Case 2:10-cv-02756-NVW Document 244 Filed 11/21/11 Page 1 of 23

1 Michael C. Manning (#016255) Larry J. Wulkan (#021404) 2 Stefan M. Palys (#024752) STINSON MORRISON HECKER LLP 3 1850 North Central Avenue, Suite 2100 Phoenix, Arizona 85004-4584 4 Tel: (602) 279-1600 Fax: (602) 240-6925 5 Email: [email protected] Attorneys for Plaintiff 6 7 8 9 UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA Lead No. CV-10-02756-PHX-NVW Consolidated with: CV10-02757-PHX-NVW CV10-02758-PHX-NVW CV11-00116-PHX-NVW CV11-00262-PHX-NVW CV11-00473-PHX-NVW SUSAN SCHUERMANS VERIFIED SECOND AMENDED COMPLAINT

10 Gary Donahoe and Cherie Donahoe, husband and wife, 11 Plaintiffs, 12 v. 13 Sheriff Joseph Arpaio and Ava Arpaio, 14 husband and wife; et. al., 15 16 Susan Schuerman, 17 18 v. 19 Sheriff Joseph Arpaio and Ava Arpaio, 20 husband and wife; et. al., 21 Defendants. Defendants.

Plaintiff,

22 Sandra Wilson and Paul Wilson, husband and wife, 23 Plaintiffs, 24 v. 25 Sheriff Joseph Arpaio and Ava Arpaio, 26 husband and wife; et. al., 27 28
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Defendants.

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1 Conley D. Wolfswinkel, a single man, et al., 2 Plaintiffs, 3 v. 4 5 Sheriff Joseph Arpaio and Ava Arpaio, husband and wife; et. al., 6 Defendants. 7 Stephen Wetzel and Nancy Wetzel, 8 husband and wife, 9 10 11 v. Plaintiffs,

Sheriff Joseph Arpaio and Ava Arpaio, 12 husband and wife; et. al., 13 Defendants.

14 Mary Rose and Earl Wilcox, wife and husband, 15 Plaintiffs, 16 v. 17 Sheriff Joseph Arpaio and Ava Arpaio, 18 husband and wife; et. al., 19 Defendants. 20 21 Plaintiff Susan Schuerman, for her Verified Second Amended Complaint (the

22 Complaint) against Defendants, hereby alleges as follows: 23 24 1. JURISDICTIONAL ALLEGATIONS This Complaint alleges violations of the Fourth, Fifth, and Fourteenth

25 Amendments to the United States Constitution and 42 U.S.C. 1983. This Court has 26 jurisdiction over Plaintiffs federal law claims pursuant to 28 U.S.C. 1331. Pursuant 27 to 28 U.S.C. 1367(a), this Court has supplemental jurisdiction over Plaintiffs claims 28 brought under Arizona law. 2
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2.

Pursuant to 28 U.S.C. 1391(b), venue in this Court is proper. All of the

2 parties are residents of Maricopa County, Arizona, and the events underlying this 3 lawsuit occurred in Maricopa County. 4 5 1. PARTIES Plaintiff Susan Schuerman resides in Maricopa County, Arizona. At all

6 relevant times, Susan was the Executive Assistant to Maricopa County Board of 7 Supervisors (BOS) member Donald J. Stapley, Jr (Stapley). 8 3. Defendants Joseph Arpaio (Sheriff Arpaio) and Ava Arpaio are a 9 married couple residing in Maricopa County, Arizona. All of Sheriff Arpaios alleged 10 acts were done for the benefit and furtherance of the Arpaios marital community. 11 4. Sheriff Arpaio is named in both his official and individual capacities. At 12 all times material herein, Sheriff Arpaio was the duly-elected Sheriff of Maricopa 13 County, acting under color of law, and the head of the Maricopa County Sheriffs Office 14 (MCSO). 15 5. Defendants Andrew Thomas (Thomas) and Anne Thomas are a married 16 couple residing in Maricopa County, Arizona. All of Thomas alleged acts were done 17 for the benefit and furtherance of the Thomas marital community. 18 6. Thomas is named in both his official and individual capacities. Thomas 19 was the Maricopa County Attorney, and served as the head of the Maricopa County 20 Attorneys Office (MCAO), from January 3, 2005, to April 6, 2010. At all times 21 while the Maricopa County Attorney, Thomas was acting under color of law. After 22 Thomas resigned as County Attorney, the misconduct alleged herein was done for his 23 personal benefit. 24 7. Defendants Lisa Aubuchon (Aubuchon) and Peter Pestalozzi are a 25 married couple residing in Maricopa County, Arizona. All of Aubuchons alleged acts 26 were done for the benefit and furtherance of the Aubuchon-Pestalozzi marital 27 community. 28 3
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8.

Aubuchon is named in both her official and individual capacities.

2 Aubuchon was a Maricopa County Deputy County Attorney from September 1996 to 3 September 21, 2010, when she was terminated based, in part, on the facts that form the 4 allegations contained in this Complaint. At all times while acting as a Deputy Maricopa 5 County Attorney, Aubuchon was acting under color of law. 6 9. Defendants David Hendershott (Hendershott) and Anna Hendershott are

7 a married couple residing in Maricopa County, Arizona. All of Hendershotts alleged 8 acts were done for the benefit and furtherance of the Hendershotts marital community. 9 10. Hendershott is named in both his official and individual capacities.

10 Hendershott was the Deputy Chief at the MCSO until he was terminated on, or about, 11 April 22, 2011, based, in part, on the facts that form the allegations contained in this 12 Complaint. At all times while acting as the Deputy Chief, Hendershott was acting under 13 color of law. 14 11. Defendant Maricopa County (the County) is a public entity, formed and

15 designated as such pursuant to Title 11, of the Arizona Revised Statutes, and (as such) it 16 and its officers and divisions are subject to civil suit and may be held independently or 17 vicariously liable, or otherwise responsible, for the wrongful conduct of its divisions, 18 agents, officers, and employees. 19 20 12. GENERAL ALLEGATIONS In March 2006, Stapley led the BOS in questioning whether Thomas was

21 selecting outside counsel to represent the County in civil lawsuits based on political 22 considerations, rather than based on the lawyers qualifications. 23 13. After concluding that Thomas was inappropriately selecting outside

24 counsel to represent the County, the BOS decided that it would select counsel for the 25 County on certain matters. Thomas and Aubuchon viewed this decision as a political 26 attack on Thomas and the MCAO. 27 14. In retaliation for this decision, Thomas had Aubuchon explore the

28 possibility of pursuing criminal charges against Stapley in January 2007. Thomas and 4
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1 Aubuchon collaborated with Sheriff Arpaio and Hendershott to a launch criminal 2 investigation of Stapley. 3 15. In December 2008, the BOS voted to assume control of the Countys

4 civil litigation and to direct and control the prosecution, defense, and compromise of all 5 civil legal actions to which the County is a party or has an interest. 6 16. Thomas and Aubuchon viewed this as another political attack against

7 Thomas and the MCAO. 8 17. In mid-2008, Susan witnessed a disagreement between Hendershott and During the exchange, Hendershott screamed at

9 Stapley about MCSOs budget.

10 Stapley: Im drawing a line in the sand, and if you cross it, youll pay, and the sheriff 11 will get you. Hendershott showed that he was armed with two guns at that time. 12 18. During that same timeframe, the BOS announced that County-wide

13 budget cuts would be necessary due to the general economic downturn. 14 19. Thomas and Sheriff Arpaio objected to any budget cuts that would affect

15 the MCAO and MCSO. 16 20. Rather than cut the budgets of the MCAO and MCSO, Thomas and

17 Sheriff Arpaio believed that the BOS should instead stop funding a previously-approved 18 project to build a new courthouse for the Maricopa County Superior Court, known as 19 the Court Tower Project. 20 21. At approximately the same time as the BOS was announcing the budget

21 cuts, Thomas appointed Aubuchon to supervise the Maricopa Anti-Corruption Effort 22 Unit (the MACE Unit). The MACE Unit was established for the stated purpose of 23 fighting government corruption, and was comprised of members of the MCAO and 24 MCSO. 25 22. With respect to MCAOs activities in the MACE Unit, Thomas delegated

26 to Aubuchon the authority and responsibility to establish policies, practices, customs, 27 procedures, protocols, and training in Thomas absence. 28 5
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23.

With respect to MCSOs activity in the MACE Unit, Sheriff Arpaio

2 delegated to Hendershott the supervision, authority and responsibility to establish 3 policies, practices, customs, procedures, protocols, and training for the MACE Unit in 4 Sheriff Arpaios absence. 5 24. Thomas, Aubuchon, Sheriff Arpaio, and Hendershott operated, controlled,

6 participated in, and managed the MACE Unit, using it as their own vehicle to retaliate 7 against their perceived political opponents. 8 25. Schuerman came to be a target for Sheriff Arpaio, Thomas, Aubuchon,

9 and Hendershott because they believed they could pressure her into providing 10 information, or creating false evidence, that they could use against Stapley. 11 12 13 14 15 herein. 16 27. Aubuchon obtained a grand jury indictment of Stapley on November 20, COUNT I Retaliation for the Exercise of Fifth and Fourteenth Amendment Rights in Violation of 42 U.S.C. 1983: Thomas, Aubuchon, Sheriff Arpaio, and Hendershott 26. Susan reincorporates the foregoing paragraphs as though fully set forth

17 2008. On December 2, 2008, Stapley was served with a summons relating to that 18 indictment. 19 28. When Susan arrived to work on December 2, 2008, MCSO Deputies

20 were at Susan and Stapleys offices. MCSO Deputies served Susan with a grand jury 21 subpoena commanding her to provide testimony to a grand jury as a witness concerning 22 charges against Stapley (the Grand Jury Subpoena). Two MCSO Deputies told Susan 23 to go into a conference room so that they could interview her. 24 29. Susan informed the Deputies that she did not understand what she had

25 been served with and did not feel comfortable talking to them about it until she had an 26 opportunity to consult with an attorney. She declined to be interviewed at that time. 27 28 6
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30.

Susan later agreed to an interview with the MCSO with her counsel

2 present. MCSO Deputies tried to probe Susans knowledge of Stapleys finances, at 3 which time Susan terminated the interview. 4 31. In January 2009, Hendershott spoke with Susans counsel. He demanded

5 a face-to-face meeting with Susan, without counsel present. 6 32. Thereafter, Susan called Hendershott and told him that she was changing

7 attorneys, but would call him to set up a meeting once she hired a new lawyer. 8 33. Hendershott responded by telling Susan that she was making a big

9 mistake by not cooperating with him. Hendershott then told Susan if you thought you 10 had problems before, you aint seen problems yet and that shed be sorry. 11 34. By February 13, 2009, the MCAO knew that Susan was represented by

12 attorney Steven Dichter. 13 35. At that time, Thomas wrote a letter to the BOS attorney, Ed Novak,

14 stating the MCAO had discovered that Susan listed her BOS office phone number on 15 certain forms that designated her as the statutory agent for one of Stapleys companies. 16 The letter stated that [t]hese activities by Ms. Schuerman may be in violation of 17 Arizona criminal statutes and have caused her to be the subject of a criminal 18 investigation. 19 36. In a February 20, 2009, letter, Dichter responded to Thomas claims and

20 explained why Susan had not violated any law. Dichter noted that Susan had only 21 become the subject of a criminal investigation after she had declined the MCSOs 22 interview requests. 23 37. On February 23, 2009, Thomas spokesman, Barnett Lotstein, told a

24 reporter with the East Valley Tribune that Susan was the subject of a criminal 25 investigation to determine whether she had improperly used county resources to 26 conduct Stapleys private business. Upon information and belief, because the article in 27 the East Valley Tribune references the February 13, 2009, letter from Thomas to Novak, 28 Lotstein provided that letter to the East Valley Tribune reporter. 7
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38.

On February 26, 2009, when Susan arrived at her office, she was served

2 with a Search Warrant (the Search Warrant), obtained by the MCSO, authorizing a 3 search of Susans office and files. 4 39. Among the Deputies there to execute the warrant was David Hendershott,

5 Jr., Defendant Hendershotts son. 6 40. All of the Deputies executing the Search Warrant were wearing shirts,

7 with bold lettering, indicating the deputies were part of a group tasked with fighting 8 corruption. 9 10 41. 42. The MACE Unit ordered these shirts specifically for this occasion. MCSO Deputies commanded Susan to leave her office while they

11 executed the Search Warrant. 12 43. Susan told deputies that she had a needle and medication in her desk

13 drawer, as well as personal medical files. The MCSO Deputies told her to leave the 14 items and exit the office. 15 44. The search log written by the MCSO, during the search, shows that the

16 Deputies searched Susans desk drawers containing her medications and medical files, 17 her computers hard drive, and a USB thumb drive. 18 19 her. 20 46. Upon information and belief, Hendershott, with the knowledge and 45. When Susan exited her office, she found that the media was waiting for

21 consent of Arpaio, Thomas, and Aubuchon, tipped off the media that they would be 22 executing their Search Warrant, and that Susan was now the target of a criminal 23 investigation. 24 47. Upon information and belief, Aubuchon participated in drafting the Aubuchon, with

25 Search Warrant Affidavit used to obtain the Search Warrant.

26 Hendershotts knowledge and encouragement, knowingly included false information in 27 the Search Warrant Affidavit which was later signed under penalty of perjury by an 28 MCSO Deputy at Hendershott and Aubuchons direction. 8
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48.

Later, Susan was told by an MCSO Deputy that the Deputies who were

2 involved in obtaining and executing the Search Warrant felt ashamed about their 3 involvement. The Deputy then returned evidence bags, which appeared to have never 4 been opened, containing the materials they seized. 5 49. On, or about, March 11, 2009, Susan received an anonymous letter at the

6 BOS offices that stated: Suz, just so youre aware, you are being observed by the SO, 7 as directed by the Hendershott/Arpaio Machine. Tell youre [sic] associates the same, 8 but it will soon blow over. DO NOT trust anyone. Cant leave my name otherwise Id 9 be sent to outer space in a heartbeat. Stay calm. The letter was initialed JG. 10 50. Shortly after Hendershott told Susan shed be sorry, the MCSO began

11 to park undercover cars on Susans street, sometimes only two houses away from 12 Susans home. MCSO cars parked near Susans house between two and four times per 13 week for approximately six months. This was done at the direction of Hendershott and 14 Aubuchon, who hoped to keep pressure on Susan so that she would give them 15 information about Stapley to avoid further harassment. 16 51. The MCSO cars were in front of Susans house so frequently that one of

17 Susans neighbors commented about it and asked Susan why she was under 18 surveillance. 19 52. During this same period, MCSO Deputies, in both marked and unmarked

20 cars, would follow Susan while she was driving around Phoenix. 21 53. For example, in March 2009, Susan drove from the BOS offices,

22 followed by a marked MCSO car, to meet an attorney-friend for lunch. The MCSO 23 Deputies parked and came into the restaurant, sitting near Susan. It was a member of 24 the MACE Unit whom she knew. 25 54. On June 22, 2010, Sheriff Arpaio issued a press release in which he

26 stated that Susan was among a group of claimants against Defendants that were the 27 subject of pending investigations. 28 9
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55.

Thomas, Aubuchon, Sheriff Arpaio, and Hendershott knew, or recklessly

2 disregarded the fact, that there was no probable cause to support an investigation of 3 Susan. 4 56. Thomas, Aubuchon, Sheriff Arpaio, and Hendershott further knew, or

5 acted in reckless disregard of the fact, that Susan had not committed any crime, and 6 could not be investigated or prosecuted in retaliation for her exercise of her Fifth and 7 Fourteenth Amendment rights. 8 57. Despite their knowledge of these facts, Thomas, Aubuchon, Sheriff

9 Arpaio, and Hendershott improperly investigated and retaliated against for the exercise 10 of her Fifth and Fourteenth Amendment rights. 11 58. But for their retaliatory motive against Susan, Thomas, Aubuchon, Sheriff

12 Arpaio, and Hendershott would not have engaged in the conduct alleged herein. 13 59. Based on the allegations set forth above, Susans constitutional rights

14 have been violated and she has suffered damages as a direct and proximate result of 15 these acts. 16 17 18 19 20 herein. 21 61. The affidavit supporting the application for the Search Warrant stated 60. Susan reincorporates the foregoing paragraphs as though fully set forth COUNT II 1983 Fourth Amendment Violation; Sheriff Arpaio, Hendershott, Thomas, and Aubuchon

22 that Susan was suspected of conspiring with Stapley and one of his business associates 23 to commit bribery in violation of A.R.S. 13-2602(A), fraudulent schemes in violation 24 of A.R.S. 13-2310(A), and conspiracy to commit misuse of public monies in violation 25 of A.R.S. 35-301. 26 27 62. 63. The Search Warrant Affidavit contains no facts supporting these claims. Aubuchon and Hendershott knew that the Search Warrant Affidavit did

28 not demonstrate probable cause to believe that Susan had committed any crime. 10
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64.

Five days earlier, Dichter sent a letter to Aubuchon with a detailed

2 analysis as to why Susan had not committed any crime and explaining that it was not 3 clear if he would ever be paid for representing Susan. 4 65. Moreover, Aubuchon and Hendershott knew, or should have known,

5 from financial and other documents previously obtained during their investigation of 6 Stapley, that Susan was not involved in any crime. Instead, they used the Search 7 Warrant to exert pressure on her to provide or create evidence against Stapley. 8 66. Nevertheless, Aubuchon and Hendershott directed the Search Warrant

9 Affidavit to be sworn and executed, despite knowing it contained false and misleading 10 information and was not supported by a demonstration of probable cause. 11 67. No reasonable officer would rely on the Search Warrant, or the Search

12 Warrant Affidavit, because it fails to state any facts that would establish probable cause 13 that Susan committed any crime. 14 68. Moreover, the false and misleading information Aubuchon and

15 Hendershott caused to be contained in the Search Warrant Affidavit was deliberately 16 false, or made in reckless disregard of the truth, and were material to a finding of 17 probable cause. 18 69. Indeed, the Justice of the Peace who issued the Search Warrant was

19 misled. 20 70. Upon information and belief, Sheriff Arpaio and Thomas directed and

21 approved of Hendershotts and Aubuchons conduct. 22 71. As a direct and proximate result of these acts, Susans Fourth and

23 Fourteenth Amendment rights were violated and she has been damaged. 24 25 26 27 28 herein. 11
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COUNT III Abuse of Process in Violation of 42 U.S.C. 1983 and Arizona Law: Thomas, Aubuchon, Sheriff Arpaio, and Hendershott 72. Susan reincorporates the foregoing paragraphs as though fully set forth

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73.

Based on the allegations contained in 12-70 of this Complaint, Sheriff

2 Arpaio, Thomas, Hendershott, and Aubuchon are liable for abuse of process under 3 1983 and Arizona law. 4 74. As a direct and proximate result of these acts, Susans constitutional rights

5 were violated and she has been damaged. 6 7 8 9 10 herein. 11 76. On February 23, 2009, Thomas spokesman, Barnett Lotstein, told an 75. Susan reincorporates the foregoing paragraphs as though fully set forth COUNT IV Defamation/False Light in Violation of 42 U.S.C. 1983: Sheriff Arpaio, Hendershott, Thomas, and Aubuchon

12 East Valley Tribune reporter that Susan was the subject of a criminal investigation. 13 Lotstein made this statement at the direction of Thomas, Hendershott, and Arpaio, and 14 with the assistance of Aubuchon. 15 77. Upon information and belief, on February 26, 2009, Hendershott

16 informed the media that the MACE Unit was going to execute the Search Warrant on 17 Susans office. 18 78. The East Valley Tribune ran a story on the execution of the Search

19 Warrant that day. 20 79. Based on the documents obtained in their prior investigations and the

21 analysis of law contained in Dichters letter dated February 20, 2009, Sheriff Arpaio, 22 Hendershott, Thomas, and Aubuchon knew that Susan had not committed any criminal 23 conduct when they caused these statements to be published. 24 80. On June 22, 2010, Sheriff Arpaio, and Thomas (who had by then resigned
1 25 as County Attorney), issued a press release stating that Susans claims are bogus and

26
1 Thomas was no longer a state employee at this time and, therefore, Susans 1983 27 claim against him does not include these statements. These statements do, however, form part of the basis of Susans claims against Thomas for defamation and false light 28 in violation of Arizona law. 12
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1 Thomas and Arpaio stated that they hoped to go to trial, where we would no doubt 2 prove [Susans] culpability in past and pending investigations. On the same date, 3 Sheriff Arpaio posted a letter on his website reiterating his belief that Susans, and 4 others, claims are frivolous on their face and appear motivated by greed. 5 6 81. 82. Each of the foregoing statements was published to third parties. These statements were published in a manner that an ordinary person

7 would understand that references to the parties involved in past and pending 8 investigations, and the parties who had submitted notices of claim, are references to 9 Susan. 10 83. Thomas and Sheriff Arpaio knew their respective statements were false

11 when said, or at a minimum acted with reckless disregard to their falsity. 12 84. Thomas, Aubuchon, Sheriff Arpaio, and Hendershotts statements placed

13 Susan in a false light, which would be highly offensive to a reasonable person, and 14 which reflected negatively on Susan with respect to her integrity and honesty in her 15 business. 16 85. Thomas, Aubuchon, Sheriff Arpaio, and Hendershott knew, or recklessly

17 disregarded the falsity of their statements, and the false light in which Susan would be 18 placed. 19 86. Each of the foregoing statements were made in retaliation for Susans

20 exercise of her Fifth and Fourteenth Amendment rights. 21 87. As a direct and proximate result of the statements by Thomas, Aubuchon,

22 Sheriff Arpaio, and Hendershott, Susans constitutional rights have been violated and 23 she has been damaged. 24 25 26 27 28 herein. 13
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COUNT V Defamation and False Light in Violation of Arizona Law: Thomas, Aubuchon, Sheriff Arpaio, Hendershott, and Maricopa County 88. Susan reincorporates the foregoing paragraphs as though fully set forth

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89.

Based on the allegations of paragraphs in 74-86, above, Thomas,

2 Aubuchon, Sheriff Arpaio, and Hendershott are liable for false light and defamation in 3 violation of Arizona law. 4 90. Sheriff Arpaio, Hendershott, and Aubuchon were acting, at all relevant

5 times, in the course and scope of their employment and, therefore, Maricopa County is 6 vicariously liable for his actions in violation of Arizona law. 7 91. Thomas was acting at all times, other than that specified in 80, in the

8 course and scope of his employment and, therefore, Maricopa County is vicariously 9 liable for his actions in violation of Arizona law. 10 11 12 13 herein. 14 93. Former County Attorney Thomas was a policymaker for Maricopa COUNT VI Violations of 42 U.S.C. 1983 - Municipal Liability: Maricopa County 92. Susan reincorporates the foregoing paragraphs as though fully set forth

15 County. At material times, he had the ultimate authority and responsibility to establish 16 policies, practices, customs, procedures, and protocols for the MCAO. He also had the 17 obligation to properly supervise members of the MCAO. 18 94. Thomas actions and inactions, as set forth above, including initiating and

19 ratifying malicious investigations, are acts upon which Maricopa County may be found 20 liable under 42 U.S.C. 1983. 21 95. Sheriff Arpaio is an official policymaker for Maricopa County. He has

22 the ultimate authority and responsibility to establish policies, practices, customs, 23 procedures, and protocols for the MCSO. 24 supervise members of the MCSO. 25 96. Sheriff Arpaios actions and inactions, as set forth above, including He also had the obligation to properly

26 initiating and ratifying malicious investigations, are acts upon which Maricopa County 27 may be found liable under 42 U.S.C. 1983. 28 14
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97.

Thomas and Sheriff Arpaio, by delegating their authority to Aubuchon

2 and Hendershott, respectively, had customs, policies, and procedures of permitting and 3 encouraging Aubuchon and Hendershott to initiate investigations and prosecutions in 4 order to retaliate against their perceived political opponents and punish citizens for their 5 exercise of their constitutional rights. 6 98. Sheriff Arpaio and Hendershott encouraged their investigators to make

7 false statements in sworn affidavits that Sheriff Arpaio and Hendershott knew would be 8 filed with the courts. For example, at a MACE Unit meeting in March 2009,

9 Hendershott and Aubuchon informed their investigators that they wanted to obtain a 10 search warrant to search the BOS offices following an article in the Arizona Republic 11 about the a sweep for listening devices that was conducted at County offices. 12 Aubuchon directed MCSO Lt. Rich Burden to use creative writing in drafting the 13 search warrant, saying that it would be issued if they put fluff above, fluff below and 14 then took it to a particular justice of the peace for issuance. Lt. Burden openly refused 15 to include false statements in a search warrant affidavit as Aubuchon had directed. 16 Aubuchon subsequently complained to Hendershott, and MCSO employees complained 17 to Arpaio. Hendershott learned of the complaints. In retaliation, Lt. Burden and the 18 other complaining MCSO employees were transferred out of the MACE Unit shortly 19 thereafter. The remaining MCSO employees understood this as a sign that Arpaio and 20 Hendershott wanted the MCSO employees on the MACE Unit to follow Hendershott 21 and Aubuchons directives, with no questions asked. 22 99. Moreover, after MCSO Deputies complained to Sheriff Arpaio that

23 Aubuchon had directed to lie in affidavits to obtain Search Warrants by using creative 24 writing and including fluff, upon information and belief, Arpaio told Hendershott 25 that he viewed the Deputies who would not lie as disloyal, and directed Hendershott to 26 transfer them out of the MACE Unit. Hendershott further told the Deputies who did not 27 want to lie that they had to follow Aubuchons directives, because she was Thomas 28 appointee to head the MACE Unit. 15
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100.

As alleged herein, Thomas, Aubuchon, Sheriff Arpaio, and Hendershott,

2 independently and in concert with one another, implemented policies, customs, or 3 procedures which: authorized, approved, condoned, and/or ratified unconstitutional civil 4 and/or criminal investigations. 5 101. As the direct and proximate result of the wrongful conduct of Thomas,

6 Aubuchon, Sheriff Arpaio, and Hendershott, Susans constitutional rights were violated 7 and she has suffered harm. 8 9 10 11 herein. 12 103. After he resigned as Maricopa County Attorney, Thomas joined in Sheriff 102. COUNT VII Defamation/False Light in Violation of Arizona Law: Thomas Plaintiffs reincorporate the foregoing paragraphs as though fully set forth

13 Arpaios June 22, 2010, press release. 14 104. Thomas made the following additional defamatory statements after he

15 resigned as Maricopa County Attorney: 16 17 18 19 20 21 22 23 105. Each of the foregoing statements was published to third parties in a b. a. On June 30, 2010, Thomas wrote an article in which he characterized Susans claim as a frivolous claim against Sheriff Joe Arpaio and former County Attorney Andrew Thomas and said that Susan is trying to collect millions of taxpayer dollars for the distress caused by being questioned or scrutinized by police officers and he said that Susan is part of a criminal investigation [ ] that [is] ongoing. . . On July 14, 2010, Thomas wrote an article in which he said that Susan was seeking a taxpayer payout[ ] and is involved in an ongoing criminal investigation.

24 manner that an ordinary person would understand them to reference Susan. 25 106. Thomas knew his statements were false when published, or at a minimum

26 acted with reckless disregard to their falsity, and that the statements would injure her 27 professional reputation and stature. 28 16
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107.

Thomas statements placed Susan in a false light, which would be highly

2 offensive to a reasonable person. 3 108. Thomas knew, or recklessly disregarded the falsity of his statements, and

4 the false light in which Susan would be placed. 5 109. As a direct and proximate result of Thomas statements, Susan has been

6 damaged. 7 8 9 10 11 herein. 12 111. Thomas, Aubuchon, Arpaio, and Hendershotts actions in: (1) issuing the COUNT VIII Intentional Infliction of Emotional Distress: Thomas, Aubuchon, Sheriff Arpaio, and Hendershott, Maricopa County 110. Susan reincorporates the foregoing allegations as though fully set forth

13 Grand Jury Subpoena and Search Warrant to pressure Susan into providing false 14 evidence for use against Stapley; (2) engaging in a retaliatory investigation of Susan; (3) 15 defaming Susan and/or placing her in a false light, were all acts that are extreme, 16 outrageous, and beyond all possible realms of decency and that shock the conscience. 17 112. This is particularly true because Thomas, Aubuchon, Sheriff Arpaio, and

18 Hendershott had targeted Susan because they knew that her daughter had suffered a 19 debilitating stroke on her 21st birthday, making her dependent on Susans continued 20 employment with the County for health insurance benefits, and thus making Susan 21 unusually susceptible to actions that risked causing her to lose her job, such as criminal 22 investigations and the threat of prosecution. 23 113. Thomas, Aubuchon, Sheriff Arpaio, and Hendershotts acts intended to

24 causing Susan extreme emotional distress and/or physical injury and/or harm, and were 25 done in reckless disregard of the near certainty that severe emotional distress and 26 physical injury and/or harm would result from their conduct. 27 28 17
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114.

As a direct and proximate cause of Thomas, Aubuchon, Sheriff Arpaio,

2 and Hendershotts conduct, Susan has suffered severe emotional distress, adverse 3 physical maladies and manifestations, and physical injury and/or harm. 4 115. Thomas, Aubuchon, Sheriff Arpaio, and Hendershott were acting, at all

5 relevant times, in the course and scope of their employment and, therefore, Maricopa 6 County is vicariously liable for their actions in violation of Arizona law. 7 8 9 10 11 herein. 12 117. The MACE Unit was an association-in-fact in which Thomas, Aubuchon, COUNT IX Violations of Arizonas Racketeering Statute, A.R.S. 13-2314.04: Thomas, Aubuchon, Sheriff Arpaio, and Hendershott 116. Susan reincorporates the foregoing paragraphs as though fully set forth

13 Sheriff Arpaio, and Hendershott participated, controlled, managed, conducted, and/or 14 operated in order to retaliate against their political opponents, and for financial gain. 15 118. From approximately March 2008 until February 2010, Hendershott and

16 Aubuchon met concerning the MACE Units investigations and civil and criminal 17 prosecutions, and conspired as to who to target and how to target them. From time to 18 time, Thomas and Sheriff Arpaio attended those meetings and were each continually 19 updated on the MACE Units activities. 20 119. Thomas, Aubuchon, Sheriff Arpaio, and Hendershott operated the MACE

21 Unit for financial gain in the following ways: (1) the MACE Unit was used to heighten 22 the appearance of public corruption permitting Sheriff Arpaio to raise money for the 23 Sheriffs Command Association Fund, which provided financing for Thomas and 24 Sheriff Arpaios election campaigns; (2) the same perception helped Thomas and 25 Sheriff Arpaio raise money from private donors for their political campaigns; and (3) 26 one of the MACE Units objectives was to attempt to force the BOS to eliminate the 27 Court Tower Project and divert funds dedicated to it to the MCSO and MCAOs 28 18
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1 budgets, which was the critical factor necessary for Thomas and Sheriff Arpaio to 2 exercise their power. 3 120. The MACE Unit specifically committed the following pattern of unlawful

4 acts, in addition to others, in violation of A.R.S. 13-2314.04 and A.R.S. 13-2312:2 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 f. e. d. c. Theft by extortion. Thomas, Aubuchon, Sheriff Arpaio, and Hendershott filed a civil complaint against a sitting judge, Gary Donahoe, to induce him to recuse himself from presiding over certain matters. These acts were in violation of A.R.S. 131804(A)(7). Theft by extortion. Sheriff Arpaio, and Hendershott filed a criminal complaint against Judge Donahoe, to induce him to recuse himself from presiding over certain matters. These acts were in violation of A.R.S. 13-1804(A)(7). Theft by extortion. Thomas, Aubuchon, Sheriff Arpaio, and Hendershott implicitly threatened physical harm to Judge Donahoe if he did not recuse himself from presiding over certain matters, by sending a process server who had been prosecuted for threatening to kill Judge Donahoe to serve him with the RICO Lawsuit. This was a violation of A.R.S. 13-1804(A)(7). Theft by extortion; bribery of a public servant; offer to exert improper influence on public officer or employee for consideration. Thomas, Aubuchon, Sheriff Arpaio, and Hendershott threatened to have the MACE Unit publicly investigate and prosecute members of the BOS if they: (1) cut MCAO or MCSO budgets; (2) did not abandon the Court Tower Project; or (3) paid outside counsel. These are each violations of A.R.S. 13-1804(A)(5) and (7). Implicit in these threats was a promise that there would not be investigations and prosecutions if the BOS and Sandra Wilson complied with the demands. This is a violation of A.R.S. 13-2602(A) and 13-2606. b. a. Obstructing criminal investigations or prosecutions. The MCSO obstructed investigations by, among other things, threatening MCSO Deputy Frank Munnell with physical harm if he cooperated with a Department of Justice investigation. This is a violation of A.R.S. 13-2409. Theft by extortion. Thomas, Aubuchon, Sheriff Arpaio, and Hendershott directed MCSO Deputies to threaten County employee Stephen Wetzel if he maintained his lawful control over County information technology systems during an armed raid. These were violations of A.R.S. 13-1804(A)(5) and (7).

2 The Plaintiff is not seeking damages for the acts alleged in this paragraph, but instead 28 provide them to establish a pattern of unlawful activity. 19
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121.

Thomas, Aubuchon, Sheriff Arpaio and Hendershott violated A.R.S.

2 13-2312 and 13-2314.04 through the following pattern of unlawful acts that they 3 committed against Schuerman: they collaborated and jointly attempted to induce Susan 4 to falsely testify against Stapley on several occasions. They threatened to criminally 5 investigate and prosecute her if she did not cooperate. Once their criminal investigation 6 began, they implicitly promised the investigation would end without charges if she 7 would cooperate. These are violations of A.R.S. 13-1804(A)(5) and (7); and A.R.S. 8 13-2602(A) and 13-2606. 9 122. The alleged acts supporting the causes of action set forth in Counts I, II,

10 III, IV, V, VII, VIII, and the acts referenced above, were committed by Thomas, 11 Aubuchon, Sheriff Arpaio, and Hendershott in furtherance of the MACE Units 12 activities, and therefore in violation of A.R.S. 13-2312 and 13-2314.04. 13 123. As a direct, proximate, and reasonably foreseeable result of the violations

14 of A.R.S. 13-2312 and 13-2314.04 by Thomas, Aubuchon, Sheriff Arpaio, and 15 Hendershott, Susan suffered damages, including but not limited to damages to her 16 person, including her reputation, and extreme emotional distress. 17 124. All of Thomas, Aubuchon, Sheriff Arpaio, and Hendershotts conduct

18 described in this Count constitute violations of A.R.S. 13-2312 and 13-2314.04. 19 They are each responsible for all violations of A.R.S. 13-2314.04 and the damages 20 stemming therefrom, due to their control of the MACE Unit pursuant to A.R.S. 1321 2312. 22 125. Pursuant to A.R.S. 12-2314.04, Susan is entitled to an award of treble

23 damages, in addition to his attorneys fees and costs. 24 25 26 27 126. JURY TRIAL Plaintiff hereby requests a trial by jury. PRAYER FOR RELIEF WHEREFORE, Susan prays for damages for judgment, jointly and severally, 20
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28 against Defendants as follows:

Case 2:10-cv-02756-NVW Document 244 Filed 11/21/11 Page 21 of 23

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

(i) (ii)

General damages in an amount to be proven at trial; Punitive damages in an amount deemed just and reasonable as to the causes of action alleged herein;

(iii)

Costs and attorneys fees against all Defendants as to the causes of action alleged under the Constitution and laws of the United States, pursuant to 42 U.S.C. 1988;

(iv)

Treble damages and attorneys fees against Thomas, Sheriff Arpaio, Hendershott, and Aubuchon pursuant to A.R.S. 13-2312 and 132314.04.

(v) (vi)

The costs of litigation; All remedies provided by 42 U.S.C. 1983 and 1988, and A.R.S. 132301, et seq.; and

(vii)

Such other and further relief which may seem just and reasonable under the circumstances.

RESPECTFULLY SUBMITTED this 21st day of November, 2011. STINSON MORRISON HECKER LLP By: s/ Michael C. Manning Michael C. Manning Larry J. Wulkan Stefan M. Palys 1850 North Central Avenue, Suite 2100 Phoenix, Arizona 85004-4584 Attorneys for Plaintiff

21
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1 2 3 CERTIFICATE OF SERVICE

I hereby certify that on November 21, 2011, I caused the foregoing document to be filed electronically with the Clerk of Court through ECF; and that ECF will send an 4 e-notice of the electronic filing to the following ECF participants: 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 23
DB04/839437.0002/5391972.3DD02

Daryl A. Audilett, Esq. KIMBLE, NELSON, AUDILETT & KASTNER, PC 335 N. Wilmot, Suite 500 Tucson, AZ 85711-2635 Attorneys for Defendants Arpaio Donald Wilson, Esq. BROENING, OBERG, WOODS & WILSON, PC 1122 E. Jefferson Phoenix, Arizona 85036 Attorneys for Defendants Thomas James P. Mueller, Esq. MUELLER & DRURY, P.C. 8110 E. Cactus Road, Suite 100 Scottsdale, AZ 85260 Attorneys for Defendants Aubuchon and Pestalozzi Barry Markson, Esq. THOMAS THOMAS & MARKSON P.C. 2700 N. Central Avenue, Suite 800 Phoenix, AZ 85006 Attorneys for Defendants Hendershott Victoria L. Orze, Esq. HINSHAW & CULBERTSON, LLP 3200 N. Central Avenue, Suite 800 Phoenix, AZ 85012 Attorneys for Defendant William Montgomery Steven A. LaMar, Esq. BEER & TOONE, P.C. 76 E. Mitchell Drive Phoenix, AZ 85006 Attorneys for Defendant Maricopa County By: s/ Kathleen Kaupke