United States District Court, D. Arizona
G. Campbell, United States District Judge
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
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
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.
The Incident at Afficient.
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.
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.
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.
Ms. Jones Contacts the AGO.
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.”
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.
The AGO Investigation.
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.
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.
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
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.
The MCAO Charges.
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.
Plaintiff's Attempt to Obtain a Clearance Order.
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). Plaintiff has filed a motion for
reconsideration with the court of appeals. Doc. 81 at 10;
Doc. 81-7 at 54-66.
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,