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Ludwig v. State

United States District Court, D. Arizona

February 22, 2018

Aaron Ludwig, Plaintiff,
v.
State of Arizona and Donald Conrad, Defendants.

          ORDER

          David G. Campbell, United States District Judge

         Plaintiff Aaron Ludwig filed this action against the State of Arizona and Donald Conrad, his former supervisor at the Arizona Attorney General's Office (the “AGO”), alleging that they maliciously instituted criminal proceedings against him and violated his constitutional rights. Doc. 1-1. The parties have filed cross-motions for summary judgment. Docs. 69, 80. The motions are fully briefed, and no party requests oral argument. For reasons stated below, the Court will grant summary judgment in favor of Defendants.

         I. Background.

         The following facts are undisputed unless otherwise noted. Plaintiff was hired as an Assistant Attorney General in the AGO in 2010. Doc. 70 ¶ 1; Doc. 81at 1; Doc. 70-2 at 5.[1] From approximately April 2012 to December 2013, Plaintiff served as chief counsel of the financial remedies section. Doc. 70-2 at 7-8. On January 30, 2015, Plaintiff resigned in lieu of termination at the urging of his supervisor, Defendant Donald Conrad. Id. at 4-5.

         A. The Incident at Afficient.

         On May 1, 2015, Plaintiff accompanied Stephanie Hill to Afficient Towing to retrieve her vehicle, which Afficient had towed from a church parking lot. Doc. 70 ¶ 2; Doc. 81 at 1. Plaintiff conducted research before going to Afficient. Doc. 70-2 at 17-18. He printed a city towing ordinance, documents from a criminal case that had been filed against Afficient, and “a couple of other documents, ” and brought them with him. Id. at 18. Plaintiff told the Afficient employee at the teller window, Veronica Uriarte, that he was the “immediate past chief of the Racketeering and Asset Forfeiture Section of the Attorney General's Office.” Id. at 26.

         While standing at the teller window, Plaintiff took a wallet out of his pocket, removed a clip from the wallet, and laid the clip on the counter. Doc. 70-2 at 27-28. The clip bore a commemorative badge he purchased while working at the AGO - a star-shaped gold badge with a Super Bowl trophy, the words “Arizona Attorney General, ” “Asst. Attorney General, ” and the last three digits of Plaintiff's state employee number. Id. at 22-23, 27; see Doc. 70-1 at 76. These badges were available only to law enforcement officers and prosecutors, but they were not official badges. Doc. 70 ¶ 5; Doc. 81 at 2-3. Plaintiff removed a business card, believing that it was a card with his private business name on it. Doc. 70-2 at 31-32. He instead inadvertently removed one of his Assistant Attorney General business cards. Id. He then put the wallet and clip back in his pocket. Id. at 27.

         At that point, Afficient's owner, Bonnie Jones, arrived and took Plaintiff and Ms. Hill to a separate office. Doc. 70 ¶ 11; Doc. 81 at 3. Plaintiff again introduced himself as the immediate past chief of the racketeering and asset forfeiture section, and gave the business card and printed documents to Ms. Jones. Doc. 70 ¶ 12; Doc. 81 at 4. Plaintiff told Ms. Jones that he was recording their conversation, which was not true. Id. Plaintiff also took a photograph of a document that Ms. Jones showed him. Doc. 70 ¶ 14; Doc. 81 at 4. Afficient ultimately released Ms. Hill's car at no charge. Doc. 70 ¶ 19; Doc. 81 at 5.

         B. Ms. Jones Contacts the AGO.

         Shortly after Plaintiff and Ms. Hill left Afficient, Ms. Jones contacted the AGO. Doc. 70-1 at 88; Doc. 70-2 at 48-49. She left two voicemail messages explaining that “one of your agents, Aaron S. Ludwig, ” was at Afficient that day, “his badge was laid on the counter, ” he claimed “he was recording me, ” and he was “threatening, taking pictures of everything, doing everything he could to intimidate us and . . . basically using his color of authority to scare us into doing something that we do because it's the law.” Doc. 70-1 at 8. She reported that “[Ms. Hill] did sign the papers, she did receive her vehicle, she did not pay, but that was not the issue. The issue is Mr. Aaron Ludwig and his using his color of authority to intimidate my people.” Id.

         On the same day, before the AGO conducted any investigation, Andrew Rubalcava, the AGO chief of special investigations, informed Mr. Conrad of Ms. Jones's complaint. Doc. 70-2 at 74-76. Mr. Conrad called Plaintiff - in the presence of Mr. Rubalcava - and left a voicemail informing Plaintiff of the report and asking him to stop using his official business cards and turn in any badge he still had. Doc. 70-2 at 35; Doc. 70-1 at 116-18. Plaintiff testified that the voicemail continued after Mr. Conrad believed he had hung up, and that Plaintiff heard Mr. Conrad say “these towing companies play their cards close to the vest, ” and “who knows if the son of a b---- will even call me back.” Doc. 81-1 ¶ 44. Plaintiff believes that Mr. Conrad dislikes him and treated him unfairly while he worked at the AGO. Doc. 81-1 at 2-3.

         C. The AGO Investigation.

         Ms. Jones's voicemails were initially screened by an AGO intern, who referred them to Buddy Loomis, an AGO special agent. Doc. 70-2 at 47-48. Ms. Loomis listened to the voicemails, called Ms. Jones to follow up, and requested that Ms. Jones e-mail copies of the documents Plaintiff left with Ms. Jones. Id. at 48-54. During the follow-up call, Ms. Jones explained that Plaintiff had handed her documents related to her prior arrest by the Glendale police as well as a Glendale law, and had implied that the Glendale police “were after [her] again.” Doc. 70-1 at 91-92. When asked about the badge, Ms. Jones explained that she “didn't look that close, ” but she believed that he “was definitely some kind of police.” Id. at 91, 93.

         Ms. Loomis forwarded the information to Georgia Davies, the duty agent at the AGO. Doc. 70-2 at 52. Ms. Davies reviewed the information, interviewed Ms. Jones and Ms. Uriarte, visited Afficient to watch the video surveillance tapes, and concluded that Plaintiff had committed a felony. Doc. 70-2 at 64-67. She relayed the information to Mr. Rubalcava, who summarized it in a report to Mr. Conrad. Doc. 70-1 at 118-19.

         After reviewing the information compiled by Ms. Loomis, Ms. Davies, and Mr. Rubalcava, Mr. Conrad concluded that there was a “colorable claim” that Plaintiff had violated A.R.S. § 13-2006(A)(3). Doc. 70-1 at 108, 123. That statute prohibits persons from “[p]retending to be, or assuming a false identity of, an employee or a representative of some person or organization with the intent to induce another person to provide or allow access to property.” Mr. Conrad forwarded the results of the investigation to the Maricopa County Attorney's Office (the “MCAO”). Doc. 70 ¶ 27; Doc. 81 at 8. In the forwarding letter, Mr. Conrad stated that the AGO “authorizes [the MCAO] to assume prosecutorial responsibility” for the “possible prosecution” of Plaintiff. Doc. 81-7 at 46. A “Release Questionnaire” completed by Ms. Davies and submitted to the MCAO provides the following statement of probable cause:

On May 1, 2015, Aaron Ludwig presented himself as an employee of the [AGO] in order to recover a vehicle that had been towed. He identified himself verbally as well as presented a badge and business card stating the same to the employees of the tow company that towed the vehicle in an attempt to obtain the vehicle without paying.

Doc. 81-7 at 51-52.

         D. The MCAO Charges.

         The MCAO charged Plaintiff with criminal impersonation under § 13-2006(A)(3). Doc. 70 ¶ 29; Doc. 81 at 9. Plaintiff asserts that the MCAO relied entirely on the information it received from the AGO, but submits no evidence to support this assertion. See Doc. 81 at 9. The charge eventually was dismissed without prejudice by the MCAO. Doc. 70 ¶ 31; Doc. 81 at 9.

         E. Plaintiff's Attempt to Obtain a Clearance Order.

         After the charge was dismissed, Plaintiff filed a petition for a clearance order pursuant to A.R.S. § 13-4051, asking the Maricopa County Superior Court to clear the charge from his record and seal the associated pleadings (the “Clearance Action”). Doc. 70 ¶ 34; Doc. 81 at 10. Superior Court Commissioner Nothwehr denied the petition after holding a two-day evidentiary hearing at which Plaintiff testified and was represented by counsel. Doc. 70 ¶ 34; Doc. 81 at 10. Plaintiff appealed, and the Arizona Court of Appeals affirmed, finding that the “record supports the trial court's finding that probable cause supported Ludwig's charge, ” and “that Ludwig was not factually innocent.” See State v. Ludwig, No. 1 CA-CR 16-0735, 2017 WL 3484502, at *3 (Ariz.Ct.App. Aug. 15, 2017).[2] Plaintiff has filed a motion for reconsideration with the court of appeals. Doc. 81 at 10; Doc. 81-7 at 54-66.

         F. This Suit.

         On April 19, 2016, Plaintiff served a notice of claim on Lisa Fischer, an authorized recipient at the AGO. Doc. 70-2 at 101. The notice identified Mr. Conrad as a defendant, but, in accordance with AGO policy, Ms. Fischer accepted service only on behalf of the State. See Id. at 101, 105, 107, ...


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