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FILED

TONI L. HELLON
CLERK, SUPERIOR COURT
2/1/2017 8:51:02 AM

Roy Warden
6502 E. Golf Links Rd., #H129
Tucson, Arizona 85730
TELEPHONE: (520) 551-3496
E-MAIL: roywarden@hotmail.com

BY: ALAN WALKER


DEPUTY

Pro Se Plaintiff

IN THE SUPERIOR COURT OF THE STATE OF ARIZONA


IN AND FOR THE COUNTY OF PIMA
ROY WARDEN,
Plaintiff, In
Pro Se
vs.
PHYLLIS RUSSELL, individually and in her official capacity
as Director of Esperanza en
Escalante; AINDREA McCAMMON, LMSW, individually and
in her official capacity as employee of Esperanza en Escalante; ESPERANZA EN ESCALANTE, an Arizona corporation,
Defendants.

)
NO: C20153232
)
)
THIRD AMENDED COMPLAINT
)
(Promissory Estoppel, Conspir)
acy,
Intentional Infliction of Emo)
tional Distress, Negligence)
)
)
)
) THE HONORABLE GUS ARAGON
)
)
)
)
)
)
)
)

A. PARTIES

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The Plaintiff, for his complaint, therefore alleges:

1.

County, Arizona.

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That at all relevant times, Plaintiff Roy Warden resided in Pima

2.

That at all relevant times, Defendant Phyllis Russell was the

Director of Esperanza en Escalante (EEE), an Arizona not for

profit corporation, and resided in Pima County, Arizona.

3.

That at all relevant times, Defendant Aindrea McCammon,

LMSW, was employed by EEE, acted as Plaintiffs case man-

ager and resided in Pima County, Arizona.


4.

That EEE is an Arizona not for profit corporation, located at


3700 South Calle Polar, Tucson Arizona.

5.

That the events giving rise to this lawsuit occurred in Pima


County, Arizona.

B: TRIAL BY JURY

6.

Pursuant to Ariz.R.Civ.P. 38(b) Plaintiff requests a trial by


jury.

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C: GENERAL ALLEGATIONS

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7.

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That in July 2013, shortly after Plaintiff entered the 2 year EEE

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Veterans in Transition program for homeless veterans, Plaintiff

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came to an agreement with Defendant Russell to (1) refurbish

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an abandoned garden area including 3 raised garden struc-

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tures1 and the space enclosed therein, (2) recruit, instruct and

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employ jobless veteran volunteers residing at EEE to grow or-

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ganic vegetables for EEE community use, and (3) create a

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meaningful surplus which might be provided to enrich the diet

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for veterans residing at the Veterans Hospital in Tucson Ari-

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zona, and elsewhere.


8.

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That in consideration for his effort Defendant Russell granted

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Plaintiff permission to create, establish and direct an inde-

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pendent, ongoing, EEE located, veteran directed, veteran run

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program which Plaintiff would continue to organize, promote

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and direct after concluding his 2 year EEE residency program.


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The three raised garden areas are referred to as the north garden, the
south garden and the west garden.

9.

That Defendant Russell instructed Plaintiff to consult and to

develop a specific garden plan with EEE employee Clark, who

managed a substance abuse program in building 3, adjacent

to the north side of the designated garden area.

10. That in July 2013, after consultation with and directions given

by EEE employee Clark, Plaintiff developed a specific plan for

the utilization of the 3 abandoned raised garden structures,

and the common space enclosed therein, which had fallen into

disuse and lay barren after years of neglect.

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11. That the plan required Plaintiff to (1) clean out, refurbish, and

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establish a viable garden in the three abandoned raised garden

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structures and the common area enclosed therein, as de-

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scribed in paragraphs 8-10, (2) maintain wheelchair access to

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all sides of the raised garden structures, and all new structures

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to be created therein, (3) recruit and employ volunteer garden-

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ers from EEE residents, and (4) grow and distribute organic

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produce to EEE residents.

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12. That in July 2013 Plaintiff established a Facebook site titled

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Vets Feeding Vets where he (1) posted a Mission Statement

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setting forth the general objectives of Vets Feeding Vets, (2)

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posted articles intended to inspire self reliance and community

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spirit within an otherwise dependent and lethargic community,

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(3) solicited interest in the program from a variety of off-site

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Pima County veteran2 and garden enthusiasts, and (4) posted

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articles relevant to organic gardening, aquaponics, the use of

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key hole gardens to promote water conservation, etc.


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(Ret.) Colonel Martha McSally was the first outside veteran to befriend
the program.

13. That in July 2013 Plaintiff shared with Defendant McCammon

the details, and the objectives, of the Vets Feeding Vets project,

and continued to so advise her during subsequent EEE pro-

gram quarterly reviews.

14. That during quarterly reviews Plaintiff shared with Defendant

McCammon his desire to modify his diet and engage in exercise

in order to reduce his intake of prescribed medications to treat

stress and depression.

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15. That in August 2013 Plaintiff began removing trash, debris and
weeds from the garden site.

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16. That in the fall of 2013 Plaintiff, while confined to a wheelchair

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due to a broken hip suffered in late August 2013, continued

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preparing the soil and removing debris from the site, confirm-

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ing the feasibility of volunteer wheelchair gardeners performing

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significant gardening functions.

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17. That in the spring of 2014 Defendants Russell and McCammon

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failed to take action after Plaintiff informed them an EEE em-

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ployee, not connected to the garden project, was causing Plain-

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tiff emotional distress by referring to Plaintiff as a racist and

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woman abuser.

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18. That in the spring of 2014 Plaintiff solicited participation from

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EEE resident Peter Fisher and assigned him exclusive use of

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the south raised garden structure.

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19. That several months later, when EEE resident Mike Garcia

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asked permission to join the Vets Feeding Vets garden project,

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Plaintiff assigned him exclusive use of the north raised garden

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structure.

20. That Plaintiff (1) expended significant time and labor improving

the garden, delivering produce, and promoting the program, (2)

expended money for garden supplies, including soil amend-

ments, and (3) expended money to secure the Vets Feeding

Vets domain, etc.

21. That Plaintiff had lengthy conversations with both Mike Garcia

and Peter Fisher outlining the goals of the Vets Feeding Vets

garden project, their duty to work towards those goals, etc.

22. That subsequently, gradually, and without permission, Mike

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Garcia began encroaching into Plaintiffs west raised garden

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structure and appropriating a substantial portion of the com-

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mon area between the raised gardens to create structures for

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his exclusive use, including a structure which blocked Plain-

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tiffs access to the north portion of Plaintiffs west raised garden

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structure.

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23. That on March 15, 2015 Plaintiff directed Mike Garcia to (1)

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restore wheelchair access to the entire Vets Feeding Vets

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space, (2) restore Plaintiffs access to both sides of the west

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raised garden structure, (3) stop appropriating space in Plain-

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tiffs west raised garden structure and Plaintiffs key hole gar-

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den structure, (4) stop building additional structures within

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the Vets Feeding Vets common area, (5) fill in the hole he dug

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outside the garden which was presenting a hazard, etc.

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24. That Mike Garcia replied angrily, in sum and substance, You

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cant tell me what to do. Your plans will come to nothing.

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Wheelchair people dont need access here and you can build

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another area for them elsewhere if you want.

25. That on March 16, 2015 Defendant McCammon failed to take

action after Plaintiff informed her regarding Mike Garcias

non-cooperation.

26. That subsequently, Defendant McCammon informed Plaintiff,

there are issues that have come up with the Vets Feeding Vets

Garden Agreement and that Plaintiff should speak with De-

fendant Russell for further clarification.

27. That subsequently, Defendant McCammon and John Adams,

employed by the Veterans Administration, came to an agree-

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ment to misapply the term clinical eligibility3 as a fraudulent

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justification to prematurely4 terminate Plaintiffs two year res-

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idency at EEE and to breech the agreement to allow Plaintiff to

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direct Vets Feeding Vets.

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28. That on or about March 24, 2015 Defendant McCammon ad-

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vised Plaintiff that John Adams had decided to advance Plain-

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tiffs move out date from July 9, 2015 to April 1, 2015 because

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Plaintiff was no longer clinically eligible to receive EEE bene-

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fits.

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29. That within an hour of Plaintiffs conversation with Defendant

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McCammon as set forth in paragraph 28, John Adams called

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Plaintiff and suggested Plaintiff reconsider his interest in con-

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tinuing on as Director of the Vets Feeding Vets program, warn-

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ing that EEE had the power to withhold from Plaintiff a signif-

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icant rent subsidy from the Shelter Plus program to which

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Plaintiff was entitled.

The only criteria for a two year residency at EEE is homelessness.

Plaintiffs move out date had been set for July 9, 2015.

30. That, in reliance upon Defendant Russells grant of permission

to direct the Vets Feeding Vets program, as set forth in para-

graphs 7 & 8, and solely on the basis of its close proximity to

the Vets Feeding Vets Garden, Plaintiff (1) executed a Rental

Application to Sunflower Apartments and, as instructed, (2)

gave the application to Defendant McCammon for processing

and submission to Sunflower.

31. That in reliance upon Defendant Russells grant of permission

to direct the Vets Feeding Vets program, as set forth in para-

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graphs 7 & 8, Plaintiff declined to apply for residence at a series

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of midtown locations which provided significantly better ac-

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commodations.

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32. That on April 9, 2015, Plaintiff became angry and refused to

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sign, despite repeated promptings, an application form for

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Shelter Plus Rent Subsidy benefits when he discovered several

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significant misstatements of fact which significantly under-

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stated his income and assets.

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33. That subsequently, Plaintiff obtained a copy of the Sunflower

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Apartment Rental Application which demonstrated EEE had

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altered the document, after Plaintiff had signed it, in a manner

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significant to the issues of this case, prior to submission to

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Sunflower Apartments.

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34. That subsequently, Plaintiff received a letter from Defendant

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Russell, dated April 13, 2015, which, amongst other things,

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denied the existence of any ongoing Vets Feeding Vets pro-

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gram.

35. That on May 4, 2015 when Plaintiff, after repeated requests,

objected to Mike Garcias continual encroachment upon Plain-

tiffs key hole garden site Garcia, sneering, taunting, and pro-

voking Plaintiff to anger, told Plaintiff: (1) You cant make me

stop, (2) I can do whatever I want, (3) You cant tell me what

to do, (4) Show me where I signed anything,5 (5) You dont

know how to garden; your big plans 6 will never come to any-

thing, (6) What are you going to do if I dont stop, burn an

American flag?

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36. That on May 5, 2015 Defendant McCammon executed a false,

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misleading and self-serving document which (1) significantly

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limited Plaintiffs access to his west raised garden space and

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(2) in sum and substance, denied Plaintiff ever claimed direc-

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torship of the ongoing Vets Feeding Vets program simply be-

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cause she had not included such claims in her quarterly review

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case notes.

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37. That in August 2016 EEE staff, including Defendant McCam-

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mon, began pressuring veteran garden volunteers into aban-

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doning the Vets Feeding Vets program, and to discontinue their

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association with Plaintiff as follows:

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a) Vets Feeding Vets Garden Volunteer Lorenzo Kibler has


been kicked out of EEE housing;

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Referencing Plaintiffs original guidelines to the gardeners: Were supposed to grow food and give it away to needy veterans.

As set forth in the Mission Statement: to create a meaningful surplus


to provide food to veterans off site and those in the VA hospital.

b) Vets Feeding Vets associate Ken has been admonished for

his association with Plaintiff and kicked out of EEE hous-

ing;

c) Vets Feeding Vets volunteer gardener Kendall Yankee, an

expert on aquaponics, has been pressured and now ap-

pears disinterested in the program;

d) EEE resident Bill, housed in unit 3 adjacent to the Vets

Feeding Vets north garden, has (1) confronted Plaintiff and

called him an asshole and ungrateful for bringing this

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suit, (2) challenged Plaintiffs right to run Vets Feeding Vets

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independent of EEE management, and (3) stolen Plaintiffs

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shade cloth netting used to shelter vegetables in the Vets

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Feeding Vets west garden.

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38. That on January 6, 2017 while Plaintiff was tending to the mid-

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dle portion of the West Garden, EEE Resident Bill, as iden-

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tified in paragraph d) above, rapidly approached Plaintiff

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screaming obscenities;

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39. That Bill thrust his chest into Plaintiff, knocking Plaintiff backwards as Plaintiff shouted Get away from me!;

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40. That Bill continued to advance, again knocking Plaintiff back-

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wards, while Plaintiff continued to shout Get away from me!;

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41. That Plaintiff stood his ground, put up his arms, extended his

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forearms in a blocking posture and stopped Bills advance, all

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the while continuing to shout Get away from me!;

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42. That Bill continued to advance; both parties now shouting and
shoving at each other;
43. That the duration of the violent encounter described in paragraphs 38-42 above was approximately two minutes;

44. That EEE employees Angie and Perry arrived on scene and

physically grappled with a thoroughly enraged Bill who contin-

ued to lunge at Plaintiff;

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45. That Angie, who had grabbed Bill from behind, was pulled off
balance by a thoroughly enraged Bill;
46. That Plaintiff and Perry moved ten feet away while Angie grappled with Bill, who continued to shout and lunge at Plaintiff;
47. That EEE employee Mike finally arrived on scene from his
office estimated to be 150 yards away;
48. That Angie finally got control of Bill and both walked away from
the scene of the encounter.

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49. That Plaintiff declined when Perry offered to call the police;

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50. That Plaintiff and Perry spoke calmly and rationally for a few

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minutes;
51. That soon after another EEE resident arrived on scene by car
and spoke with Perry on matters unrelated to the incident;

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52. That Plaintiff and the resident described in paragraph 51 above

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had a friendly conversation regarding the residents family, re-

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siding in unit 18, participating in the Vets Feeding Vets Garden

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Project;

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53. That Plaintiff told Perry I just want to be left in peace to work
the garden and give vegetables away;

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54. That when Plaintiff asked Perry for Bills last name so he could

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get an A.R.S. 12-1809 Injunction against Harassment Perry

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went to the EEE Office to obtain the information;

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55. That Perry returned several minutes later and stated he was
not permitted to divulge Bills last name;

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56. That Perry advised and Plaintiff agreed in the interest of public

safety, that Plaintiff should obtain his injunction prior to re-

turning to the Vets Feeding Vets Garden Project;

57. That Plaintiff departed the scene and later that afternoon,

wrote a message to Counsel Pastore informing him of the inci-

dent and asking for Bills last name;

58. That, as per Counsel Pastores email response sent at 4:39 pm

on January 6, 2017, the parties conversed on Monday January

9, 2017 after (1) Plaintiff failed to get a hearing regarding his

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A.R.S. 12-1809 injunction because he could not provide the

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court clerk with Bills last name, and (2) Plaintiff filed Incident

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Report # 1701090187 with TPD Officer Gonzales.


59. That on January 10, 2017 Plaintiff emailed Counsel Pastore

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another request for Bills last name;

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60. That on January 10, 2017 when Plaintiff spoke with Counsel

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Pastore regarding (1) EEEs failure to provide Bills last name,

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and (2) EEEs duty to adequately instruct EEE Veteran Resi-

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dents7 on the specifics of criminal assault and battery, Plaintiff

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was shocked when Counsel Pastore stated he didnt think EEE

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had such a duty;

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61. That on January 11, 2017 Plaintiff returned to the Vets Feed-

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ing Vets Garden site, spoke with Perry, and worked the garden;
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The vast majority of EEE Veteran Residents are receiving psychiatric


counseling and medications for conditions ranging from depression and
PTSD to schizophrenia. Some have done hard time for violent offenses.
Most have issues with drinking and hard drug use. Most lack adequate socialization skills. Frankly, in large part EEE Veteran Residents,
ALL of whom have been trained for physical confrontation and in the
hand-to-hand killing arts, became homeless because they didnt know
how to get along with others.

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62. That several days later Plaintiff received a letter from EEE

dated January 11, 2017 permanently baring his access to the

Vets Feeding Vets Garden site.

COUNT I:

PROMISSORY ESTOPPEL

63. That in reliance upon Defendant Russells grant of permission

to direct an ongoing Vets Feeding Vets Garden program, as set

forth in paragraphs 7 & 8, Plaintiff (1) expended significant

time and labor improving the garden, delivering produce, and

promoting the program, (2) expended money for garden sup-

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plies, including soil amendments, (3) expended money to se-

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cure the Vets Feeding Vets domain, (4) moved to a less desir-

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able location at Sunflower Apartments to be in close proximity

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to the Vets Feeding Vets project, etc.

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COUNT II:

CONSPIRACY

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64. That Defendant McCammon and John Adams conspired and

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employed the irrelevant term clinical eligibility (1) to prema-

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turely terminate Plaintiffs residency at EEE, (2) to pressure

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Plaintiff and to discourage his directorship of Vets Feeding

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Vets, (3) to cause Plaintiff emotional distress, and (4) that

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Plaintiff suffered economic and emotional damages as a result

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of that conspiracy.

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COUNT III: INTENTIONAL INFLICTION OF


EMOTIONAL DISTRESS (Extreme and Outrageous Conduct)

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65. That Defendants engaged in the reprehensible conduct set

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forth above knowing (1) Plaintiff was committed toand emo-

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tionally and financially invested inthe ongoing Directorship

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of Vets Feeding Vets, (2) Plaintiff was taking medications pre-

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scribed for severe depression and stress, (3) Plaintiff was un-

der the authority and subject to the control of Defendants

EEE, Russell and McCammon, (4) Plaintiff was suffering se-

vere emotional distress as a consequence of their conduct and

provocations, and (5) that Plaintiff currently suffers severe

emotional distress as a consequence of Defendants actions.

COUNT IV: NEGLIGENCE

66. That Defendant EEE (1) has a duty to provide all veteran res-

idents8 comprehensive instructions on the elements of crimi-

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nal assault and battery, (2) failed in its duty to provide such

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comprehensive instruction, (3) was on notice that Bill had

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previously instigated trouble with Plaintiff;

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67. Additionally; as a foreseeable consequence of Defendant EEE

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negligence Plaintiff (1) was assaulted and battered, (2) suf-

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fered significant additional emotional damages, and (3) was

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permanently divested of access to his Vets Feeding Vets Gar-

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den Project.
D: PRAYER

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WHEREFORE, Plaintiff prays for a judgment against the Defendants


as follows:

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1.

For special damages in an amount to be determined


herein;

2.

For compensatory damages in a just and reasonable


amount;

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3.

For attorneys fees, if any;

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4.

For Plaintiffs cost of suit incurred herein;

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Review footnote #7

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5.

allowed by law;

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For pre-judgment and post-judgment interest to the extent

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For such other and further relief as the Court or jury


deems just and proper.

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DATED this 1st day February, 2017.


By:

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/s/Roy Warden

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Original and one copy filed with the Court February 1, 2017. I
hereby certify that on February 1, 2017 I personally sent the Third
Amended Complaint, by email, to the following:
Christopher M. Pastore,
Ogletree, Deakins, Nash, Smoak & Stewart, P.C.,
3430 E. Sunrise Drive, Suite 220
Tucson AZ 85718

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