WARDEN MOTION TO DISQUALIFY U.S. DISTRICT COURT JUDGE DAVID BURY

7/30/2019 WARDEN MOTION TO DISQUALIFY U.S. DISTRICT COURT JUDGE DAVID BURY

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Roy Warden, Publisher

Common Sense II1015 West Prince Road#131-182

Tucson Arizona [email protected]

UNITED STATES DISTRICT COURTDISTRICT OF ARIZONA

ROY WARDEN,Plaintiff, IN PRO-

SEVs

RICHARD MIRANDA, individuallyand in his official capacity asChief of the Tucson Police De-partment; MICHAEL RANKIN,indi-vidually and in his officialcapa-city as Tucson CityAttorney; KATHLEENROBINSON, individual-ly and inher official capacity as AssistantChief of the Tucson PoliceDepartment; KATHRYNDORMAN, individually and in

her capacity as Officer of theTucson Police Department;YORL FRIEDMAN, individuallyand in his capacity as Officer ofthe Tucson Police Department;THE CITY OF TUCSON; andDOES 1-100,

Defendants.

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CV-11-0460-TUC-DCB (BPV)

MOTION TO DISQUALIFY JUDGEFOR FAILURE TO DISCLOSE BIAS

ORAL ARGUMENT REQUESTED

THE HON. BERNARDO P. VELASCO

COMES NOW Roy Warden, Plaintiff in the above case,

with his Motion to Disqualify the Honorable David Bury for hisfailure to disclose pre-existing bias, for reasons set forth in the

Declar-ation of Roy Warden in Support of Motion and as set

forth below:

MEMORANDUM OF POINTS AND AUTHORITIES

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1. 28 U.S.C.A 455, in pertinent part, provides:

Any justice, judge or magistrate of the UnitedStates shall disqualify himself in any proceedingin which his impartiality might reasonably beques-tioned.

He shall also disqualify himself(w)here he hasa personal bias or prejudice concerning a party,or personal knowledge of disputed evidentiaryfacts concerning the proceeding. Liteky v U.S.,114 S.Ct. 1147, 1153 (1994)

PROCEDURAL HISTORY

2. On July 29, 2011 Plaintiff filed his Complaint for

Damages in the above captioned case; assigned to theHonorable Magistrate Judge Bernard Velasco.

3. Subsequently; on March 01, 2012 Defendants elected to

have a full U.S District Court Judge preside over the

case; the Honorable Judge Cindy Jorgenson was

assigned.

4. Subsequently; in an Order dated May 02, 2012 Judge

Jorgenson revealed a potential conflict of interest. At asubsequent hearing Judge Jorgenson revealed her step

son was under consideration for a position with the

Tucson Police Department; however both parties waived

disqualification.

5. On November 16, 2012 Judge Jorgenson granted Defen-

dant Robinsons 12(b)(6) Motion to Dismiss on the basis

the statue of limitations for Plaintiffs suit against herhad expired.

6. On November 30, 2012 Plaintiff filed a Motion for Recon-

sideration which pointed out significant judicial error re-

garding the date the Court had used for its calculation.

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7. Consequently; on December 07, 2012 Judge Jorgenson

granted Plaintiffs Motion for Reconsideration and, in the

same Order of the Court, (mysteriously) recused herself

on the basis she had a conflict of interest, a conflict

that apparently she did not have prior to granting

Plaintiffs Motion for Reconsideration.

8. The case was reassigned to the Honorable Judge Raner

Collins.

9. On December 10, 2012 Judge Collins declined the ap-

pointment citing a conflict of interest.

10. Subsequently; the case was reassigned to the

Honorable Judge Frank Zapata; who declined the

appointment on De-cember 17, 2012, citing a conflict

of interest.

11. Finally; the case was assigned to the Honorable Judge

David Bury.

I. PRIOR TO ASSIGNMENT, JUDGE BURYDEMONSTRATED BIAS AGAINST PLAINTIFF IN

WARDEN v GARCIA, CV 07-664-TUC DCB

12. On December 13, 2007 Plaintiff filed a complaint in U.S.

District Court which alleged Pima County Legal

Defender Isabel Garcia, assisted by members of the

media, had engaged in conspiratorial acts with other

state actors, including a Tucson Municipal Court Judge,

to violate Plain-tiffs constitutional rights, including his

right to a fair trial; the Honorable John Roll was

assigned the case.

13. The complaint was supported by a number of sworn affi-

davits by witnesses (former police officer, minister,

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retired Major in the U. S. Army, former translator for the

Tucson Municipal Court, retired aerospace engineer)

who had ob-served Defendant Garcia using hand signals

to coach several prosecution witnesses at trial in

Tucson Municipal Court, in State v Warden, CR 6027386.

14. One affidavit set forth observations from which one

could reasonably conclude the Trial Judge, Eugene Hays,

assis-ted Defendant Garcia in obtaining a favorable

vantage point in the courtroom from which she could

coach the witnesss unobserved from the bench, by

ejecting, upon a pretext manufactured by a member of

Derechos Huma-nos, Joseph Sweeny, a protect the

border member of the audience who occupied a

position just behind a pillar, a position Defendant Garcia

immediately occupied after Judge Hays ejected Mr.

Sweeny from the Court.

15. On April 10, 2008 the case was transferred to the

Honor-able Judge David Bury.

16. On April 16, 2008 Richard Gonzales, on behalf of Defen-

dant Garcia, filed a Rule 12(b)(6) Motion to Dismiss.

(Doc 20)

17. On May 01, 2008, Judge Bury granted Defendant

Garcias Motion to Dismiss, with prejudice, without (1)

providing Plaintiff with a short statement setting forth

his complaints alleged deficiencies, (2) allowing Plaintiff

to answer Defendants Motion to Dismiss, or, (3)

allowing Plaintiff to Amend Complaint, on the basis of

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mere allegations1 (Defendant Garcia was acting in her

personal not official capacity on the day she coached

the witnesses) made by Attorney Richard Gonzales on

April 16, 2008, and subsequently denied (rescinded)

Plaintiffs in forma pauperis status granted by Judge

Roll.

18. On May 29, 2008 Plaintiff filed his notice of appeal.

19. On June 06, 2008 Judge Bury denied Plaintiffs in forma

pauperis status for the purpose of appeal, declaring

Plain-tiffs appeal was taken primarily to vex the

Defendants, and is therefore not taken in good faith.

(Doc 28)

20. On September 10, 2008 the Ninth Circuit denied

Plaintiffs in forma pauperis status and demanded

payment of $455.00, thus ending Warden v Garcia,

etc. (Doc. 34)

21. Regarding the protected status of Pima County Legal

De-fender Isabel Garcia: one trial observer in State v

Warden, Affiant Laura Leighton, was rebuffed when she

attempted to file a report with the F.B.I. concerning

Defendant Garcias witness coaching.

22. Plaintiff himself was rebuffed when he attempted to file

a similar report with the F.B.I.

II. JUDGE BURY DEVELOPED ADDITIONAL BIASAGAINST PLAINTIFF PRIOR TO HIS ASSIGNMENT

1 Attorney Gonzales represented Plaintiff had mounted andmain-tained a vile, incessant and hateful personal campaignaimed at Defendant, Isabel Garcia and others; moreover thatPlaintiff had filed frivolous lawsuits naming public officials andaccusing them of outrageous and nonsensical acts..

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23. Plaintiff has been informed by the readership of Arizona

Common Sense (a political newsletter, exposing corrupt-

tion within the political and legal institutions of Tucson

City and Pima County, read by more than 1,200 local

legal professionals) that, for many years now the local

legal community has been aware of his common law

status with Affiant Martina Lucas.

24. Regarding Judge Burys undisclosed bias; read the

Declar-ation of Roy Warden filed in support of this

motion.

25. On March 04, 2009 Plaintiffs common law wife, Martina

Lucas, (represented by local attorney Michael Price)

filed a medical malpractice action in U. S. District Court;

the Honorable David Bury presiding.

26. Regarding Judge Bury presiding over Lucas v Sowers,

CV-09-123-DCB: on several occasions Plaintiff expressed

his concern to Mr. Price regarding Judge Bury, stating

in sum and substance: Judge Bury will retaliate against

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

27. On these occasions Mr. Price assured Plaintiff, in sum

and substance: You dont have anything to worry about

in this regard. Judge Bury and I are friends socially.

Were fellow Republicans.

28. On February 17, 2010 Ms. Lucas filed a Declaration in

Support of Motion to Dismiss in Tucson City Court CR

9139247 (alleging Plaintiff had engaged in an act of do-

mestic violence), stating, in sum and substance, that

mood changes and her use of prescription pain medi-

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cations, along with alcohol abuse, were the causes of

serious domestic contentions within the Lucas-Warden

household.

29. Subsequently; Plaintiff observed Ms. Lucas email the

Dec-laration to Mr. Price.

30. Therefore; on February 17, 2010 Mr. Price was fully

appri-sed of Ms. Lucas mood changes, her particular

sensi-tivity to prescribed medications, and her

unfortunate habit of mixing alcohol with prescription

medications, often with violently disastrous effects.

31. Therefore; on or about April 17, 2013 Plaintiff was

aston-ished to find, in the case file of Lucas v Sowers,

the Stipu-lated Motion to Extend Discovery, Document

26, in which Mr. Price declared:

In early July, 2010, Plaintiff (Lucas)2 sustainedan alleged multi-day episode of domesticviolence which resulted in such injuries as torequire hos-pitalization and a substantialperiod of recuper-ation before being able to

resume normal ac-tivities. The allegedperpetrator is facing multiple felony charges.

30. Attorney Michael Price submitted this document in

Lucas v Sowers more than six months subsequent to his

receipt of Ms. Lucas Declaration, thus prejudicing

Plaintiff before Judge Bury.

III. THE LAW REGARDING BIAS

(N.B.) Plaintiff only applies the law regardingJudge Burys conduct. Plaintiff will address theextraordinary conduct displayed by the threeother U. S. District Court Judges, who essentially

2 Attorney Price failed to reveal Ms. Lucas was also arrested fordo-mestic violence for the alleged July incident.

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steered this case to Judge Bury (paragraphs 2-11), in a Complaint to the Ninth Circuit Regar-ding Judicial Misconduct.

31. 28 U.S.C.A 455, in pertinent part, provides:

Any justice, judge or magistrate of the UnitedStates shall disqualify himself in any proceeding inwhich his impartiality might reasonably bequestioned.

He shall also disqualify himself(w)here he has apersonal bias or prejudice concerning a party, orpersonal knowledge of disputed evidentiary factsconcerning the proceeding. Liteky v U.S., 114 S.Ct.1147, 1153 (1994)

32. (W)hat matters is not the reality of bias orprejudice, but its appearance; recusal is requiredwhenever im-partiality might reasonably bequestioned. Liteky at 1147

33. Extrajudicial source is not the only basis for estab-lishing disqualifying bias or prejudice; it is the onlycommon basis, but it is not the exclusive one.Liteky at 1148.

34. Recusal is required whenever there exists agenuine question concerning a judges impartiality,and not merely when the question arises from anextrajudicial source. Liteky, at 1155.

SUMMARY

In Warden v. Garcia, (paragraphs 12-22), Judge Bury de-

monstrated he had the requisite intestinal fortitude to

make the difficult (and unlawful) choices necessary to (1)

protect Pima County Legal Defender Isabel Garcia, the state

actor most responsible for implementing Tucson City and

Pima County Open Border Policy, (2) deny Plaintiff the right

to answer Defendant Garcias Motion to Dismiss, (3) deny

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Plaintiff the benefit of an Order of the Court setting forth his

complaints deficiencies, (4) deny Plaintiff opportunity to

sub-mit an amended complaint, (5) deny Plaintiffs right to

appeal by rescinding the in forma pauperis status granted

by Judge Roll, etc.

In other words; Judge Bury completely frustrated

Plaintiffs right to due process and by so doing, deep

sixed a politi-cally sensitive case detrimental to the

economic and political establishment of Pima County,

including the economic inter-ests of members of the Arizona

Bar, and Federal Judges, who now derive a substantial

portion of their employment enga-ged in prosecuting,

defending and adjudicating ENDLESS legal contentions

created by several decades of Pima County and Tucson City

Open Border Policy.

In Lucas v Sowers Plaintiff, who, at all times relevant to

this motion, was well known within the legal community to

be the common law husband of Martina Lucas, was further

prejudiced before Judge Bury by the false allegations he was

a wife beater, made by Attorneys Price and Davis.

Plaintiff respectfully submits: He has met the standards

set forth in 28 U.S.C.A 455 and Liteky. Judge Burys has

demon-strated personal bias and the appearance of bias; in

the inter-ests of justice Judge Bury must recuse himself from

this case.

CONCLUSION

It is the duty of the courts to be watchful for theconstitutional rights of the citizens and againstany stealthy encroachments thereon. Their motto

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should be Obsta Principiis. Boyd v U. S.,116 U.S. 616, 635 (1885)

Regarding judicial conduct, Plaintiff respectfully submits:

the noble sentiments set forth more than a century ago in

Boyd are altogether missing from this case.

Plaintiff also fully acknowledges the large elephant in

the room. Judge Bury, or the judge who reads and decides

this Motion on the basis of law, will not like the content of

Plaintiffs Motion or Declaration in Support; neither will the

judge who (may replace) Judge Bury, or the Judges who sit on

the Ninth Circuit Court of Appeal who will have to rule upon

Plaintiffs Complaint to them regarding the appearance of

Court instigated Judge Shopping in which (apparently) U.S.

District Court Judges worked in concert to deposit this case on

Judge Burys doorstep.

Plaintiff respectfully submits: He makes this Motion and

Declaration in good faith. However, any reasonable observer

must conclude; Judge Burys extraordinary conduct in Warden

v Garcia, his ex parte communications with Attorney Michael

Price in Lucas v Sowers, and the very process by which he was

appointed to this case, speaks for itself.

In The Fraternity, Chief Justice of the Arizona Appellate

Court (deceased) Thomas Malloy wrote scathingly of Judges

and Lawyers in Collusion, a subject he was well placed to

know best.

Plaintiff does not have the benefit of Judge Molloys per-

spective. However; he can observe what appears to be an

extra-ordinary pattern of abuse, and he can deduce.

Moreover; he is fortunate enough to have the ears of many

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legal professionals who read his newsletter Arizona Common

Sense.

The collusion Molloy writes about is true: judges in

this case, including Judge Bury, have ignored Plaintiffs right to

have an unbiased judge hear his complaint. And, in Warden v

Garcia Judge Bury clearly violated Plaintiffs right to due

process.

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

owing:

There is a growing uneasiness within the Pima County

Legal community that this is a politically sensitive case the

Court wants to get rid of.

A significant number of Plaintiffs readers (including a re-

tired Superior Court Judge) have advised Plaintiff that, as a

con-sequence 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 Plaintiffs 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, independent of this Motion to Dis-

qualify Judge Bury.

In the interim, Plaintiff reminds the Court of the following

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

The Courts authority, possessed of neitherthe purse nor the sword, ultimately rests on

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sustained public confidence in its moral sanc-ion.

RESPECTFULLY SUBMITTED this 10th day of May2013

BY:

____________________________Roy Warden, Plaintiff

State of Arizona

County of _____________

On this ____day of ____________________, 2013,before me the undersigned Notary Public, personallyappeared Roy Warden, known to me to be the individualwho executed the foregoing instrument andacknowledged the same 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 theTucson City Attorney and by email, on the following:

Viola Romero-Wright

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Principal Assistant Tucson City [email protected]

BY:

_______________________Roy Warden, Plaintiff

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Documents

WARDEN MOTION TO DISQUALIFY U.S. DISTRICT COURT JUDGE DAVID BURY