United States District Court District of Arizona: Consolidated With

Case 2:10-cv-02756-NVW Document 239 Filed 11/21/11 Page 1 of 38
OSBORN MALEDON
A PROFESSIONAL ASSOCIATION ATTORNEYS AT LAW
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The Phoenix Plaza 21st Floor 2929 North Central Avenue Phoenix, Arizona 85012-2793 P.O. Box 36379 Phoenix, Arizona 85067-6379 Telephone Facsimile 602.640.9000 602.640.9050
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Colin Campbell, 004955 Kathleen Brody OMeara, 026331 OSBORN MALEDON, P.A. 2929 North Central Avenue, Suite 2100 Phoenix, Arizona 85012-2793 (602) 640-9000 ccampbell@omlaw.com komeara@omlaw.com Attorneys for Plaintiffs Mary Rose and Earl Wilcox
UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA
Gary Donahoe and Cherie Donahoe, husband and wife, Plaintiffs, v. Sheriff Joseph Arpaio and Ava Arpaio, husband and wife; et al. 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. __________________________________ Susan Schuerman, Plaintiff, v.
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Lead No. CV 10-02756-PHX-NVW (Applicable only in No. CV 11-00473-PHX-NVW) Consolidated with: No. CV 10-02757-PHX-NVW No. CV 10-02758-PHX-NVW No. CV 11-00116-PHX-NVW No. CV 11-00262-PHX-NVW No. CV 11-00473-PHX-NVW No. CV 11-00902-PHX-NVW No. CV 11-01921-PHX-NVW FIRST AMENDED COMPLAINT (State law tort claims; Violations of the Arizona Constitution; Claims under 42 U.S.C. 1983) (Jury Trial Requested)

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Sheriff Joseph Arpaio and Ava Arpaio, husband and wife; et al., Defendants. __________________________________ Sandra Wilson and Paul Wilson, husband and wife, Plaintiffs, v. Sheriff Joseph Arpaio and Ava Arpaio, husband and wife; et al. Defendants. __________________________________ Conley D. Wolfswinkel, a single man; et al., Plaintiffs, v. Joseph Arpaio and Ava Arpaio, husband and wife; et al. Defendants. __________________________________ Stephen Wetzel and Nancy Wetzel, husband and wife; Plaintiffs, v. Sheriff Joseph Arpaio and Ava Arpaio, husband and wife; et al. Defendants. __________________________________
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) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )
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) ) ) ) Plaintiffs, ) ) vs. ) ) ) Sheriff Joseph Arpaio and Ava Arpaio, ) husband and wife; et al. ) ) Defendants. ) __________________________________ ) Barbara Mundell and Anna Baca, ) ) ) Plaintiffs, ) ) v. ) ) Maricopa County, body politic of the State ) of Arizona; Joseph Arpaio, in his official ) ) capacity as Maricopa County Sheriff; Joseph and Ava Arpaio, a married couple; ) David Hendershott and Anna Hendershott, ) ) a married couple; Lisa Aubuchon and ) Peter Pestalozzi, a married couple; and ) Andrew P. Thomas and Anne Thomas, a ) married couple. ) ) ) Defendants. ) Mary Rose and Earl Wilcox, wife and husband,
Plaintiffs Mary Rose and Earl Wilcox, for their First Amended Complaint against Defendants, allege as follows: JURISDICTION AND VENUE 1. The Wilcoxes bring this action for claims under the common-law of
Arizona, the Arizona Constitution, and 42 U.S.C. 1983. 2. The Wilcoxes originally brought this case in the Superior Court of the
State of Arizona, Maricopa County. Defendants removed the action to federal court.
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3.
With respect to state law claims, the Wilcoxes have satisfied the
provisions of A.R.S. 12-821.01 by timely serving a Notice of Claim on Defendants more than sixty days before filing this First Amended Complaint. Defendants have not responded to the Notice of Claim. 4. Venue is proper in the District of Arizona because the parties are
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residents of Maricopa County, Arizona and the events giving rise to the Wilcoxes claims occurred in Maricopa County, Arizona. These consolidated cases and surrounding circumstances have been the subject of numerous media articles and opinions over several years, and Plaintiffs will seek a change of venue for trial. PARTIES 5. Mary Rose and Earl Wilcox are a married couple residing in Maricopa
County, Arizona. Mary Rose Wilcox, as a member of the Maricopa County Board of Supervisors, is an elected public official. 6. Defendant Joseph Arpaio (Arpaio or Sheriff Arpaio) is the elected
Sheriff of Maricopa County and the head of the Maricopa County Sheriffs Office (MCSO). Sheriff Arpaio is named in both his official and individual capacities. Ava Arpaio is the spouse of Defendant Joseph Arpaio and is a Defendant in this action because the wrongful conduct of Sheriff Arpaio was engaged in for the benefit of their marital community, rendering his marital community liable for such conduct under state law. 7. At all times relevant to this First Amended Complaint, Defendant
Andrew Thomas (Thomas or County Attorney Thomas) was the elected County Attorney of Maricopa County and the head of the Maricopa County Attorneys Office (MCAO). Defendant Thomas is named is his official and individual capacity. Anne Thomas is the spouse of Defendant Andrew Thomas and is a Defendant in this action because Defendant Thomass wrongful conduct was engaged in for the benefit of their marital community, rendering his marital community liable for such conduct under state law.
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8.
At all the times relevant to this First Amended Complaint, Defendant
Lisa Aubuchon (Aubuchon or Deputy County Attorney Aubuchon) was a Deputy County Attorney of Maricopa County. Deputy County Attorney Aubuchon is a Defendant in both her official and individual capacities. Peter R. Pestalozzi is the spouse of Defendant Lisa Aubuchon and is a Defendant in this action because the wrongful conduct of Aubuchon was engaged in for the benefit of their marital community, rendering her marital community liable for such conduct under state law. 9. At all times relevant to this First Amended Complaint, Defendant David
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Hendershott (Hendershott or Deputy Chief Hendershott) was the Deputy Chief of the Maricopa County Sheriffs Office. Deputy Chief Hendershott is a Defendant in both his official and individual capacities. Anna Hendershott is the spouse of Defendant David Hendershott and is a Defendant in this action because the wrongful conduct of Defendant Hendershott was engaged in for the benefit of their marital community, rendering his marital community liable for such conduct under state law. CONSPIRACY AND AIDING AND ABETTING: THE ACTIONS OF THE DEFENDANTS 10. Arpaio, Hendershott, Thomas, and Aubuchon entered into one or more
agreements to do and accomplish all the acts alleged in this First Amended Complaint. They conspired with each other and aided and abetted each other to commit each of the State common-law torts and State and Federal constitutional violations alleged in this First Amended Complaint. 11. Arpaio and Thomas set up a MCSO division called the Maricopa Anti-
Corruption Enforcement team, commonly called MACE. MACE is a police investigative unit and is not associated with the prosecutorial function. The MACE unit became an MCSO division that Defendants Arpaio and Thomas would come to use to target and conduct criminal and federal civil racketeering investigations against their political enemies.
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12.
Arpaio assigned Deputy Sheriff Hendershot to the unit as its
investigative head; and Thomas assigned Deputy County Aubuchon to give legal advice to the unit. Hendershott and Aubuchon at all times advised and briefed Arpaio and Thomas on their activities, and Arpaio and Thomas authorized and agreed to all of their actions in conducting criminal and civil investigations by MACE as alleged in this First Amended Complaint. 13. The role of legal advisor to the MACE unit is not associated with the
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prosecutorial function. In addition to her role as legal advisor, Deputy Aubuchon also became actively involved in the units actual investigations and acted as an investigative co-leader with Deputy Chief Hendershot. For example, the report prepared by Pinal County Sheriff into Deputy Chief Hendershot and the MACE unit stated that Aubuchon was the investigative alter ego of Hendershot. Thomas was aware of, authorized and approved Aubuchons role in conducting actual police investigations and acting as an investigative co-leader. 14. Deputy County Attorney Aubuchon, in her role as legal advisor and
investigator, and Deputy Chief Hendershott began criminal investigations without probable cause, conducted fishing expeditions to find evidence of crimes, and, finding none, falsified the law and evidence, and falsified the application of the law to the evidence to justify an investigative report recommending prosecution against perceived political enemies of Arpaio and Thomas, such as Plaintiff Mary Rose Wilcox. 15. In her role as legal advisor to MACE, Deputy Aubuchon gave false and
misleading legal advice to the MCSO to support investigative reports recommending criminal charges against political enemies of Arpaio and Thomas, such as Plaintiff Mary Rose Wilcox. For example, Deputy Aubuchon advised MACE and the MCSO that if Mary Rose Wilcox guaranteed a business loan that was given to a limited liability company, then the business loan, which did not have to be disclosed on a financial disclosure statement, became a personal loan to Mary Rose Wilcox that had
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to be reported on a financial disclosure statement. This is both a false statement of law and of fact. 16. For political reasons, Thomas and Arpaio agreed to act together in
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concert with respect to political and policy disputes with the Maricopa County Board of Supervisors over budget, administration and operational issues. To further these political and policy interests, Thomas and Arpaio agreed to use the investigative powers of the MCSO and the MACE unit to target and investigate, harass and intimidate their political enemies. These activities are not associated with the prosecutorial function. 17. By reason of these agreements to act in concert with Sheriff Arpaio and
Deputy Chief Hendershott, Thomas and the MCAO abandoned any role as acting independent of the MSCO, Arpaio and Hendershott, or as a check on the power of the MCSO, Arpaio and Hendershot. 18. Thomas and the MCAO abandoned any independent decision making as
to prosecution of criminal charges against Arpaio and Thomas political enemies to MACE, Arpaio and Hendershott. For example, when the Yavapai County Attorney told Arpaio and Hendershott that there was no criminal case against Plaintiff Mary Rose Wilcox, Arpaio and Hendershott told Thomas to take the case back to Maricopa County and Thomas, pursuant to their request and their agreement, took the case back after he had publicly disqualified himself from the case. Criminal charges were subsequently brought on counts that the Yavapai County Attorney stated did not amount to a crime. For example, Arpaio and Hendershott brought criminal charges on a purported conflict of interest after the Yavapai County Attorney specifically told them that no such crime was committed. 19. Thomas and Arpaio sought to damage, destroy and even take away the
ability of the individual Supervisors and the Board of Supervisors to exercise oversight over the MCAO or the MCSO, or make policy decisions that the MCAO or the MCSO thought detrimental to their interests. For example, after Supervisor
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Stapley and Supervisor Wilcox were indicted, Hendershott threatened a third Supervisor with criminal charges if the Supervisor did not vote on an issue in MCSOs favor. 20. In the course of the investigations against Plaintiff Wilcox, to assist in
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preparing an investigative report justifying prosecution and bring criminal charges, Aubuchon and Hendershott suppressed any exculpatory information that would exonerate Plaintiff Mary Rose Wilcox and prepared MCSO deputies to testify falsely based upon these reports. Preparation of witnesses to testify falsely as to an investigation is not an activity associated with the prosecutorial function. 21. Thomas and Arpaio, with the active assistance of Hendershott and
Aubuchon, and based upon investigative work done by the MACE unit, also agreed to initiate a federal civil racketeering suit against Plaintiff Wilcox and all other members of the Board of Supervisors, Judges and individuals, without any probable cause or legal justification. This is not an activity associated with the prosecutorial function. 22. One of the aims of the Defendants agreements and conspiracy against
the Wilcoxes was to punish and retaliate against the Wilcoxes for expressing their political beliefs and opinions, and to punish and retaliate against Mary Rose Wilcox for her votes as an elected member of the Maricopa County Board of Supervisors. The overall aim of the conspiracy was to damage her reputation and remove her from political office, and to take over decision making from the Board of Supervisors. FACTUAL CONTEXT FOR CLAIMS Thomas and Arpaios Anger over Mary Rose Wilcoxs Public Disagreement with Their Immigration-Enforcement Policies 23. Many of the constituents in the Maricopa County district represented by
Mary Rose Wilcox are Latino and other minorities. 24. Given their own backgrounds, and the backgrounds of Mary Roses
constituents, the Wilcoxes have been leaders in speaking out and acting to protect the rights of minorities in Maricopa County.
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25.
Thomas was originally elected County Attorney on a political promise
to zealously enforce laws against illegal immigration. 26. In approximately 2007, Arpaio, in collaboration with Thomas and
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Hendershott, and in anticipation of garnering favorable media coverage for Arpaio and Thomas, began a series of highly publicized immigration sweeps. 27. During the immigration sweeps, squads of deputy sheriffs and posse
members descended unannounced upon a designated area of Maricopa County, typically with a large Latino population, to round up undocumented immigrants. 28. During the immigration sweeps, deputies and posse members primarily
targeted individuals who looked Hispanic. These people were singled out for questioning and arrest because of their skin color and ethnicity. 29. The immigration sweeps were funded by federal and state monies
obtained by Arpaio, Hendershott, and the MCSO to assist in their anti-immigration enforcement campaign. 30. The Wilcoxes, along with other members of the Latino community in
Maricopa County, spoke out publicly against the immigration sweeps and accused Arpaio, Hendershott, and the MCSO of racial profiling during the sweeps. Mary Rose also spoke out against Arpaio, Hendershott, and the MCSO for creating a climate of fear among the Latino community in Maricopa County. 31. The Wilcoxes public statements antagonized Arpaio, who, together
with Hendershott, the MCSO, Thomas, and the MCAO, began a retaliation campaign against the Wilcoxes soon thereafter. 32. On or about May 13, 2008, in response to public outcry over the illegal
race targeting tactics of Arpaio and the MCSO, then-Governor Napolitano issued an executive order that resulted in the MCSO losing more than $1 million in state funds for anti-immigration enforcement. 33. In response to the Governors actions, Arpaio stated at a press
conference that he was really angry because Governor Napolitano, Phoenix Mayor
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Phil Gordon, Mary Rose Wilcox, and others had conspired to take away his money to fight illegal immigration and human smuggling. Arpaio said he [didnt] like politics getting into [his] operations. Thomas stood beside Arpaio at this press conference. 34. On or about June 19, 2008, Arpaio appeared before the Maricopa
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County Board of Supervisors. The meeting of the Board was recorded. 35. At the Board of Supervisors meeting, Arpaio was visibly angry and
repeatedly singled out Mary Rose Wilcox for failing to support him in his enforcement of the immigration laws. Arpaio again stated that there was a conspiracy between Mary Rose Wilcox, the mayor of Phoenix, [and] the governor to take away my money and your money. 36. Also at this appearance before the Board of Supervisors, Arpaio
explicitly criticized Mary Rose Wilcoxs political speech, stating: Im sure that Mary Rose Wilcox, when supporting the mayor in front of the building, that said, I will do everything in my power to make sure the sheriff doesnt enforce the illegal immigration laws, including the money, I guess thats what were talking about right now is the money. 37. Arpaio also criticized Mary Rose Wilcoxs political activities by stating
during that Board of Supervisors meeting that a flyer comparing him to the KKK and to Nazis was found in Mary Rose Wilcoxs restaurant: I dont want to give Mary Rose restaurant any plugs, but this is her restaurant, with certain elected officials thats been going after me. In the restaurant with her, compare me with Nazi. Okay, this has been going on. Isnt this disgusting? 38. On or about October 5, 2009, Napolitano, then Secretary of Homeland
Security, revoked Sheriff Arpaios and the MCSOs federal funding for enforcement of the federal immigration laws over concerns that Arpaio and the MCSO were engaged in racial profiling.
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39.
On or about October 6, 2009, Arpaio and Thomas appeared together at a
news conference where Arpaio was again visibly angry over the loss of his federal funding. 40. During this news conference, Arpaio again stated that Mary Rose
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Wilcox was part of a conspiracy to prevent him from enforcing immigration laws. Arpaio suggested that this alleged conspiracy had political motivations: I dont like to get into politics; they all happen to be Democrats. 41. Also during the news conference, Arpaio acknowledged his and
Thomass disagreement with the Board of Supervisors over the immigration issue, saying, Im sure that the County Attorney and I will not get any Christmas cards from the Board of Supervisors, but they better forget all the political and do whats right for this county and the people of Maricopa County. He also stated, This is all a conspiracy. It started two years ago, calculated little by little to reach todays decision. 42. During the October 2009 press conference, Thomas stated, Today,
unfortunately the empire struck back. And we have suffered a setback in the fight against illegal immigration because of Washington politics. That is the reality. But the fight goes on. 43. On or about February 12, 2010, Hendershott was deposed as part of a
federal lawsuit against Arpaio and the MCSO. Hendershott testified that there was an organized conspiracy to muzzle Sheriff Joe Arpaio and to take away the Sheriffs funding to enforce the immigration laws. On information and belief, like Arpaio and Thomas, Hendershott believes that Mary Rose Wilcox was part of this alleged conspiracy. Thomas and Arpaios Power Struggle with the Board of Supervisors and Mary Rose Wilcox 44. Arpaio and Thomas had other reasons to retaliate against the Wilcoxes.
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45.
In 2006, Thomas filed a lawsuit against the Board of Supervisors
seeking a declaratory judgment regarding the rights and responsibilities of the Board and the County Attorney with respect to retaining private counsel to represent the County in civil matters. The lawsuit was resolved through a Memorandum of Understanding, which by its terms ended on December 1, 2008. 46. On or about November 20, 2008, Maricopa County Supervisor Don
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Stapley was indicted by a grand jury. Supervisor Stapley was served with the indictment on December 2, 2008. This case is referred to as Stapley I. 47. The Stapley I indictment contained 118 felony and misdemeanor
charges against Stapley for alleged violations of the laws that require public officials to make financial disclosures. The investigation leading to the indictment was done by the MACE unit. On the same day the indictment was served, Thomas and Arpaio announced that their investigation was continuing and involved other county employees. 48. On or about December 5, 2008, the Board of Supervisors voted to
conduct an inquiry into whether there was a conflict of interest that was preventing the County Attorney from ethically representing the Board of Supervisors in civil cases. 49. After receiving legal advice from private attorneys Tom Irvine and Ed
Novak, the Board voted on December 23, 2008, to delegate management of civil litigation to the County Manager, who thereafter set up a legal department answerable to the Board of Supervisors, removing that responsibility from the MCAO Attorney. The MCAOs budget for civil attorneys was transferred to the new County civil litigation unit. Thomas and Arpaio challenged this action in another lawsuit, filed on December 31, 2008. 50. With the economic collapse of the United States financial markets in
October 2008, Maricopa County, like other governmental agencies in Arizona and across the country, faced declining tax revenues and resulting budget cuts.
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51.
At the same time, the Maricopa County Board of Supervisors was ready
to begin construction of a new Criminal Court Tower, which the County had planned and saved for over several years. 52. Arpaio and Thomas opposed going forward with building the Criminal
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Court Tower and instead wanted to use the money that would be saved by abandoning the project to make up for the financial cuts to the MCSOs and MCAOs budgets. 53. Despite Arpaios and Thomass protests, the Board of Supervisors
nevertheless decided to go forward with the construction of the Criminal Court Tower. This was a policy decision supported by the need for a new Criminal Court building, the lowered cost of construction and the jobs it would create. Arpaio and Thomas disagreed with this policy decision. 54. In retaliation for the Boards decision and without any probable cause or
justifiable basis, the Defendants started a criminal investigation into the Criminal Court Tower project in an effort to halt the project and also to target their political enemies, including the Wilcoxes. 55. On or about December 12, 2008, the County Attorney served the
Maricopa County Administration with a grand jury subpoena duces tecum demanding production of all documents related to the Criminal Court Tower. 56. The County, the Board of Supervisors, and the County Management,
represented by attorney Tom Irvine, moved to quash the subpoena and to disqualify the County Attorney from conducting a criminal investigation involving the Criminal Court Tower because the MCAO had advised the Board on issues related to its funding and construction. 57. Maricopa County Presiding Criminal Judge Gary Donahoe was assigned
to hear this grand jury matter (Court Tower Matter). 58. The MCAO moved to disqualify Judge Donahoe and assign a judge
from outside Maricopa County to hear the matter. That motion failed.
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59.
On or about February 6, 2009, Judge Donahoe quashed the grand jury
subpoena and disqualified Thomas and the MCAO from further involvement in the criminal investigation of the Court Tower Matter. 60. Thomas and the MCAO challenged Judge Donahoes ruling at the Court
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of Appeals and the Supreme Court. Both courts declined to review the ruling. 61. As a result of that ruling, Thomas and the MCAO could not lawfully
continue their criminal investigation into the Court Tower Matter. Wrongful Criminal Investigation against Mary Rose Wilcox 62. In or around 2008, through the MACE unit, the Defendants initiated and
participated in a criminal investigation into the Wilcoxes activities with no probable cause and with no reason to believe that any crime had been committed by the Wilcoxes. The sole purpose for the initiation of the criminal investigation was to retaliate against the Wilcoxes for their political beliefs, public statements, and public votes. 63. After he was served with the indictment in Stapley I in December 2008,
Supervisor Stapley moved to disqualify Thomas and the MCAO from prosecuting the case because of a conflict of interest, arguing that, in the past, Thomas and members of the MCAO, as legal advisers to the Maricopa County Board of Supervisors, had advised Stapley regarding the financial disclosure forms. 64. Facing an impending evidentiary hearing on Stapleys disqualification
motion, in April 2009, Thomas and the MCAO publicly announced that they were transferring Stapley I and any other current or future investigations or prosecutions involving the Maricopa County Board of Supervisors or county management to Yavapai County Attorney Sheila Polk. 65. The then-pending investigation involving the Wilcoxes activities was
among the matters transferred to the Yavapai County Attorneys Office (YCAO).
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66.
Arpaio and the MCSO remained the police investigative agency in the
Wilcox investigation, but the MCAO was to have no further participation in the matter. 67. Despite the public announcement that the MCAO was stepping out of
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the Maricopa County cases, Aubuchon, with the knowledge of Arpaio, Hendershott, and Thomas, secretly continued to work on the investigations both as a legal advisor and as an investigator for the MCSO, and continued to report to Arpaio, Hendershott, and Thomas about the cases. 68. Yavapai County Attorney Polk hired a special assistant county attorney,
Mel Bowers, to handle Stapley I and assigned her chief deputy, Dennis McGrane, to handle the other investigations, including the Wilcox investigation. 69. Soon after the YCAO took over the Maricopa County investigations,
Hendershott and MCSO detectives began pressuring the YCAO to obtain grand jury subpoenas without probable cause or a justifiable adequate legal basis against Plaintiff Mary Rose Wilcox. The MCSO detectives wanted authorization to conduct an illegal fishing expedition targeted at the Wilcoxes, among others. 70. The YCAO refused to authorize fishing expeditions by the MCSO and
advised the MCSO that, in order to get a grand jury subpoena, they would have to present some evidence that a crime had been committed and that the grand jury subpoenas might reveal evidence of the crime. 71. On August 24, 2009, McGrane sent a letter to Hendershott explaining
the YCAOs legal threshold for grand jury subpoenas. 72. A few days later, Hendershott expressed his disagreement with
McGranes letter in a three-page letter containing quotations from United States Supreme Court cases. On information and belief, Hendershott consulted with Aubuchon about his disagreement with Polk on the issue of grand jury subpoenas, and Aubuchon assisted in composing this letter, even though she was not supposed to be working on these investigations at all.
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73.
Arpaio, Hendershott, and the MCSO never made the required showing
to the YCAO to obtain grand jury subpoenas because there was no evidence that Mary Rose Wilcox had committed any crimes. The YCAO never issued a grand jury subpoena in the Wilcox criminal investigation. 74. On or about August 31, 2009, Arpaio, Hendershott, Aubuchon, and the
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MCSO prepared an investigative report recommending felony charges against Mary Rose Wilcox for forgery, perjury, false swearing, and violations of the conflict-ofinterest laws. The conflict-of-interest charges were based on votes by Mary Rose Wilcox as a member of the Board of Supervisors to grant federal pass-through funding for HIV/AIDS-prevention and tobacco-use prevention to Chicanos Por La Causa, Inc. (CPLC), around the same time that the Wilcoxes received business loans from Prestamos, CDFI, L.L.C., a subsidiary of CPLC. On or about September 11, 2009, this investigative report was delivered to Polk and McGrane. 75. Polk and McGrane advised Arpaio, Hendershott, and the MCSO that the
YCAO would not file conflict-of-interest charges against Mary Rose Wilcox because there was no evidence that she had gained or lost anything by reason of her votes to grant federal pass-through funding to CPLC. Further, in their view, the investigative report did not show evidence of any crimes. 76. On or about September 24, 2009, angered that the YCAO would not
assist Defendants in their wrongful and vindictive investigation of the Wilcoxes, Arpaio, Hendershott, and the MCSO had County Attorney Thomas take back the Wilcox investigation to the MCAO. 77. Also, on or about September 24, 2009, Aubuchon admitted to Polk and
others that she had given information and direction to Arpaio, Hendershott, and the MCSO detectives regarding how to conduct their investigations, revealing her and the MCAOs continued involvement in the Maricopa County and Wilcox cases.
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78.
Thomas took the Wilcox case back to the MCAO so that the Defendants
could follow through on their plan to retaliate against the Wilcoxes for their political speech, political beliefs, and public votes. 79. In or about October 2009, at the direction of Thomas and Arpaio, the
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MACE investigation against Plaintiff Mary Rose Wilcox continued with the purpose of finding any basis to charge Plaintiff with crimes. The Federal Civil RICO Action 80. On or about December 1, 2009, Thomas and Arpaio sued Plaintiff Mary
Rose Wilcox, all the other members of the Board of Supervisors, Judge Donahoe, three other Superior Court judges, three county employees, and two private attorneys in a federal civil racketeering suit in federal court. See Arpaio and Thomas v. Maricopa County Board of Supervisors et al., United States District Court for the District of Arizona Case No. 2:09-cv-02492-GMS (RICO Action). 81. Aubuchon signed the complaint in the RICO Action as the attorney
representing the plaintiffs, Sheriff Arpaio and County Attorney Thomas. 82. Aubuchon, Arpaio, Hendershott, and Thomas actively participated in
whatever civil investigation was done in advance of filing the RICO Action and in drafting the RICO Action complaint before it was filed. 83. Action. 84. The caption for the RICO Action states that Thomas and Arpaio were As the plaintiffs, Arpaio and Thomas authorized the filing of the RICO
suing in their official capacities. The RICO Action asserts, however, that Arpaio and Thomas have a personal stake in the lawsuit and that they suffered personal harm. The original action seeks civil damages. 85. The RICO Action alleges that Mary Rose Wilcox and the others sued in
that Action are racketeers and that the Maricopa County Board of Supervisors is a racketeering enterprise.
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86.
The RICO Action further alleges that Mary Rose Wilcox conspired with
the others sued in that Action to accomplish all the aims set forth in the complaint. 87. The RICO Action also alleges a broad-based conspiracy to illegally
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block criminal investigations and prosecutions, particularly the investigations into the Criminal Court Tower project and Supervisor Stapleys activities. 88. Among the allegations in the RICO Action is that the alleged
conspirators actions deprived plaintiff Arpaio, a consumer of civil legal services from the Maricopa County Attorneys Office (MCAO), of these services, to which he is entitled by state law. 89. The RICO Action also alleges that the conspirators actions deprived
plaintiff Thomas and MCAO of authority and funds required to provide civil legal services to plaintiff Arpaio and other county agencies. 90. Further, the RICO action alleges that the conspirators actions
deprive[d] plaintiff Thomas and MCAO prosecutors of a cognizable property interest, namely their license to practice law in Arizona. The RICO Action also alleged that the conspirators had made threats against Maricopa Countys chief prosecutor and his wife if he challenged the unlawful actions of certain defendants in court. 91. There is no probable cause or justifiable basis for the federal civil
racketeering action. The Defendants wrongful and negligent investigation leading up to the filing of the RICO Action and the filing of the RICO Action was motivated by the Defendants desire to retaliate against the Wilcoxes for their political beliefs, political speech, public votes, and public disagreements with the Defendants. The First Indictment Against Mary Rose Wilcox 92. On or about December 7, 2009, the MACE unit and the MCSO initiated
and caused a criminal prosecution against Mary Rose Wilcox to be returned (the First Indictment) based upon investigative reports prepared and supervised by Defendants.
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93.
The First Indictment charged Mary Rose with twelve felony counts
related to alleged conflicts of interest and twenty-four felony counts related to alleged failures to disclose information in financial disclosure filings. 94. 95. There was no probable cause for the First Indictment. The conflict-of-interest charges in the First Indictment were the same
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charges that Yavapai County Attorney Sheila Polk told the Defendants were legally and factually insufficient to state a crime. 96. The financial disclosure charges in the First Indictment were based on
documents obtained through an unlawful fishing expedition into the Wilcoxes private affairs and also rested on knowingly faulty factual and legal premises. 97. In order to obtain the First Indictment, the MACE unit and the MCSO
withheld relevant and exculpatory evidence from the grand jury, submitted false testimony about the facts of the case, and misled the grand jury about the law governing the case. Deputy County Attorney Aubuchon, in her role as legal advisor and co-investigator for the MACE unit, participated in the wrongful activities of the MACE unit and the MCSO. 98. The Defendants purposes for seeking and obtaining the First Indictment
were to publicly humiliate Mary Rose Wilcox, to retaliate against her for her political speech, political beliefs, and votes as a member of the Board of Supervisors, to intimidate her, to ruin her reputation and harm her political career, and to harm her emotionally and economically. The Second Indictment Against Mary Rose Wilcox 99. On or about January 25, 2010, recognizing that the First Indictment was
too flawed to survive in Court, the MACE unit and the MCSO, based on its still faulty investigation, sought and obtained a second criminal indictment against Mary Rose Wilcox (the Second Indictment). The Second Indictment charged Mary Rose with eighteen felony counts related to alleged conflicts of interest and twenty-four felony counts related to alleged failures to disclose information in financial disclosure filings.
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100. 101.
There was no probable cause for the second indictment. The Second Indictment again charged Mary Rose Wilcox with conflict-
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of-interest charges that Yavapai County Attorney Sheila Polk told the Defendants were legally and factual insufficient to state a crime. 102. The financial-disclosure charges in the Second Indictment were based
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on documents obtained through an unlawful fishing expedition into the Wilcoxes private affairs and rested on faulty legal and factual premises. 103. In order to obtain the Second Indictment, the MACE unit and MCSO
withheld relevant and exculpatory evidence from the grand jury, submitted false testimony about the facts of the case, and misled the grand jury about the law governing the case. Deputy County Attorney Aubuchon, in her role as legal advisor and co-investigator for the MACE unit, participated in the wrongful activities of the MACE unit and the MCSO.
104.
The Defendants purposes for seeking and obtaining the Second
Indictment were to publicly humiliate Mary Rose Wilcox, to retaliate against her for her political speech, political beliefs, and votes as a member of the Board of Supervisors, to intimidate her, to ruin her reputation and harm her political career, and to harm her emotionally and economically. The Defendants Other Actions Taken to Harm and Humiliate Mary Rose Wilcox 105. Along with initiating a wrongful investigation without probable cause,
preparing a false investigative report recommending the filing of criminal charges without probable cause, maliciously filing the civil RICO Action accusing Mary Rose Wilcox of being a racketeer without probable cause, and wrongfully initiating indictments against Mary Rose Wilcox without probable cause, the Defendants engaged in other actions to retaliate against and harm the Wilcoxes both economically and emotionally.
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106.
For instance, the MCSO instructed and arranged for MCSO deputies to
stop and park near the Wilcoxes residence and place of business to intimidate and harass them. 107. In addition, undercover informants were sent to the Wilcoxes restaurant
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to surreptitiously tape record the Wilcoxes. The MCSO then leaked information about these actions to the news media in order to discourage customers from going to the restaurant. 108. Furthermore, the Defendants investigated other aspects of the Wilcoxes
business and political activities without probable cause and in order to intimidate and harass them. The Defendants leaked false information about these investigations to media contacts they knew would publish defamatory articles. Judge Leonardos Ruling 109. Mary Rose Wilcox moved to dismiss the criminal indictments against
her on the ground that Thomas and the MCAO had disqualifying conflicts of interest and that, therefore, the grand jury proceedings, the indictments, and the criminal prosecution of Mary Rose Wilcox violated the due process principles of the United States and Arizona Constitutions (Disqualification Motion). 110. On February 16, 2010, the Honorable John Leonardo, Judge of the Pima
County Superior Court, presided over an evidentiary hearing on the Disqualification Motion. Yavapai County Attorney Sheila Polk, Maricopa County Attorney Andrew Thomas, and others testified. 111. On February 24, 2010, Judge Leonardo dismissed the indictments
against Mary Rose Wilcox and ordered that Thomas and the MCAO were disqualified from prosecuting Mary Rose Wilcox because of conflicts of interest, including a. [Thomass] efforts to retaliate against members of the [Board of Supervisors], including [Mary Rose Wilcox], for actions they allegedly carried out in concert with each other against his office and against him personally as alleged in the civil RICO complaint;
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b.
[Thomass] attempts to gain political advantage by prosecuting those who oppose him politically, including [Mary Rose Wilcox];
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c.
[Thomass] political alliance with the Maricopa County Sheriff who misused the power of his office to target members of the [Board of Supervisors] for criminal investigation; and
4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 112. d.
[Thomass] duty to provide confidential, uncompromised legal advice to members of the [Board of Supervisors], including [Mary Rose Wilcox], on matters forming the basis of charges in the indictment. After Judge Leonardos ruling dismissing the Wilcox Indictments and
sending the case back to the grand jury, the Defendants then dismissed the federal civil RICO action and the criminal prosecutions of Judge Donahoe and Supervisor Stapley. An Independent State Prosecutor Finds That the Criminal Charges Against Mary Rose Wilcox Are Without Merit 113. After Judge Leonardo disqualified Thomas and the MCAO from the
Mary Rose Wilcox prosecution and dismissed the criminal indictments, Thomas and the MCAO transferred the Wilcox investigation to Gila County Attorney Daisy Flores. 114. On or about January 14, 2011, after her office conducted an independent
investigation of the Wilcox matter, Flores declined to prosecute the charges in the Second Indictment, finding that there is insufficient evidence to go forward with the prosecution of Wilcox. 115. Regarding the conflict-of-interest charges in the Second Indictment,
Flores wrote, There is no evidence to even suggest such a thing occurred. Therefore, these charges have no factual or legal foundation and there is no likelihood of a successful prosecution.
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116.
Regarding the charges in the Second Indictment for perjury related to
Mary Rose Wilcoxs financial disclosure forms, Flores concluded, The charge of perjury is simply not applicable to the facts of this case. 117. Regarding the few inaccuracies on Mary Rose Wilcoxs financial
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disclosure statements, Flores wrote that no evidence showed a criminal mens rea, and intent to defraud, a motive, or an unlawful benefit with respect to these mistakes. 118. Flores concluded that there is insufficient evidence to go forward with
prosecution of Wilcox for any crime as there is no likelihood of successful prosecution. . . . [I]n making the decision to decline this matter we set aside all peripheral concerns to focus solely on the facts at hand to make a fair assessment of whether this matter could be successfully prosecuted. Mary Rose and Earl Wilcox Have Suffered Damages as a Result of Defendants Actions 119. As a result of the Defendants unwarranted investigations, civil and
criminal charges, harassment, and prosecution of Mary Rose Wilcox, she and her husband, Earl Wilcox, have suffered harm and incurred damages in numerous ways. 120. The Defendants wrongful conduct damaged the Wilcoxes reputations
and interfered with their ability to pursue their redevelopment plan of the Grant Park neighborhood. 121. In addition, the Defendants wrongful conduct has caused humiliation,
anguish, mental and emotional distress, resulting in physical maladies and manifestations. 122. Also as a result of the Defendants wrongful actions, the Wilcoxes have
suffered lost business profits and have had to close the El Portal restaurant, which was specifically targeted for economic harm by the Defendants. 123. Furthermore, Defendants conduct has deprived the Wilcoxes of their
constitutional rights, including

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a.
Their right to due process under Article II, 4 of the Arizona Constitution and the Fourteenth Amendment to the United States Constitution;
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b.
Their right to freedom of speech under Article II, 6 of the Arizona Constitution and the First Amendment to the United States Constitution.
c. d.
Their right to privacy under Article II, 8 of the Arizona Constitution. Their right against unreasonable searches and seizures under the Fourth Amendment to the United States Constitution and the Arizona Constitution. COUNT ONE Wrongful Institution of Civil Proceedings
124.
Paragraphs 1 to 123 are realleged and incorporated herein. This count is
brought by Plaintiff Mary Rose Wilcox against Defendants Thomas, Arpaio, Hendershott and Aubuchon. 125. Defendants Thomas and Arpaio wrongfully instituted a federal civil
racketeering claim against Plaintiff Mary Rose Wilcox. Defendants Hendershott and Aubuchon actively participated in instituting the lawsuit and aided and abetted in the filing of the lawsuit. The specific actions of the Defendants are set forth above in paragraphs 10 to 22, and 80 to 91. 126. Defendants Thomas, Arpaio, Aubuchon and Hendershott, when filing,
actively participating in the filing, or aiding and abetting in the filing of the federal civil racketeering action, acted without probable cause. 127. Defendants Thomas, Arpaio, Aubuchon and Hendershott, when filing,
actively participating, or aiding and abetting in the filing of the federal civil racketeering action, acted primarily for a purpose other than that of securing the proper adjudication of the claims in which the proceedings were based. The Defendants took these actions primarily for the purpose of publicly humiliating Mary Rose Wilcox, retaliating against her for her political speech, political beliefs, and
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votes as a member of the Board of Supervisors, intimidating her, ruining her reputation and her political career, and harming her emotionally and economically. 128. Defendants filed the federal civil racketeering action even though an
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outside law firm, Olgletree Deakins, examined the possibility of a RICO complaint in October 2009 and concluded that there was insufficient evidence to file. MCAO lawyer Peter Spaw also advised Defendants Aubuchon and Thomas that there was insufficient evidence to file a federal civil racketeering complaint. 129. Other parties also advised against filing a federal civil racketeering
action. MCAO supervisors Barnett Lottstein and Phil McDonald advised Defendant Thomas that the federal civiil racketeering action was not an appropriate civil action to file. 130. The federal civil racketeering action terminated in favor of Plaintiff
Mary Rose Wilcox. 131. As a direct and proximate result of the Defendants wrongful institution
of the federal civil racketeering case, Plaintiff Mary Rose Wilcox suffered harm and sustained damages in an amount to be proven at trial. 132. The acts of the Defendants acting in their individual capacities and
officially under the color of law were malicious, intentionally designed to punish and harm the Plaintiff, and in retaliation for the Wilcoxes exercise of constitutional rights. COUNT TWO Malicious Prosecution 133. Paragraphs 1 to 132 are realleged and incorporated here. This Count is
brought by Plaintiff Mary Rose Wilcox against Defendants Arpaio and Hendershott. 134. Arpaio and Hendershott initiated and took active part in procuring the
institution of criminal proceedings against Plaintiff Mary Rose Wilcox. The specific actions of the Defendants are set out in paragraphs 10 to 22, 62 to 79, and 92 to 104.
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135.
Arpaio and Hendershott directed the MACE unit to commence a
criminal investigation without probable cause, conduct a fishing expedition into the Wilcoxes lives, and prepare an investigative report recommending prosecution that was based upon false facts, and false application of law to facts. They had MCSO employees knowingly conceal exculpatory information from the grand jury, provide false facts to the grand jury, and provide erroneous readings of the law and the application of law to facts. 136. Defendants Thomas and Aubuchon abandoned their roles as
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independent prosecutors who are independent of the police, and gave up the independent decision making to prosecute to the Defendants Arpaio and Hendershott. 137. The two criminal indictments returned against Plaintiff Mary Rose
Wilcox were terminated in her favor. The criminal prosecution of Mary Rose Wilcox terminated in her favor when, on February 24, 2010, Judge Leonardo ordered the case against her dismissed because of Thomass and the MCAOs conflict of interest, and when, on January 14, 2011, Gila County Attorney Daisy Flores wrote to the MCAO that she was declining to prosecute Mary Rose Wilcox because there is insufficient evidence to go forward with the prosecution of Wilcox. 138. Defendants initiated or procured the criminal indictments primarily for a
purpose other than that of bringing an offender to justice. The primary purpose of the criminal indictments was to publicly humiliate Mary Rose Wilcox, retaliate against her for her political speech, political beliefs, and votes as a member of the Board of Supervisors, intimidate her, ruin her reputation and her political career, and harm her emotionally and economically. 139. As a direct and proximate result of the Defendants malicious conduct,
Mary Rose and Earl Wilcox suffered harm and sustained damages in an amount to be proven at trial.
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140.
The acts and omissions of the Defendants in their individual capacities
and under the color of law were malicious, intentional, punitive, and in reckless disregard of the Wilcoxes rights. COUNT THREE Malicious Prosecution 141. Paragraphs 1 to 140 are incorporated herein. This count is brought by
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Plaintiff Mary Rose Wilcox against Defendants Thomas and Aubuchon. 142. to 104. 143. Defendants Thomas and Aubuchon conspired with Defendants Arpaio Defendants conduct is set forth in paragraphs 10 to 22, 62 to 79, and 92
and Hendershott to wrongfully investigate and prepare a false investigative report for the purpose of initiating wrongful criminal proceedings against Plaintiff Mary Rose Wilcox. 144. Defendant Thomas and Aubuchon are not immune from, and have
liability for, the acts of their co-conspirators Arpaio and Hendershott to maliciously investigate and initiate criminal charges against Plaintiff Mary Rose Wilcox. The actions of Arpaio and Hendershott in furtherance of the conspiracy is not associated with the prosecutorial function and is not subject to absolute prosecutorial immunity. 145. Arpaio and Hendershott initiated and took an active part in procuring
the institution of criminal proceedings against Plaintiff Mary Rose Wilcox. They directed the MACE unit to commence a criminal investigation without probable cause, conducted a fishing expedition into the Wilcoxes lives, and had prepared an investigative report recommending prosecution that was based upon false facts, and false application of law to facts. They had MCSO employees knowingly conceal exculpatory information from the grand jury, and provide false facts to the grand jury, and provided erroneous readings of the law and the application of law to facts.
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146.
Defendants Thomas and Aubuchon abandoned their roles as
independent prosecutors who are independent of the police, and gave up the independent decision making to prosecute to the Defendants Arapaio and Hendershot. 147. The two criminal indictments returned against Plaintiff Mary Rose
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Wilcox were terminated in her favor. The criminal prosecution of Mary Rose Wilcox terminated in her favor when, on February 24, 2010, Judge Leonardo ordered the case against her dismissed because of Thomass and the MCAOs conflict of interest, and when, on January 14, 2011, Gila County Attorney Daisy Flores wrote to the MCAO that she was declining to prosecute Mary Rose Wilcox because there is insufficient evidence to go forward with the prosecution of Wilcox. 148. Defendants initiated or procured the criminal indictments primarily for a
purpose other than that of bringing an offender to justice. The primary purpose of the criminal indictments was to publicly humiliate Mary Rose Wilcox, retaliate against her for her political speech, political beliefs, and votes as a member of the Board of Supervisors, intimidate her, ruin her reputation and her political career, and harm her emotionally and economically. 149. As a direct and proximate result of the Defendants malicious conduct,
Mary Rose and Earl Wilcox suffered harm and sustained damages in an amount to be proven at trial. 150. The acts and omissions of the Defendants in their individual capacities
and under the color of law were malicious, intentional, punitive, and in reckless disregard of the Wilcoxes rights. COUNT FOUR Intentional Infliction of Emotional Distress 151. Paragraphs 1 to 150 are realleged and incorporated here. This count is
brought by Plaintiff Mary Rose and Earl Wilcox against all Defendants.
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152.
The Defendants conduct was extreme, outrageous, beyond all possible
realms of decency, and shocking to the conscience. Defendants specific conduct is described in paragraphs 10 to 22, 62 to 79, 80 to 91, 92 to 104, and 105 to 108. 153. The Defendants extreme and outrageous acts and omissions were
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intentionally aimed at causing the Wilcoxes extreme emotional distress, physical injury, and other harm, and were intentional and reckless with respect to causing the Wilcoxes extreme emotional distress, physical injury, and other harm. 154. As a direct and proximate result of the Defendants intentional conduct,
the Wilcoxes have suffered severe emotional distress and other harm in an amount to be determined by trial. 155. The acts and omissions of the Defendants in their individual capacities
and under the color of law were malicious, intentional, punitive, and in reckless disregard of the Wilcoxes rights. COUNT FIVE Violations of the Arizona Constitution 156. Paragraph 1 to 155 are realleged and incorporated here. This count is
brought by Plaintiffs Mary Rose and Earl Wilcox against all Defendants. 157. The specific conduct of the Defendants is set forth in paragraphs10 to
22, 62 to 79, 80 to 91, 92 to 104, and 105 to 108. 158. The Defendants Thomas, Arpaio, Hendershott and Aubuchon were
acting on behalf of Maricopa County and under the color of law at all times relevant to this Complaint. 159. The Defendants actions against the Wilcoxes were shocking,
outrageous, and contrary to any ordered concept of liberty, and were taken in order to restrict their liberty and therefore violated their due process rights protected by Arizona Constitution Article II, 4.
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160.
The Defendants actions against the Wilcoxes were taken to punish and
retaliate against them for exercising their right to freely speak and therefore violated their free speech rights protected by Arizona Constitution Article II, 6. 161. The Defendants actions against the Wilcoxes disturbed them in their
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private affairs for the purpose of punishing and retaliating against them and therefore violated the Wilcoxes right to privacy protected by Arizona Constitution Article II, 8. 162. The Defendants actions against the Wilcoxes were discriminatory,
capricious, and unreasonable and therefore violated their right to equal privileges and immunities protected by Arizona Constitution Article II, 13. 163. As a direct and proximate result of the Defendants violations of their
Arizona constitutional rights, Mary Rose and Earl Wilcox bring this direct action under the Arizona constitution for damages under Arizona law, and they have suffered harm and sustained damages by reason of these violations of their constitutional rights in an amount to be proven at trial. 164. The Wilcoxes are entitled to recover compensation for the harm and
damages they suffered as a result of the Defendants violations of their Arizona constitutional rights. COUNT SIX Negligent Supervision 165. Paragraphs 1 to 164 are realleged and incorporated here. This count is
brought by Plaintiff Wilcoxes against Defendants Arpaio and Thomas. 166. The Defendants Arpaio and Thomas have both statutory and common-
law duties of care to the Wilcoxes and all citizens when performing the functions of their positions. The Defendants owe a duty of care to the Wilcoxes with respect to conducting criminal and civil investigations. 167. The specific conduct of the Defendants is described in paragraphs10 to
22, 62 to 79, 80 to 91, 92 to 104, and 105 to 108.

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168.
At all material times, the Defendants were legally responsible for the
management of the civil and criminal investigation system in Maricopa County, and the establishment and implementation of policies, procedures, and protocols that govern the investigation, processing, handling, and management of civil and criminal investigations and prosecutions under their control. Their responsibility included making certain that such policies, procedures, and protocols satisfy all federal and state standards. 169. At all material times, the Defendants were legally responsible for
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screening, hiring, training, retaining, and supervising all employees and agents who have responsibility for the investigation, processing, handling, and management of civil and criminal investigations and prosecutions under their control. This responsibility includes making certain that such screening, hiring, training, retaining, and supervising of such employees and agents satisfy all federal and state standards. 170. The Defendants breached their duties owed to the Wilcoxes, as alleged
in this Complaint, by, among other things, failing to supervise and control the actions of their subordinates Hendershott and Aubuchon; failing to conduct the duties of their positions with reasonable care; failing to establish and implement proper policies, procedures, and protocols governing the investigation, processing, handling, and management of civil and criminal investigations and prosecutions under their control; and failing to properly screen, hire, train, retain, and supervise employees and agents who have responsibility for the investigation, processing, handling, and management of civil and criminal investigations and prosecutions under their control. 171. As a direct and proximate result of the Defendants breaches of the
duties they owed to the Wilcoxes, the Wilcoxes suffered harm and sustained damages in an amount to be proven at trial. 172. The acts and omissions of the Defendants in their individual capacities
and under the color of law were malicious, intentional, punitive, and in reckless disregard of the Wilcoxes rights.
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COUNT SEVEN 42 U.S.C. 1983: Free Speech, Law Enforcement Retaliatory Conduct, Abuse of Process, and Abuse of Power 173. Paragraphs 1 to 172 are realleged and incorporated here. This claim is
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brought by Plaintiffs Earl and Mary Rose Wilcox against all Defendants. 174. The specific conduct of all of the Defendants is set forth in paragraphs
paragraphs10 to 22, 62 to 79, 80 to 91, and 105 to 108. In addition, the specific conduct as to Defendants Arpaio and Hendershot only is set forth in paragraphs 92 to 104. 175. At all times material to this Complaint, the Defendants were acting
under the color of law and in their capacity as officials and agents of Maricopa County. 176. The wrongful conduct of Arpaio, Hendershott, Thomas, and Aubuchon
alleged in this Complaint violated the United States Constitution, including, but not limited to, the First, Fourth, Fifth, and Fourteenth Amendments: Mary Rose and Earl Wilcox were deprived of privileges and immunities guaranteed to all citizens of the United States, were subjected to law enforcement retaliatory conduct, invasion of privacy, malicious, vindictive, and selective prosecution, and were criminally and civilly charged without proper cause, with an unconstitutional motive and malice, and without equal protection or due process in an attempt to chill Mary Rose Wilcoxs free speech, to affect her vote as a public official on matters affecting the Maricopa County Attorney and Sheriff, and to intimidate, harass, and exact revenge for her public conduct. 177. As a direct and proximate result of the Defendants wrongful conduct
alleged in this Complaint, the Wilcoxes constitutional rights were violated and they have suffered harm and have been injured. 178. The wrongful conduct of Arpaio, Hendershott, Thomas, and Aubuchon
alleged in this Complaint was undertaken with malice and with improper and
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unconstitutional motives in an attempt to interfere with conduct protected by the United States Constitution. Mary Rose and Earl Wilcox were investigated, prosecuted, intimidated, harassed, and retaliated against by and at the behest of the Defendants for improper unconstitutional motives, were treated differently than others similarly situated, and were subjected to improper abuse of process and power for improper motives, without proper or probable cause, and with malice. 179. Mary Rose and Earl Wilcox were subjected to the Defendants wrongful
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and unconstitutional conduct as alleged in this Complaint in a particularly egregious and conscience-shocking manner. 180. The acts and omissions of the Defendants in their individual capacities
and under the color of law were malicious, punitive, and in reckless disregard of the Wilcoxes rights. 181. As a result, punitive damages in an amount to be determined by a jury
should be awarded against Arpaio, Hendershott, Thomas, and Aubuchon to punish them for wrongdoing and to prevent them and others from acting in a similar manner in the future. COUNT EIGHT 42 U.S.C. 1983: Unconstitutional Policies, Customs, and Failure to Train 182. Paragraph 1 to 181 are realleged and incorporated here. This count is
brought by Plaintiffs Earl and Mary Rose Wilcox. This count is brought against Defendants Thomas and Arpaio. 183. The specific conduct of the Defendants is set forth in paragraphs
paragraphs10 to 22, 62 to 79, 80 to 91, 92 to 104, and 105 to 108. 184. Sheriff Arpaio is an official policymaker for the MCSO and Maricopa
County. Arpaio has the authority and responsibility to establish policy for the MCSO and Maricopa County, and to properly supervise and train the officers, agents, and employees of the MCSO. His actions are the actions of Maricopa County.
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185.
Former County Attorney Thomas was a policymaker for the MCAO and
Maricopa County. At all material times, he had the authority and responsibility to establish policy for the MCAO and Maricopa County, and to properly supervise and train the attorneys, agents, and employees of the MCAO. His actions were the actions of Maricopa County. 186. At all times material to this Complaint, Defendants Thomas and Arpaio
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were acting under the color of law and in their capacity as officials and agents of Maricopa County. 187. At all material times, Arpaio and Thomas and Maricopa County have
oversight and supervisory responsibility over the investigation, processing, handling, and management of civil and criminal investigations and prosecutions under their control, and the proper screening, hiring, training, retaining, and supervision of the officers, employees, and agents investigating, processing, handling, and managing such civil and criminal investigations and prosecutions. 188. Arpaio and Thomas are named in their official capacities and their
individual capacities, for purposes of direct and supervisory liability. 189. Arpaio and Thomas, independently and in concert with one another and
as official policymakers of Maricopa County, violated the Wilcoxes constitutional rights and acted with deliberate and callous indifference to the Wilcoxes rights in training and failing to train their officers, agents, and employees in, among other things and without limitation: the appropriate, lawful, and constitutional policies, procedures, and protocols for investigating, processing, handling, and managing civil and criminal investigations and prosecutions under their control; and for adopting policies and procedures to ensure due process and equal protection for those subject to investigation and prosecution. 190. Arpaio and Thomas independently and in concert with one another and
as official policymakers of Maricopa County, were deliberately and callously indifferent to the Wilcoxes rights through fostering, encouraging, and knowingly
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accepting formal and informal policies, procedures, practices, or customs condoning indifference to the rights of the subjects of civil and criminal investigations and prosecutions under their control. 191. Arpaio and Thomas, independently and in concert with one another and
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as official policymakers of Maricopa County, knew and should have known that unconstitutional policies, practices, customs, and training existed with respect to the screening, hiring, training, retaining, and supervision of officers, employees, and agents who have responsibility for the investigation, processing, handling, and management of civil and criminal investigations and prosecutions in their control, yet failed to properly address them and failed to establish and implement appropriate policies, procedures, protocols, and training to remedy them. 192. Arpaio and Thomas, independently and in concert with one another and
as official policymakers of Maricopa County, permitted the implementation of inappropriate, unconstitutional, de facto policies which authorized, approved, condoned, and ratified unconstitutional civil and criminal investigatory and prosecutory practices, and failed to adequately train and supervise their personnel in these and other relevant areas. 193. The wrongful conduct of the Defendants, acting independently and in
concert with one another and as official policymakers of Maricopa County, deprived the Wilcoxes of the rights, privileges, and immunities secured to them by the Constitution and laws of the United States and their wrongful conduct was the moving force behind the violations of the Wilcoxess rights by their agents, employees, officers, and personnel. 194. The wrongful conduct of the Defendants, acting independently and in
concert with one another and as official policymakers of Maricopa County, constitutes violations of the United States Constitution, including but not limited to the First, Fourth, Fifth, and Fourteenth Amendments, in that Mary Rose and Earl Wilcox were subjected to retaliatory conduct by law enforcement and invasion of privacy, and were
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sued civilly and criminally with no evidence to support the charges, with an unconstitutional motive, and without probable cause, equal protection, or due process, in an attempt to chill the Wilcoxes free speech, prohibit anticipated public votes, and intimidate, harass, and exact revenge for public votes and conduct. 195. As a direct and proximate result of the Defendants wrongful conduct,
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the Wilcoxes constitutional rights were violated and they suffered harm and sustained damages. 196. The acts and omissions of the Defendants acting in their individual
capacities and under the color of law were malicious, punitive, and in reckless disregard of the Wilcoxes rights. 197. As a result, punitive damages in an amount to be determined by a jury
should be awarded against Arpaio and Thomas to punish them for wrongdoing and to prevent them and others from acting in a similar manner in the future. COUNT NINE 42 U.S.C. 1983 Conspiracy to Violate Constitutional Rights 198. Paragraphs 1 to 197 are realleged and incorporated here. This count is
filed against all Defendants. 199. The specific conduct of the Defendants is set forth in paragraphs
paragraphs10 to 22, 62 to 79, 80 to 91, 92 to 104, and 105 to 108. 200. The Defendants wrongful conduct was undertaken pursuant to an
agreement or meeting of the minds among Arpaio, Hendershott, Thomas, and Aubuchon to act in concert to violate the Wilcoxes constitutional rights, chill their free speech, prohibit anticipated public votes and public conduct, and intimidate, harass, and exact revenge for prior public votes and public conduct. 201. The Defendants acts and omissions in furtherance of the criminal and
civil investigations and prosecutions of the Wilcoxes were undertaken pursuant to a conspiracy among Arpaio, Hendershott, Thomas, and Aubuchon to violate the Wilcoxes constitutional rights.
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202.
As a direct and proximate result of the Defendants conspiracy, the
Wilcoxes constitutional rights were violated and they have suffered harm and have been injured. 203. The Defendants acts and omissions in furtherance of their conspiracy,
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acting in their official capacities and under the color of law, were malicious and in reckless disregard of the Wilcoxes rights. 204. The acts and omissions of the Defendants acting in their individual
capacities and under the color of law were malicious, punitive, and in reckless disregard of the Wilcoxes rights. 205. As a result, punitive damages in an amount to be determined by a jury
should be awarded against Arpaio, Hendershott, Thomas, and Aubuchon to punish them for wrongdoing and to prevent them and others from acting in a similar manner in the future. JURY TRIAL 206. The Wilcoxes request a trial by jury. PRAYER FOR RELIEF Plaintiffs Mary Rose and Earl Wilcox pray for judgment against the Defendants as follows: (a) General damages in an amount to be proven at trial, including, but not
limited to, damages to reputation, emotional distress, lost profits, deprivation of constitutional rights, humiliation, and attorneys fees incurred in defending against meritless actions; (b) Punitive damages in an amount deemed just and reasonable against the
individual Defendants; (c) 1988; (d) Such other and further relief which is just and reasonable under the Costs and attorneys fees as may be allowed by law and 42 U.S.C.
circumstances.
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3915043

OSBORN MALEDON
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______________________
RESPECTFULLY SUBMITTED this 21ST day of November, 2011. OSBORN MALEDON, P.A. By s/ Colin F. Campbell Colin F. Campbell Kathleen Brody OMeara 2929 N. Central Avenue, Suite 2100 Phoenix, AZ 85012-2793 Attorneys for Plaintiffs Mary Rose and Earl Wilcox
CERTIFICATE OF SERVICE I hereby certify that on November 21, 2011, I electronically transmitted the attached document to the Clerks Office using the CM/ECF system for filing and transmittal of a Notice of Electronic Filing to all CM/ECF registrants. Upon receipt of the Notice of electronic Filing, a copy of the attached document and Notice of Electronic Filing will be hand-delivered to the Honorable Neil V. Wake. s/ Patricia D. Palmer
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3915043

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Case 2:10-cv-02756-NVW Document 239 Filed 11/21/11 Page 1 of 38

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At all the times relevant to this First Amended Complaint, Defendant

Case 2:10-cv-02756-NVW Document 239 Filed 11/21/11 Page 6 of 38

Arpaio assigned Deputy Sheriff Hendershot to the unit as its

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Thomas was originally elected County Attorney on a political promise

Case 2:10-cv-02756-NVW Document 239 Filed 11/21/11 Page 10 of 38

Case 2:10-cv-02756-NVW Document 239 Filed 11/21/11 Page 11 of 38

On or about October 6, 2009, Arpaio and Thomas appeared together at a

Case 2:10-cv-02756-NVW Document 239 Filed 11/21/11 Page 12 of 38

In 2006, Thomas filed a lawsuit against the Board of Supervisors

Case 2:10-cv-02756-NVW Document 239 Filed 11/21/11 Page 13 of 38

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On or about February 6, 2009, Judge Donahoe quashed the grand jury

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The Defendants purposes for seeking and obtaining the Second

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Regarding the charges in the Second Indictment for perjury related to

constitutional rights, including

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Paragraphs 1 to 123 are realleged and incorporated herein. This count is

Case 2:10-cv-02756-NVW Document 239 Filed 11/21/11 Page 25 of 38

Case 2:10-cv-02756-NVW Document 239 Filed 11/21/11 Page 26 of 38

Arpaio and Hendershott directed the MACE unit to commence a

Case 2:10-cv-02756-NVW Document 239 Filed 11/21/11 Page 27 of 38

The acts and omissions of the Defendants in their individual capacities

Case 2:10-cv-02756-NVW Document 239 Filed 11/21/11 Page 28 of 38

Defendants Thomas and Aubuchon abandoned their roles as

Case 2:10-cv-02756-NVW Document 239 Filed 11/21/11 Page 29 of 38

The Defendants conduct was extreme, outrageous, beyond all possible

Case 2:10-cv-02756-NVW Document 239 Filed 11/21/11 Page 30 of 38

22, 62 to 79, 80 to 91, 92 to 104, and 105 to 108.

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As a direct and proximate result of the Defendants conspiracy, the

Case 2:10-cv-02756-NVW Document 239 Filed 11/21/11 Page 38 of 38

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