FILED
NOT FOR PUBLICATION
FEB 11 2019
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROY WARDEN, No. 17-16640
Plaintiff-Appellant, D.C. No. 4:14-cv-02050-DCB
v.
MEMORANDUM*
RICHARD MIRANDA, individually and
in his official capacity as Tucson City
Manager; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Arizona
David C. Bury, District Judge, Presiding
Submitted February 7, 2019**
Phoenix, Arizona
Before: HAWKINS, M. SMITH, and HURWITZ, Circuit Judges.
Denied entry into an area of a public park that was reserved by permit for an
immigrant workers’ rights rally, Roy Warden (“Warden”) sued the City of Tucson and
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
several city employees (the “City Defendants”), as well as the permittee, claiming
violations of the First Amendment. The district court granted summary judgment to
the defendants. We have jurisdiction over Warden’s appeal pursuant to 28 U.S.C.
§ 1291. We review de novo, Dietrich v. John Ascuaga’s Nugget, 548 F.3d 892, 896
(9th Cir. 2008), and affirm.
1. Even if the City Defendants' exclusion of Warden from the area was content
based, it did not violate Warden's First Amendment right to free speech. By seeking
to spread his discordant message from within the permitted area reserved for the rally,
Warden "in effect sought inclusion in the [permittee's] expressive activity itself."
Sistrunk v. City of Strongsville, 99 F.3d 194, 200 (6th Cir. 1996). Because the First
Amendment protects the “autonomy to control one’s own speech,” the City
Defendants' enforcement of Warden's exclusion from the permitted area was
constitutional. See Hurley v. Irish-American Gay, Lesbian and Bixexual Grp. of
Boston, 515 U.S. 557, 573–75 (1995).1
2. The scheduling conference did not violate Warden’s Due Process rights.
Warden was not entitled to a scheduling conference that was open to the public, on-
the-record, or conducted by a judge for purposes beyond setting dates and deadlines.
1
Warden therefore lacks standing to bring a facial challenge to Tucson City
Code 21-3(7)(4), as invalidation of the ordinance would not redress his injuries. See
Get Outdoors II, LLC v. City of San Diego, 506 F.3d 886, 891 (9th Cir. 2007).
2
See Fed. R. Civ. P 16(b); Fed. R. Civ. P. 16 advisory committee’s note (“[W]hen no
formal conference is held, the court may obtain scheduling information by telephone,
mail, or otherwise.”).
3. Warden’s request for reassignment to a different district judge on remand is
denied as moot.
AFFIRMED.
3