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Kloberdanz v. Arpaio

United States District Court, Ninth Circuit

January 28, 2014

JOSEPH M. ARPAIO, SHERIFF OF MARICOPA COUNTY, ARIZONA, in his individual and official capacities and JANE DOE ARPAIO; JOSEPH K. PELLINO and JANE DOE PELLINO; STEVEN H. CARPENTER and JANE DOE CARPENTER; ROBERT W. BURGHART and JANE DOE BURGHART; MARICOPA COUNTY, a political subdivision of the State of Arizona by and through the MARICOPA COUNTY BOARD OF SUPERVISORS and its five board members, Denny Barney, Steve Chucri, Andy Kunasek, Clint Hickman, and Mary Rose Wilcox; WILLIAM MONTGOMERY, MARICOPA COUNTY ATTORNEY in his individual and official capacities and JANE DOE MONTGOMERY; JOHN and JANE DOES I though X; Defendants.

ORDER AND OPINION [Re: Motion at Docket 14]

JOHN W. SEDWICK, District Judge.


At docket 3, Maricopa County Sheriff Joseph M. Arpaio and Jane Doe Arpaio ("Sheriff Arpaio"); Deputy Sheriff Joseph Pellino and Jane Doe Pellino ("Pellino"); Deputy Sheriff Steven Carpenter and Jane Doe Carpenter ("Carpenter"); Posseman Robert W. Burghart and Jane Doe Burghart ("Burghart"); Maricopa County ("County"); Maricopa County Board of Supervisors and its five members Denny Barney, Steve Chucri, Andy Kunasek, Clint Hickman, and Mary Rose Wilcox ("County Board Members"); and Maricopa County Attorney William Montgomery ("County Attorney Montgomery") (collectively "Defendants") filed a motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Defendants and Plaintiff Daniel Kloberdanz ("Kloberdanz" or "Plaintiff") then filed a stipulation of dismissal at docket 5, whereby Plaintiff agreed to dismiss County Attorney Montgomery and the County Board Members. Plaintiff also agreed to dismiss all claims for punitive damages against the County. At docket 8, Plaintiff filed his response in opposition to the remaining arguments in Defendants' motion. Defendants' filed a reply at docket 12.

Thereafter, the court granted the stipulation at docket 11, terminating County Attorney Montgomery and the County Board Members and dismissing all claims for punitive damages against the County. The remaining Defendants refiled their motion to dismiss at docket 14 pursuant to an agreement between the parties because the original motion at docket 3 inadvertently cited an unreported case as authority. The parties indicated that because the amended motion only makes one minor change to the original motion, the Plaintiff's response at docket 8 and Defendants' reply at docket 12 adequately addresses all the issues. Oral argument was heard on January 23, 2014.


Based on the allegations in the complaint, Kloberdanz was and is a licensed attorney in the State of Arizona and has been a member in the Berens, Kozub, Kloberdanz & Blonstein, PLC law firm. On the evening of June 15, 2012, an employee of the law firm, Valerie Lingenfelder ("Lingenfelder"), was involved in a traffic accident in Cave Creek, Arizona. She called Kloberdanz and asked him for assistance at the scene of the accident. Kloberdanz arrived before the Maricopa County Sheriff's Office ("MCSO"). When the deputy sheriffs arrived at the scene Kloberdanz indicated to Posseman Burghart that he was Lingenfelder's attorney and had not been a witness to the accident. Deputy Sheriff Pellino then approached Lingenfelder and moved her away from Kloberdanz. He asked Lingenfelder a few questions and performed an eye test on her. He then placed her under arrest and handcuffed her.

Kloberdanz alleges that Pellino became aggressive after learning that Kloberdanz was present as her attorney. When Kloberdanz asked if he could stand near Lingenfelder to help calm her down, Lingenfelder confirmed Kloberdanz was indeed her attorney, Pellino shoved Kloberdanz hard on his chest, knocking him over. Kloberdanz hit his head on the ground. Kloberdanz stood back up, and Pellino yelled to him about lawyers telling him how to do his job. He then tackled Kloberdanz and told Kloberdanz he was under arrest, all the while yelling anti-lawyer sentiments. Kloberdanz alleges that he did not resist or fight back or do anything to provoke Pellino.

The other two officers on the scene, Deputy Sheriff Carpenter and Posseman Burghart, then assisted Pellino. They tackled Kloberdanz while he was down on the ground, handcuffing him and holding him while Pellino proceeded to drive Kloberdanz's head into the gravel. Kloberdanz was hit and kicked by the three deputies. Pellino lifted up Kloberdanz's head and smashed it forcefully into the ground while yelling at Kloberdanz. The officers finally pulled Kloberdanz off the ground, but with such force that they dislocated his shoulder.

Kloberdanz was escorted to a sheriff vehicle and driven to a substation where he was placed in a jail cell. He was not provided any medical attention while in jail. Pellino spoke to Kloberdanz while he was in jail, again commenting on Kloberdanz's role as a lawyer and telling Kloberdanz that he does not need to be told how to do his job. Pellino told Lingenfelder that the officers were going to teach Kloberdanz a lesson.

Kloberdanz was then transferred to the downtown Phoenix station and not released until the next day. He was formally charged with the crime of "hindering prosecution." He alleges in the complaint that the charges were still pending at the time of filing; however, Defendants note in their motion to dismiss that the charges have since been dismissed.

Kloberdanz alleges he had multiple physical injuries resulting from the deputies' assault and that he continues to suffer from post-concussion symptoms, pain and suffering, loss of income and earning capacity, damage to his reputation, emotional distress, and other adverse health effects.


Kloberdanz filed his complaint in Maricopa County Superior Court. Defendants removed the case to federal court on October 25, 2013. The complaint sets forth nine counts.

Count One: A claim pursuant to 42 U.S.C. § 1983 against Pellino, Carpenter, and Burghart, as well as MCSO and the County, for use of excessive force in violation of the Fourth Amendment.

Count Two: A claim pursuant to § 1983 against MCSO and the County on the theory that MCSO and the County are liable for the constitutional torts committed by the three deputies because the deputies' actions were authorized by custom or policy.

Count Three: A claim pursuant to § 1983 against Pellino, Carpenter, Burghart, MCSO, the County, and Sheriff Arpaio[1] for depriving him of the "privileges and immunities guaranteed to all citizens" and subjecting him to "retaliatory conduct, illegal arrest and detention, and [prosecution] without proper cause, with an unconstitutional motive and malice, and without equal protection or due process, and to intimidate, harass, and coerce him for being an attorney, or to otherwise conceal and cover-up the MCSO's wrongful assault." The specific constitutional violation alleged in this count is not entirely clear from the turgid language; Plaintiff references the First, Fourth, Sixth, and Fourteenth Amendments, uses the phrases "due process, " "privileges and immunities, " "equal protection, " and describes his prosecution as unconstitutional and malicious. However, given the title of the ...

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