Donahoe v. Arpaio

• Citation: 986 F.Supp.2d 1091
• Decision Date: 05 December 2013
• Docket Number: Nos. CV–10–02756–PHX–NVW, CV–11–0902–PHX–NVW.,s. CV–10–02756–PHX–NVW, CV–11–0902–PHX–NVW.
• Parties: Gary DONAHOE and Cherie Donahoe, husband and wife, Plaintiffs, v. Sheriff Joseph ARPAIO and Ava Arpaio, husband and wife; Andrew Thomas and Anne Thomas, 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 Spaw, husband and wife; Maricopa County, a municipal entity; Jon Does I–X; Jane Does I–X; Black Corporations I–V; and White Partnerships IV, Defendants. Donald T. Stapley, Jr. and Kathleen Stapley, husband and wife, Plaintiffs, v. Sheriff Joseph Arpaio and Ava Arpaio, husband and wife; et al., Defendants.
• Court: U.S. District Court — District of Arizona

986 F.Supp.2d 1091

Gary DONAHOE and Cherie Donahoe, husband and wife, Plaintiffs,
v.
Sheriff Joseph ARPAIO and Ava Arpaio, husband and wife; Andrew Thomas and Anne Thomas, 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 Spaw, husband and wife; Maricopa County, a municipal entity; Jon Does I–X; Jane Does I–X; Black Corporations I–V; and White Partnerships IV, Defendants.
Donald T. Stapley, Jr. and Kathleen Stapley, husband and wife, Plaintiffs,
v.
Sheriff Joseph Arpaio and Ava Arpaio, husband and wife; et al., Defendants.

Nos. CV–10–02756–PHX–NVW, CV–11–0902–PHX–NVW.

United States District Court,
D. Arizona.

Dec. 5, 2013.

[986 F.Supp.2d 1100]

Lawrence J. Wulkan, Michael C. Manning, Stefan Mark Palys, Stinson Morrison Hecker LLP, Phoenix, AZ, for Plaintiffs.

Jeffrey S. Leonard, Helen Rubenstein Holden, Sharon Brook Shively, Sacks Tierney PA, Douglas V. Drury, James Paul Mueller, Mueller Drury & Lawrence, Scottsdale, AZ, John James Kastner, Jr., Roger W. Perry, Jr., Daryl A. Audilett, Audilett Kastner PC, Tucson, AZ, Donald Wilson, Jr., Richard E. Chambliss, Sarah Lynn Barnes, Broening Oberg Woods & Wilson PC, Barry Matthew Markson, Bradley Michael Thies, Thomas Thomas & Markson PC, Victoria Lea Orze, Dickinson Wright/Mariscal Weeks, Phoenix, AZ, Bradley L. Booke, Edward P. Moriarity, Moriarity Badaruddin & Booke, Missoula, MT, for Defendants.

ORDER
NEIL V. WAKE, District Judge.

TABLE OF CONTENTS

I.	SUMMARY OF RULINGS	1101
II.	LEGAL STANDARD	1102
III.	STAPLEY I	1103

A.	Legal standard	1103
B.	Probable cause	1104

1.	The 1994 Board of Supervisors resolution	1104
2.	Statute of limitations	1106

C.	Malice	1107
D.	Favorable termination	1107
E.	Accrual of action	1108

IV. THE SEARCH
1108

A.	Legal standard	1109
B.	Evidence supporting the search warrant	1109

1.	Evidence regarding fraud	1110
2.	Evidence regarding bribery	1110
3.	Evidence regarding misuse of public funds	1111

C.
Misrepresentations and omissions in the supporting affidavit
1112

1.
Misrepresentation and omissions of evidence of bribery
1112

i.	Review of bank records	1112
ii.	Partnership documents	1113
iii.	Public records of partnership	1113
iv.	Disclosure	1114
v.	Voting record	1114

2.
Misrepresentation and omissions of evidence of misused public funds
1115

D.	Materiality of misrepresentations and omissions	1116
E.	Deliberate or reckless disregard for the truth	1117

1.
Aubuchon
1117

i.	Involvement	1117
ii.	Evidence	1118

2.	Thomas	1120
3.	Hendershott	1120
4.	Arpaio	1122

F.
Qualified immunity
1122

1.	Legal standard	1122
2.	Application to the search	1123

V. THE ARREST AND STAPLEY II INDICTMENT
1123

A.	Legal standard	1124
B.	Probable cause	1124

1.	Fraudulent schemes and artifices (arrest)	1125
2.	Perjury (arrest and indictment)	1127
3.	False swearing (indictment)	1127

C.	Defendants' roles in the arrest	1128
D.	Malice or improper purpose in prosecuting Stapley II	1128
E.	Favorable termination	1129
F.	Qualified immunity for the arrest	1129

VI. THE RACKETEERING ACTION
1130

A.	Background	1130
B.	Legal standard	1132
C.	Analysis	1132

1.	Involvement	1132
2.	Probable cause (reasonable belief and advice of counsel)	1133
3.	Malice	1133
4.	Favorable termination	1134

VII. RETALIATION AND QUALIFIED IMMUNITY
1134

A.	Constitutional violation	1135
B.	Clearly established right	1136

VIII. ABSOLUTE IMMUNITY
1137

A.	Legal standard	1137
B.	Analysis	1138

IX. INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS AND PUNITIVE DAMAGES
1139

A.	Legal standard	1139
B.	Analysis	1139

X.	UNCONSTITUTIONAL POLICIES OR CUSTOMS	1140
XI.	PLAINTIFF'S MOTIONS FOR SUMMARY JUDGMENT	1140

[986 F.Supp.2d 1101]

Before the Court are seven motions for summary judgment filed by Plaintiff Donald T. Stapley, Jr. and Defendants Joseph Arpaio, Lisa Aubuchon, David Hendershott, and Andrew Thomas. For the following reasons, Plaintiff's motions will be denied and Defendants' motions will be granted in part and denied in part.

I. SUMMARY OF RULINGS

The allegations underlying this dispute are set forth in Donahoe v. Arpaio, 869 F.Supp.2d 1020 (D.Ariz.2012), aff'd sub nom. Stapley v. Pestalozzi, 733 F.3d 804 (9th Cir.2013). They describe an extended criminal and civil campaign against the Maricopa County Board of Supervisors, of which Stapley was then a member, by the Maricopa County Sheriff's Office (MCSO), the Maricopa County Attorney's Office (MCAO), and their joint anti-corruption task force (MACE). The details are not recounted here except as necessary to explain the rulings. Stapley has now moved for partial summary judgment against Sheriff Joseph Arpaio (Doc. 1060), former Deputy County Attorney Lisa Aubuchon (Doc. 1065), and former Chief Deputy David Hendershott (Doc. 1056). In turn, Arpaio (Doc. 1062), Aubuchon (Doc. 1066),

[986 F.Supp.2d 1102]

Hendershott (Doc. 1072), and former County Attorney Andrew Thomas (Doc. 1063) have moved for summary judgment. Stapley's motion for partial summary judgment against Thomas (Doc. 1147) and Maricopa County's motion for summary judgment against Stapley (Doc. 1149) were previously denied.

Stapley seeks summary judgment that

(1) Arpaio ordered a retaliatory arrest in violation of 42 U.S.C. § 1983;

(2) Aubuchon engaged in judicial deception and searched his office in violation of 42 U.S.C. § 1983; and

(3) Hendershott wrongfully instituted a federal racketeering action against him in violation of state law and 42 U.S.C. § 1983.

All Defendants seek summary judgment that

(1) they are not liable for maliciously prosecuting or investigating Stapley in the criminal actions commonly referred to as Stapley I and Stapley II;

(2) they are not liable for retaliating against Stapley for exercising his constitutional rights;

(3) they are not liable for the search of Stapley's office;

(4) they have absolute or qualified immunity as to various claims;

(5) they are not liable for intentional infliction of emotional distress; and

(6) Stapley may not recover punitive damages.

Arpaio, Aubuchon, and Hendershott also seek summary judgment that they are not liable for Stapley's arrest.

Arpaio and Hendershott also seek summary judgment that

(1) their roles in the federal racketeering action do not give rise to liability; and

(2) they are not liable for establishing unconstitutional policies or customs within MCSO, for failing to train employees, or for negligently supervising them.

The Defendants' motions for summary judgment will be granted against the following claims.

As to Defendant Arpaio, summary judgment will be granted against Stapley's ninth claim for unconstitutional policies, customs, failure to train, and negligent supervision.

As to Defendant Aubuchon, summary judgment will be granted against Stapley's second and fifth claims for malicious prosecution and against his fourth claim for false arrest.

As to Defendant Hendershott, summary judgment will be granted against Stapley's ninth claim for unconstitutional policies, customs, failure to train, and negligent supervision.

As to Defendant Thomas, summary judgment will be granted against Stapley's second and fifth claims for malicious prosecution and against his tenth claim for unlawful search.

The motions will otherwise be denied.

II. LEGAL STANDARD

A motion for summary judgment tests whether the opposing party has sufficient evidence to merit a trial. At its core, it questions whether sufficient evidence exists from which a reasonable jury could find in favor of the party opposing the motion for summary judgment. Summary judgment should be granted if the evidence shows there is no genuine dispute about any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). The moving party has the burden of demonstrating

[986 F.Supp.2d 1103]

that no material issue of fact exists for the jury to decide. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). To meet this burden, the moving party must point out the lack of evidence supporting the nonmoving party's claim but need not produce evidence negating that claim. Id. at 325, 106 S.Ct. 2548.

When the moving party has carried its burden under Federal Rule of Civil Procedure 56(c), the nonmoving party must show that there are genuine issues of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A material fact is one that might affect the outcome of the suit under the governing law, and a factual issue is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. at 248, 106 S.Ct. 2505. The nonmoving party must produce evidence to support its claim or defense by more than simply showing “there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The Court must view the evidence in the light most favorable to the nonmoving party, must not weigh the evidence or assess its credibility, and must draw all justifiable inferences in favor of the nonmoving party. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000); Anderson, 477 U.S. at 255, 106 S.Ct. 2505. Where the record, taken as a whole, could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue of material fact for trial. Matsushita, 475 U.S. at 587, 106 S.Ct. 1348.

On summary judgment, the nonmoving party's evidence is presumed true, and all inferences from the evidence are drawn in the light most favorable to the nonmoving party. Eisenberg v. Ins. Co. of North America, 815 F.2d 1285, 1289 (9th Cir.1987); Baldwin v. Trailer Inns, Inc., 266 F.3d 1104, 1117 (9th Cir.2001). But the evidence presented by the parties must be admissible or able to be produced in admissible form. SeeFed.R.Civ.P. 56(c)(2). Conclusory and speculative testimony in affidavits and moving papers is insufficient to raise genuine issues of fact and to defeat summary judgment. Thornhill Publ'g Co., Inc. v. GTE Corp.,...