Filed as 10-CV-8209
in Federal District Court
for the District of Arizona
General allegations
7. Plaintiff incorporates each and every declaration set forth above as if fully set forth herein.
8. Some brief background as it supplies motive, in part, for defendant's actions. After years of driving back and forth to Prescott to attend the divorce trial of some long time friends (the Bodine's), after finding evidence in the public record of three years of egregious constitutional violations and falsified affidavits by their judge, compelled by love of God and country to raise a "hue and cry, " I filed a complaint of judicial misconduct in November with the Arizona Commission on Judicial Conduct against a Superior Court judge, (now former) Judge Howard D. Hinson, Jr.
9. I publicized the complaint on a 'blog' on the Internet. I published an infamous "Exhibit 1, " (not an exhibit here) a graphic showing Judge Hinson's 60-day Rule Violations at a Glance. Knowing retribution for good deeds is a sad political reality in our country (resulting in the need for federal "Whistle-blower" protection), I blogged anonymously during this time. So infamous was my graphic that the Public Information Officer of the Arizona Supreme Court carried it around with her and used it to educate judges about our 60-day Rule.
10. The author of a complaint of judicial misconduct is supposed to be anonymous until such time as the complaint is sustained. Nevertheless, before the Commission had ruled on Judge Hinson, I received an email on May 12 from a Yavapai County news reporter who had learned my identity. If she knew, others in authority must have known. (Leaks may have come from people in the judicial branch in Prescott: the Presiding Superior Court judge (Brutinel) who had been a Commission member and/or the Yavapai County Prosecutor (Polk), also a member.)
11. On February 26, a TV reporter ran the Judge Hinson story Statewide on the 10 P.M. News. The Hinson story was echoed on-line Friday by various media outlets. The local Prescott newspaper published a front page story in print on Saturday, February 28. It is fair to say I made a big stink in Prescott which embarrassed the Judiciary there. (Although in fact it was Judge Hinson's actions that were an embarrassment.)
12. As I reside 100 miles away, I thought I would be free from the typical whistle-blower retribution.
13. As Providence would have it, on January 23 I was served with a temporary Injunction Against Harassment by Melody Bodine, now known as Melody Thomas-Morgan, who resented my attending her divorce hearing.
14. Since I had not had any contact with Mrs. Bodine since she first filed papers against her husband, I challenged the Injunction in Prescott "Justice" Court.
15. I filed many motions before trial. A few were "Emergency" motions or "Expedited Consideration Requested."
16. Pursuant to Rule 5 (a) of the Arizona Rules of Civil Procedure (binding on Justice Courts per A.R.S. 22-211), acting as my own attorney I initially mailed copies of all motions and paperwork to Mrs. Bodine. (This was before JP Court Judge Markham unlawfully suspended the Rules of Civil Procedure, telling me I could not send copies. That is another story and is covered in a separate lawsuit.) The Injunction paperwork clearly allows contact "through attorneys" or "legal process" and A.R.S. 12-1809 (which governs harassment law) defines harassment as an act which serves "no legitimate purpose." Clearly, sending an expedited version of an emergency motion is a legitimate act.
17.in addition to mailing copies of motions to Mrs. Bodine, it was my belief that I was required to fax or otherwise expedite delivery of Emergency Motions and the like to her, so she could have fair notice to respond. It is my understanding that this is common practice among professional attorneys.
18. When Mrs. Bodine had filed papers against her husband, she also obtained an Order of Protection against him. Observing that Mrs. Bodine had become very vindictive and used the OOP to bully her husband, calling the police on him at the drop of the hat for bogus causes (evidenced by the fact he was never arrested or charged with anything), I was concerned Mrs. Bodine would similarly contact the police if I sent her the required fax.
19. Therefore, I contacted my attorney for legal counsel as how best to proceed. I explained the requirement to fax the emergency motion and explained my fear that Mrs. Bodine would run to the police, claiming I had violated the Injunction. He offered to fax my motion.
20. On February 4, after reviewing my motion, my attorney faxed a copy of my emergency motion to Mrs. Bodine. His secretary contacted me for information and I gave the secretary what I believed to be a dedicated fax number for Mrs. Bodine at a church building where she served. As the motion would be in the public record anyway, I saw no need for confidentiality were I wrong about it being a dedicated fax number to Mrs. Bodine.
21. About a month later, on March 13, when I filed another time-critical motion with the JP court, I faxed a copy to Mrs. Bodine acting as my own attorney, since my counselor attorney was on a cruise and could not review my motion and approve it for him to send. On the cover sheet, I wrote "Per man's law and God's." (As a point of interest, I had filed many non-time critical motions too. I did not fax these to Mrs. Bodine. I only faxed time critical motions as I believed was required by law.) Sure enough, after the first fax, Mrs. Bodine had run to her personal police officer at the Prescott Police Department, a civilian "officer" Dan Murray claiming I had violated the Injunction by faxing.
22. Officer Murray did not initially consider the faxing as a crime and did not report it to the Prescott Prosecutor. It would not be until a week later, coincident with a public record request I had made for disciplinary records of Officer Murray's colleagues for another related incident instigated by Mrs. Bodine that, with no rational basis for it, he would reinvestigate the fax and forward charges to the Prosecutor. (That is a separate issue, a civil right complaint of conspiracy, filed in 10-CV-8013, Palmer v. City of Prescott, in the District of Arizona.)
23. Sometime in March I received a criminal complaint in the mail, stamped March 19, indicating I had been charged with A.R.S. 13-2801 (A) (2), for "knowingly" violating a court order (ostensibly violating the Injunction) because I did not "fulfill the requirements of Rule 5 (c) of the Arizona Rules of Civil Procedure." Criminal case No. 030317C.
24. Rule 5 (c) (2) (D) is about alternate methods of service other than U.S. Mail. To wit, "Service in General. A paper is served under this rule by... Delivering the paper by any other means, including electronic means, if the recipient consents in writing to that method of service... in which event service is complete upon transmission." Note that this was not service, per se, since I had mailed Mrs. Bodine a copy of the emergency motion as service.
25. No court had entertained or ruled that I had violated the Injunction nor violated Rule 5 (c) of Civil Procedure.
26. As a proximate result of the criminal charge, I was forced to place a large, non-refundable deposit to retain my attorney for criminal trial.
27. As a proximate cause of this prosecution, I was prohibited from possessing firearms. My attorney argued against this, both at hearing and by written motion after. But even though this was about faxing and even though I reside 100 miles away, Mr. Savona opposed my motions to rescind the firearm restriction.
28.in mid-May, my attorney requested all exculpatory evidence, per Brady v. Maryland. (Exhibt 1) We received a packet of information from Mr. Savona shortly thereafter. It was the only information we would receive. It did not contain any exculpatory evidence.
29. Quite by providence, on October 1 I discovered exculpatory evidence on my own in the form of Prescott police report, DR 09-11832. This DR had an end date of mid-April, before my attorney's request for all exculpatory evidence in mid-May. The DR I discovered on my own concerned the second faxed motion I had sent to Mrs. Bodine.
30. It is my understanding that a second violation of an Injunction is a felony. Thankfully, I was not charged for sending the second fax.
31.in the police report (Exhibit 2), Mr. Savona declined to file charges, stating "the complaint [for sending the second fax] was denied because [the plaintiff in this instant federal complaint] had not been served with the previous complaint by the time of the second action. [He] knows now the state will prosecute for a violation in the future." (Emphasis mine.)
32. The criminal charge, being bogus, was dismissed by the Court on November 2,1009 as a result of a motion to dismiss by Mr. Savona on October 30.
Count one
violation of 42 U.S.C. 1983-malicious prosecution
(defendant savona)
33. Plaintiff incorporates each and every allegation above as if fully set forth herein.
34. This is a prima facie case of malicious prosecution. To wit,
a. The proceedings were terminated in favor of plaintiff.
B. No court had ruled or even entertained that I had violated the Injunction, and the criminal complaint was predicated on a malicious application and interpretation of Rule 5 (c) of Arizona Civil Rule of Procedure. That Rule does not prohibit faxing a pleading but simply allows faxing as an alternative form of service. Thus, there was no requirement to "fulfill" the Rule. The Rule, being only a Rule of Civil Procedure carries no criminal liability. Therefore, there was no probable cause to charge me with what amounts to "criminal faxing." Further, Mr. Savona knew my actions were not done "knowingly, " a requirement for a violation of A.R.S. 13-2810. To wit, he was not going to charge me for the second fax. Per the exculpatory police report I discovered, Mr. Savona was aware that I did not know I wasn't supposed to send the second fax because I did not know I wasn't supposed to send the first. Therefore, he knew I did not "knowingly" violate the Injunction.
C. Mr. Savona's motive was malice. I submit it is typical small town politics / retribution for making a stink about Judge Hinson. Alternatively, upon discovery, additional motive may be found and plaintiff will move for leave to amend then. Clearly, without probable cause, there had to be malicious intent in pressing charges whether articulable here or not.
35. The defendant deprived plaintiff of his procedural and substantive due process rights and as a proximate result of defendant's actions, maliciously deprived plaintiff of his cherished Second Amendment Right.
36. As a direct result of defendant's conduct, plaintiff incurred financial and emotional and other damages in an amount to be proven at trial. (As a minimum, $6000 to hire my criminal attorney.)
37. The acts of the defendant toward plaintiff amount to conduct that shocks the conscience, especially since he is a high profile officer of the court.
38. The actions of the defendant were entered into with an evil mind and therefore, punitive damages are appropriate.
COUNT TWO
VIOLATION OF 42 U.S.C. 1983 - ABUSE OF PROCESS
(Defendant Savona)
39. Plaintiff incorporates each and every allegation above as if fully set forth herein.
40. Plaintiff's criminal attorney plainly filed and asked defendant for "all information pursuant to Brady v. Maryland. As you are well aware, the United States Supreme Court has previously stated, 'We now hold that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.' Brady v. Maryland, 373 U.S. 83,87 (1963)" (emphasis mine)
41. Nevertheless, Mr. Savona withheld exculpatory evidence, where in a police report he stated that he knew I did not "knowingly" violate the Injunction. Per the U.S. Supreme Court, this is a de facto violation of due process.
42. As a direct result of defendant's conduct, Plaintiff incurred financial and emotional and other damages in an amount to be proven at trial.
43. The acts of the defendant toward plaintiff amount to conduct that shocks the conscience, especially since he is a high profile officer of the court.
44. The actions of the Defendants were entered into with an evil mind and therefore, punitive damages are appropriate.
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