Amended Shuerman

8/3/2019 Amended Shuerman

1/23

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 Plaintiff

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

SUSAN SCHUERMANSVERIFIED SECOND AMENDED

COMPLAINT

Plaintiffs,

husband

Defendants.

Susan Schuerman,

Plaintiff,

v.

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

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

Sandra Wilson and Paul Wilson

Sheriff Josephhusband and wife; et. al.,

Defendants.

v.

and wife,

,

Plaintiffs,

, husband

v.

Defendants.

Arpaio and Ava Arpaio,

28

27

26

25

2423

22

21

20

19

18

17

16

15

14

13

12

11

10

9

8

7

6

5

4

3

2

1

DD023.5391972/0002.839437/DB04

Case 2:10-cv-02756-NVW Document 244 Filed 11/21/11 Page 1 of 23
mailto:[email protected]:[email protected]:[email protected]


2/23

Conley D. Wolfswinkel


Stephen Wetzel and Nancy Wetzelhusband and wife,


Mary Rose and Earl Wilcox

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

Plaintiff Susan Schuerman

Complaint

JURISDICTIONAL ALLEGATIONS

This C

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

jurisdiction over Plaintiff

to 28 U.S.C. 1367(a), t

brought under Arizona law.

et al.,

Plaintiffs,

Defendants.

Plaintiffs,

v.

Defendants.

, a single man,

husband,

Plaintiffs,

v.

,

,

,

v.

, wife and

Defendants.

, for her Verified Second Amended Complaint (the

) against Defendants, hereby alleges as follows:

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

1983. This Court has

s federal law claims pursuant to 28 U.S.C. 1331. Pursuant

his Court has supplemental jurisdiction over Plaintiffs claims

28

27

26

25

24

23

22

21

20

19

18

17

16

15

14

13

12

11

10

9

8

7

6

5

4

3

2

1

DD023.5391972/0002.839437/DB04

2



3/23

Pursuant to 28 U.S.C.

lawsuit occurred in Maricopa County.

Plaintiff Susan Schuerman resides

relevant times, Susan

Supervisors (BOS

Defendants Joseph Arpaio (

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

all times material herein, Sheriff Arpaio was the duly

County, acting under color of law,

Defendants Andrew Thomas (

couple

for the benefit and furtherance of the Thomas

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

parties are residents of Maricopa County, Arizona, and the events underlying this

PARTIES

1. in Maricopa County, Arizona. At all

was the Executive Assistant to Maricopa County Board of

) member Donald J. Stapley, Jr (Stapley).

3. Sheriff Arpaio) and Ava Arpaio are a

. All of Sheriff Arpaios alleged

marital community.

4. capacities. At

-elected Sheriff of Maricopa

and the head of the Maricopa County Sheriffs Office

(MCSO).

5. Thomas) and Anne Thomas are a married

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

marital community.

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

was the Maricopa County Attorney, and served as the head of the Maricopa County

Attorneys Office (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

personal benefit.

7. Defendants 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.

28

27

26

25

24

23

22

21

20

19

18

17

16

15

14

13

12

11

10

9

8

7

6

5

4

3

2

1

DD023.5391972/0002.839437/DB04

3



4/23

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

Aubuchon was a Maricopa County Deputy County Attorney from September 1996 to

September 21, 2010, when she was terminated based, in part, on the facts that form the

allegations contained in this Complaint. At all times while acting as a Deputy Maricopa

County Attorney, Aubuchon was acting under color of law.

9. Defendants David Hendershott (Hendershott) and Anna Hendershott are

a married couple residing in Maricopa County, Arizona. All of Hendershotts alleged

acts were done for the benefit and furtherance of the Hendershotts marital community.

10. Hendershott is named in both his official and individual capacities.

Hendershott was the Deputy Chief at the MCSO until he was terminated on, or about,

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

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

color of law.

11. Defendant Maricopa 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

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

agents, officers, and employees.

GENERAL ALLEGATIONS

12. In March 2006, Stapley led the BOS in questioning whether Thomas was

selecting outside counsel to represent the County in civil lawsuits based on political

considerations, rather than based on the lawyers qualifications.

13. After concluding that Thomas was inappropriately selecting outside

counsel to represent the County, the BOS decided that it would select counsel for the

County on certain matters. Thomas and Aubuchon viewed this decision as a political

attack on Thomas and the MCAO.

14. In retaliation for this decision, Thomas had Aubuchon explore the

possibility of pursuing criminal charges against Stapley in January 2007. Thomas and28

27

26

25

24

23

22

21

20

19

18

17

16

15

14

13

12

11

10

9

8

7

6

5

4

3

2

1

DD023.5391972/0002.839437/DB04

4



5/23

Aubuchon collaborated with Sheriff Arpaio and Hendershott to a launch criminal

investigation of Stapley.

15. In December 2008, the BOS voted to assume control of the Countys

civil litigation and to direct and control the prosecution, defense, and compromise of all

civil legal actions to which the County is a party or has an interest.

16. Thomas and Aubuchon viewed this as another political attack against

Thomas and the MCAO.

17. In mid-2008, Susan witnessed a disagreement between Hendershott and

Stapley about MCSOs budget. During the exchange, Hendershott screamed at

Stapley: Im drawing a line in the sand, and if you cross it, youll pay, and the sheriff

will get you. Hendershott showed that he was armed with two guns at that time.

18. During that same timeframe, the BOS announced that County-wide

budget cuts would be necessary due to the general economic downturn.

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

the MCAO and MCSO.

20. 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

the Court Tower Project.

21. 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.

22. With respect to MCAOs 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.

28

27

26

25

24

23

22

21

20

19

18

17

16

15

14

13

12

11

10

9

8

7

6

5

4

3

2

1

DD023.5391972/0002.839437/DB04

5



6/23

23. With respect to MCSOs 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 Arpaios absence.

24. 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.

25. Schuerman came to be a target for Sheriff Arpaio, Thomas, Aubuchon,

and Hendershott because they believed they could pressure her into providing

information, or creating false evidence, that they could use against Stapley.

COUNT I

Retaliation for the Exercise of Fifth and Fourteenth

26. Susan reincorporates the foregoing paragraphs as though fully set forth

herein.

27. Aubuchon obtained a grand jury indictment of Stapley on November 20,

2008. On December 2, 2008, Stapley was served with a summons relating to that

indictment.

28. When Susan arrived to work on December 2, 2008, MCSO Deputies

were at Susan and Stapleys offices. MCSO Deputies served Susan with a grand jury

subpoena commanding her to provide testimony to a grand jury as a witness concerning

charges against Stapley (the Grand Jury Subpoena). Two MCSO Deputies told Susan

to go into a conference room so that they could interview her.

29. Susan informed the Deputies that she did not understand what she had

been served with and did not feel comfortable talking to them about it until she had an

opportunity to consult with an attorney. She declined to be interviewed at that time.

HendershottandThomas, Aubuchon, Sheriff Arpaio,

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

Amendment Rights

28

27

26

25

24

23

22

21

20

19

18

17

16

15

14

13

12

11

10

9

8

7

6

5

4

3

2

1

DD023.5391972/0002.839437/DB04

6



7/23

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

present. MCSO Deputies tried to probe Susans knowledge of Stapleys finances, at

which time Susan terminated the interview.

31. In January 2009, Hendershott spoke with Susans counsel. He demanded

a face-to-face meeting with Susan, without counsel present.

32. Thereafter, Susan called Hendershott and told him that she was changing

attorneys, but would call him to set up a meeting once she hired a new lawyer.

33. Hendershott responded by telling Susan that she was making a big

mistake by not cooperating with him. Hendershott then told Susan if you thought you

had problems before, you aint seen problems yet and that shed be sorry.

34. By February 13, 2009, the MCAO knew that Susan was represented by

attorney Steven Dichter.

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

stating the MCAO had discovered that Susan listed her BOS office phone number on

certain forms that designated her as the statutory agent for one of Stapleys companies.

The letter stated that [t]hese activities by Ms. Schuerman may be in violation of

Arizona criminal statutes and have caused her to be the subject of a criminal

investigation.

36. In a February 20, 2009, letter, Dichter responded to Thomas claims and

explained why Susan had not violated any law. Dichter noted that Susan had only

become the subject of a criminal investigation after she had declined the MCSOs

interview requests.

37. On February 23, 2009, Thomas spokesman, Barnett Lotstein, told a

reporter with the East Valley Tribune that Susan was the subject of a criminal

investigation to determine whether she had improperly used county resources to

conduct Stapleys private business. Upon information and belief, because the article in

theEast Valley Tribune references the February 13, 2009, letter from Thomas to Novak,

Lotstein provided that letter to theEast Valley Tribune reporter.28

27

26

25

24

23

22

21

20

19

18

17

16

15

14

13

12

11

10

9

8

7

6

5

4

3

2

1

DD023.5391972/0002.839437/DB04

7



8/23

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

with a Search Warrant (the Search Warrant), obtained by the MCSO, authorizing a

search of Susans office and files.

39. Among the Deputies there to execute the warrant was David Hendershott,

Jr., Defendant Hendershotts son.

40. All of the Deputies executing the Search Warrant were wearing shirts,

with bold lettering, indicating the deputies were part of a group tasked with fighting

corruption.

41. The MACE Unit ordered these shirts specifically for this occasion.

42. MCSO Deputies commanded Susan to leave her office while they

executed the Search Warrant.

43. Susan told deputies that she had a needle and medication in her desk

drawer, as well as personal medical files. The MCSO Deputies told her to leave the

items and exit the office.

44. The search log written by the MCSO, during the search, shows that the

Deputies searched Susans desk drawers containing her medications and medical files,

her computers hard drive, and a USB thumb drive.

45. When Susan exited her office, she found that the media was waiting for

her.

46. Upon information and belief, Hendershott, with the knowledge and

consent of Arpaio, Thomas, and Aubuchon, tipped off the media that they would be

executing their Search Warrant, and that Susan was now the target of a criminal

investigation.

47. Upon information and belief, Aubuchon participated in drafting the

Search Warrant Affidavit used to obtain the Search Warrant. Aubuchon, with

Hendershotts knowledge and encouragement, knowingly included false information in

the Search Warrant Affidavit which was later signed under penalty of perjury by an

MCSO Deputy at Hendershott and Aubuchons direction.28

27

26

25

24

23

22

21

20

19

18

17

16

15

14

13

12

11

10

9

8

7

6

5

4

3

2

1

DD023.5391972/0002.839437/DB04

8



9/23

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

involved in obtaining and executing the Search Warrant felt ashamed about their

involvement. The Deputy then returned evidence bags, which appeared to have never

been opened, containing the materials they seized.

49. On, or about, March 11, 2009, Susan received an anonymous letter at the

BOS offices that stated: Suz, just so youre aware, you are being observed by the SO,

as directed by the Hendershott/Arpaio Machine. Tell youre [sic] associates the same,

but it will soon blow over. DO NOT trust anyone. Cant leave my name otherwise Id

be sent to outer space in a heartbeat. Stay calm. The letter was initialed JG.

50. Shortly after Hendershott told Susan shed be sorry, the MCSO began

to park undercover cars on Susans street, sometimes only two houses away from

Susans home. MCSO cars parked near Susans house between two and four times per

week for approximately six months. This was done at the direction of Hendershott and

Aubuchon, who hoped to keep pressure on Susan so that she would give them

information about Stapley to avoid further harassment.

51. The MCSO cars were in front of Susans house so frequently that one of

Susans neighbors commented about it and asked Susan why she was under

surveillance.

52. During this same period, MCSO Deputies, in both marked and unmarked

cars, would follow Susan while she was driving around Phoenix.

53. For example, in March 2009, Susan drove from the BOS offices,

followed by a marked MCSO car, to meet an attorney-friend for lunch. The MCSO

Deputies parked and came into the restaurant, sitting near Susan. It was a member of

the MACE Unit whom she knew.

54. On June 22, 2010, Sheriff Arpaio issued a press release in which he

stated that Susan was among a group of claimants against Defendants that were the

subject of pending investigations.

28

27

26

25

24

23

22

21

20

19

18

17

16

15

14

13

12

11

10

9

8

7

6

5

4

3

2

1

DD023.5391972/0002.839437/DB04

9



10/23

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

disregarded the fact, that there was no probable cause to support an investigation of

Susan.

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

acted in reckless disregard of the fact, that Susan had not committed any crime, and

could not be investigated or prosecuted in retaliation for her exercise of her Fifth and

Fourteenth Amendment rights.

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

Arpaio, and Hendershott improperly investigated and retaliated against for the exercise

of her Fifth and Fourteenth Amendment rights.

58. But for their retaliatory motive against Susan, Thomas, Aubuchon, Sheriff

Arpaio, and Hendershott would not have engaged in the conduct alleged herein.

59. Based on the allegations set forth above, Susans constitutional rights

have been violated and she has suffered damages as a direct and proximate result of

these acts.

COUNT II 1983 Fourth Amendment Violation;


61. The affidavit supporting the application for the Search Warrant stated

that Susan was suspected of conspiring with Stapley and one of his business associates

to commit bribery in violation of A.R.S. 13-2602(A), fraudulent schemes in violation

of A.R.S. 13-2310(A), and conspiracy to commit misuse of public monies in violation

of A.R.S. 35-301.

62. The Search Warrant Affidavit contains no facts supporting these claims.

63. Aubuchon and Hendershott knew that the Search Warrant Affidavit did

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

herein.

Sheriff Arpaio, Hendershott, Thomas, and Aubuchon

28

27

26

25

24

23

22

21

20

19

18

17

16

15

14

13

12

11

10

9

8

7

6

5

4

3

2

1

DD023.5391972/0002.839437/DB04

10



11/23

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

analysis as to why Susan had not committed any crime and explaining that it was not

clear if he would ever be paid for representing Susan.

65. Moreover, Aubuchon and Hendershott knew, or should have known,

from financial and other documents previously obtained during their investigation of

Stapley, that Susan was not involved in any crime. Instead, they used the Search

Warrant to exert pressure on her to provide or create evidence against Stapley.

66. Nevertheless, Aubuchon and Hendershott directed the Search Warrant

Affidavit to be sworn and executed, despite knowing it contained false and misleading

information and was not supported by a demonstration of probable cause.

67. No reasonable officer would rely on the Search Warrant, or the Search

Warrant Affidavit, because it fails to state any facts that would establish probable cause

that Susan committed any crime.

68. Moreover, the false and misleading information Aubuchon and

Hendershott caused to be contained in the Search Warrant Affidavit was deliberately

false, or made in reckless disregard of the truth, and were material to a finding of

probable cause.

69. Indeed, the Justice of the Peace who issued the Search Warrant was

misled.

70. Upon information and belief, Sheriff Arpaio and Thomas directed and

approved of Hendershotts and Aubuchons conduct.

71. As a direct and proximate result of these acts, Susans Fourth and

Fourteenth Amendment rights were violated and she has been damaged.

COUNT III

Abuse of Process in Violation of 42 U.S.C. 1983 and Arizona Law:


herein.

HendershottAubuchon, Sheriff Arpaio, and

Thomas,

28

27

26

25

24

23

22

21

20

19

18

17

16

15

14

13

12

11

10

9

8

7

6

5

4

3

2

1

DD023.5391972/0002.839437/DB04

11



12/23

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

Arpaio, Thomas, Hendershott, and Aubuchon are liable for abuse of process under

1983 and Arizona law.

74. As a direct and proximate result of these acts, Susans constitutional rights

were violated and she has been damaged.

COUNT IV

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


76. On February 23, 2009, Thomas spokesman, Barnett Lotstein, told an

East Valley Tribune reporter that Susan was the subject of a criminal investigation.

Lotstein made this statement at the direction of Thomas, Hendershott, and Arpaio, and

with the assistance of Aubuchon.

77. Upon information and belief, on February 26, 2009, Hendershott

informed the media that the MACE Unit was going to execute the Search Warrant on

Susans office.

78. The East Valley Tribune ran a story on the execution of the Search

Warrant that day.

79. Based on the documents obtained in their prior investigations and the

analysis of law contained in Dichters letter dated February 20, 2009, Sheriff Arpaio,

Hendershott, Thomas, and Aubuchon knew that Susan had not committed any criminal

conduct when they caused these statements to be published.

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

as County Attorney),1

issued a press release stating that Susans claims are bogus and

n violation of Arizona law.is claims against Thomas for defamation and false lightthe basis of Susanpart ofform

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

1

.herein

Hendershott, Thomas, and Aubuchon

1983: Sheriff Arpaio,

28

27

26

25

24

23

22

21

20

19

18

17

16

15

14

13

12

11

10

9

8

7

6

5

4

3

2

1

DD023.5391972/0002.839437/DB04

12



13/23

Thomas and Arpaio stated that they hoped to go to trial, where we would no doubt

prove [Susans] culpability in past and pending investigations. On the same date,

Sheriff Arpaio posted a letter on his website reiterating his belief that Susans, and

others, claims are frivolous on their face and appear motivated by greed.

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

82. These statements were published in a manner that an ordinary person

would understand that references to the parties involved in past and pending

investigations, and the parties who had submitted notices of claim, are references to

Susan.

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

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

84. Thomas, Aubuchon, Sheriff Arpaio, and Hendershotts statements placed

Susan in a false light, which would be highly offensive to a reasonable person, and

which reflected negatively on Susan with respect to her integrity and honesty in her

business.

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

disregarded the falsity of their statements, and the false light in which Susan would be

placed.

86. Each of the foregoing statements were made in retaliation for Susans

exercise of her Fifth and Fourteenth Amendment rights.

87. As a direct and proximate result of the statements by Thomas, Aubuchon,

Sheriff Arpaio, and Hendershott, Susans constitutional rights have been violated and

she has been damaged.

COUNT V

Defamation and False Light in Violation of Arizona Law:


herein.

, and Maricopa County, HendershottSheriff ArpaioAubuchon,Thomas,

28

27

26

25

24

23

22

21

20

19

18

17

16

15

14

13

12

11

10

9

8

7

6

5

4

3

2

1

DD023.5391972/0002.839437/DB04

13



14/23

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

Aubuchon, Sheriff Arpaio, and Hendershott are liable for false light and defamation in

violation of Arizona law.

90. Sheriff Arpaio, Hendershott, and Aubuchon were acting, at all relevant

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

vicariously liable for his actions in violation of Arizona law.

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

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

liable for his actions in violation of Arizona law.

COUNT VI-Violations of 42 U.S.C. 1983


herein.

93. 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.

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

ratifying malicious investigations, are acts upon which Maricopa County may be found

liable under 42 U.S.C. 1983.

95. 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.

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

initiating and ratifying malicious investigations, are acts upon which Maricopa County

may be found liable under 42 U.S.C. 1983.

Municipal Liability: Maricopa County

28

27

26

25

24

23

22

21

20

19

18

17

16

15

14

13

12

11

10

9

8

7

6

5

4

3

2

1

DD023.5391972/0002.839437/DB04

14



15/23

97. 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 perceived political opponents and punish citizens for their

exercise of their constitutional rights.

98. 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 a sweep for listening devices that was conducted at County offices.

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 Aubuchons directives, with no questions asked.

99. Moreover, after MCSO Deputies complained to Sheriff Arpaio that

Aubuchon had directed to lie in affidavits to obtain Search Warrants by using creative

writing and including fluff, upon information and belief, Arpaio told Hendershott

that he viewed the Deputies who would not lie as disloyal, and directed Hendershott to

transfer them out of the MACE Unit. Hendershott further told the Deputies who did not

want to lie that they had to follow Aubuchons directives, because she was Thomas

appointee to head the MACE Unit.28

27

26

25

24

23

22

21

20

19

18

17

16

15

14

13

12

11

10

9

8

7

6

5

4

3

2

1

DD023.5391972/0002.839437/DB04

15



16/23

100. 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.

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

Aubuchon, Sheriff Arpaio, and Hendershott, Susans constitutional rights were violated

and she has suffered harm.

COUNT VII

Defamation/False Light in Violation of Arizona Law: Thomas

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

herein.

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

Arpaios June 22, 2010, press release.

104. Thomas made the following additional defamatory statements after he

resigned as Maricopa County Attorney:

a. On June 30, 2010, Thomas wrote an article in which hecharacterized Susans claim as a frivolous claim against SheriffJoe Arpaio and former County Attorney Andrew Thomas and saidthat Susan is trying to collect millions of taxpayer dollars for thedistress caused by being questioned or scrutinized by policeofficers and he said that Susan is part of a criminal investigation[ ] that [is] ongoing. . .

b. On July 14, 2010, Thomas wrote an article in which he said thatSusan was seeking a taxpayer payout[ ] and is involved in anongoing criminal investigation.

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

106. 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.

.them to reference Susanmanner that an ordinary person would understand

28

27

26

25

24

23

22

21

20

19

18

17

16

15

14

13

12

11

10

9

8

7

6

5

4

3

2

1

DD023.5391972/0002.839437/DB04

16



17/23

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

offensive to a reasonable person.

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

the false light in which Susan would be placed.

109. As a direct and proximate result of Thomas statements, Susan has been

damaged.

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

111. Thomas, Aubuchon, Arpaio, and Hendershotts actions in: (1) issuing the

Grand Jury Subpoena and Search Warrant to pressure Susan into providing false

evidence for use against Stapley; (2) engaging in a retaliatory investigation of Susan; (3)

defaming Susan and/or placing her in a false light, were all acts that are extreme,

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

112. This is particularly true because Thomas, Aubuchon, Sheriff Arpaio, and

Hendershott had targeted Susan because they knew that her daughter had suffered a

debilitating stroke on her 21st birthday, making her dependent on Susans continued

employment with the County for health insurance benefits, and thus making Susan

unusually susceptible to actions that risked causing her to lose her job, such as criminal

investigations and the threat of prosecution.

113. Thomas, Aubuchon, Sheriff Arpaio, and Hendershotts acts intended to

causing Susan extreme emotional distress and/or physical injury and/or harm, and were

done in reckless disregard of the near certainty that severe emotional distress and

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

herein.

28

27

26

25

24

23

22

21

20

19

18

17

16

15

14

13

12

11

10

9

8

7

6

5

4

3

2

1

DD023.5391972/0002.839437/DB04

17



18/23

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

and Hendershotts conduct, Susan has suffered severe emotional distress, adverse

physical maladies and manifestations, and physical injury and/or harm.

115. 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 IX

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


117. The MACE Unit was an association-in-fact in 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.

118. 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.

119. 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

herein.

Aubuchon, Sheriff Arpaio, and Hendershott

2314.04: Thomas,

28

27

26

25

24

23

22

21

20

19

18

17

16

15

14

13

12

11

10

9

8

7

6

5

4

3

2

1

DD023.5391972/0002.839437/DB04

18



19/23

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

exercise their power.

120. 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. Obstructing criminal investigations or prosecutions. TheMCSO 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.

b. Theft by extortion. Thomas, Aubuchon, Sheriff Arpaio, andHendershott directed MCSO Deputies to threaten County employeeStephen Wetzel if he maintained his lawful control over County

information technology systems during an armed raid. These wereviolations of A.R.S. 13-1804(A)(5) and (7).

c. Theft by extortion. Thomas, Aubuchon, Sheriff Arpaio, andHendershott filed a civil complaint against a sitting judge, GaryDonahoe, to induce him to recuse himself from presiding overcertain matters. These acts were in violation of A.R.S. 13-1804(A)(7).

d. Theft by extortion. Sheriff Arpaio, and Hendershott filed acriminal complaint against Judge Donahoe, to induce him to recusehimself from presiding over certain matters. These acts were in

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

e. Theft by extortion. Thomas, Aubuchon, Sheriff Arpaio, andHendershott implicitly threatened physical harm to Judge Donahoeif he did not recuse himself from presiding over certain matters, bysending a process server who had been prosecuted for threateningto kill Judge Donahoe to serve him with the RICO Lawsuit. Thiswas a violation of A.R.S. 13-1804(A)(7).

f. Theft by extortion; bribery of a public servant; offer to exertimproper influence on public officer or employee forconsideration. Thomas, Aubuchon, Sheriff Arpaio, and

Hendershott 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.

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

2

28

27

26

25

24

23

22

21

20

19

18

17

16

15

14

13

12

11

10

9

8

7

6

5

4

3

2

1

DD023.5391972/0002.839437/DB04

19



20/23

121. 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 Schuerman: they collaborated and jointly attempted to induce Susan

to falsely testify against Stapley on several occasions. 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. These are violations of A.R.S. 13-1804(A)(5) and (7); and A.R.S.

13-2602(A) and 13-2606.

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

III, IV, V, VII, VIII, and the acts referenced above, 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.

123. 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, Susan suffered damages, including but not limited to damages to her

person, including her reputation, and extreme emotional distress.

124. 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.

125. Pursuant to A.R.S. 12-2314.04, Susan is entitled to an award of treble

damages, in addition to his attorneys fees and costs.

JURY TRIAL

126. Plaintiff hereby requests a trial by jury.

PRAYER FOR RELIEF

WHEREFORE, Susan prays for damages for judgment, jointly and severally,

against Defendants as follows:28

27

26

25

24

23

22

21

20

19

18

17

16

15

14

13

12

11

10

9

8

7

6

5

4

3

2

1

DD023.5391972/0002.839437/DB04

20



21/23

(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 Plaintiff

28

27

26

25

24

23

22

21

20

19

18

17

16

15

14

13

12

11

10

9

8

7

6

5

4

3

2

1

DD023.5391972/0002.839437/DB04

21



22/23



23/23

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 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 85036

Attorneys 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

28

27

26

25

24

23

22

21

20

19

18

17

16

15

14

13

12

11

10

9

8

7

6

5

4

3

2

1


Date post:	06-Apr-2018
Category:	Documents
Upload:	ray-stern
View:	216 times
Download:	0 times

Amended Shuerman

Documents