DECLARATION OF ROY WARDEN IN SUPPORT OF MOTION TO DISQUALIFY U.S. DISTRICT COURT JUDGE DAVID BURY FOR BIAS

7/30/2019 DECLARATION OF ROY WARDEN IN SUPPORT OF MOTION TO DISQUALIFY U.S. DISTRICT COURT JUDGE DAVID BURY…

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DECLARATION OF ROY WARDEN IN SUPPORT OFMOTION TO DISQUALIFY JUDGE BURY FOR BIAS

IN 11–CV 00460 DCB BPV

I Roy Warden, under penalty of perjury, do herein declare, swear

and affirm as follows:

1. I am the Plaintiff in this case, a resident of Tucson Arizona

and I have direct personal knowledge of the events to

which I testify below.

2. Ever since 2004 I have been a community activist and the

publisher of Common Sense, Common Sense II and

Arizona Common Sense, political newsletters sent to more

than 1,200 members of the Pima County Bar, numerous

public officials, several hundred members of the media,

political activist groups, etc.

3. Numerous readers of my political newsletters have

informed me that my “common law” relationship with

Martina Lucas, Plaintiff in Lucas v Sowers, CV 09-123 TUC

DCB, and the de-tails of this and previous cases allegingviolations of Title 42 Section 1983 I have filed against local

public officials, inclu-ding Pima County Legal Defender

Isabel Garcia, have been widely known to a significant

number of the Pima County Legal Community, including

judges, for a number of years.

4. Significant to the issues raised in my Motion to Disqualify

Judge Bury; I have been the target of judicial interference

and retaliation in my court actions ever since 2005, when

the ACLU and Attorneys David Euchner and Angela Polizzi

filed a Title 42, 1983 claim against the Pima County

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Superior Court and Pima County Superior Court Judges Fell

and Leonardo, 4:05 CV 00020 JCG.

5. Regarding 4:05 CV 00020 JCG: Prior to April 11, 2005 when

the Court granted attorneys Euchner and Polizzi’s Motion

to Withdraw, I filed an affidavit including a letter written to

me by attorney Euchner, on March 02, 2005, which stated,

in sum and substance, that the Arizona Supreme Court

had in-formed Euchner that the Court wanted me to cease

writing stories about Pima County Superior Court Judges,

or Attorneys Pollizi, Euchner and the ACLU would have to

“drop” my representation, which they did. (Exhibit One)

I. JUDGE BURY DEMONSTRATED BIASAGAINST PLAINTIFF IN WARDEN v PIMACOUNTY LEGAL DEFENDER ISABELGARCIA, CV 07-664-TUC DCB

6. On December 13, 2007 I filed a claim in U.S. District Court

alleging Pima County Legal Defender and Director of an

“Open” Border “Pro Raza” advocacy group, Derechos

Huma-nos, Isabel Garcia, assisted by members of the

media, had engaged in conspiratorial acts with other state

actors to violate my constitutional rights, including my

right to a fair trial; the Honorable John Roll presiding.

7. The case was eventually reassigned to Judge Bury.

8. On April 16, 2008 Richard Gonzales, attorney for

Defendant Pima County Legal Defender Isabel Garcia, filed

a Motion to Dismiss, alleging amongst other things, that

Pima County Legal Defender Isabel Garcia was not a “stateactor.”

9. On May 01, 2008 Judge Bury, on the basis of allegations

made by Attorney Gonzales, voided my In forma pauperis

status and dismissed my case without (1) permitting me to

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answer the Motion to Dismiss, (2) providing me with a

state-ment from the Court setting forth my complaint’s

alleged deficiencies, as provided by law, or (3) granting

me permis-sion to amend complaint.

10. Subsequently; on May 29, 2008 I filed a Notice of Appeal.

11. On June 04, 2008 Judge Bury rescinded my in forma pau-

peris status for purpose of appeal, declaring that my

appeal was “taken primarily to vex the Defendants, and is

therefore not taken in good faith.”

12. On September 10, 2008 the Ninth Circuit Court of Appeals

dismissed my appeal for failure to pay the requisite

$455.00 filing fees.

13. In paragraphs 10-21 of my Motion to Disqualify Judge

Bury, I set forth specific facts to support the above

allegations.

II. JUDGE BURY FAILED TO REVEAL EXTRA JUDICIAL COMMUNICATION IN LUCASV SOWERS WHICH CREATED ADDITONAL

JUDICIAL BIASBackground:

12. In early 2006, Martina Lucas asked me for an attorney

refer-ral to represent her in a medical malpractice action

against a local physician, Dr. Sowers, whose failure to

diagnose pneu-monia caused Ms. Lucas loss of vision in

her left eye.

13. I recommended Judge Thomas Zlaket, because I knew

Judge Zlaket used to be the Chief Justice of the Arizona

Supreme Court.

14. Ms. Lucas told me her first interview with Judge Zlaket

went “very well.”

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15. Subsequently; I helped Ms. Lucas obtain, review and

deliver to Judge Zlaket medical records from Dr. Sowers.

16. For a number of months I observed, and helped document,

Ms. Lucas communications with Judge Zlaket.

17. Eventually, I “overheard” a conversation between Ms.

Lucas and Judge Zlaket during which Judge Zlaket

expressed his “concern” that one of Ms. Lucas’ treating

physicians, Dr. Lin-coln (who coincidently was a “personal

friend” of Judge Zlaket) was reluctant to testify against Dr.

Sowers.

18. I was present on or about February 07, 2007 when Ms.

Lucas contacted Judge Zlaket’s office to inform him she

was scheduled for a second surgery to correct problems to

the cornea and lens of her damaged left eye.

19. I “overheard” Judge. Zlaket’s assistant greet Ms Lucas

very coldly. To the best of my recollections her words were

to Ms. Lucas were: “After you’re surgery you’ll be causing

trouble in the streets again!”

20. Ms. Lucas seemed stunned when she hung up the phone. Iimmediately understood Judge Zlaket’s assistant was

refer-ring to my political conduct, a subject and a

relationship of which, to the best of my knowledge, Ms.

Lucas had never spoken to anyone about.

21. Subsequent to Ms. Lucas’ surgery and partial recovery I

went with Ms. Lucas to meet with Judge Zlaket.

22. During this meeting I responded to Judge. Zlaket’s

observa-tion to Ms. Lucas, “I can’t take your case because

how could anyone know that the pneumonia you had

would injure your eye,” by stating: “I know why you’re

dropping this case. It’s because of me!”

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23. Judge Zlaket replied, “Who are you?”

24. I said; “I’m the guy standing up to the legal community

and the Republicans for engaging in Open Border Policy!”

25. Subsequently; Judge. Zlaket ordered me to leave the

room.

26. Later Ms. Lucas told me Judge Zlaket said: “You will never

get justice in this town as long as you have anything to do

with Roy Warden!”

27. In the course of the next several months I helped Ms.

Lucas contact a number of medical malpractice attorneys;

however each time they refused to represent her.

28. Finally I contacted a reader of Common Sense, a legal pro-

fesssional, who told me: “The word’s gone out. No

attorney in town will take Ms. Lucas’ case because of her

connection to you and your politics.”

29. Eventually; a “political” contact recommended Mr. Michael

Price, who agreed to represent Ms. Lucas in her

malpractice case against Dr. Sowers.

30. When Lucas v Sowers was filed in Federal Court, the casewas assigned to the Honorable David Bury.

31. On several occasions I expressed my “concern” to Mr.

Price regarding Judge Bury presiding over Ms. Lucas’ case,

stating in sum and substance: “Judge Bury will retaliate

against Ms. Lucas if he ever finds out her connection to

me.”

32. On these occasions, in sum and substance, Mr. Price

assured me: “You don’t have anything to worry about in

this regard, Roy. Judge Bury and I are good friends

socially. We’re fellow Republicans.”

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33. The basis of my concern was the shocking abusive and un-

lawful manner in which Judge Bury rescinded my in forma

pauperis status in Warden v Garcia thus ending my case

and subsequent appeal to the Ninth Circuit, for Judge

Bury’s fail-ure to (1) allow me to answer Defendant

Garcia’s Motion to Dismiss, (2) issue an order setting forth

my complaint’s de-ficiencies, as provided by law and (3)

grant me permission to amend complaint.

34. Subsequently; Mr. Price failed altogether to prepare Ms.

Lucas for her deposition.

35. Ms. Lucas returned home from their “prep” meeting with a

foot high stack of documents, and said: “Mr. Price told me

to read these documents and prepare myself.”

36. I read the documents and prepared Ms. Lucas accordingly.

37. When Ms. Lucas returned home from her deposition she

told me Mr. Price was “very pleased” with her testimony.

“Mr. Price said, based on my testimony and his research I

should get a $800,000.00 settlement offer.”

38. However; I became alarmed when Mr. Price failedaltogether to answer Defendant Sowers’ Motion for

Summary Judgment, even though the Court gave him

several continuances.

39. Eventually the Court set a date for the parties to meet

with the Federal Court Mediator to discuss settlement.

40. When Ms. Lucas returned from the first settlement

meeting she was absolutely dismayed when she told me:

“Mr. Price told me to take their offer of $25,000.00 He told

me: ‘You better take it, because I can guarantee if we go

to trial you will get nothing!’”

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41. Ms: Lucas shouted at me: “They’re doing this to me

because of you Roy! It’s your fault! Just like Judge Zlaket

said, ‘You’ll never get justice in this town as long as you

have anything to do with Roy Warden!’”

42. Subsequently; Ms. Lucas accepted a settlement amount

pro-viding her with $39,000; I gave her an additional sum

to pay off her mortgage.

Lucas v. Sowers: An Additional Basis For Judge Bury’s

Bias:

43. On or about February 17, 2010 Ms. Lucas had filed in

Tucson City Court Case # CR-9139247, a sworn affidavit in

which she disclosed (1) her long term emotional problems

due to the catastrophic loss of vision in her left eye, which

was the underlying subject matter inspiring Lucas v

Sowers, (2) that her pain had “often been expressed by

emotional outburst and long periods of depression,” (3)

that “some of the medications prescribed to treat (her)

pain and depress-sion have had undesirable side effects,

which have resulted (in) dramatic mood swings anddomestic strife,” and (4) that the incident which occurred

at her residence for which I was being prosecuted for

alleged domestic violence and distur-bing the peace was

inspired by an adverse reaction to her medications.

44. Immediately subsequent to filing this document with the

Court, I observed Ms. Lucas send a copy to Mr. Price.

45. Therefore; on or about April 17, 2013 when I reviewed the

Lucas v Sowers case file I was astonished to find the

Stipula-ted Motion to Extend Discovery, Doc. 26, in which

Mr. Price declared:

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“In early July, 2010, Plaintiff (Lucas) sustained analleged “multi-day” episode of domestic violencewhich resulted in such injuries as to require hos-pitalization and a substantial period of recuper-ation before being able to resume normal ac-

tivities. The alleged perpetrator is facing multiplefelony charges.”

45. Charles Davis, the government attorney in Lucas v

Sowers, further repeated the sum and substance of Mr.

Price’s claims in document 32.

46. Significant to the veracity of Mr. Price’s allegations to

Judge Bury in Lucas v Sowers: Mr. Price was in possession

of the Declaration of Martina Lucas, signed on February

17, 2010, and thus fully informed as to the true facts

regarding Ms. Lucas’ violent outbursts when he made this

representation to the Court.

47. Moreover; contrary to Mr. Price’s assertion in document 26

of Lucas v Sowers; no felony charges were ever filed

against me.

48. Significantly; at trial the Court found me “Not Guilty.”

49. Significantly; Ms. Lucas has faced 4 separate counts of do-

mestic violence, including her arrest for the incident Mr.

Price alleges occurred “in early July 2010.”

50. All charges against Ms. Lucas were eventually dropped,

due to her “adverse reaction to prescribed medications,”

as set forth in her Declaration dated February 17, 2010.

CONCLUSION

In conclusion, Plaintiff herein advises the Court of the fol-

lowing: Plaintiff has shared every pleading and every Court

Order in this action, and his previous actions, with the entire

reader-ship of Plaintiff’s internet newsletter Arizona Common

Sense, which includes some 1,200 members of the local bar.

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Frankly: there is a growing uneasiness within the Pima

County Legal community that this is a “political case the Court

wants to get rid of.”

A significant number of readers (including a retired

Superior Court Judge) have advised Plaintiff that, as a

consequence of the “musical chairs” played by the Federal

Judges who were assigned to this case subsequent to the

mysterious departure of Judge Cindy Jorgenson for reasons of

“conflict of interest” (when the Judge, apparently, had no

conflict for the nine months she presided over the case, until

she had to rule on Plaintiff’s “Motion for Reconsideration”),

Plaintiff should review the Rules of Conduct for Federal Judges

and take appropriate action.

Plaintiff has taken their advice, and now is preparing docu-

ments for the Ninth Circuit.

In the interim, Plaintiff reminds the Court of the following

dicta from Baker v Carr, 369 U.S. 186 (1962):

“The Court’s authority, possessed of neither thepurse nor the sword, ultimately rests onsustained public confidence in its moralsanction.”

Therefore; on the basis of the disclosures I make above

and in my Motion to Disqualify Judge Bury, under penalty of

perjury, I have a reasonable belief that Judge David Bury had a

deeply rooted, pre-existing bias and disposition against my

legal interests, on the basis of my political conduct, his

conduct in Warden v Garcia and the fallacious allegations

made to him by Attorney Michael Price in Lucas v Sowers, on

the date he accepted his appointment to this case.

_______________ ___________________

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Date Roy Warden

State of Arizona

County of _____________

On this ____day of ____________________, 2013, beforeme the undersigned Notary Public, personally appearedRoy Warden, known to me to be the individual whoexecuted the foregoing instrument and acknowledged thesame to be his free act and deed.

My Commission Expires:_______________ ___________________ Notary

Original and one copy filed with the Court on May 10,2013. I hereby certify that on May 10, 2013, I personallyhand served the attached document to the Office of the Tucson City Attorney and by email, on the following:

Viola Romero-WrightPrincipal Assistant Tucson City [email protected]

BY:

_______________________

Roy Warden, Plaintiff

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mailto:[email protected]

mailto:[email protected]

Documents

DECLARATION OF ROY WARDEN IN SUPPORT OF MOTION TO DISQUALIFY U.S. DISTRICT COURT JUDGE DAVID BURY FOR BIAS