August 31, 2014. 20

/s/ Roy Warden 21

22

16 Neitzke v. Williams, 109 S.Ct. 1827 (1989)

17 Noll v Carlson, 809 F.2d 1446 (1987), McKeever v. Block, 932 F.2d 795

(1991)


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CERTIFICATION OF COMPLIANCE 1

2

I Roy Warden, Appellant appearing in forma pauperis in 14-15803, 3

do herein declare, swear and affirm as follows: 4

The foregoing Appellant Opening Brief complies with the Rules of 5

Civil Appellate Procedure for the 9th Circuit Court of Appeals. 6

The font used is Times New Roman, font size 14. 7

This document contains 4,374 words, including footnotes and ex-8

cluding the Cover Page, Table of Contents and Table of Authorities. 9

10

/s/ Roy Warden 11

12


WARDEN APPEAL TO THE 9TH CIRCUIT

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