JAMES A. TEILBORG, District Judge.
Pending before the Court are: (1) Sheriff Joseph Arpaio and Ava Arpaio's (the "Arpaio Defendants") Motion for Summary Judgment (Doc. 211) and the Maricopa County Board of Supervisors (the "Board Defendants") and Maricopa County's (collectively,
Plaintiff Sandra Dowling ("Dowling") was the Maricopa County Superintendent of Schools, which is an elected office, for 20 years, from 1988 to 2008. (Arpaio Defendants' Statement of Facts, Doc. 214 at ¶ 1; Plaintiffs' Controverting Statement of Facts to Arpaio Defendants' Motion for Summary Judgment, Doc. 227 at ¶ 1). As Superintendent, Dowling oversaw an accommodation district, known as the Maricopa County Regional School District (the "MCRSD"). (Doc. 214 at ¶ 5; Doc. 227 at ¶ 5). Dowling served as the sole member of the governing board of the MCRSD. (Doc. 214 at ¶ 5; Doc. 227 at ¶ 5). By 2006, there were 12 schools in the MCRSD, which included three campuses of the Thomas J. Pappas School for homeless children. (Plaintiffs' Omnibus Statement of Facts, Doc. 228 at ¶ 11).
In 2005, at Dowling's request, Ben Arredondo, the Deputy Superintendent of Schools and Dowling's liaison to the Maricopa County Board of Supervisors (the "Board"), approached Brian Hushek, the Deputy Budget Director at the Office of Management and Budget for Maricopa County to discuss resolving MCRSD's approximately $3 million deficit. (Doc. 214 at ¶ 36; Doc. 228 at ¶ 18).
In June 2005, Dowling wrote a letter to the Maricopa County Attorney requesting his opinion as to whether the Board
In response, in November 2005, the Associate Superintendent of Finance wrote a letter to the Board informing them that it appeared the deficit resulted from unfunded transportation costs necessary for the MCRSD, taxes, and excess utilities. (Doc. 228 at ¶ 23 and Exhibit 10). The letter stated: "review of financial records for MCRSD suggests that the deficit cash balances are the result of statutory language, rather than improper management of the district" and "A.R.S. § 15-1001 requires each county's board of supervisors to annually budget for the Special County School Reserve Fund." (Id.).
Thereafter, the Maricopa County Board of Supervisors asked Ross Tate, Maricopa County Auditor, to perform an audit of the MCRSD. (Doc. 228 at ¶¶ 25-26). On December 21, 2005 and January 10, 2006, Dowling's attorney, David Cantelme, wrote Mr. Tate and Dean Walcott letters, respectively, explaining that it was Dowling's opinion that the Board could not authorize such an audit, but if the auditor worded the request as a "records request" instead of an "audit," she would make documents available for review. (Doc. 228 at ¶ 27 and Exhibits 17 & 18). On January 10, 2006, the Board then issued a subpoena duces tecum for the documents it sought. (Doc. 228 at ¶ 27 and Exhibit 19). The subpoena was served on Dowling by Detective Graham of the Maricopa County Sheriff's Office ("MCSO") the same day. (Doc. 214 at Exhibit 15).
As part of its criminal investigation, MCSO obtained and executed a search warrant for the MCRSD offices on January 25, 2006. (Doc. 228 at ¶ 53). Also on January 25, 2006, MCSO obtained and executed a search warrant for Dowling's home. (Id.)
The criminal investigation conducted by MCSO resulted in a grand jury's indictment of Dowling on 25 felony counts on November 16, 2006. (Doc. 228 at ¶ 61). Prosecutor Ted Noyes ("Prosecutor Noyes") of the Arizona Attorney General's Office presented the case to the grand jury. (Doc. 227 at ¶ 110).
On August 26, 2008, the court presiding over the criminal case accepted a Plea Agreement, dated July 11, 2008, entered into by the State of Arizona and Dowling. (Doc. 228 at ¶ 67). The Plea Agreement, in the case captioned CR 2008-007162, provided that Dowling agreed to plead guilty to a misdemeanor (employment of a relative), and the parties stipulated that, at sentencing, Counts 1-10 that were previously dismissed on August 20, 2007, and the remaining Counts in CR 2006-012508 (Counts 11-23 and Counts 26-27) would be dismissed with prejudice. (Doc. 228 at ¶ 66).
On June 3, 2009, Plaintiffs filed the Complaint in this action in Maricopa County Superior Court (Doc. 1-1, Exhibit A), and Defendants subsequently removed the case to this Court (Doc. 1).
On July 27, 2010, the Court entered an Order that permitted Defendants to file two motions for summary judgment. (Doc. 53). The Order allowed a first motion for summary judgment on statute of limitations issues and a second motion for summary judgment on all other issues after the close of discovery. Thereafter, Defendants filed their First Motion for Summary Judgment seeking summary judgment on Counts I, III, IV, V, VI of Plaintiff's Complaint on statute of limitations grounds. On March 8, 2011, 2011 WL 843942, the Court granted Defendants' Motion for Summary Judgment with respect to Plaintiffs' claims for negligence and abuse of process (Counts I and III of the Complaint) because they were barred by the statute of limitations and denied Defendants' Motion for Summary Judgment on statute of limitations grounds with respect to Counts IV, V, and VI of Plaintiffs' Complaint. (Doc. 151).
Defendants have now moved for summary judgment on the remaining counts of Plaintiffs' Complaint: Count II (Malicious Prosecution), Count IV (violations of 42 USC § 1983 — Unconstitutional Policies, Customs and Failure to Train), Count V (violations of 42 USC § 1983 — Conspiracy to Commit Violations of 42 USC 1983), Count VI (violations of 42 USC § 1983 — Free Speech, Law Enforcement Retaliatory Conduct, Malicious Prosecution).
Summary judgment is appropriate when "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). "A party asserting that a fact cannot be or is genuinely disputed must support that assertion by ... citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits, or declarations, stipulations... admissions, interrogatory answers, or other materials," or by "showing that materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact." Id. at 56(c)(1)(A) & (B). Thus, summary judgment is mandated "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).
Initially, the movant bears the burden of pointing out to the Court the basis for the motion and the elements of the causes of action upon which the non-movant will be unable to establish a genuine issue of material fact. Id. at 323, 106 S.Ct. 2548. The burden then shifts to the non-movant to establish the existence of material fact. Id. The non-movant "must do more than simply show that there is some metaphysical
At the outset, the Court notes that, in their Motions for Summary Judgment, both the Arpaio Defendants and the Maricopa County Defendants attempt to guess at what claims Plaintiffs are asserting against them from the face of the Complaint. It is not clear to the Court why, during the discovery process, Defendants were unable to determine the scope of Plaintiffs' claims and which Defendants those claims were directed against. Likewise, in their Responses to the Motions for Summary Judgment, Plaintiffs do not directly assert which claims from their Complaint they are pursuing or who those claims are against.
Accordingly, in order for the Court to determine whether Defendants are entitled to summary judgment on some or all of Plaintiffs' claims, the Court must necessarily determine the claims from their Complaint on which Plaintiffs intend to proceed and the identity of the individual Defendants that those claims are against. After carefully reading the full briefing on both Motions for Summary Judgment, the Court has determined the claims Plaintiffs have identified as inappropriate for summary judgment as follows: (1) a Section 1983 claim for retaliatory investigation/prosecution in violation of Plaintiffs' First Amendment rights against all Defendants (Count VI),
Additionally, the Arpaio Defendants have identified three additional bases on which they argue they are entitled to summary judgment: (1) Sheriff Arpaio is entitled to qualified immunity, (2) Arpaio is not liable in his individual capacity; and (3) punitive damages are inappropriate against Sheriff Arpaio in his individual capacity.
In light of this summary, the Court will now analyze the Motions for Summary Judgment.
To demonstrate a claim for retaliatory prosecution in violation of Dowling's First Amendment rights, Plaintiffs must provide evidence showing that (1) Defendants possessed an impermissible motive to interfere with her First Amendment rights, (2) Defendants' conduct would chill a person of ordinary firmness from future First Amendment activities, and (3) that the Defendants would not have engaged in the conduct in question but for the retaliatory motive. Mendocino Envtl. Ctr. v. Mendocino County, 192 F.3d 1283, 1300 (9th Cir. 1999).
In a claim for retaliatory prosecution, the third element can only be satisfied if Plaintiffs prove that Defendants "induced the prosecutor to bring charges that would not have been initiated without their urging." Hartman v. Moore, 547 U.S. 250, 261-262, 126 S.Ct. 1695, 164 L.Ed.2d 441 (2006). At the summary judgment stage, this means that Plaintiffs must show some evidence that there was a lack of probable cause for the charges brought against Dowling. See id. at 263, 126 S.Ct. 1695 ("at the trial stage, some evidence must link the allegedly retaliatory official to a prosecutor whose action has injured the plaintiff. The connection, to be alleged and shown, is the absence of probable cause."). The Court will now examine whether Plaintiffs have presented disputed issues of material fact on each of the three elements of a retaliatory prosecution claim.
Plaintiffs argue that the Board Defendants asked the MCSO to investigate Dowling and that they acted with a retaliatory motive when they did so. Plaintiffs argue that, in her position as Maricopa County Superintendent of Schools and sole member of the MCRSD Governing Board, Dowling took positions on various political issues that placed her in conflict with members of the Board. Plaintiffs argue that, as a result of these conflicts, when Dowling asked the Board to fund a deficit in the Maricopa County Regional School District, the Board Defendants viewed the deficit as an opportunity to oust her from office by entering into a conspiracy with the MCSO to criminally investigate Dowling, despite their knowledge that the basis for the criminal investigation was unfounded and despite the fact that the Board's prior procedure for investigating budget
The Board Defendants argue that (1) there is no evidence that the they participated in MCSO's criminal investigation of Dowling and/or made any decisions with regard to Prosecutor Noyes' decision to prosecute Dowling; (2) there is no evidence in the record that County officials engaged in improper and wrongful or bad faith conduct in this case; and (3) Plaintiffs failed to sue members of the Board in their individual capacity and have not shown that the Board acted as a collective with a motive to prosecute Dowling in violation of her First Amendment rights.
The Court agrees that Plaintiffs have not presented a genuine issue of material fact with regard to the acts done by the Board, as an entity. Rather, Plaintiffs seem to impute each Board member's individual actions to the Board as a whole, but do not provide any support for their allegations that the Board acted as an entity with a retaliatory motive to violate Dowling's constitutional rights.
Dowling has presented evidence that prior to the investigation into the deficit, she had conflicts with certain individual members of the Maricopa County Board of Supervisors from which a jury could possibly infer the basis of a retaliatory motive.
"To maintain a § 1983 claim against a local governing body, the plaintiff must establish a `policy or custom' attributable to the body and allege that the policy or custom was the `moving force' behind the constitutional deprivation." Thomas v. Maricopa County Bd. of Supervisors, CV 07-0258-PHX-DGC, 2007 WL 2995634, at *5-6 (D.Ariz. Oct. 12, 2007). To the extent that Plaintiffs did not name the individual Supervisors individually, but somehow intended to assert claims against the individual Supervisors in their official capacities by naming Maricopa County a Defendant in this action. Plaintiffs have not shown that the Board or Maricopa County had an official policy or custom
Rather, if Plaintiffs named Maricopa County as a Defendant based on the actions of individual Board members, in the absence of a showing of a policy or custom, Plaintiffs only theory for Maricopa County's liability for actions of individual Board members would be respondeat superior. However, a municipality cannot be responsible for the acts of its employees on a respondeat superior basis. See Zolnierz v. Harris, No CV 11-1182-PHX-RCB, 2011 WL 2560217, at *5-7 (D.Ariz. June 28, 2011) ("When individuals, such as members of the Maricopa County Board of Supervisors, are sued in an official capacity, the real party in interest is the entity of which the officers are agents. In this case, that entity is Maricopa County. The actions of individuals may support municipal liability only if a claimed injury resulted pursuant to an official policy or custom of the municipality"); Monell v. Dep't of Social Services, 436 U.S. 658, 694, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978) ("[A] local government may not be sued under § 1983 for an injury inflicted solely by its employees or agents. Instead, it is when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983"); Kentucky v. Graham, 473 U.S. 159, 167, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985).
Plaintiffs have not pointed to any policy or custom of Maricopa County or the Board of Supervisors to show that municipal liability is warranted. Accordingly, because there is no support for the proposition that the motivation of individual Board members could be imputed to the Board as whole or that individual Board
Arpaio argues that: (1) MCSO's investigation of Dowling was "initiated in response to her own employees' allegations of possible criminal behavior, including misuse of public funds," and, thus, Dowling was not investigated pursuant to a retaliatory motive that violated her constitutional rights, (2) the criminal charges that resulted from the investigation were supported by probable cause, and (3) Arpaio delegated the investigation to Hendershott and did not know and had no reason to suspect that Hendershott was conducting a politically motivated investigation against Dowling.
Plaintiffs argue that Arpaio is individually liable for Hendershott's alleged retaliatory investigation of Dowling because Arpaio "encouraged and ratified" unconstitutional conduct by employees under his supervision. Plaintiffs argue that Maricopa County is liable for Arpaio's delegation and ratification of Hendershott's actions because Arpaio "had a custom and practice of delegating all authority for sensitive criminal investigations to Chief Hendershott, created and fostered an atmosphere in which political vendettas were justifications for criminal investigations and ratified the conduct that followed." (Doc. 226 at 11). While Plaintiffs clearly explain this theory of the case in their Response to the Motion for Summary Judgment, it is not entirely clear how the underlying evidence supports this theory and/or how this theory would impose liability on Arpaio and Maricopa County.
The Court construes Plaintiffs' theory regarding Arpaio's alleged retaliation as follows:
(1) Sheriff Arpaio and Dowling had a history of bad blood between them;
(2) Because of this history, when Hendershott received a call from Brian Hushek and Sandy Wilson describing the deficit and their suspicions regarding Dowling's possible mismanagement of the fund and other allegations obtained from Dowling's employees, Hendershott saw this as an opportunity to retaliate against Dowling for her prior disagreements with the Sheriff and oust her from Office;
Plaintiffs allege that Arpaio is liable in his official and individual capacities. "A suit against a governmental officer in his official capacity is equivalent to a suit against the governmental entity itself." Larez v. City of Los Angeles, 946 F.2d 630, 646 (9th Cir.1991) (internal citation omitted). Arpaio may be found liable in his official capacity only if a policy or custom played in the violation of federal law. Id. (internal citations omitted). "To the extent that the terms `policy' and `custom' imply something beyond a single decision, official liability may also be imposed where a first-time decision to adopt a particular course of action is directed by a governmentally authorized decisionmaker." Id. (internal citation omitted). Municipal liability has been found when there was evidence that there was a custom or policy to use excessive force, or when an authorized policymaker made, or ratified a decision that deprived plaintiffs of their constitutional rights. Id. (internal citations omitted). Accordingly, for Arpaio to be liable in his official capacity, Plaintiffs must show evidence that he maintained or ratified a policy or custom pertinent to Dowling's alleged injury and that such policy or custom caused the injury.
Moreover, for Arpaio to be liable in his individual capacity, he must have participated in the deprivation of Plaintiffs' constitutional rights. Id. at 645. "Supervisory liability is imposed against a supervisory official in his individual capacity for his own culpable action or inaction in the training, supervision, or control of his subordinates, for his acquiescence in the constitutional
Plaintiffs allege that Sheriff Arpaio "has a custom and practice of delegating all authority for sensitive criminal investigations to Chief Hendershott, created and fostered an atmosphere in which political vendettas were justifications for criminal investigations, and ratified the conduct that followed." (Doc. 226 at 11). Arpaio does not dispute that he delegated the day-to-day operations of the MCSO, including criminal investigations to Hendershott. (Doc. 239 at 2).
Although Arpaio denies disliking Dowling or having any retaliatory motive toward her, Plaintiff has presented a genuine issue of material fact as to whether or not Sheriff Arpaio had a retaliatory motive that might lead him to act in violation of Dowling's First Amendment rights. (See Footnote 17).
The necessary connection between a possible retaliatory motive and a violation of Dowling's First Amendment rights is a lack of probable cause. "[I]f a plaintiff can prove that the officials secured [her] arrest or prosecution without probable cause and were motivated by retaliation against the plaintiff's protected speech, the plaintiff's First Amendment suit can go forward." Beck v. City of Upland, 527 F.3d 853, 863-64 (9th Cir.2008).
Plaintiffs have raised a material issue of fact as to whether or not probable cause existed for the prosecution of Dowling. Accordingly, whether or not probable cause existed for the prosecution of Dowling is a question for the jury. Harper v. City of Los Angeles, 533 F.3d 1010, 1022 (9th Cir.2008) ("Our task in determining whether probable cause to arrest existed as a matter of law in this § 1983 action is slightly different from a similar determination in the context of a direct review of a criminal arrest. In the latter situation, we are called upon to review both law and fact and to draw the line as to what is and is not reasonable behavior. We are not always in agreement as to its location, but a line must be drawn. By contrast, in a § 1983 action, the factual matters underlying the judgment of reasonableness generally mean that probable cause is a question for the jury.") (quoting McKenzie v. Lamb, 738 F.2d 1005, 1007 (9th Cir.1984)); Graves v. City of Coeur D'Alene, 339 F.3d 828, 845 (9th Cir.2003) ("In section 1983 claims, the existence of probable cause is a question for the jury if reasonable persons might reach different conclusions on the facts."), abrogated on other grounds by Hiibel v. Sixth Judicial Dist. Ct. of Nevada, 542 U.S. 177, 124 S.Ct. 2451, 159 L.Ed.2d 292 (2004).
Sheriff Arpaio argues that he is entitled to qualified immunity because reasonable law enforcement officers could disagree as to whether his conduct in this case was permissible. (Doc. 211 at 25). In response, Dowling argues that there is a causal connection between Sheriff Arpaio's conduct and her constitutional injuries and whether Sheriff Arpaio acted with deliberate
There is a two-step test for resolving a qualified immunity claim: the "constitutional inquiry" and the "qualified immunity inquiry." Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). The "constitutional inquiry" asks whether, when taken in the light most favorable to the non-moving party, the facts alleged show that the official's conduct violated a constitutional right. Id. If so, a court turns to the "qualified immunity inquiry" and asks if the right was clearly established at the relevant time. Id. at 201-02, 121 S.Ct. 2151. This second inquiry "must be undertaken in light of the specific context of the case, not as a broad general proposition." Id. at 201, 121 S.Ct. 2151. Courts are "permitted to exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand." Pearson v. Callahan, 555 U.S. 223, 236, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009). A dispositive inquiry in the qualified immunity analysis "is whether it would be clear to a reasonable officer that the conduct was unlawful in the situation he confronted." Saucier, 533 U.S. at 202, 121 S.Ct. 2151 (citing Wilson v. Layne, 526 U.S. 603, 615, 119 S.Ct. 1692, 143 L.Ed.2d 818 (1999)). "Courts should decide issues of qualified immunity as early in the proceedings as possible, but when the answer depends on genuinely disputed issues of material fact, the court must submit the fact-related issues to the jury." See Ortega v. O'Connor, 146 F.3d 1149, 1154 (9th Cir.1998).
Because whether Arpaio had a retaliatory motive to oust Dowling from office and whether or not probable cause existed for the prosecution of Dowling are questions for the jury, the Court will assume for the purposes of the qualified immunity analysis that Arpaio did not like Dowling and no probable cause existed for her prosecution.
Because Plaintiffs have not presented any evidence establishing that Arpaio gave direction to Hendershott on the manner in which he initiated or handled the Dowling investigation, Plaintiffs necessarily ask the Court to infer that Hendershott encouraged Prosecutor Noyes to prosecute Dowling in the absence of probable cause because he knew of and shared Arpaio's retaliatory motive toward Dowling and Arpaio ratified that behavior. Plaintiffs argue that Hendershott sharing Arpaio's motive can be inferred from facts showing that later investigations conducted by Hendershott and the MACE unit were initiated because of Arpaio's political vendettas against individuals.
To support their claim that Arpaio must have known that there was no probable cause for the prosecution of Dowling, Plaintiffs argue that there is evidence of a policy, practice and custom by Arpaio and the County to conduct politically motivated investigations. To establish that there is a material issue of fact as to the policy, practice, and custom by Arpaio and the County, Plaintiffs rely heavily on the facts that members of the task force that investigated Dowling later became known as the MACE unit, which was later accused of conducting politically motivated investigations and that the MCSO was later found to have conducted meritless investigations into other local political figures. (See Footnote 20).
However, although Plaintiffs present Stapley and Wilcox's beliefs that the MCSO's investigations into them were based on Arpaio and Hendershott's political motivations, there is no evidence that Arpaio did not act reasonably in the Dowling investigation. Further, aside from delegating authority to Hendershott for criminal investigations, Plaintiffs have failed to show that Arpaio's involvement in the Dowling investigation would warrant Monell liability from the facts pertaining to Arpaio's involvement currently in the Record. See City of St. Louis v. Praprotnik, 485 U.S. 112, 130, 108 S.Ct. 915, 99 L.Ed.2d 107 (1988) ("Simply going along with discretionary decisions made by one's subordinates, however, is not a delegation to them of the authority to make policy. It is equally consistent with a presumption that the subordinates are faithfully attempting to comply with the policies that are supposed to guide them. It would be a different matter if a particular decision by a subordinate was cast in the form of a policy statement and expressly approved by the supervising policymaker. It would also be a different matter if a series of decisions by a subordinate official manifested a "custom or usage" of which the supervisor must have been aware. In both those cases, the supervisor could realistically be deemed to have adopted a policy that happened to have been formulated or initiated by a lower-ranking official. But the mere failure to investigate the basis of a subordinate's discretionary decisions does not amount to a delegation of policymaking authority, especially where (as here) the wrongfulness of the subordinate's decision arises from a retaliatory motive or other unstated rationale. In such circumstances, the purposes of § 1983 would not be served by treating a subordinate employee's decision as if it were a reflection of municipal policy.").
Although Plaintiffs argue that Arpaio's credibility is an issue and a jury should be
Accordingly, because Plaintiffs have failed to establish that Arpaio acted unreasonably in his delegation of the investigation to Hendershott, Arpaio is entitled to qualified immunity on the Section 1983 Retaliatory Prosecution claim and Maricopa County is entitled to Summary Judgment with regard to Plaintiffs' claim of retaliatory prosecution based on actions taken by Arpaio.
To state an equal protection claim based on the allegedly selective enforcement of a law, plaintiff must "show that the law is applied in a discriminatory manner or imposes different burdens on different classes of people." Freeman v. City of Santa Ana, 68 F.3d 1180, 1187 (9th Cir. 1995). To do so, plaintiff must "identify a `similarly situated' class against which plaintiff's class can be compared." Id. Then, if the alleged selective enforcement "does not implicate a fundamental right or a suspect classification, the plaintiff can establish a `class of one' equal protection claim by demonstrating that [he] `has been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment.'" Squaw Valley Dev. Co. v. Goldberg, 375 F.3d 936, 944 (9th Cir.2004) (quoting Village of Willowbrook v. Olech, 528 U.S. 562, 564, 120 S.Ct. 1073, 145 L.Ed.2d 1060 (2000) (recognizing an equal protection violation where ordinance targeted a single individual on basis that state action was arbitrary and irrational)).
Plaintiffs allege that Dowling was treated differently than all of her predecessors, who also ran a deficit at the MCRSD and that she was treated differently than other School District managers who were accused of mismanagement. Plaintiffs argue that it is the State Board of Education's obligation to look into allegations of mismanagement and to appoint a Receiver if they make a finding of mismanagement. Plaintiffs argue that Dowling was treated differently because she insisted the Board fund her district, which gave the Board "a desire for political vengeance" and Arpaio and Hendershott were willing to implement this desire. (Doc. 226 at 26-27).
Plaintiffs have not presented the Court with evidence showing that initiating the criminal investigation into Dowling was arbitrary or irrational or that the Board, as an entity, and Sheriff Arpaio were involved in the decision to initiate the investigation. Rather, the evidence shows that Hendershott started the investigation based on Brian Hushek's phone call and complaints about Dowling.
Further, Plaintiffs have not provided the Court with enough information about similarly
In his Motion for Summary Judgment, Sheriff Arpaio argues that probable cause is a complete defense to malicious prosecution under Arizona law. (Doc. 211 at 18). Sheriff Arpaio also argues that the prosecution did not terminate in Dowling's favor because she signed a plea agreement pleading guilty to a misdemeanor in exchange for the felony charges being dropped. Id. Under Arizona law, to "prevail on a malicious prosecution claim, a plaintiff must prove that the defendant instituted a civil action that was motivated by malice, begun without probable cause, and terminated in favor of the plaintiff." Giles v. Hill Lewis Marce, 195 Ariz. 358, 988 P.2d 143, 147 (Ariz.Ct.App.1999).
In their response to Sheriff Arpaio's Motion for Summary Judgment, Plaintiffs do not refer to a state law claim for malicious prosecution nor do they cite to any Arizona cases to support their claim for malicious prosecution. Accordingly, the Court assumes Plaintiffs have abandoned their claim for malicious prosecution under state law and the Court will grant summary judgment to Defendants on any state law claim for malicious prosecution (Count II of Plaintiffs' Complaint).
Alternatively, the Court notes that to show that Sheriff Arpaio maliciously prosecuted Dowling in the absence of probable cause, Plaintiffs must show that a reasonably prudent man in Arpaio's position would not have instituted or continued the proceeding. Hockett v. City of Tucson, 139 Ariz. 317, 678 P.2d 502, 505 (Ariz. Ct.App.1983) (quoting McClinton v. Rice, 76 Ariz. 358, 265 P.2d 425, 431 (1953)). As discussed in the Qualified Immunity section above, Plaintiffs have failed to present facts suggesting that Arpaio knew there was not probable cause for the prosecution of Dowling. Although the claims that arose from the MCSO investigation of Dowling were later dismissed, this dismissal does not show that Arpaio should have known that the investigation and prosecution of Dowling lacked probable cause. See id. ("Probable cause to make an arrest may exist despite the fact that the charges are subsequently dismissed or the accused is found to be innocent.").
The Court declines to speculate on any possible liability Maricopa County may have under Arizona law based on the conduct of Hendershott in the Dowling investigation. Plaintiffs did not name Hendershott as a Defendant in this action, and as noted above, have not presented any arguments to the Court regarding Maricopa County's liability for Hendershott's actions under state law.
Sheriff Arpaio argues that he is entitled to summary judgment on Plaintiffs' conspiracy claim because Dowling has not demonstrated that any of her constitutional rights were violated or, even if they were, the intracorporate conspiracy doctrine bars Plaintiffs' conspiracy claim. (Doc. 211 at 27). Sheriff Arpaio also argues
The Maricopa County Defendants argue that they are entitled to summary judgment on Dowling's conspiracy claims because the evidence contradicts any conspiracy. (Doc. 212 at 9). The Maricopa County Defendants argue that the evidence reveals: (1) that Marc Frazier, former assistant superintendent at the MCRSD testified that numerous individuals within the MCRSD first raised concerns about financial matters involving the district and he communicated those concerns to Ben Arredondo, chief deputy at the Maricopa County Superintendent of Schools ("Arredondo"). (Doc. 212 at 10); (2) Arredondo then conveyed these financial concerns to Hushek and that is when Hushek first learned of the District's deficit. (Id. at 11); (3) The Board, in response to these fiscal concerns, then asked for MCSO's assistance in obtaining financial records from MCRSD. (Id. at 11-12); and (4) Hushek called Hendershott and then filed a criminal complaint against Dowling. The Maricopa County Defendants argue that there is no evidence in the Record to infer that an agreement or meeting of the minds occurred between MCSO and the Board Defendants to violate Dowling's constitutional rights.
To establish the defendants' liability for a conspiracy, a plaintiff must demonstrate the existence of an agreement or meeting of the minds to violate constitutional rights. The defendants must have, by some concerted action, intended to accomplish some unlawful objective for the purpose of harming another which results in damage. Such an agreement need not be overt, and may be inferred on the basis of circumstantial evidence such as the actions of the defendants. For example, a showing that the alleged conspirators have committed acts that are unlikely to have been undertaken without an agreement may allow a jury to infer the existence of a conspiracy.
Mendocino Environmental Center v. Mendocino County, 192 F.3d 1283, 1302 (9th Cir. 1999) (internal quotations and citations omitted).
"A claim of conspiracy, being dependent on questions of intent, may not always be amenable to disposition on summary judgment." Fonda v. Gray, 707 F.2d 435, 438 (9th Cir.1983) (internal quotations and citation omitted). "The mere fact that a conspiracy is alleged, however, will not defeat an adequately supported motion for summary judgment." Id. (internal citations omitted).
Plaintiffs argue that although there is not direct evidence of a conspiracy in this case, a conspiracy can be inferred because the criminal investigation into Dowling was undertaken at the Board's behest. (Doc. 224). As discussed above, the evidence in the Record does not support Plaintiffs' claim that the investigation was undertaken at the Board's behest. Further, as discussed above, there is no evidence of the Board, as an entity, initiating an investigation against Dowling and there is no evidence that any individual Board member initiated the criminal investigation of Dowling.
Plaintiffs also argue that a conspiracy to bring criminal charges against Dowling can be inferred from: (1) Hendershott assembling a "Task Force" of 35-40 of the Sheriff's best detectives; (2) hostility shown by Lieutenant Bruce Tucker, Sergeant Kim Seagraves, MCSO investigators and Loretta Barkell, MCSO's Chief Financial Officer, in their interview of Brian
This evidence is not sufficient to raise the inference that the Board and Sheriff Arpaio entered into a conspiracy to bring criminal charges against Dowling in order to oust her from office. Defendants have presented specific facts establishing the manner in which the criminal investigation against Dowling arose. Plaintiffs have failed to present evidence contradicting such evidence. Plaintiffs and Defendants widely dispute the facts in this case, but Plaintiffs have failed to present evidence supporting their theory of the facts. Without evidence supporting this theory, Plaintiffs have failed to establish a genuine issue of material fact that Sheriff Arpaio and the Board entered into a conspiracy to violate Dowling's First Amendment Rights. Accordingly, Defendants are entitled to summary judgment on Plaintiffs' Conspiracy claim.
Based on the foregoing,
The Clerk of the Court shall enter judgment for Defendants accordingly.
For instance, Plaintiffs assert the following fact in their Statement of Facts: "Unlike in a typical case, where a crime is committed and a suspect sought, here the suspect was Dr. Dowling and a "Task Force" was charged with finding a crime-a situation that even one of the MCSO investigators admitted was `out of the ordinary.'" (Doc. 228 at 10, ¶ 48). Plaintiffs support this fact with the following deposition testimony from Kim Seagraves, an investigator on Dowling's case: "It would be out of the ordinary in terms of professional law enforcement guidelines to pick out a person and investigate that person to try to find if they ever committed a crime? A. Yes.... Q. Did you ever develop any concern that you were being asked to investigate Sandra Dowling to try to find a crime that she may have committed? A. No." (Doc. 228, Exhibit 26 at 60:3-19).
In another part of their Statement of Facts, Plaintiffs state the fact that: "Chief Hendershott called for a meeting with the [U.S. Attorney] to express his extreme displeasure." (Doc. 228 at 14). Plaintiffs support this fact with Hendershott's deposition testimony "But my question to them was, why in the world — how do you get from 29 felony counts from [the Attorney General's Office] that charges 29 felony counts. Where do you see the ... logic in moving from there to there. And the — I believe that what occurred then is that we had this meeting. We didn't agree and I asked for a meeting with [the U.S. Attorney], the Sheriff and myself." (Doc. 228, Exhibit 25 at 23: 9-19).
Further, in their Statement of Facts, Plaintiffs state the fact that "The Sheriff testified that the criminal investigation was started at the behest of the Board." (Doc. 228 at ¶ 169). Plaintiffs support this fact with Arpaio's deposition testimony and a news story that quotes Arpaio: "Q. All right. This is a copy of a — of an article written — published, actually, January 27th, 2006. The investigation started in earnest on January 11th, 2006, for — so about two weeks after the investigation starts. The second page, it says, quote, `Sheriff Joe Arpaio said that prompted the Board to' quote `ask us to look at her activities.' closed quotes.... Do you remember saying that to reporters? A. What is this? A press release? Q. No It's a ... news story ... with a quote from you. Do you remember saying that to the reporters? A. I don't remember. Q. No reason to believe you didn't sitting there today? A. No. `Prompted the Board that' — then the quotes, `I asked others to look at her activities.' So I'm saying that the Board asked us? Q. Asked MCSO to look — look into her activities. A. It could be. Q. Okay. A. I don't know who asked, as I said earlier, whether it was the Board, the County or what have you."
Because many of Plaintiffs' arguments are listed as "facts," the Court found it necessary to analyze each portion of the Record referenced in Plaintiffs' Statement of Facts to see if the evidence in the Record actually substantiated Plaintiffs' stated "fact."
The MCSO Affidavits for Search Warrants, which contain background information about the Dowling investigation, exemplify the confusion surrounding the statements about initiation of the criminal investigation. However, when read in full, the Affidavits further support, rather than controvert, Defendants' contention that Brian Hushek was the initial complainant in the criminal investigation of Dowling.
Both affidavits contain the following unqualified paragraph: "On Wednesday, January 11th, 2006, the Maricopa County Board of Supervisors requested that the Maricopa County Sheriff's Office investigate possible illegal conduct of the Superintendent of Schools identified as Dr. Sandra Dowling. The Board of Supervisors had learned that Dr. Dowling had spent funds far beyond the budget for the Regional School District of Maricopa County and there were rumors of criminal misconduct by Dr. Dowling and her staff at Dr. Dowling's request. An investigation was initiated by the Maricopa County Sheriff's Office." (Doc. 215, Exhibits 15 and 16 at 4).
The Affidavits then go on to describe "Actions Taken on behalf of or by the Maricopa County Board of Supervisors" as follows: In May or June of 2005, Dowling instructed Ben Arredondo to ask the Board to provide funds to the deficit in the Maricopa County Regional School District Fund. (Doc. 215, Exhibits 15 and 16 at 5). As a result of the deficit, on October 19, 2005, the Board's Chairman, Max Wilson sent a letter to Tom Horne (then Superintendent of Public Instruction) detailing the deficit, listing factors the Board believed contributed to the deficit and asking Horne to look into the deficit. (Doc. 215, Exhibits 15 and 16 at 5-6). On November 14, 2005, Horne's office responded to Wilson's letter and attributed the deficit to un-funded transportation costs, the county equalization shortage, and excess utilities. (Doc. 215, Exhibits 15 and 16 at 6). On December 6, 2005, Ross Tate (the County Auditor of the Internal Audit Department of Maricopa County) wrote Dowling a letter requesting information for an audit of the Maricopa County Regional School District. (Doc. 215, Exhibits 15 and 16 at 6). Thereafter, letters were exchanged between Michael King and the Maricopa County Internal Audit Department regarding documents for the audit and the Audit Department twice attempted to gain voluntary access to the records, but were refused. (Doc. 215, Exhibits 15 and 16 at 7-8). On January 10, 2006, the Board issued a Subpoena Duces Tecum to Dowling seeking documentation for the audit. (Doc. 215, Exhibits 15 and 16 at 9). On January 10, 2005, Detective Graham served that Subpoena on Dowling. (Doc. 215, Exhibits 15 and 16 at 9-10).
The Affidavit then goes onto describe the "criminal" investigation as follows: "On Wednesday, January 11th, 2006, Sergeant K. Seagraves #1018 conducted an interview with a subject identified as Mr. Brian Hushek. Mr. Hushek is employed by Maricopa County as Deputy Budget Director for the Office of Management and Budget. Mr. Hushek filed the initial complaint with the Maricopa County Sheriff's Office regarding the alleged conduct of Dr. Dowling and her staff at the Regional School District... . Based upon Mr. Hushek's Complaint, the Maricopa County Sheriff's Office initiated a criminal investigation that has resulted in the interview of numerous present and former employees of the Regional School District." (Doc. 215, Exhibits 15 and 16 at 10-11).
The Affidavit then goes on to explain steps taken based on the information provided by Hushek. Accordingly, while the Affidavit states generally that the Board initiated the criminal investigation into Dowling, the only specifics provided actually reveal that the Board initiated an investigation into the deficit and Brian Hushek initiated the "criminal" investigation of Dowling when he filed a criminal complaint against her.
The Court again notes that, in their Response, Plaintiffs tend to disregard Hushek's role as the criminal complainant in the Dowling criminal investigation, suggesting that because Hushek displayed disrespect and dislike for Dowling during his interview with the MCSO that the MCSO would have disregarded his allegations were it not for the MCSO's desire to retaliate against Dowling because of her history with Arpaio. However, Plaintiffs fail to cite to any facts supporting this theory.
To the extent that Plaintiffs suggest that the MCSO needed probable cause before an investigation could commence, the Court is aware of no such requirement. See Sanders v. City and County of San Francisco, 226 Fed. Appx. 687, 689 (9th Cir.2007) ("Appellants point to no case law that supports the proposition that probable cause must exist before an investigation can commence. That is not surprising, given that the impetus behind criminal investigations is to develop probable cause.").
It also appears that Plaintiffs allege an alternate theory that the Board of Supervisors met with Arpaio prior to Hushek's complaint and together they decided that because they both had reasons to want Dowling out of office, they would initiate a meritless investigation against her. (See Doc. 224 at 2 ("Still the Board loosed Sheriff Arpaio on Dowling for its own malicious reasons, well knowing there was bad blood between the Sheriff and Dr. Dowling and knowing too, that Arpaio and Hendershott `looked for fights with every division within Maricopa County.'")).
However, this theory is not supported by the Record. (See Doc. 214 at 45 and Exhibit 10 at 82 (During his deposition, Hendershott testified: "I got a phone call, and then I would have told Miller. Miller could have said something that caused him to think that I was in a meeting with the board, but there was not a meeting with the board, ever. Q. Did you get a call from ... A. Sandi Wilson. Q. Okay. Not from anyone with the board? A. No. Sandi Wilson and Hushek, I think, was on the phone."); Doc. 225 at ¶ 10 (Stapley testified in his deposition, "We [the Board] had nothing to do with the inception of the criminal investigation."); Doc. 213 at ¶ 13 (Sheriff Arpaio testified in his deposition, "Once again, [Hendershott] ran this operation, and I don't think I should have called the Board of Supervisors. This is a criminal investigation, and he ran it. So I don't recall ever talking to the Board of Supervisors over Sandra Dowling.")). Plaintiffs have not presented any controverting evidence that Arpaio ever met with the Board or an individual Board member to initiate a criminal investigation against Dowling.
Defendants argue that Arpaio's deposition testimony establishes that: Hendershott had 31 years experience in the Sheriff's Office and it was his job to do the Dowling investigation and many other things in the Sheriff's Office, and, at the time of the Dowling investigation, Arpaio had no reason to be concerned about Hendershott's ability to conduct an investigation. (Doc. 214 at ¶ 174 and Exhibit 20 at 42-43). To rebut this argument, Plaintiffs point to later corruption in the MACE unit and the MCSO's later investigation of Supervisors Don Stapley and Mary Rose Wilcox to demonstrate that Arpaio must have known of Hendershott's conduct. However, this evidence of later corruption and later investigations does not rebut Arpaio's argument that he had no reason to suspect corrupt conduct by Hendershott at the time of the Dowling investigation.
