amended wilson

Michael C. Manning (#016255)Larry J. Wulkan (#021404)Stefan M. Palys (#024752)STINSON MORRISON HECKER LLP1850 North Central Avenue, Suite 2100Phoenix, Arizona 85004-4584Tel: (602) 279-1600Fax: (602) 240-6925Email: [email protected] for Plaintiffs

UNITED STATES DISTRICT COURT

DISTRICT OF ARIZONA

Gary Donahoe and Cherie Donahoe,husband and wife,

Lead No. CV-10-02756-PHX-NVW

Consolidated with:

CV10-02757-PHX-NVWCV10-02758-PHX-NVWCV11-00116-PHX-NVWCV11-00262-PHX-NVWCV11-00473-PHX-NVW

SANDRA AND PAUL WILSON’S VERIFIED SECOND AMENDED COMPLAINT

Plaintiffs,

Sheriff Joseph Arpaio and Ava Arpaiohusband and wife; et. al.,

Defendants.

Susan Schuerman,

Plaintiff,

v.

,


Sandra Wilson and Paul Wilson

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

Defendants.

v.

and wife,

THOMAS and ANNE THOMAS,

,

Plaintiffs,

, husband

v.

ANDREW

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DD023.5391904/0002.839577/DB04

Case 2:10-cv-02756-NVW Document 245 Filed 11/21/11 of 25

husband and wife; LISA AUBUCHON and PETER R. PESTALOZZI, wife and husband; DEPUTY CHIEF DAVID HENDERSHOTT and ANNA HENDERSHOTT, husband and wife; PETER SPAW and JANE DOE SPAWhusband and wife; MARICOPA COUNTY, a municipal entity,

-X; JANE DOES I-DOES I X; CORPORATIONS I-V; and WHITE

-VPARTNERSHIPS, I

Conley D. Wolfswinkel

Sheriff Joseph Arpaiohusband and wife; et. al.,

Stephen Wetzel and Nancy Wetzel


Mary Rose and Earl Wilcox

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

husband and wife,

husband,

,

and JOHN BLACK

v.

Defendants.

et al.,

Plaintiffs,

, a single man,

Defendants.

Plaintiffs,

Defendants.

Plaintiffs,

and Ava Arpaio,

,

v.

,

v.

, wife and

Defendants.

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Plaintiffs Sandra and Paul Wilson

Complaint (the “Complaint”

JURISDICTIONAL ALLEGATIONS

This C

Fourteenth Amendments to the United States Constitution and 42 U.S.C.

Court has jurisdiction over

Pursuant to 28 U.S.C. §

Plaintiffs’ claims

Pursuant to 28 U.S.C. §

parties are residents of Maricopa

lawsuit occurred in Maricopa County.

Plaintiffs Sandra Wilson (

residi

County

Defendants Joseph Arpaio (

married couple residing in Maricopa County, Arizona

acts were done for the benefit and furtherance of the Arpaios

all times material herein, Sheriff Arpaio was the duly

County

(“MCSO”).

Defendants Andrew Thomas

couple

for the benefit and furtherance of the Thomas

Thomas

was the Maricopa County Attorney,

“

Manager of Maricopa County

Sheriff Arpaio is named in both his official and individual capacities.

, acting under color of law,

(

, for their Verified Second Amended

) against Defendants, hereby allege as follows:

1. omplaint alleges violations of the First, Fourth, Fifth, and

§ 1983. This

Plaintiffs’ federal law claims pursuant to 28 U.S.C. § 1331.

1367(a), this Court has supplemental jurisdiction over

brought under Arizona law.

2. 1391(b), venue in this Court is proper. All of the

County, Arizona, and the events underlying this

PARTIES

3. Sandi”) and Paul Wilson are a married couple

ng in Maricopa County, Arizona. At all relevant times, Sandi served as Deputy

.

4. “Sheriff Arpaio”) and Ava Arpaio are a

. All of Sheriff Arpaio’s alleged

’ marital community.

5. At

-elected Sheriff of Maricopa

and the head of the Maricopa County Sheriff’s Office

6. “Thomas”) and Anne Thomas are a married

residing in Maricopa County, Arizona. All of Thomas’ alleged acts were done

’ marital community.

7. is named in both his official and individual capacities. Thomas

and served as the head of the Maricopa County

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Attorney’s Office (

personal benefit.

Defendants

community.

Aubuchon

September 21, 2010, when she was terminated

allegations contained in this Complaint

County Attorney,

Defendants David Hendershott (

a married couple

acts were done for the benefit and furtherance of

Hendershott

Hendershott was the Deputy Chief at the MCSO

Complaint.

color of law.

Peter Spaw (“Spaw

Maricopa County, Arizona

furtherance of the

at this time, and will be substituted upon d

Spaw

Maricopa County Deputy County Attorney.

Maricopa County Attorney, Spaw was acting under color of law.

“MCAO”), from January 3, 2005, to April 6, 2010. At all times

while the Maricopa County Attorney, Thomas was acting under color of law. After

Thomas resigned as County Attorney, the misconduct alleged herein was done for his

8. Lisa Aubuchon (“Aubuchon”) and Peter Pestalozzi are a

married couple residing in Maricopa County, Arizona. All of Aubuchon’s alleged acts

were done for the benefit and furtherance of the Aubuchon-Pestalozzi marital

9. Aubuchon is named in both her official and individual capacities.

was a Maricopa County Deputy County Attorney from September 1996 to

based, in part, on the facts that form the

. At all times while acting as a Deputy Maricopa

Aubuchon was acting under color of law.

10. “Hendershott”) and Anna Hendershott are

residing in Maricopa County, Arizona. All of Hendershott’s alleged

the Hendershotts’ marital community.

11. is named in both his official and individual capacities.

until he was terminated on, or about,

April 22, 2011, based, in part, on the facts that form the allegations contained in this

At all times while acting as the Deputy Chief, Hendershott was acting under

12. ”) and Jane Doe Spaw are a married couple residing in

. All of Spaw’s alleged acts were done for the benefit and

Spaws’ marital community. Jane Doe Spaw’s true name is unknown

iscovery of the same.

13. is named in both his official and individual capacities. Spaw is a

At all times while acting as a Deputy

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Defendant Maricopa C

vicariously liable

agents, officers, and employees.

GENERAL ALLEGATIONS

announced that C

economic downturn.

the MCAO and MCSO.

the “

14. ounty (the “County”) is a public entity, formed and

designated as such pursuant to Title 11, of the Arizona Revised Statutes, and (as such) it

and its officers and divisions are subject to civil suit and may be held independently or

, or otherwise responsible, for the wrongful conduct of its divisions,

15. In 2008, the Maricopa County Board of Supervisors (the “BOS”)

ounty-wide budget cuts would be necessary due to the general

16. Thomas and Sheriff Arpaio objected to any budget cuts that would affect

17. Rather than cut the budgets of the MCAO and MCSO, Thomas and

Sheriff Arpaio believed that the BOS should instead stop funding a previously-approved

project to build a new courthouse for the Maricopa County Superior Court, known as

Court Tower Project.”

18. At approximately the same time as the BOS was announcing the budget

cuts, Thomas appointed Aubuchon to supervise the Maricopa Anti-Corruption Effort

Unit (the “MACE Unit”). The MACE Unit was established for the stated purpose of

fighting government corruption, and was comprised of members of the MCAO and

MCSO.

19. With respect to MCAO’s activities in the MACE Unit, Thomas delegated

to Aubuchon the authority and responsibility to establish policies, practices, customs,

procedures, protocols, and training in Thomas’ absence.

20. With respect to MCSO’s activity in the MACE Unit, Sheriff Arpaio

delegated to Hendershott the supervision, authority and responsibility to establish

policies, practices, customs, procedures, protocols, and training for the MACE Unit in

Sheriff Arpaio’s absence.

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21. Thomas, Aubuchon, Sheriff Arpaio, and Hendershott operated, controlled,

participated in, and managed the MACE Unit, using it as their own vehicle to retaliate

against their perceived political opponents.

22. In January 2009, Thomas, Aubuchon, Sheriff Arpaio, and Hendershott

were investigating the BOS for, among other things, its legislative decisions regarding

the Court Tower Project and a sweep for listening devices in certain County offices

(known as the “Bug Sweep”).

23. Sandi came to be a target for Thomas, Aubuchon, Sheriff Arpaio, and

Hendershott because, in making recommendations to the BOS on how to balance the

County’s budget, she communicated to the BOS that the Court Tower could continue

because it was funded with non-reoccurring funds, but that the MCAO and MCSO

budgets would have to be cut, along with the budget of all other County agencies since

there were ongoing operational funds.

COUNT IMalicious Prosecution and Abuse of Process in Violation of 42 U.S.C.

24. Plaintiffs reincorporate the foregoing paragraphs as though fully set forth

herein.

25. Thomas, Aubuchon, Sheriff Arpaio, and Hendershott’s investigation of

the Court Tower Project and Bug Sweep included the issuance of subpoenas and record

requests based on their belief that Sandi paid vendors authorized by the BOS. These

requests led the BOS to retain independent outside counsel to represent its interests

relating to the subpoenas and records requests.

26. In December 2009, at the behest of Sheriff Arpaio and Hendershott,

Thomas and Aubuchon filed a federal civil racketeering lawsuit, Arpaio et al. v.

Maricopa County Board of Supervisors, et al., 2:09-cv-02492-GMS (D. Ariz. 2009) (the

“RICO Lawsuit”), that named Sandi as a defendant.

Thomas, Aubuchon, Sheriff Arpaio, Hendershott, and Spaw1983:§

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27. Prior to commencing the RICO Lawsuit, Spaw received a legal opinion on

its merit from the Ogletree Deakins law firm (“Ogletree”), which had been retained by

Hendershott on behalf of the MCSO. Ogletree cautioned that the proposed racketeering

claim risked incurring sanctions for “unfounded, vexatiously motivated litigation.”

28. Ogletree’s opinion was shared with Thomas, Aubuchon, Sheriff Arpaio,

and Hendershott before the RICO Lawsuit was commenced.

29. Additionally, Thomas was told by his Chief Deputy, Phil MacDonnell,

that “[t]he idea of a civil RICO case based on current evidence is unfounded.” Mr.

MacDonnell also wrote to Thomas, “Peter Spaw, our RICO expert, thinks [the RICO

Lawsuit] makes no sense.”

30. The RICO Lawsuit labels Sandi a corrupt Racketeer based on: (1) her

recommendations to the BOS about budget cuts; (2) her execution of the BOS’s

discretionary directives to process payments to independent outside counsel retained by

the BOS; and (3) Sheriff Arpaio, Hendershott, Thomas, Aubuchon’s belief that she had

paid a contractor to conduct the Bug Sweep.

31. Expenditure of the these funds was authorized by the BOS.

32. In December 2009, after the RICO Lawsuit was filed, it was assigned to

Rachel Alexander (“Alexander”) to prosecute, with Spaw as her supervisor. Spaw and

Alexander opposed motions to dismiss and filed an amended complaint in the RICO

Lawsuit.

33. The RICO lawsuit was instituted, prosecuted, and maintained without

probable cause, with the purpose of depriving Sandi of her property, and with malice –

it was intentionally filed for the ulterior purpose of punishing Sandi for her

recommendations to the BOS and the execution of her duties, as instructed by the BOS,

all in violation of and reckless disregard to Sandi’s constitutional rights, including the

First, Fourth, Fifth, and Fourteenth Amendments.

34. The RICO Lawsuit terminated in Sandi’s favor when it was dismissed on

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35. As a direct and proximate cause of the these acts, Sandi suffered damages.

COUNT II1983 -Violations of 42 U.S.C. §

36. Plaintiffs reincorporate the foregoing allegations as though fully set forth

herein.

37. At all relevant times, Spaw was acting under color of state law as a

MCAO prosecutor.

38. Spaw knew, from his own review of the materials in the RICO Lawsuit

and from research provided to him from outside counsel, that the RICO Lawsuit lacked

a factual or legal basis.

39. Upon information and belief, Spaw further knew, or reasonably should

have known, that Thomas, Aubuchon, and Sheriff Arpaio were pursuing the RICO

Lawsuit for the ulterior purpose of unlawfully retaliating against Sandi based on her

budget recommendations to the BOS, and carrying out the BOS’s directions, actions for

which she is immune from suit.

40. Despite this knowledge, Spaw appeared as counsel in, and supervised, the

prosecution of the RICO Lawsuit.

41. As a result of Spaw’s failure to properly supervise Alexander, or terminate

the RICO Lawsuit, the constitutional violations set in motion by Thomas, Aubuchon,

Sheriff Arpaio, and Hendershott were exacerbated.

42. As a direct and proximate result of Spaw’s conduct, Sandi suffered

damages.

COUNT IIIMalicious Prosecution and Abuse of Process in Violation of Arizona Law:

Thomas, Sheriff Arpaio, Aubuchon, Hendershott, Maricopa County


herein.

Supervisor Liability: Spaw

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44. In addition to having violated Sandi’s federally established rights, as set

forth above, Thomas, Aubuchon, Sheriff Arpaio, and Hendershott are also liable, under

Arizona state law, for the torts of malicious prosecution and abuse of process.

45. Thomas, Aubuchon, Sheriff Arpaio, and Hendershott were acting, at all

relevant times, in the course and scope of their employment and, therefore, Maricopa

County is vicariously liable for their actions in violation of Arizona law.

COUNT IVRetaliation for the Exercise of First Amendment Rights in Violation of


47. In January 2010, Thomas, Aubuchon, Sheriff Arpaio, and Hendershott

retaliated against Sandi for her exercise of her constitutional rights and the execution of

her duties as directed by the BOS by jointly deciding to initiate a grand jury

investigation targeting Sandi (the “Grand Jury Investigation”).

48. In the Grand Jury Investigation, Sandi was alleged to have committed

felonies based on her recommendations to the BOS and her execution of the BOS’s

directions and her alleged issuing payments to vendors authorized by the BOS.

49. Thomas appointed Aubuchon to be the prosecutor for the Grand Jury

Investigation.

50. At the direction, or with the approval of, Sheriff Arpaio, Hendershott and

another MCSO witness testified at the Grand Jury Investigation against Sandi. Their

testimony was false, or otherwise given in reckless disregard of Sandi’s constitutionally

protected rights, as Aubuchon knew when eliciting the testimony.

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

disregarded the fact, that there was no probable cause to support the Grand Jury

Investigation because, among other things, the Yavapai County Attorney, Sheila Polk,

had previously informed them in September 2009, of the lack of a basis to believe any

herein.

and Hendershott,Thomas, Aubuchon, Sheriff Arpaio1983:§42 U.S.C.

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crime had been committed concerning the cases that had been referred to her in April

2009, which formed the basis of the allegations concerning Sandi.

52. Thomas, Aubuchon, Sheriff Arpaio, and Hendershott further knew, or

acted in reckless disregard of the fact, that Sandi was immune from prosecution based

on her exercise of her constitutional rights, and the execution of BOS directives in

processing payments.

53. Despite their knowledge of these facts, Thomas, Aubuchon, Sheriff

Arpaio, and Hendershott used the Grand Jury to investigate Sandi.

54. On March 3, 2010, the Grand Jury voted to “end the inquiry.”

55. On June 22, 2010, Sheriff Arpaio issued a press release publicly

demanding that “not one penny be paid by County officials to settle bogus claims”

asserted by Sandi, and others, that Arpaio announced were the subject of “past and

pending investigations.” (Emphasis added.)

56. On July 10, 2010, Sheriff Arpaio issued a press release, to which he

attached a letter written by Hendershott to County employee Peter Crowley, “warn[ing

Crowley] that one of the pending felony investigations is on your direct supervisor

Sandi Wilson” and cautioning that “[a]ny disclosure of the evidence against her or other

members of the BOS . . . would be inappropriate.” Hendershott further threatened

Crowly not “to handover [sic] the criminal evidence, [which risked] compromising

these criminal investigations.” Hendershott’s statements were published by a

newspaper on July 10, 2011.

57. Sheriff Arpaio and Hendershott knew, or recklessly disregarded the fact,

that there was no probable cause to support an investigation of Sandi because she had

already been the subject of a Grand Jury Investigation which had voted to “end the

inquiry.”

58. Sandi was retaliated against for the exercise of her rights of freedom of

speech and to petition the government for the redress of her grievances.

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59. Thomas, Aubuchon, Sheriff Arpaio, and Hendershott possessed an

impermissible motive to interfere with Sandi’s First Amendment rights.

60. Thomas, Aubuchon, Sheriff Arpaio, and Hendershott’s conduct would

have chilled a citizen of ordinary firmness from future First Amendment activities.

61. But for their retaliatory motive against Sandi due to her exercise of her

First Amendment rights, Thomas, Aubuchon, Sheriff Arpaio, and Hendershott would

not have engaged in the conduct alleged herein.

62. As a direct and proximate result of Thomas, Aubuchon, Sheriff Arpaio,

and Hendershott’s conduct, Sandi’s constitutional rights were violated and she has

suffered damages.

COUNT VDefamation and False Light in Violation of 42 U.S.C.


herein.

64. On December 1, 2009, Thomas, as County Attorney, issued a press

release announcing that the RICO Lawsuit had been filed against Sandi. Thomas stated

that the racketeering laws permitted him “to fight local corruption” and that the

defendants had collectively engaged in “illegal” and “criminal” conduct in furtherance

of a “corrupt purpose.”

65. Sheriff Arpaio included a statement on the December 1, 2009 release,

stating that “I took an oath to enforce all laws regardless of a person’s stature and

position, powerful or not. I commend my Sheriff’s Office deputies for conducting

professional investigations in spite of the pressures exerted by certain elected and

appointed officials in powerful positions.”

66. On March 11, 2010, Thomas and Sheriff Arpaio held a press conference at

which Sheriff Arpaio’s counsel, Robert Driscoll, was also present. At the conference,

Thomas announced that he achieved a “victory” in the RICO Lawsuit, even though it

Thomas and Sheriff Arpaio1983:§

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had been dismissed the day before, because the “only relief that would have been gotten

from the case would have been funding the further investigation into the possible

prosecution” of the defendants in the RICO Lawsuit.

67. Driscoll, with the approval of Sheriff Arpaio and Thomas, said that the

goal of the RICO Lawsuit had been achieved because the Department of Justice’s

Public Integrity Section (“DOJ”) had allegedly agreed to investigate the RICO Lawsuit

defendants. Driscoll said that “[t]he relief that we would be granted in [the RICO] case

would be essentially the relief we have now, which is someone [i.e., the DOJ] to

investigate and look into the evidence that has been produced.”

68. Driscoll, Sheriff Arpaio, and Thomas knew that the DOJ had made no

such agreement. In fact, two days later, the DOJ rejected Driscoll’s characterization

stating, in writing, that it “was dismayed to learn” that Driscoll “used as a platform for a

press conference” information he received from the DOJ. The DOJ further explained

that it had only informed Driscoll that Thomas and Sheriff Arpaio could submit a tip,

like any other citizen, and the DOJ would evaluate the information, the same as it would

do with any citizen’s concern. Nevertheless, Sheriff Arpaio and Thomas never

corrected their misstatement.

69. On June 22, 2010, Sheriff Arpaio, and Thomas (who had by then resigned

as County Attorney), issued a press release stating that:

a. There is evidence “justify[ing] the Court Tower investigation” and that claims to the contrary are “false rhetoric;”

b. “Also of concern is the fact that subordinates of Deputy County Manager Sandi Wilson, herself a claimant, reportedly have been attempting to retain an attorney as a mediator to settle these claims without any lawsuits having to be filed at all. . . .Wilson may also be attempting to settle other bogus and controversial lawsuits against the county to benefit attorney Michael Manning, counsel for several of these claimants;”

in violation of Arizona law.light claims against Thomas for defamation and false ’form part of the basis of Plaintiffs

claim against him does not include these statements. These statements do, however, 1983 §’Thomas was no longer a state employee at this time and, therefore, Plaintiffs1

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c. “Some of these same individuals [who filed notices of claims against the Defendants] abused the powers of their public offices to shut down criminal investigations and prosecutions and/or otherwise improperly deny us such an opportunity for examination under oath;”

d. “Not one penny” should be paid to settle Sandi’s “bogus claims”and that Sandi and the other claimants were the subject of “past and pending investigations.”

e. Thomas and Arpaio repeated the foregoing statements at a press conference later on June 22, 2010.

70. In a June 22, 2010, letter to County Manager David Smith, Sheriff Arpaio

demanded that the County refuse to settle Sandi’s claim. Sheriff Arpaio wrote that

Sandi’s “claims are frivolous on their face . . . [and] seem designed to obtain a payday

without [her] having to prove [her] allegations in a court of law. These claims appear

motivated by greed and a belief that friends, colleagues in county administration and

subordinates will provide a quick and substantial settlement without requiring [Sandi] to

file lawsuits which would demand proof and subject [Sandi] to testimony under oath. It

has come to our attention that Assistant County Manager Sandi Wilson, herself a

claimant . . . reportedly has encouraged her subordinates in the County Risk

Management Office to contact local attorneys seeking a mediator to prematurely settle

71. Each of the foregoing statements was published to third parties in a

manner that an ordinary person would understand that references to the RICO Lawsuit

defendants, the parties involved in the Grand Jury Investigation, the parties involved in

the Court Tower investigation, and the parties who had submitted notices of claim, are

references to Sandi.

72. Thomas and Sheriff Arpaio knew their respective statements were false

when said, or at a minimum acted with reckless disregard to their falsity. They

knowingly or recklessly placed Sandi in a false light by making statements that they

knew would injure her professional reputation and stature.

”totally unrelated cases . . . .

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73. Thomas and Sheriff Arpaio’s statements placed Sandi in a false light,

which would be highly offensive to a reasonable person.

74. Each of the foregoing statements were made in retaliation for Sandi’s

exercise of her First and Fourteenth Amendment constitutional rights.

75. Thomas and Sheriff Arpaio’s statements would chill a person of ordinary

firmness from future First Amendment activities.

76. As a direct and proximate result of the statements by Sheriff Arpaio and

Thomas, Plaintiffs’ constitutional rights were violated and have been damaged.

COUNT VIDefamation and False Light in Violation of Arizona Law:


78. Based on the allegations of ¶¶ 63-76, Thomas and Sheriff Arpaio are

liable for false light and defamation in violation of Arizona law.

79. Sheriff Arpaio was acting, at all relevant times, in the course and scope of

his employment and, therefore, Maricopa County is vicariously liable for his actions in

violation of Arizona law.

80. Thomas was acting at all times, other than that specified in ¶ 69, in the

course and scope of his employment and, therefore, Maricopa County is vicariously

liable for his actions in violation of Arizona law.

COUNT VII1983 –Violations of 42 U.S.C. § Substantive Due Process:


82. By committing the acts alleged above, Thomas, Aubuchon, Sheriff

Arpaio, and Hendershott deprived Sandi of her constitutionally-protected rights through

herein.

Thomas, Aubuchon, Sheriff Arpaio, and Hendershott

.herein

Thomas, Sheriff Arpaio, and Maricopa County

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actions so far outside the limits of legitimate governmental action that no process could

cure the deficiency.

83. Additionally, Thomas, Aubuchon, Sheriff Arpaio, and Hendershott’s

actions against Sandi were based purely on their animus against her based on her

perceived support of the BOS, in reckless disregard of her constitutional rights.

84. Thomas, Aubuchon, Sheriff Arpaio, and Hendershott’s conduct therefore

was arbitrary and shocks the conscience.


and Hendershott’s conduct, Sandi’s constitutional rights were violated and she suffered

damages.

COUNT VIII-Violations of 42 U.S.C. § 1983


herein.

87. Former County Attorney Thomas was a policymaker for Maricopa

County. At material times, he had the ultimate authority and responsibility to establish

policies, practices, customs, procedures, and protocols for the MCAO. He also had the

obligation to properly supervise members of the MCAO.

88. Thomas’ actions and inactions, as set forth above, including initiating and

ratifying malicious investigations and civil cases against Sandi, are acts upon which

Maricopa County may be found liable under 42 U.S.C. § 1983.

89. Sheriff Arpaio is an official policymaker for Maricopa County. He has

the ultimate authority and responsibility to establish policies, practices, customs,

procedures, and protocols for the MCSO. He also had the obligation to properly

supervise members of the MCSO.

90. Sheriff Arpaio’s actions and inactions, as set forth above, including

initiating and ratifying malicious investigations and prosecutions against Sandi, are acts

upon which Maricopa County may be found liable under 42 U.S.C. § 1983.

Municipal Liability: Maricopa County

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91. Thomas and Sheriff Arpaio, by delegating their authority to Aubuchon

and Hendershott, respectively, had customs, policies, and procedures of permitting and

encouraging Aubuchon and Hendershott to initiate investigations and prosecutions in

order to retaliate against their political perceived opponents and punish citizens for their

exercise of their constitutional rights.

92. Sheriff Arpaio and Hendershott encouraged their investigators to make

false statements in sworn affidavits that Sheriff Arpaio and Hendershott knew would be

filed with the courts. For example, at a MACE Unit meeting in March 2009,

Hendershott and Aubuchon informed their investigators that they wanted to obtain a

search warrant to search the BOS offices following an article in the Arizona Republic

about the Bug Sweep. Aubuchon directed MCSO Lt. Rich Burden to use “creative

writing” in drafting the search warrant, saying that it would be issued if they put “fluff

above, fluff below” and then took it to a particular justice of the peace for issuance. Lt.

Burden openly refused to include false statements in a search warrant affidavit as

Aubuchon had directed. Aubuchon subsequently complained to Hendershott, and

MCSO employees complained to Arpaio. Hendershott learned of the complaints. In

retaliation, Lt. Burden and the other complaining MCSO employees were transferred

out of the MACE Unit shortly thereafter. The remaining MCSO employees understood

this as a sign that Arpaio and Hendershott wanted the MCSO employees on the MACE

Unit to follow Hendershott and Aubuchon’s directives, with no questions asked.

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

independently and in concert with one another, implemented policies, customs, or

procedures which: authorized, approved, condoned, and/or ratified unconstitutional civil

and/or criminal investigations.

94. As the direct and proximate result of the wrongful conduct of Thomas,

Aubuchon, Sheriff Arpaio, and Hendershott, Sandi’s constitutional rights were violated

and she has suffered harm and has been injured.

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COUNT IXDefamation/False Light in Violation of Arizona Law: Thomas


96. After he resigned as Maricopa County Attorney, Thomas joined in Sheriff

Arpaio’s June 22, 2010, press release.

97. In addition, Thomas made the following additional defamatory statements

after he resigned as Maricopa County Attorney:

a. On June 30, 2010, Thomas issued a press release in which he stated that “Arpaio and Thomas released new evidence in support of their RICO lawsuit . . . .”

b. On July 14, 2010, Thomas wrote an article that was published on the “Intellectual Conservative” blog in which he reiterated his prior belief that the criminal investigations and RICO Lawsuit werejustified: “As a result of . . . misconduct by . . . [the] county officials [including Sandi], Arpaio and Thomas filed a federal lawsuit . . . . Instead of accepting responsibility for their deplorable conduct, they demand millions in taxpayer dollars. The reason? Because Sheriff Arpaio and former County Attorney Thomas sought to hold them accountable with a legitimate RICO suit . . . . They essentially stand to benefit from their own misconduct by filing these claims . . . against county law-enforcement officials who did their best to address their misbehavior.”

c. On July 20, 2010, Thomas issued a press release in which he stated that the County officials – an implicit reference to Sandi – “have rigged the system so these insiders can receive payouts without having to testify under oath or convince a jury of the justice of their cause.” Again, Thomas stated that “the Maricopa County Sheriff’s Office on June 22, 2010, released additional evidence not previously available supporting the . . . RICO lawsuit.”

d. On August 14, 2010, Thomas wrote an article called “Grand Juries Found Reason to Indict” that appeared in the Arizona Republic, and on the “Intellectual Conservative” blog on August 16, 2010, in which he stated that the grand jury considering the investigation into Sandi “was prepared to act” because they had requested an indictment, but were prevented from acting due to a stay. Thomas claimed the grand jury had voted to “end their inquiry so it could be referred to another law-enforcement agency.” In fact, Aubuchon asked the grand jury to release the case so that it could be transferred to a special prosecutor, but the jury instead asked what other options it had, and thereafter voted to end the inquiry instead of permitting the MCAO or another agency to proceed.

.herein

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98. Each of the foregoing statements was published to third parties in a

manner that an ordinary person would understand that references to the RICO Lawsuit

defendants, the parties involved in the Grand Jury Investigation, the parties involved in

the Court Tower investigation, the Bug Sweep, and the parties who had submitted

notices of claim, are references to Sandi.

99. Thomas knew his statements were false when published, or at a minimum

acted with reckless disregard to their falsity, and that the statements would injure her

professional reputation and stature.

100. Thomas’ statements placed Sandi in a false light, which would be highly

offensive to a reasonable person.

101. Thomas knew, or recklessly disregarded the falsity of his statements, and

the false light in which Sandi would be placed.

102. As a direct and proximate result of Thomas’ statements, Plaintiffs have

been damaged.

COUNT XIntentional Infliction of Emotional Distress:


104. Thomas, Aubuchon, Sheriff Arpaio, and Hendershott’s actions in: (1)

defaming Sandi; (2) pursuing the RICO Lawsuit against her; (3) pursuing retaliatory

public investigations of Sandi, including but not limited to the Grand Jury Investigation;

were all acts in and of themselves, and taken together, that are extreme, outrageous, and

beyond all possible realms of decency and that shock the conscience.

105. Thomas, Aubuchon, Sheriff Arpaio, and Hendershott’s acts were

intentionally aimed at causing Sandi and her husband extreme emotional distress and/or

physical injury and/or harm and were done in reckless disregard of the near certainty

that emotional distress and physical injury and/or harm would result from their conduct.

herein.

Thomas, Aubuchon, Sheriff Arpaio, and Hendershott, Maricopa County

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and Hendershott’s intentional infliction of emotional distress, Sandi and her husband

have suffered severe emotional distress, adverse physical maladies and manifestations,

and physical injury and/or harm.

107. Defendants Thomas, Aubuchon, Sheriff Arpaio, and Hendershott were

acting, except as otherwise noted, in the course and scope of their employment and,

therefore, Maricopa County is vicariously liable for their actions in violation of Arizona

law.

COUNT XIViolations of Arizona’s Racketeering Statute, A.R.S. § 13-2314.04: Thomas,

Aubuchon, Sheriff Arpaio, and Hendershott


109. The MACE Unit was an association-in-fact which Thomas, Aubuchon,

Sheriff Arpaio, and Hendershott participated, controlled, managed, conducted, and/or

operated in order to retaliate against their political opponents, and for financial gain.

110. From approximately March 2008 until February 2010, Hendershott and

Aubuchon met concerning the MACE Unit’s investigations and civil and criminal

prosecutions, and conspired as to who to target and how to target them. From time to

time, Thomas and Sheriff Arpaio attended those meetings and were each continually

updated on the MACE Unit’s activities.

111. Thomas, Aubuchon, Sheriff Arpaio, and Hendershott operated the MACE

Unit for financial gain in the following ways: (1) the MACE Unit was used to heighten

the appearance of public corruption permitting Sheriff Arpaio to raise money for the

Sheriff’s Command Association Fund, which provided financing for Thomas’ and

Sheriff Arpaio’s election campaigns; (2) the same perception helped Thomas and

Sheriff Arpaio raise money from private donors for their political campaigns; and (3)

one of the MACE Unit’s objectives was to attempt to force the BOS to eliminate the

herein.

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Court Tower Project and divert funds dedicated to it to the MCSO and MCAO’s

budgets, which was the critical factor necessary for Thomas and Sheriff Arpaio to

exercise their power.

112. The MACE Unit specifically committed the following pattern of unlawful

acts, in addition to others, in violation of A.R.S. § 13-2314.04 and A.R.S. § 13-2312:2

a. Theft by extortion. The MACE unit threatened to publicly investigate and prosecute members of the BOS if they: (1) cut MCAO or MCSO budgets, or (2) did not abandon the Court Tower Project. This is a violation of § 13-1804(A)(5) and (7).

b. 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 DOJ investigation. This is a violation of A.R.S. § 13-2409.

c. 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 jointly attempted to induce BOS Chair Donald Stapley’s assistant, Susan Schuerman, to falsely testify againstStapley. They threatened to criminally investigate and prosecute her if she did not cooperate. Once their criminal investigation began, they implicitly promised the investigation would end without charges if she would cooperate. This is a violation of A.R.S. § 13-1804(A)(5) and (7); and A.R.S. §§ 13-2602(A) and 13-2606.

d. 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).

e. 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. § 13-1804(A)(7).

f. 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).

instead provide them to establish a pattern of unlawful activity.The Plaintiffs are not seeking damages for the acts alleged in this paragraph, but 2

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g. 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

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

§§ 13-2312 and 13-2314.04 through the following pattern of unlawful acts that they

committed against Sandi:

a. 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 and Sandi 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 Sandi complied with the demands. This is a violation of A.R.S. §§ 13-2602(A) and 13-2606.

b. 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 Sandi with criminal investigation and prosecution if she did not recommend to the BOS that the BOS not cut the MCAO or MCSO budgets. This is a violation 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 Sandi complied with the demands. This is a violation of

114. The alleged acts supporting the causes of action set forth in Counts I, III-

VI, IX-X were committed by Thomas, Aubuchon, Sheriff Arpaio, and Hendershott in

furtherance of the MACE Unit’s activities, and therefore in violation of A.R.S. §§ 13-

2312 and 13-2314.04.

115. As a direct, proximate, and reasonably foreseeable result of the violations

of A.R.S. §§ 13-2312 and 13-2314.04 by Thomas, Aubuchon, Sheriff Arpaio, and

Hendershott, Sandi has sustained damage to her person, including her reputation, and

extreme emotional distress.

.2606-132602(A) and -§§ 13A.R.S.

1804(A)(7).-13on of A.R.S. §was a violati

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116. All of Thomas, Aubuchon, Sheriff Arpaio, and Hendershott’s conduct

described in this Count constitute violations of A.R.S. §§ 13-2312 and 13-2314.04.

They are each responsible for all violations of A.R.S. § 13-2314.04 and the damages

stemming therefrom, due to their control of the MACE Unit pursuant to A.R.S. § 13-

2312.

117. Pursuant to A.R.S. § 12-2314.04, Sandi is entitled to an award of treble

damages, in addition to her attorneys’ fees and costs.

JURY TRIAL

118. Plaintiffs hereby request a trial by jury.

PRAYER FOR RELIEF

WHEREFORE, Plaintiffs pray for damages for judgment, jointly and severally,

against Defendants as follows:

(i) General damages in an amount to be proven at trial;

(ii) 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 13-

2314.04.

(v) The costs of litigation;

(vi) All remedies provided by 42 U.S.C. §§ 1983 and 1988, and A.R.S. § 13-

2301, et seq.; and

(vii) Such other and further relief which may seem just and reasonable under

the circumstances.

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RESPECTFULLY SUBMITTED this 21 day of November, 2011.

STINSON MORRISON HECKER LLP

By: s/ Michael C. ManningMichael C. ManningLarry J. WulkanStefan M. Palys1850 North Central Avenue, Suite 2100Phoenix, Arizona 85004-4584Attorneys for Plaintiffs

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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 e-notice of the electronic filing to the following ECF participants:

Daryl A. Audilett, Esq.KIMBLE, NELSON, AUDILETT & KASTNER, PC335 N. Wilmot, Suite 500Tucson, AZ 85711-2635Attorneys for Defendants Arpaio

Donald Wilson, Esq.BROENING, OBERG, WOODS & WILSON, PC1122 E. JeffersonPhoenix, Arizona 85036Attorneys for Defendants Thomas

James P. Mueller, Esq.MUELLER & DRURY, P.C.8110 E. Cactus Road, Suite 100Scottsdale, AZ 85260Attorneys for Defendants Aubuchon and Pestalozzi

Barry Markson, Esq.THOMAS THOMAS & MARKSON P.C.2700 N. Central Avenue, Suite 800Phoenix, AZ 85006Attorneys for Defendants Hendershott

Victoria L. Orze, Esq.HINSHAW & CULBERTSON, LLP3200 N. Central Avenue, Suite 800Phoenix, AZ 85012Attorneys for Defendant William Montgomery

Steven A. LaMar, Esq.BEER & TOONE, P.C.76 E. Mitchell DrivePhoenix, AZ 85006Attorneys for Defendant Maricopa County

By: s/ Kathleen Kaupke

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amended wilson

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