amended donahoe

8/3/2019 Amended Donahoe

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Michael C. Manning (#016255)Larry J. Wulkan (#021404)Stefan M. Palys (#024752)STINSON MORRISON HECKER LLP1850 North Central Avenue, Suite 2100Phoenix, Arizona 85004-4584

Tel: (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

GARY AND CHERIEDONAHOES VERIFIED

SECOND AMENDEDCOMPLAINT

Plaintiffs,

Sheriff Joseph Arpaio and Ava Arpaiohusband and wife;and ANNE THOMAS, husband and wife;LISA AUBUCHON and PETER R.

v.

,ANDREW THOMAS

PESTALOZZI, wife and husband;DEPUTY CHIEF DAVID

HENDERSHOTT and ANNAHENDERSHOTT, husband and wife;PETER SPAW and JANE DOE SPAW,husband and wife; MARICOPACOUNTY, a municipal entity, and JOHNDOES I-X; JANE DOES I-X; BLACKCORPORATIONS I-V; and WHITEPARTNERSHIPS, I-V

Susan Schuerman,

Shusband and wife; et. al.,

Defendants.

Plaintiff,

Defendants.

v.

heriff Joseph Arpaio and Ava Arpaio,

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Case 2:10-cv-02756-NVW Document 243 Filed 11/21/11 Page 1 of 27


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Sandra Wilson andand wife,


Conley D. Woet al.,

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

Stephen Wetzel and Nancy Wetzelhusband and wife,

v.


Mary Rose and Earl Wilcox

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

Amended Complaint (the

Paul Wilson

heriff Joseph Arpaio and Ava Arpaio,

lfswinkel

heriff Joseph Arpaio and Ava Arpaio

Plaintiffs Gary Donahoe and Cherie Donahoe, for their Verified Second

Complaint

Plaintiffs,

, husband

v.

Defendants.

Plaintiffs,

Defendants.

Plaintiffs,

Defendants.

, a single man,

husband,

Plaintiffs,

v.

,

,

,

v.

, wife and

Defendants.

) against Defendants, hereby allege as follows:28

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JURISDICTIONAL ALLEG

This C

Court has jurisdiction

Pursuant to 28 U.S.C.

Plaintiffs claims

Pursuant

parties are residents of Maricopa County,

lawsuit occurred in Maricopa County.

Plaintiffs Gary Donahoe

Donahoe was a Maricopa

March 31, 2010,

County Superior Court.

Defendants Joseph Arpaio (

County

(MCSO).

Defendants Andrew Thomas

couple

for the benefit and furtherance of the Thomas

Thomas

was the Maricopa County Attorney

Attorneys Office (

ATIONS

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

over

to 28 U.S.C.

(

married couple residing in Maricopa County, Arizona

married couple residing in Maricopa County, Arizona

acts were done for the benefit and furtherance of the Arpaios

Sheriff Arpaio is named in both his official and individual capac

all times material herein, Sheriff Arpaio was the duly

, acting under color of law,

(

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

Arizona, and the events underlying this

PARTIES

3. Judge Donahoe) and Cherie Donahoe are a

. At all relevant times, Gary

County Superior Court Judge. From January 16, 2009, to

Judge Donahoe served as Presiding Criminal Judge of the Maricopa

Judge Donahoe retired effective June 30, 2011.

4. Sheriff Arpaio) and Ava Arpaio are a

. All of Sheriff Arpaios alleged

marital community.

5. ities. At

-elected Sheriff of Maricopa

and the head of the Maricopa County Sheriffs 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

MCAO), from January 3, 2005, to April 6, 2010. At all times28

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Thomas resigned as County Attorney, the misco

personal benefit.

Defendants

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

Complaint.

color of law.

Peter Spaw (Spaw

Maricopa County, Arizona

furtherance of the

at this time, and will be substituted u

Spaw

Maricopa County Deputy County Attorney.

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

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

nduct alleged herein was done for his

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

married couple residing in Maricopa County, Arizona. All of Aubuchons alleged acts

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

community.

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

Aubuchon 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 Hendershotts alleged

the Hendershotts marital community.

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

MCSO 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 Spaws alleged acts were done for the benefit and

Spaws marital community. Jane Doe Spaws true name is unknown

pon discovery 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 Maric

vicariously liable

agents, officers, and employees.

GENERAL ALLEGATIONS

announced that C

economic downturn

the MCAO and MCSO.

the

cuts, Thomas appointed Aubuchon to

Unit (the MACE Unit

fighting government corruption

to Aubuchon

procedures, protocols, and training

delegated to Hendershott

policies

Sheriff Arpaio's absence.

14. opa County (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

supervise the Maricopa Anti-Corruption Effort

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

and was comprised of members of the MCAO and

MCSO.

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

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

in Thomas' absence.

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

the supervision, authority and responsibility to establish

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

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Thomas, Aubuchon,

participated in,

against their perceived political opponents

21. Sheriff Arpaio, and Hendershott operated, controlled,

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

.

22. Judge Donahoe came to be a target for Thomas, Aubuchon, Sheriff

Arpaio, and Hendershott based on several rulings he made that they perceived as being

adverse to their interests. Those rulings are summarized as follows:

a. Judge Donahoe presided over a dispute between the BOS, itsindependently retained counsel, and the MCAO. On February 6,2009, Judge Donahoe: (1) denied the MCAOs motion to re-assignthe case to an out-of-county judge; (2) denied the MCAOs motionto disqualify the BOSs independently retained counsel; (3)

quashed a grand jury subpoena obtained by the MCAO toinvestigate the Court Tower Project; and (4) disqualified theMCAO from investigating the Court Tower Project based on theMCAOs conflict of interest.

b. On September 25, 2009, Judge Donahoe held a hearing on Ordersto Show Cause as to why MCSO Deputy Chief David Trombi (amember of the MACE Unit), whose responsibilities includedensuring there were sufficient MCSO Deputies to timely transportprisoners to their criminal hearings at the Maricopa CountySuperior Court, should not be held in contempt for failure to obeyMaricopa County Superior Court Orders related to the same.

c. In November 2009, Judge Donahoe held Maricopa Countydetention officer Adam Stoddard in contempt for perusing acriminal defense attorneys file in Court.

COUNT I

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

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

herein.

24. 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 Judge Donahoe as a defendant.

25. 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

and SpawThomas, Aubuchon, Sheriff Arpaio, Hendershott,

1983:

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

claim risked incurring sanctions for unfounded, vexatiously motivated litigation.

26. The Ogletree opinion was shared with Thomas, Sheriff Arpaio, and

Hendershott before the RICO Lawsuit was commenced.

27. 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, Peter Spaw, our RICO expert, thinks [the RICO Lawsuit]

makes no sense.

28. The RICO Lawsuit labels Judge Donahoe a corrupt Racketeer based on

the content of his rulings.

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

Deputy County Attorney 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.

30. Thomas, Aubuchon, Sheriff Arpaio, Hendershott, and Spaw instituted,

prosecuted, and maintained the RICO Lawsuit without probable cause, with the purpose

of intentionally or recklessly depriving Judge Donahoe of his property, in violation of

the Fourth and Fourteenth Amendments, and with malice it was filed for the ulterior

purpose of punishing Judge Donahoe for his rulings, in violation of the First, Fourth,

Fifth, and Fourteenth Amendments.

31. The RICO Lawsuit terminated in Judge Donahoes favor when it was

dismissed on March 11, 2010.

32. As a direct and proximate result of the conduct alleged herein, Judge

Donahoe was damaged as a result of the malicious prosecution and abuse of process,

stemming from the RICO Lawsuit.

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COUNT II

Malicious Prosecution and Abuse of Process in Violation of Arizona Law:


herein.

34. In addition to having violated Judge Donahoes federally established

rights, for the reasons alleged in 23-32, Defendants Thomas, Aubuchon, Sheriff

Arpaio, and Hendershott are also liable, under Arizona state law, for the torts of

malicious prosecution and abuse of process.

35. Defendants 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 III

1983 -Violations of 42 U.S.C. Supervisor Li

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 retaliating against Judge Donahoe for his judicial

rulings and for exercising his constitutional rights.

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

prosecution of the RICO Lawsuit.

ability: Spaw

n, Hendershott, and Maricopa CountyThomas, Sheriff Arpaio, Aubucho

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41. As a direct and proximate cause of Spaws 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 of Spaws conduct, Judge Donahoe suffered

damages.

COUNT IV

Malicious Prosecution in Violation of 42 U.S.C. 1983 and Arizona Law:

Sheriff Arpaio and Hendershott


herein.

44. On December 9, 2009, at the behest and urging of Sheriff Arpaio and

Hendershott, a Criminal Complaint was filed by Thomas and Aubuchon against Judge

Donahoe charging him with three felonies.

45. Arpaio and Hendershotts pursuit of the Criminal Complaint was in

retaliation against Judge Donahoe based on the content of his judicial rulings.

46. Defendant Hendershott, at Sheriff Arpaio's direction, aided and

encouraged the filing of the Criminal Complaint by providing the language that was

used in the probable cause statement associated with the Criminal Complaint. He knew,

or recklessly disregarded the fact that, the information he provided for the probable

cause statement was false.

47. The prosecutors who filed the Criminal Complaint conducted no

independent investigation of the facts, nor of the probable cause, to determine whether

criminal charges were warranted against Judge Donahoe.48. The proceeding was instigated without probable cause and with malice in

violation of Judge Donahoes constitutional rights, or in reckless disregard of the same.

49. The Criminal Complaint terminated in Judge Donahoes favor when it

was dismissed on March 11, 2010.

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50. The filing of the Criminal Complaint directly and proximately caused

Judge Donahoe damages.

COUNT V

Retaliation for the Exercise of First Amendment Rights


herein.

52. Thomas, Aubuchon, Sheriff Arpaio, and Hendershott retaliated against

Judge Donahoe for his judicial rulings by jointly deciding to name him as a defendant in

the RICO Lawsuit.

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

retaliated against Judge Donahoe for his rulings by jointly deciding to initiate a grand

jury investigation targeting Judge Donahoe (the Grand Jury Investigation).

54. In the Grand Jury Investigation, Judge Donahoe was alleged to have

committed felonies based on his judicial rulings.

55. Thomas appointed Aubuchon to be the prosecutor for the Grand JuryInvestigation.

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

testified at the Grand Jury Investigation against Judge Donahoe. His testimony was

false, or otherwise given in reckless disregard of Judge Donahoes constitutionally

protected rights.

57. 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

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

2009, which formed the basis of the allegations concerning Judge Donahoe.

Sheriff Arpaio, and HendershottThomas, Aubuchon,

1983:in Violation of 42 U.S.C.

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

acted in reckless disregard of the fact, that Judge Donahoe was immune from

prosecution based on the content of his judicial rulings.

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

Arpaio, and Hendershott used the Grand Jury to investigate Judge Donahoe.

60. On March 3, 2010, the Grand Jury voted to end the inquiry.

61. Thereafter, Judge Donahoe was retaliated against for the exercise of his

rights of freedom of speech and to petition the government for the redress of grievances

through the following acts:

a. Thomas, Aubuchon, Sheriff Arpaio, and Hendershotts conduct asalleged in Counts 11 and 12; and

b. Thomas and Sheriff Arpaios conduct as alleged in Counts 6 and 7.

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

impermissible motive to interfere with Judge Donahoes First Amendment rights.

63. Thomas, Aubuchon, Sheriff Arpaio, and Hendershotts conduct would

have chilled a judge and citizen of ordinary firmness from future First Amendment

activities.

64. But for their retaliatory motive against Judge Donahoe due to his exercise

of his First Amendment rights, Thomas, Aubuchon, Sheriff Arpaio, and Hendershott

would not have engaged in the conduct alleged herein.

65. As a direct and proximate result of the conduct alleged herein, Judge

Donahoe suffered damages.

COUNT VI

Defamation and False Light in Violation of 42 U.S.C.


herein.

omas and Sheriff ArpaioTh

1983:

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67. On December 1, 2009, Thomas, as County Attorney, issued a Press

Release announcing that a Federal Racketeering lawsuit had been filed against Judge

Donahoe. Thomas stated that the Racketeering laws permitted him to fight local

corruption and that Judge Donahoe had ruled in favor of himself (he and other

Maricopa County superior court judges will be housed in that building), the Board of

Supervisors, and their shared law firm . . . . Sheriff Arpaio included a statement on the

Release stating that I took an oath to enforce all laws regardless of a persons stature

and position, powerful or not. I commend my Sheriffs Office deputies for conducting

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

appointed officials in powerful positions.

68. On December 9, 2009, Thomas issued another Press Release stating that

Judge Donahoe was alleged to have engaged in obstruction of a criminal inquiry into

the new Court Tower and accusing Judge Donahoe of willfully misus[ing his]

authority to protect [him]sel[f] and [his] benefactors from investigation or prosecution

for possible crimes . . . . Sheriff Arpaio included a statement in the Release stating that

Judge Donahoe must be held accountable.

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

which Sheriff Arpaios counsel, Robert Driscoll, was also present. At the conference,

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

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.

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

goal of the RICO Lawsuit had been achieved because the Department of Justices

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

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

such agreement. In fact, two days later, the DOJ rejected Driscolls 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 citizens concern. Nevertheless, Sheriff Arpaio and Thomas never

corrected their misstatement.

72. 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 andthe filing of criminal charges against Retired Judge Gary Donahoeand claims to the contrary are false rhetoric;

b. Additional information and evidence would be released supportinga criminal case against Judge Donahoe;

c. Judge Donahoe had been accused of being an accessory toattempting to obstruct the Court Tower investigation and relatedcriminal matters and facilitating an alleged bribery scheme in order

to protect [Judge] Mundell and to retain his prestigious position aschief criminal judge for the Superior Court;

d. Judge Donahoes claims are bogus and Thomas and Arpaiostated that they hoped to go to trial, where we would no doubtprove [Donahoes] culpability in past and pending investigations.

e. Thomas and Arpaio repeated the foregoing statements at a press

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

demanded that the County refuse to settle Judge Donahoes claims. Sheriff Arpaio

wrote that Judge Donahoes claims are frivolous on their face . . . [and] seem designed

to obtain a payday without [his] having to prove [his] allegations in a court of law.

violation of Arizona law.claims against Thomas for defamation and false light inform the basis of Plaintiffs

claim against him does not include these statements. These statements do, however,1983Plaintiffstherefore,,andtimeisThomas was no longer a state employee at th1

conference later on June 22, 2010.

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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 [Judge Donahoe] to file lawsuits which would demand proof and subject

[Judge Donahoe] to testimony under oath.

74. 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 Criminal

Complaint, the parties involved in the Court Tower investigation, and the parties who

had submitted notices of claim, are references to Judge Donahoe.

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

when said, or at a minimum acted with reckless disregard to their falsity, and would

injure Judge Donahoes reputation and stature.

76. Thomas and Sheriff Arpaios statements placed Judge Donahoe in a false

light, which would be highly offensive to a reasonable person.

77. Thomas and Sheriff Arpaio knew, or recklessly disregarded the falsity of

their statements, and the false light in which Judge Donahoe would be placed.

78. Each of the foregoing statements were made in retaliation for Judge

Donahoes exercise of his First and Fourteenth Amendment constitutional rights.

79. Thomas and Sheriff Arpaios statements would chill a person of ordinary

firmness from future First Amendment activities.

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

Thomas, Plaintiffs have been damaged. Judge Donahoe, among other things, was

forced to step down as the Presiding Judge of the Criminal Division at the Maricopa

County Superior Court, causing Plaintiffs additional damages.

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COUNT VII

Defamation and False Light in Violation of Arizona Law:


herein.

82. Based on the allegations of paragraphs 66-80, Thomas and Sheriff Arpaio

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

83. 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.

84. Thomas was acting at all times, other than that specified in 72, in the

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

liable for his actions in violation of Arizona law.

COUNT VIII

1983 Violations of 42 U.S.C. Substantive Due Process:


86. By committing the acts alleged herein, Thomas, Aubuchon, Sheriff

Arpaio, and Hendershott deprived Judge Donahoe of his constitutionally-protected

rights through actions so far outside the limits of legitimate governmental action that no

process could cure the deficiency.

87. Additionally, Thomas, Aubuchon, Sheriff Arpaio, and Hendershotts

actions against Judge Donahoe were based purely on their animus against him based on

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

88. Thomas, Aubuchon, Sheriff Arpaio, and Hendershotts conduct therefore

was arbitrary and shocks the conscience.

rein.he

Thomas, Aubuchon, Sheriff Arpaio, and Hendershott

iff Arpaio, and Maricopa CountyThomas, Sher

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

and Hendershotts conduct, Judge Donahoes constitutional rights were violated and he

suffered damages.

COUNT IX

- MunicViolations of 42 U.S.C. 1983


herein.

91. 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.

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

ratifying malicious investigations and prosecutions against Judge Donahoe, are acts

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

93. 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.

94. Sheriff Arpaios actions and inactions, as set forth above, including

initiating and ratifying malicious investigations and prosecutions against Judge

Donahoe, are acts upon which Maricopa County may be found liable under 42 U.S.C.

1983.

95. 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.

ipal Liability: Maricopa County

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96. 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:

a. At a MACE Unit meeting in March 2009, Hendershott andAubuchon informed their investigators that they wanted to obtain asearch warrant to search the BOS offices following an article in the Arizona Republic about a search for listening devices in Countyoffices. Aubuchon directed MCSO Lt. Rich Burden to usecreative writing in drafting the search warrant, saying that itwould be issued if they put fluff above, fluff below and then tookit to a particular justice of the peace for issuance. Lt. Burdenopenly refused to include false statements in a search warrantaffidavit as Aubuchon had directed. Aubuchon subsequentlycomplained to Hendershott, and MCSO employees complained to

Arpaio. Hendershott learned of the complaints. In retaliation, Lt.Burden and the other complaining MCSO employees weretransferred out of the MACE Unit shortly thereafter. Theremaining MCSO employees understood this as a sign that Arpaioand Hendershott wanted the MCSO employees on the MACE Unitto follow Hendershott and Aubuchons directives, with noquestions asked.

Further, on December 8, 2009, Arpaio conceived the idea of filinga direct Criminal Complaint against Judge Donahoe at a meetingbetween Thomas, Aubuchon, Sheriff Arpaio, and Hendershott atthe MCAO offices. To obtain information for a sworn probable

cause statement to attach to the Complaint, Arpaio directedHendershott to use the information contained in a judicialcomplaint that Hendershott had previously submitted about JudgeDonahoe, even though Arpaio knew that information was false.Hendershott directed an MCSO employee to type the text of the old

judicial complaint into the probable cause statement, and then gavethe probable cause statement to Aubuchon to get an MCAOinvestigator to sign it, under penalty of perjury. No MCAOinvestigator would sign the probable cause statement, whichAubuchon reported to Hendershott. Hendershott thereafter directedSgt. Luth to get an MCSO Deputy to sign the probable causestatement. Sgt. Luth asked Detective Gabriel Almanza to sign theprobable cause statement. Almanza was at first reluctant, butAubuchon assured him that the statements in the probable causestatement were accurate, although she knew them to be false, oracted in reckless disregard of the falsity of the facts being alleged.On December 9, 2009, Almanza signed the probable causestatement under oath.

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

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

b.

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

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

Aubuchon, Sheriff Arpaio, and Hendershott, Judge Donahoes constitutional rights were

violated and he has suffered harm and has been injured.

COUNT X

Defamation/False Light in Violation of Arizona Law: Thomas


herein.

100. After he resigned as Maricopa County Attorney, Thomas made the

following additional defamatory statements:

a. On May 20, 2010, when asked about the basis for the CriminalComplaint against Judge Donahoe, Thomas, through hisspokesman Barnett Lotstein, told the Phoenix New Times the basisfor the charges was in the probable cause statement, and thattheres no purpose to explaining again what [Thomas has] alreadyexplained.

b. On June 30, 2010, Thomas wrote an article that was published on

the Intellectual Conservative blog. The article states that, lastweek, Arpaio and Thomas released new evidence in support oftheir RICO lawsuit and criminal case against Maricopa CountyJudge Gary Donahoe, and repeated the charge that Judge Donahoewas a corrupt Racketeer and felon.

c. On July 14, 2010, Thomas wrote an article that was published onIntellectual Conservative in which he states that the four judges[named later in the article as Fields, Baca, Mundell, and Donahoe]who have filed claims ask to be rewarded financially formisconduct that led them to be properly sued, and in one case [i.e.,Donahoe], prosecuted. Later in the same article, Thomas states,

Donahoe was ruling on his own case, and his actions served toprotect himself, Judge Mundell, and the lawyers representing thecourt and the board simultaneously. The article goes on to cite aJune 22, 2010, press release by Arpaio, disclos[ing] additionalfacts related to the prosecution of Judge Donahoe . . . to justify theCourt Tower Investigation and the filing of criminal chargesagainst retired Judge Gary Donahoe which was purportedly basedon specific information. That specific information is describedas the anchor [to] the criminal case against Judge Gary Donahoeand the federal RICO case. The article continues, [a]s a result of

investigations.and/or criminal

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this and other misconduct by these judicial officers . . . Arpaio andThomas filed a federal lawsuit including the four [judges] asdefendants and brought criminal charges against Donahoe. Thearticle characterized Judge Donahoes case (this lawsuit) as beingfiled because County Attorney Thomas sought to hold [the judges]accountable with a legitimate RICO suit and criminal prosecutionof Donahoe . . . [and that Judge Donahoe] stand[s] to benefit from[his] own misconduct . . . .

d. On August 9, 2010, Thomas spokesman, with Thomas knowledgeand approval, issued a press release in which Thomas again claimsthat there was probable cause to believe that Donahoe hadcommitted the crime of bribery. The release states that thebenefit necessary to support the charge was keeping his positionas Presiding Criminal Court Judge, maintaining a beneficialrelationship with the Presiding Judge of Maricopa County, andallowing the Superior Court to benefit from funding by the Boardfor the tower as well as other projects. Thomas offers similarstatements to reaffirm and reiterate his belief in the validity of theRICO Lawsuit. The same allegations were reiterated in an articlewritten on August 10, 2010, by Thomas, that was published on theIntellectual Conservative blog.

e. On August 14, 2010, Thomas wrote an article that appeared in theArizona Republic, and on the Intellectual Conservative blog onAugust 16, 2010, in which he stated that the grand jury consideringthe Judge Donahoe investigation was prepared to act becausethey had requested an indictment, but were prevented from actingdue to a stay. Thomas claimed the grand jury had voted to end

their inquiry so it could be referred to another law-enforcementagency. In fact, Aubuchon asked the grand jury to release thecase so that it could be transferred to a special prosecutor, but the

jury instead asked what other options it had, and thereafter voted toend the inquiry instead of permitting the MCAO or another agencyto proceed.

f. On August 16, 2010, Thomas wrote an article that was publishedon the Intellectual Conservative, in which he reiterated the claimthat the grand jury considering Judge Donahoes investigation waspoised to act, but for the stay, then ended the inquiry so another

101. Each of the foregoing statements was published to third parties.

102. These statements were published 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 Criminal Complaint, the parties involved in the

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

references to Judge Donahoe.

prosecutor could take over.

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

acted with reckless disregard to their falsity and would injure Judge Donahoes

reputation and stature.

104. Thomass statements placed Judge Donahoe in a false light, which would

be highly offensive to a reasonable person.

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

the false light in which Judge Donahoe would be placed.

106. As a direct and proximate result of the statements by Thomas, Plaintiffs

have been damaged. Judge Donahoe had to, among other things, step down as the

Presiding Judge of the Criminal Division of the Maricopa County Superior Court.

COUNT XI

Intrusion Upon Seclusion in Violation of Arizona Law: Thomas,


108. On or about December 1, 2009, Thomas, Aubuchon, Sheriff Arpaio, and

Hendershott intruded upon Judge Donahoes seclusion by jointly deciding to hire a

process server to serve Judge Donahoe with the RICO Lawsuit, whom they knew or

should have known had been previously prosecuted for threatening to kill Judge

Donahoe.

109. Thomas, Aubuchon, Sheriff Arpaio, and Hendershott also intruded upon

Judge Donahoes seclusion by publishing on the internet Judge Donahoes unlisted

home address. Judge Donahoe did not authorize such action.

110. The actions of Thomas, Aubuchon, Sheriff Arpaio, and Hendershott

would be offensive to a reasonable person.

111. The actions of Thomas, Aubuchon, Sheriff Arpaio, and Hendershott direct

and proximately caused the Plaintiffs anguish, suffering, and severe emotional distress.

.herein

endershott, and Maricopa CountyAubuchon, Sheriff Arpaio, H

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COUNT XII

Intentional Infliction of Emotional Distress:


herein.

114. Thomas, Aubuchon, Sheriff Arpaio, and Hendershotts actions in: (1)

defaming Judge Donahoe; (2) pursuing the RICO Lawsuit against him; (3) hiring a

process server, who had been previously prosecuted for threatening to kill Judge

Donahoe, to serve Judge Donahoe with the RICO Lawsuit; and (4) pursuing the Grand

Jury Investigation against him, were all acts in and of themselves, and taken together,

that are extreme, outrageous, and beyond all possible realms of decency and shock the

conscience.

115. Sheriff Arpaio and Hendershotts instigation of charges through the

Criminal Complaint against Judge Donahoe, with no probable cause, is an act that is

extreme, outrageous, and beyond all possible realms of decency and shocks the

conscience.

116. Thomas, Aubuchon, Sheriff Arpaio, and Hendershotts acts were

intentionally aimed at causing Judge Donahoe and his wife 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 theirconduct.

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

and Hendershotts intentional infliction of emotional distress, Judge Donahoe and his

wife have suffered severe emotional distress, adverse physical maladies and

manifestations, and physical injury and/or harm in an amount to be determined by trial.

nd Hendershott, Maricopa CountyAubuchon, Sheriff Arpaio, aThomas,

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COUNT XIII

Violations of Arizonas Racketeering Statute, A.R.S. 13-


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

Sheriff Arpaio, and Hendershott participated, controlled, managed, conducted, and/oroperated in order to retaliate against their political opponents, and for financial gain.

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

Aubuchon met concerning the MACE Units 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 Units activities.

122. 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

Sheriffs Command Association Fund, which provided financing for Thomas and

Sheriff Arpaios 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 Units objectives was to attempt to force the BOS to eliminate the

Court Tower Project and divert funds dedicated to it to the MCSO and MCAOs

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

exercise their power.

herein.

Sheriff Arpaio, and HendershottAubuchon,

2314.04: Thomas,

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123. 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; bribery of a public servant; offer to exert

improper influence on public officer or employee forconsideration. Thomas, Aubuchon, Sheriff Arpaio, andHendershott jointly attempted to induce BOS Chair DonaldStapleys assistant, Susan Schuerman, to falsely testify againstStapley. They threatened to criminally investigate and prosecuteher if she did not cooperate. Once their criminal investigationbegan, they implicitly promised the investigation would endwithout charges if she would cooperate. This is a violation ofA.R.S. 13-1804(A)(5) and (7); and A.R.S. 13-2602(A) and 13-2606.

b. Obstructing criminal investigations or prosecutions. The

MCSO obstructed investigations by, among other things,threatening MCSO Deputy Frank Munnell with physical harm if hecooperated with a Department of Justice investigation. This is aviolation of A.R.S. 13-2409.

c. Theft by extortion. Thomas, Aubuchon, Sheriff Arpaio, andHendershott directed MCSO Deputies to threaten County employeeStephen Wetzel if he maintained his lawful control over Countyinformation technology systems during an armed raid. These wereviolations of A.R.S. 13-1804(A)(5) and (7).

d. Theft by extortion; bribery of a public servant; offer to exert

improper influence on public officer or employee forconsideration. Thomas, Aubuchon, Sheriff Arpaio, andHendershott threatened to have the MACE Unit publiclyinvestigate and prosecute members of the BOS if they: (1) cutMCAO or MCSO budgets; (2) did not abandon the Court TowerProject; or (3) paid outside counsel. These are each violations ofA.R.S. 13-1804(A)(5) and (7). Implicit in these threats was apromise that there would not be investigations and prosecutions ifthe BOS and Sandra Wilson complied with the demands. This is aviolation of A.R.S. 13-2602(A) and 13-2606.

124. 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 Judge Donahoe:

a. Theft by extortion. Thomas, Aubuchon, Sheriff Arpaio, andHendershott filed the RICO Lawsuit in an attempt to induce Judge

activity.unlawfulinstead provide them to establish a pattern ofThe Plaintiffs are not seeking damages for the acts alleged in this paragraph, but2

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Donahoe to recuse himself from hearing pending motions todisqualify the MCAO in matters concerning the BOS. SheriffArpaio and Hendershott also instigated the filing and prosecutionof criminal charges against Judge Donahoe to induce him to recusehimself from hearing the disqualification motion. These acts werein violation of A.R.S. 13-1804(A)(7).

b. Theft by extortion. Thomas, Aubuchon, Sheriff Arpaio, andHendershott implicitly threatened physical harm to Judge Donahoeif he did not recuse himself from the disqualification hearing, bysending a process server who had been prosecuted for threateningto kill Judge Donahoe to serve him with the RICO Lawsuit. This

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

IV-VII, X-XII were committed by Thomas, Aubuchon, Sheriff Arpaio, and Hendershott

in furtherance of the MACE Units activities, and therefore in violation of A.R.S. 13-

2312 and 13-2314.04.

126. 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, Judge Donahoe incurred approximately $220,000 in attorneys fees

defending himself against the baseless civil and criminal charges, investigations and

damage to his person, including his reputation, and extreme emotional distress.

127. All of Thomas, Aubuchon, Sheriff Arpaio, and Hendershotts 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.

128. Pursuant to A.R.S. 12-2314.04, Judge Donahoe is entitled to an award

of treble damages, in addition to his attorneys fees and costs.

JURY TRIAL

129. Plaintiffs hereby request a trial by jury.

PRAYER FOR RELIEF

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

1804(A)(7).-13was a violation of A.R.S.

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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.

RESPECTFULLY SUBMITTED this 21st 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 tobe filed electronically with the Clerk of Court through ECF; and that ECF will send ane-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 donahoe

Documents