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TITUS BRUECKNER

& LEVINE PLC

8355 East Hartford Drive 

– Suite 200

Scottsdale, AZ 85255

480-483-9600

Elan S. Mizrahi (No. 017388)

Larry J. Crown (SBN 013133)

TITUS BRUECKNER & LEVINE PLC

8355 East Hartford Drive, Suite 200

Scottsdale, Arizona 85255

Telephone: 480-483-9600

Facsimile: 480-483-3215

Email: elan@tbl-law.com

lcrown@tbl-law.com

Attorneys for Defendants

IN THE SUPERIOR COURT OF THE STATE OF ARIZONA

IN AND FOR THE COUNTY OF MARICOPA

JESSIE THORNTON,

Plaintiff,

vs.

CITY OF SURPRISE, a jural entity; 

J.J. OTTERMAN and JANE DOE 

OTTERMAN, husband and wife, et al.,

Defendants.

Case No.: CV2013-096393

RESPONSE TO MOTION FOR LEAVE 

TO AMEND COMPLAINT

(Assigned to the Honorable David K. 

Udall)

Defendants City of Surprise (“Surprise”) and J.J. Otterman (“Officer Otterman”) by 

and through counsel undersigned, hereby submit their response in opposition to Plaintiff’s 

Motion for Leave to Amend Complaint. Simply put, Plaintiff has unduly delayed seeking 

his amendment to add six more counts to his one count Complaint and doing so now would 

be unduly prejudicial. This Response is supported by the following Memorandum of Points 

and Authorities and the Court’s record.

MEMORANDUM OF POINTS AND AUTHORITIES 

I. BACKGROUND

Before midnight on December 7, 2012, Officer Otterman, a Surprise police officer, 

arrested Plaintiff for DUI. Officer Otterman had observed Plaintiff driving his white 

Mitsubishi westbound on Bell Road and when Plaintiff crossed over a painted white-striped 

divider on multiple occasions, Officer Otterman instituted a traffic stop. Officer Otterman

Michael K Jeanes, Clerk of Court

*** Electronically Filed ***

T. Hays, Deputy

9/21/2015 6:44:00 PM

Filing ID 6880186

Case 2:15-cv-02236-MHB Document 1-4 Filed 11/06/15 Page 1 of 54
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TITUS BRUECKNER

& LEVINE PLC

8355 East Hartford Drive 

– Suite 200

Scottsdale, AZ 85255

480-483-9600

explained to Plaintiff that he was stopped for failing to maintain his lane of travel. Plaintiff 

immediately began yelling at Officer Otterman stating that he was not speeding. Officer 

Otterman repeated that Plaintiff was stopped for failing to maintain his lane of travel and 

not for speeding. Plaintiff continued to yell at Officer Otterman, stating that he was 

traveling 43 mph and was not speeding.

Officer Otterman observed that Plaintiff had bloodshot eyes and asked him to submit 

to field sobriety tests to determine impairment. Plaintiff then exited his vehicle, continuing 

to yell and argue that he was not impaired and had not consumed any alcohol. Plaintiff then 

assumed an aggressive posture and was handcuffed. While in handcuffs Plaintiff refused to 

obey commands to sit on the curb so Officer Otterman and another officer escorted Plaintiff 

to the curb in a seated position. Plaintiff finally agreed to calmly submit to sobriety tests so 

the officers removed the handcuffs.

Plaintiff voluntarily participated in field sobriety tests and told the officers that he 

had no injuries that would prevent him from completing the tests. During the tests, Officer 

Otterman observed that Plaintiff had multiple fails so he asked Plaintiff if he had consumed 

any drugs or medication. Plaintiff then admitted that he had taken 10mg of Quinapril earlier 

in the day for his blood pressure. Quinapril is a prescription medication that can cause 

dizziness and it is advised that users not drive or do any activity that requires alertness until 

the user can be sure that such activities can be safely performed.

Officer Otterman ultimately communicated to Plaintiff that he believed that Plaintiff 

was impaired based on Plaintiff’s: (1) failure to maintain his lane of travel on several 

occasions; (2) failure to understand the reason for the stop; (3) bloodshot eyes; (4) failed 

field sobriety test results; and (5) Plaintiff’s admission of taking prescribed medication.

Officer Otterman arrested Plaintiff and transported him to the police station. Plaintiff 

voluntarily consented to a blood draw. A drug-recognition officer saw no signs of drug 

impairment by the time Plaintiff was tested at the station. Officer Otterman checked with his 

supervisor and then charged Plaintiff. Plaintiff was then released to his wife with no 

booking. The charges against Plaintiff for DUI were promptly dropped when his blood 

Case 2:15-cv-02236-MHB Document 1-4 Filed 11/06/15 Page 2 of 54
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TITUS BRUECKNER

& LEVINE PLC

8355 East Hartford Drive 

– Suite 200

Scottsdale, AZ 85255

480-483-9600

results were returned without evidence of drugs or alcohol.

Plaintiff is suing Surprise and Officer Otterman for a single legal claim he styles as 

“negligence/gross negligence.” He claims he was the target of “racial profiling and 

harassment” by Surprise because, over a period of approximately 4 years, he had been 

stopped by different Surprise officers, with most stops resulting in the issuance of warnings. 

He had not been stopped within 2 years of the date of his DUI arrest in 2013.

Plaintiff now seeks to amend his Complaint to add two federal claims under § 1983 

for violations of his 4

th and 14th Amendment rights, and four common-law claims for 

intentional infliction of emotional distress, false imprisonment, abuse of process and 

malicious prosecution. He intends to now seek attorneys’ fees under § 1988.

When discovery was in its infancy last year, Plaintiff first suggested he was going to 

amend his Complaint. Specifically, on May 7, 2014, Plaintiff’s counsel emailed: “I intend to 

amend the Complaint to state a 1983 claim.” Defense counsel told Plaintiff’s counsel that if 

Plaintiff would add federal claims, the claims would be removed to Federal Court. Plaintiff 

did not move to amend, so Surprise and Officer Otterman sought to take Plaintiff’s 

deposition. Defendants also submitted an Offer of Judgment on April 11, 2014.

Plaintiff was not available to be deposed for the entirety of the summer, and by the 

end of the summer, Gallagher & Kennedy stepped in as co-counsel for Plaintiff.

On November 3, 2014, when defense counsel again inquired about scheduling 

Plaintiff’s deposition, Plaintiff’s new co-counsel emailed: “actually, we are in the process of 

amending the Complaint. I wanted to make sure you had a copy of the Amended Complaint 

before Mr. Thornton’s deposition. We should have it to you within the next 10 days or so.” 

Surprise and Officer Otterman wanted to make sure that the amendment of the Complaint 

would occur before the key witness depositions so as to make sure to cover all claims in the 

key witness deposition process.

By the spring of this year, Plaintiff had not moved to amend his Complaint despite 

threatening to do so for nearly a year. To avoid further delay, the parties proceeded with 

taking Plaintiff’s deposition along with the depositions of Officer Otterman and Sgt. 

Case 2:15-cv-02236-MHB Document 1-4 Filed 11/06/15 Page 3 of 54
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TITUS BRUECKNER

& LEVINE PLC

8355 East Hartford Drive 

– Suite 200

Scottsdale, AZ 85255

480-483-9600

Boothe, the drug-recognition expert. Plaintiff’s deposition took place on March 23, 2015 

and the two police officer’s depositions took place on April 17, 2015. Plaintiff finally filed a 

Motion to Amend the Complaint three weeks ago, after the completion of the key witness 

depositions and at a point where discovery is almost closed. The proposed Amended 

Complaint would result in removal to Federal Court and the prospect of redoing at least 

Plaintiff’s deposition and starting over with a new schedule. Plaintiff has no more 

information today about his case than he did more than 16 months ago when he first 

suggested he was going to amend his Complaint.

Moreover, and perhaps more importantly, adding Federal claims at this point is an

effort to try to bootstrap a large attorneys’ fee claim to a nominal damages claim. Plaintiff 

was properly stopped on suspicion of DUI and was properly arrested. Officer Otterman 

believed Plaintiff had been driving under the effects of drugs (not alcohol) based upon his 

erratic behavior. When Plaintiff’s BAC came back at 0.00%, Officer Otterman was not 

surprised because he believed Plaintiff was impaired by drugs (and Plaintiff admitted to 

taking at least one drug), not alcohol. When Sgt. Boothe, the drug-recognition expert, stated 

he did not see signs of drug impairment from Plaintiff, Officer Otterman, after consulting 

with his supervising officer, Sgt. Klarkowski, charged Plaintiff with DUI, believing the drug 

symptoms had waned but could still show up in the blood results. The charges were 

promptly dismissed when the blood results came back negative. The only basis by which 

there could be a finding of liability in this case arises from the charge – not the stop or the 

arrest. At the time of Plaintiff’s deposition, Plaintiff confirmed he had not disclosed a single 

dollar of damage arising from any of his claims, so at best, Plaintiff may claim nominal or 

general damages associated with being subject to a DUI charge for less than two months 

that was ultimately dismissed and taken off his record.

On April 11, 2014, Surprise and Officer Otterman sent to Plaintiff an Offer of 

Judgment. The Offer of Judgment has long since expired. Surprise and Officer Otterman 

believe Plaintiff may ultimately seek a nominal damages award and then try to assert a large 

attorneys’ fees claim by virtue of adding the federal claims and including a claim for fees 

Case 2:15-cv-02236-MHB Document 1-4 Filed 11/06/15 Page 4 of 54
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TITUS BRUECKNER

& LEVINE PLC

8355 East Hartford Drive 

– Suite 200

Scottsdale, AZ 85255

480-483-9600

under § 1988 and potentially avoid the expired Offer of Judgment.

II. ANALYSIS

Rule 15(a) provides in relevant part, [a] party may amend party’s pleading once as a 

matter of course and any time before a responsive pleading is served . . . . Otherwise, a party 

may amend the party’s pleading only by leave of Court or by written consent of the adverse 

party.” However, “[w]hile leave to amend should be freely granted in the interest of justice, 

the right to amend is not automatic.” Matter of Estate of Tortstenson, 125 Ariz. 373, 609 

P.2d 1073 (1980) “denying leave to amend is not an abuse of discretion when there is undue 

delay, repeated failure to cure deficiencies through previous amendments, undue prejudice, 

or when the amendment would be futile.” Hayden U.S. Ctr. Condos, Assn. v. Pegasus Dev. 

Corp., 209 Ariz. 511, 105 P.3d 157 (App. 2005), overruled in part on other grounds, Lofts at 

Filmore Condo Assn. v. Reliance Commer. Constr., 218 Ariz. 574, 190 P.3d 733 (2008). In 

Spitz v. Bache & Co., 122 Ariz. 530, 596 P.2d 365 (1979), the court defined prejudice as 

follows: “[P]rejudice is the single ‘inconvenience and delay suffered when the amendment 

raises new issues or inserts new parties into the litigation’.”

Here, Plaintiff’s own threats of amendment dating back to May of 2014 evidence his 

undue delay. Plaintiff cites no reason he could not have amended his Complaint either when 

he first said he was going to do so in May of 2014, or after he added new co-counsel and his 

new co-counsel threatened to amend in November of 2014, all of which was before the key 

depositions and within the parameters of the litigation schedule. Plaintiff now seeks to 

expand his Complaint from One Count to Seven Counts by adding two Federal claims and 

four intentional tort claims. Adding the Federal claims will result in a removal of this case 

to Federal Court and the undoing of nearly two years of litigation, and adding the additional 

intentional tort claims will require a re-deposition of Plaintiff. Adding claims that could 

result in vast attorneys’ fees being added to a nominal damages claim would also require the 

re-evaluation of strategies for the case. Interestingly, Plaintiff on the one hand says there is 

no prejudice because Defendants have been “on notice” of Plaintiff’s claims for a long time, 

but on the other hand, he alleges “new discovery”, none of which has been articulated, 

Case 2:15-cv-02236-MHB Document 1-4 Filed 11/06/15 Page 5 of 54
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TITUS BRUECKNER

& LEVINE PLC

8355 East Hartford Drive 

– Suite 200

Scottsdale, AZ 85255

480-483-9600

somehow precluded Plaintiff from previously amending. That irreconcilable position makes 

no sense. The reality is that Plaintiff could have initially filed a Complaint containing 

whatever claims he thought he wanted to make, and he has been saying he is going to add 

Federal claims for more than a year. There is simply no explanation for waiting until 

virtually the close of discovery for this amendment.

Lastly, futility is a basis to deny a Motion to Amend. Plaintiff now seeks to add 

multiple intentional tort theories, yet there is no scintilla of evidence that Officer Otterman 

intentionally caused any damages to Plaintiff. Officer Otterman had no idea who Plaintiff 

was at the time he pulled him over and was not even on the police force the previous time 

Plaintiff had been pulled over two years prior. Plaintiff cites no evidence to support these 

intentional tort claims and to the extent those claims arise from conduct prior to the 

December 2013 stop, they will be precluded by the Notice of Claim statute and the statute 

of limitations.

III. CONCLUSION

In Summary, Plaintiff wants to add six counts to a One-Count Complaint, and there 

is no evidentiary basis for the intentional tort claims he seeks to add. This is nothing more 

than an effort to vastly expand the litigation and to use attorneys’ fees as a driving force for 

an otherwise nominal damages claim and to potentially try to circumvent an expired Offer 

of Judgment. For these reasons, Plaintiff’s Motion should be denied.

DATED this 21st day of September, 2015.

TITUS BRUECKNER & LEVINE PLC

By: /s/ Elan S. Mizrahi 

Larry J. Crown

Elan S. Mizrahi

Attorneys for Defendants

Case 2:15-cv-02236-MHB Document 1-4 Filed 11/06/15 Page 6 of 54
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TITUS BRUECKNER

& LEVINE PLC

8355 East Hartford Drive 

– Suite 200

Scottsdale, AZ 85255

480-483-9600

ORIGINAL of the foregoing filed 

electronically via AZTurboCourt on this 

 21st day of September, 2015 with:

The Clerk of the Court

Maricopa County Superior Court

201 West Jefferson Street

Phoenix, Arizona 85003-2243

COPY of the foregoing delivered 

electronically this 21st day of 

September, 2015 to:

The Honorable David K. Udall

COPY of the foregoing emailed and 

mailed on this 21st day of September, 

2015 to:

Kevin D. Neal

Lincoln Combs

Liana J. Garcia

Gallagher & Kennedy, PA

2575 East Camelback Road

Phoenix, AZ 85016-9225

Marc J. Victor

Marc J. Victor, PC

3920 S. Alma School Road, Suite 5

Chandler, AZ 85248

/s/ 

8962-004

Case 2:15-cv-02236-MHB Document 1-4 Filed 11/06/15 Page 7 of 54
5052593v1/26076-0001 

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Gallagher & Kennedy, P.A.

2575 East Camelback Road 

Phoenix, Arizona 85016-9225 

(602) 530-8000 

Kevin D. Neal (Bar No. 011640)

Lincoln Combs (Bar No. 025080) 

Liana J. Garcia (Bar No. 027452) 

GALLAGHER & KENNEDY, P.A. 

2575 East Camelback Road 

Phoenix, Arizona 85016-9225 

Telephone: (602) 530-8000 

Facsimile: (602) 530-8500 

kevin.neal@gknet.com 

lincoln.combs@gknet.com 

liana.garcia@gknet.com 

Attorneys for Plaintiff Jessie Thornton 

Marc J. Victor (Bar No. 016064)

Marc J. Victor, P.C. 

3920 S. Alma School Road, Suite 5 

Chandler, Arizona 85248 

Telephone: (480) 455-5233 

Fax: (480) 857-0150 

marc@attorneyforfreedom.com 

SUPERIOR COURT OF THE STATE OF ARIZONA 

COUNTY OF MARICOPA 

JESSIE THORNTON,

Plaintiff, 

v. 

CITY OF SURPRISE, a jural entity; J.J. 

OTTERMAN and JANE DOE 

OTTERMAN, husband and wife; JOHN 

and JANE DOES I-X; BLACK and WHITE 

CORPORATIONS I-X, inclusive, 

Defendants. 

No. CV2013-096393

ORDER 

(Assigned to the Honorable David K. 

Udall) 

Upon consideration of the parties' Stipulation to Extend Mediation Deadline, the 

Court orders that the current deadline of September 18 shall be extended ninety (90) days 

through and including December 18, 2015. 

DATED this ___ day of __________________, 2015. 

By: 

HONORABLE DAVID K. UDALL 

Granted as Submitted

***See eSignature page***

Michael K Jeanes, Clerk of Court

*** Electronically Filed ***

K. Tiero, Deputy

9/22/2015 8:00:00 AM

Filing ID 6875430

Case 2:15-cv-02236-MHB Document 1-4 Filed 11/06/15 Page 8 of 54
Granted as Submitted

/S/ David Udall Date: 9/18/2015 _____________________________

Judicial Officer of Superior Court

eSignature Page 1 of 1

 Filing ID: 6875430 Case Number: CV2013-096393

 Original Filing ID: 6874867

_______________________________________________________________________________

Case 2:15-cv-02236-MHB Document 1-4 Filed 11/06/15 Page 9 of 54
ENDORSEMENT PAGE

CASE NUMBER: CV2013-096393 SIGNATURE DATE: 9/18/2015

E-FILING ID #: 6875430 FILED DATE: 9/22/2015 8:00:00 AM

ELAN MIZRAHI

RICHARD ALBERT CRUZ

JESSICA OTTERMAN

NO ADDRESS ON RECORD

Case 2:15-cv-02236-MHB Document 1-4 Filed 11/06/15 Page 10 of 54
Michael K. Jeanes, Clerk of Court 

*** Filed *** 

09/24/2015 8:00 AM 

SUPERIOR COURT OF ARIZONA 

MARICOPA COUNTY 

CV 2013-096393 09/21/2015 

Docket Code 083 Form V000A Page 1 

CLERK OF THE COURT 

HON. DAVID K. UDALL K. Tiero 

Deputy 

 

JESSIE THORNTON RICHARD ALBERT CRUZ 

v. 

CITY OF SURPRISE, et al. ELAN MIZRAHI 

JESSICA OTTERMAN 

NO ADDRESS ON RECORD 

TELEPHONIC TRIAL SCHEDULING CONFERENCE RESET 

The Court having granted the parties’ Stipulation to Extend the Mediation Deadline 

through December 18, 2015, 

IT IS ORDERED vacating the telephonic Trial Scheduling Conference set on October 

23, 2015 at 10:30 a.m. and resetting same to January 8, 2016 at 1:30 p.m. (15 minutes 

allotted) for the purpose of assigning a trial date if this case has not settled. Counsel for the 

Plaintiff is to initiate the telephonic conference by first arranging the presence of all other 

counsel or self-represented parties on the conference call and by calling this Division at (602) 

506-5514 promptly at the scheduled time. 

Case 2:15-cv-02236-MHB Document 1-4 Filed 11/06/15 Page 11 of 54
5065730v1/26076-0001 

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Gallagher & Kennedy, P.A.

2575 East Camelback Road 

Phoenix, Arizona 85016-9225 

(602) 530-8000 

Kevin D. Neal (Bar No. 011640)

Lincoln Combs (Bar No. 025080) 

Liana J. Garcia (Bar No. 027452) 

GALLAGHER & KENNEDY, P.A. 

2575 East Camelback Road 

Phoenix, Arizona 85016-9225 

Telephone: (602) 530-8000 

Facsimile: (602) 530-8500 

kevin.neal@gknet.com 

lincoln.combs@gknet.com 

liana.garcia@gknet.com 

Marc J. Victor (Bar No. 016064) 

Marc J. Victor, P.C. 

3920 S. Alma School Road, Suite 5 

Chandler, Arizona 85248 

Telephone: (480) 455-5233 

Fax: (480) 857-0150 

marc@attorneyforfreedom.com 

Attorneys for Plaintiff Jessie Thornton 

SUPERIOR COURT OF THE STATE OF ARIZONA 

COUNTY OF MARICOPA 

JESSIE THORNTON,

Plaintiff, 

v. 

CITY OF SURPRISE, a jural entity; J.J. 

OTTERMAN and JANE DOE 

OTTERMAN, husband and wife; JOHN 

and JANE DOES I-X; BLACK and WHITE 

CORPORATIONS I-X, inclusive, 

Defendants. 

No. CV2013-096393

NOTICE OF WITHDRAWAL OF 

PLAINTIFF’S MOTION TO 

COMPEL 

(Assigned to the Honorable David K. 

Udall) 

Plaintiff Jessie Thornton hereby moves to withdraw his Motion to Compel filed on 

August 21, 2015 as the parties have reached an agreement to resolve the discovery 

dispute. 

Michael K Jeanes, Clerk of Court

*** Electronically Filed ***

S. Bagnall, Deputy

9/30/2015 12:54:00 PM

Filing ID 6901132

Case 2:15-cv-02236-MHB Document 1-4 Filed 11/06/15 Page 12 of 54
5065730v1/26076-0001 

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DATED this 30th day of September, 2015. 

GALLAGHER & KENNEDY, P.A. 

By: /s/ Liana J. Garcia 

Kevin D. Neal 

Lincoln Combs 

Liana J. Garcia 

2575 East Camelback Road 

Phoenix, Arizona 85016-9225 

Attorneys for Plaintiff Jessie Thornton 

COPY mailed same day to: 

Larry J. Crown, Esq. 

Elan S. Mizrahi, Esq. 

TITUS, BRUECKNER & LEVINE PLC 

8355 East Hartford Drive, Suite 200 

Scottsdale, Arizona 85255 

E-mail: lcrown@tbl-law.com 

E-mail: elan@tbl-law.com 

Attorneys for Defendants 

Sharlee Weaver 

Case 2:15-cv-02236-MHB Document 1-4 Filed 11/06/15 Page 13 of 54
5065734v1/26076-0001 

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Gallagher & Kennedy, P.A.

2575 East Camelback Road 

Phoenix, Arizona 85016-9225 

(602) 530-8000 

Kevin D. Neal (Bar No. 011640)

Lincoln Combs (Bar No. 025080) 

Liana J. Garcia (Bar No. 027452) 

GALLAGHER & KENNEDY, P.A. 

2575 East Camelback Road 

Phoenix, Arizona 85016-9225 

Telephone: (602) 530-8000 

Facsimile: (602) 530-8500 

kevin.neal@gknet.com 

lincoln.combs@gknet.com 

liana.garcia@gknet.com 

Attorneys for Plaintiff Jessie Thornton 

Marc J. Victor (Bar No. 016064)

Marc J. Victor, P.C. 

3920 S. Alma School Road, Suite 5 

Chandler, Arizona 85248 

Telephone: (480) 455-5233 

Fax: (480) 857-0150 

marc@attorneyforfreedom.com 

SUPERIOR COURT OF THE STATE OF ARIZONA 

COUNTY OF MARICOPA 

JESSIE THORNTON,

Plaintiff, 

v. 

CITY OF SURPRISE, a jural entity; J.J. 

OTTERMAN and JANE DOE 

OTTERMAN, husband and wife; JOHN 

and JANE DOES I-X; BLACK and WHITE 

CORPORATIONS I-X, inclusive, 

Defendants. 

No. CV2013-096393

ORDER TO WITHDRAW 

PLAINTIFF’S MOTION TO 

COMPEL 

(Assigned to the Honorable David K. 

Udall) 

The Court having considered Plaintiff’s Notice of Withdrawal of Plaintiff’s Motion 

to Compel, 

IT IS HEREBY ORDERED that Plaintiff’s Motion to Compel is withdrawn. 

DATED this ___ day of _______________________, 2015. 

By:________________________________ 

 Honorable David K. Udall 

Granted as Submitted

***See eSignature page***

Michael K Jeanes, Clerk of Court

*** Electronically Filed ***

K. Tiero, Deputy

10/1/2015 8:00:00 AM

Filing ID 6901748

Case 2:15-cv-02236-MHB Document 1-4 Filed 11/06/15 Page 14 of 54
Granted as Submitted

/S/ David Udall Date: 9/30/2015 _____________________________

Judicial Officer of Superior Court

eSignature Page 1 of 1

 Filing ID: 6901748 Case Number: CV2013-096393

 Original Filing ID: 6901132

_______________________________________________________________________________

Case 2:15-cv-02236-MHB Document 1-4 Filed 11/06/15 Page 15 of 54
ENDORSEMENT PAGE

CASE NUMBER: CV2013-096393 SIGNATURE DATE: 9/30/2015

E-FILING ID #: 6901748 FILED DATE: 10/1/2015 8:00:00 AM

ELAN MIZRAHI

RICHARD ALBERT CRUZ

JESSICA OTTERMAN

NO ADDRESS ON RECORD

Case 2:15-cv-02236-MHB Document 1-4 Filed 11/06/15 Page 16 of 54
5077083v1/26076-0001 

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Gallagher & Kennedy, P.A.

2575 East Camelback Road 

Phoenix, Arizona 85016-9225 

(602) 530-8000 

Kevin D. Neal (Bar No. 011640)

Lincoln Combs (Bar No. 025080) 

Liana J. Garcia (Bar No. 027452) 

GALLAGHER & KENNEDY, P.A. 

2575 East Camelback Road 

Phoenix, Arizona 85016-9225 

Telephone: (602) 530-8000 

Facsimile: (602) 530-8500 

kevin.neal@gknet.com 

lincoln.combs@gknet.com 

liana.garcia@gknet.com 

Marc J. Victor (Bar No. 016064) 

Marc J. Victor, P.C. 

3920 S. Alma School Road, Suite 5 

Chandler, Arizona 85248 

Telephone: (480) 455-5233 

Fax: (480) 857-0150 

marc@attorneyforfreedom.com 

Attorneys for Plaintiff Jessie Thornton 

SUPERIOR COURT OF THE STATE OF ARIZONA 

COUNTY OF MARICOPA 

JESSIE THORNTON,

Plaintiff, 

v. 

CITY OF SURPRISE, a jural entity; J.J. 

OTTERMAN and JANE DOE 

OTTERMAN, husband and wife; JOHN 

and JANE DOES I-X; BLACK and WHITE 

CORPORATIONS I-X, inclusive, 

Defendants. 

No. CV2013-096393

PLAINTIFF’S REPLY IN SUPPORT 

OF HIS MOTION FOR LEAVE TO 

AMEND COMPLAINT 

(Assigned to the Honorable David K. 

Udall) 

Plaintiff Jessie Thornton, through counsel, herein replies in support of his Motion 

for Leave to Amend. The interests of justice demand that this Court allow Plaintiff leave 

to amend, so the case may be litigated on its actual merits. Plaintiff was recently forced to 

file a Motion to Compel Defendants to disclose relevant information related to Plaintiff’s 

Complaint. It was only after filing the Motion to Compel that Defendants disclosed 

Michael K Jeanes, Clerk of Court

*** Electronically Filed ***

T. Hays, Deputy

10/5/2015 2:28:00 PM

Filing ID 6910911

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significant and substantial evidence relevant to Plaintiff’s Complaint. That evidence 

included independent reports, interviews, and statistical data supporting Plaintiff’s 

proposed causes of action. Now, more than ever, Plaintiff is within his rights to amend. 

 Defendants’ Response to Plaintiff’s Motion to Amend asserts that “[p]laintiff has 

no more information today about his case than he did more than sixteen months ago when 

he first suggested he was going to amend his Complaint.” Defendants’ Response at p.4 ¶1. 

This statement is patently false. Just two weeks ago, on September 15, 2015, in response 

to Plaintiff’s Motion to Compel, Defendants disclosed a jump drive with substantial and 

voluminous relevant documents related to Plaintiff’s lawsuit1, including but not limited to: 

• Two different investigative reports into Officer Otterman’s stop and arrest 

of Plaintiff on December 7, 2012; 

• Pertinent evidence revealed by the City of Surprise’s investigation into 

Plaintiff’s allegations of racial profiling; 

• Recorded interviews with 37 different parties (some of whom gave multiple 

interviews); 

• A 133-page report detailing the analysis and findings of an outside 

investigation firm’s investigation into Plaintiff’s allegations; 

• 646 pages of evidentiary exhibits reviewed in conjunction with the City of 

Surprise’s Professional Standards Unit’s investigative report; 

• 12 audio recordings (not including the interviews noted above) from various 

radio communications obtained from Plaintiff’s December 7, 2012 traffic 

stop; and 

 

1

See Exhibit A, email exchange between Plaintiff’s counsel and defense counsel 

beginning September 2, 2015 and concluding September 11, 2015, and letter dated 

September 15, 2011 from defense attorney Elan Mizrahi to Plaintiff’s attorney Kevin 

Neal. 

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• 7 video recordings reviewed by Surprise Police Department’s professional 

Standards Unit and the outside investigation firm, Humphreys Investigation. 

Moreover, on September 30, 2015, just last week, Defendants disclosed their 

expert report prepared by CJ Police Consultants.2 That report concludes that Defendant 

Otterman “did not have probable cause to cite Mr. Thornton at the time of his arrest.” 

Exhibit B at p. 8 ¶ 3. Defendants’ own expert report establishes four of the six essential 

elements of Plaintiff’s proposed causes of action V and VII alleging false imprisonment 

and malicious prosecution.3

 

Defendants’ Response to Plaintiff’s Motion for leave to amend asserts that “there is 

no scintilla of evidence” in support of Plaintiff’s proposed causes of action for the 

intentional torts alleged in his proposed amended complaint. In fact, Defendants’ own

expert report (disclosed last week) establishes that Officer Otterman did not have probable 

cause to cite Plaintiff for driving while impaired. See Exhibit B at p. 8. This is evidence 

directly in support of Plaintiff’s intentional tort theories for abuse of process, false arrest, 

and malicious prosecution. Defendants’ expert report also establishes that Officer 

Otterman was not given proper training or supervision. Exhibit B at p. 8 ¶¶ 2, 3. This 

conclusion directly supports the allegations contained in Plaintiff’s Causes of Action for 

his § 1983 claims. See Proposed Amended Complaint at ¶¶ 42, 51. Given the fact that 

Defendants’ own expert report conclusively establishes several elements of the causes of 

action Plaintiff seeks to plead, it would be contrary to the interests of justice to deny 

 

2

 See Exhibit B, Defendants’ Third Supplemental Disclosure Statement. 

3

See Slade v. City of Phoenix, 112 Ariz. 298, 541 P.2d 550 (1975) “The essential

elements of malicious prosecution are (1) a criminal prosecution, (2) that terminates in 

favor of plaintiff, (3) with defendants as prosecutors, (4) actuated by malice, (5) without 

probable cause, and (6) causing damages. Closely related to malicious prosecution, but 

distinct torts, are false arrest and false imprisonment. They may be defined as the 

detention of a person without his consent and without lawful authority.” (internal citations 

omitted). 

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Plaintiff leave to amend his Complaint. 

This litigation was filed in 2013. Defendants should have disclosed the internal 

investigation reports and supporting evidence consistent with their Rule 26.1 obligations 

long ago. It is only within the last three weeks that Defendants have finally complied with 

their disclosure and discovery obligations. Their late disclosure proves up several of the 

essential elements of Plaintiff’s causes of action as set forth in the proposed amended 

complaint, yet Defendants would like this Court to believe that they would be the party 

“prejudiced” by allowing Plaintiff leave to amend. Defendants’ Response at p. 8 ¶¶ 1,2. 

In fact, there is no prejudice to Defendants here.4 They have been sitting on 

relevant information for more than two years. They only disclosed the information after 

Plaintiff filed his Motion to Compel.5 Now, after disclosing relevant information that 

would support Plaintiff’s proposed causes of action, Defendants want to allege that they

would be prejudiced by allowing Plaintiff to amend his pleading to correspond with the 

evidence they just produced. This does not satisfy the interests of justice, and is 

inconsistent with this Court’s case law. 

Ariz. R. Civ. P. (15(a) provides that leave to amend “shall be freely given when 

justice so requires.” The Arizona Supreme Court directs that amendments be “liberally 

allowed,” see Owen v Superior Ct., 133 Ariz. 75, 79, 649 P.2d 278, 282 (1982), “so that 

cases may be decided on the merits rather than on mere technicalities of pleadings. Cagle 

v. Carr, 101 Ariz. 225, 227, 418 P.2d 381, 383 (1966). 

Undue delay, by itself, is an insufficient ground for the denial of leave to amend. 

Owen, 133 Ariz. at 79, 649 P.2d at 282. “Notice and substantial prejudice to the opposing 

party are the critical factors in determining whether an amendment should be granted.” Id. 

 

4

 Much less the “substantial” prejudice required under the law. See Owen v. Superior Ct., 

133 Ariz. 75, 79, 649 P.2d 278, 282 (1982). 

5

 Plaintiff voluntarily agreed to dismiss the Motion to Compel upon receipt of the 

documents produced by Defendants on September 15, 2015. 

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(emphasis added). More importantly an opponent “cannot be prejudiced by being forced 

to litigate on the merits of [the movant’s] claim.” Spitz v. Bache & Co, Inc., 122 Ariz. 530, 

531, 596 P.2d 365, 366 (1979). And even where a party is prejudiced, the prejudice must 

be balanced against the hardship to the moving party if leave to amend is denied. Romo v. 

Reyes, 26 Ariz. App. 374, 376, 548 P.2d 1186 (App. 1976). 

Defendants claim they will be prejudiced because allowing amendment would 

expand Plaintiff’s Complaint from one count to seven counts, may potentially result in a 

removal of this case to Federal Court, and cause “the undoing of nearly two years of 

litigation.” See Defendants’ Response to Motion for Leave to Amend at p. 5 ¶ 2. 

Defendants also allege that allowing Plaintiff to add claims would “result in vast 

attorneys’ fees being added to a nominal damages claim, and would require the reevaluation of strategies for the case. Id. 

In fact, allowing amendment would merely force Defendants to litigate the actual 

merits of Plaintiff’s claim. They cannot allege this is tantamount to prejudice. Spitz. v. 

Bache, 122 Ariz. at 531, 596 P.2d at 366. Even if Defendants may be slightly prejudiced 

by having to re-evaluate their defense strategy, this prejudice would pale in comparison to 

the hardship Plaintiff would face if he were prevented from litigating his case fully and 

fairly on its merits; especially given Defendants’ dilatory response to their disclosure and 

discovery obligations. Moreover, there is simply no reason the parties would have to “redo” two years of litigation in the event Defendants choose to remove the case to Federal 

Court. The balance of hardships would tip sharply against Plaintiff if leave to amend is 

denied. 

Defendants would have this Court deny Plaintiff’s motion for leave to amend so 

they could enjoy the tactical advantage produced by their own very late disclosure of 

relevant documents. This would be inconsistent with Arizona’s case law favoring liberal 

amendment of pleadings and resolution of cases on their merits. Such a result would also 

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be at odds with the interests of justice. Accordingly, Plaintiff respectfully moves this court 

to grant leave to amend his Complaint. 

DATED this 5th day of September, 2015. 

GALLAGHER & KENNEDY, P.A. 

By: /s/ Kevin D. Neal 

Kevin D. Neal 

Lincoln Combs 

Liana J. Garcia 

2575 East Camelback Road 

Phoenix, Arizona 85016-9225 

Attorneys for Plaintiff Jessie Thornton 

COPY mailed same day to: 

Larry J. Crown, Esq. 

Elan S. Mizrahi, Esq. 

TITUS, BRUECKNER & LEVINE PLC 

8355 East Hartford Drive, Suite 200 

Scottsdale, Arizona 85255 

lcrown@tbl-law.com 

elan@tbl-law.com 

Attorneys for Defendants 

Sharlee Weaver 

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Michael K. Jeanes, Clerk of Court

*** Electronically Filed ***

10/12/2015 8:00 AM

SUPERIOR COURT OF ARIZONA

MARICOPA COUNTY

CV 2013-096393 10/07/2015

Docket Code 023 Form V000A Page 1

CLERK OF THE COURT

HON. DAVID K. UDALL K. Tiero

Deputy

JESSIE THORNTON RICHARD ALBERT CRUZ

v.

CITY OF SURPRISE, et al. ELAN MIZRAHI

JESSICA OTTERMAN

NO ADDRESS ON RECORD

MINUTE ENTRY

The Court has received and reviewed the Plaintiff’s Motion for Leave to Amend 

Complaint, the Defendants’ Response and the Plaintiff’s Reply thereto.

IT IS ORDERED granting the Plaintiff’s Motion for Leave to Amend Complaint.

IT IS FURTHER ORDERED that Plaintiff shall file the Amended Complaint by October 

27, 2015.

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Gallagher & Kennedy, P.A.

2575 East Camelback Road 

Phoenix, Arizona 85016-9225 

(602) 530-8000 

Kevin D. Neal (Bar No. 011640)

Lincoln Combs (Bar No. 025080) 

Liana J. Garcia (Bar No. 027452) 

GALLAGHER & KENNEDY, P.A. 

2575 East Camelback Road 

Phoenix, Arizona 85016-9225 

Telephone: (602) 530-8000 

Facsimile: (602) 530-8500 

kevin.neal@gknet.com 

liana.garcia@gknet.com 

Marc J. Victor (Bar No. 016064) 

Marc J. Victor, P.C. 

3920 S. Alma School Road, Suite 5 

Chandler, Arizona 85248 

Telephone: (480) 455-5233 

Fax: (480) 857-0150 

marc@attorneyforfreedom.com 

Attorneys for Plaintiff Jessie Thornton 

SUPERIOR COURT OF THE STATE OF ARIZONA 

COUNTY OF MARICOPA 

JESSIE THORNTON,

Plaintiff, 

v. 

CITY OF SURPRISE, a jural entity; J.J. 

OTTERMAN and JANE DOE 

OTTERMAN, husband and wife; JANE 

DOES I-X; BLACK and WHITE 

CORPORATIONS I-X, inclusive, 

Defendants. 

No. CV2013-096393

PLAINTIFF’S FIRST AMENDED 

COMPLAINT 

(Assigned to the Honorable David K. 

Udall) 

Plaintiff JESSIE THORNTON, by and through undersigned counsel, for his 

Complaint against Defendants, alleges as follows: 

1. At all times material hereto, Plaintiff JESSIE THORNTON was a resident 

of Maricopa County. 

Michael K Jeanes, Clerk of Court

*** Electronically Filed ***

D. Sandoval, Deputy

10/26/2015 2:06:00 PM

Filing ID 6959278

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2. Upon information and belief, at all times material hereto, Defendant J.J. 

OTTERMAN was a resident of Maricopa County. 

3. At all times material hereto, Defendant J.J. OTTERMAN was acting in his 

capacity as an employee of the City Defendant through his employment with the Surprise 

Police Department and the City Defendant is liable for the acts of its employees under the 

legal theory of respondeat superior. 

4. Defendant CITY OF SURPRISE is a jural entity subject to suit. 

5. At all times material to Plaintiff’s Complaint, Defendants J.J. OTTERMAN 

and the CITY OF SURPRISE were acting under the color of state law. 

6. Plaintiff, JESSIE THORNTON, served a Notice of Claim in compliance 

with A.R.S. § 12-8201.01 upon the appropriate individuals on April 30, 2013. 

7. Plaintiff, JESSIE THORNTON, complied with the Notice of Claim 

requirements under State law perfecting his right to pursue a claim before this court. 

8. Defendant Jane Doe Otterman is a fictitious name for the spouse of 

defendant J.J. OTTERMAN. Plaintiff will seek leave of the Court to amend this 

Complaint to set forth the true identities of this person once it becomes known. 

9. Defendants John and Jane Does I-X, Black Corporations I-X, and White 

Partnerships I-X are persons or entities whose names are not currently known to Plaintiff 

but who are responsible to Plaintiff for the acts complained of herein. Plaintiff will seek 

leave of the court to amend his Complaint to set forth the true identities of those persons 

or entitles once they become known. 

10. All events giving rise to this cause of action occurred in the County of 

Maricopa, State of Arizona, making jurisdiction and venue proper in this court. 

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COUNT I – NEGLIGENCE; GROSS NEGLIGENCE 

 11. Plaintiff JESSIE THORNTON incorporates herein the allegations in the 

preceding paragraphs. 

 12. Since 2009 to the present, Plaintiff JESSIE THORNTON has been subjected 

to continuous and systematic racial profiling and harassment by the Surprise Police 

Department, a subpart of the City Defendant. 

 13. This systematic harassment included an incident in which Plaintiff JESSIE 

THORNTON was cited for failing to have a license in his possession, when at the time of 

the stop, JESSIE THORNTON’s license was in his gym bag in the backseat of the car he 

was driving, and the Surprise Police Officer would not allow him to retrieve it. 

 14. Police officers employed by Defendant CITY OF SURPRISE, acting under 

color of law, have followed, stopped, arrested, charged, and/or cited Plaintiff JESSIE 

THORNTON approximately 8 times (to date) during the time period of 2009 to the 

present, despite lacking the reasonable suspicion required to stop Plaintiff, or the probable 

cause necessary to arrest, charge, or cite Plaintiff JESSIE THORNTON. 

 15. This pattern of unconstitutional and unlawful stops, arrests, and citations 

constitutes an unlawful policy and custom of violating Plaintiff’s federally protected 

constitutional rights. 

 16. On or about December 7, 2012, this systematic harassment culminated when 

Plaintiff JESSIE THORNTON was taken into custody by Defendant J.J. OTTERMAN. 

 17. On or about December 7, 2012, Plaintiff JESSIE THORNTON was 

unlawfully stopped by Defendant J.J. OTTERMAN, who knowingly lacked the required 

reasonable suspicion to stop JESSIE THORNTON’s vehicle. 

 18. On or about December 7, 2012, Defendant J.J. OTTERMAN claimed that 

Plaintiff JESSIE THORNTON’s eyes were bloodshot, but at the time, Plaintiff JESSIE 

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THORNTON was wearing glasses and Defendant J.J. OTTERMAN could not clearly see 

his eyes. 

 19. On or about December 7, 2012, during the stop, Defendant J.J. 

OTTERMAN was intentionally aggressive with Plaintiff JESSIE THORNTON and failed 

to conduct a proper DUI investigation. 

 20. On or about December 7, 2012, Defendant J.J. OTTERMAN performed a 

series of field sobriety tests on Plaintiff JESSIE THORNTON, but intentionally failed to 

consider information provided by Plaintiff JESSIE THORNTON that he had knee and hip 

injuries, which severely affected Plaintiff’s ability to perform field sobriety tests. 

 21. On or about December 7, 2012, Defendant J.J. OTTERMAN arrested 

Plaintiff JESSIE THORNTON despite knowingly having insufficient probable cause to do 

so. 

 22. Upon information and belief, Plaintiff JESSIE THORNTON maintained 

throughout the traffic stop and unlawful arrest that he was not impaired and had consumed 

no alcohol or drugs other than his blood pressure medication, which would not cause 

impairment. 

23. On or about December 7, 2012, Defendant J.J. OTTERMAN took Plaintiff 

into custody and transported Plaintiff to the Surprise Police Station, despite lacking 

probable cause to arrest and seize Plaintiff. 

24. On or about December 7, 2012, Defendant J.J. OTTERMAN had Plaintiff 

JESSIE THORNTON submit to an intoxylizer test, the results of which showed Plaintiff 

JESSIE THORNTON’s blood alcohol content at 0.000. 

25. On or about December 7, 2012, Officer Boothe, a trained drug recognition 

expert with Surprise Police Department, evaluated Plaintiff JESSIE THORNTON and 

found him to be both cordial and cooperative, determined that Plaintiff exhibited no signs 

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of impairment, and concluded that Plaintiff was not under the influence of any drugs or 

alcohol. 

26. Officer Boothe conveyed these findings and conclusions to Defendant J.J. 

OTTERMAN. 

27. On or about December 7, 2012, despite Officer Boothe’s evaluation and 

findings, Defendant J.J. OTTERMAN forced Plaintiff JESSIE THORNTON to submit to 

a blood draw, despite lacking probable cause to force Plaintiff to submit to such a seizure. 

28. Plaintiff JESSIE THORNTON’s blood results came back indicating no 

presence of drugs or alcohol. 

29. On or about December 7, 2012, Defendant J.J. OTTERMAN, with full 

knowledge and reckless disregard for Plaintiff’s federally protected rights, charged 

Plaintiff JESSIE THORNTON with Driving Under the Influence of alcohol or drugs, 

despite lacking the probable cause for such a criminal charge. 

30. Defendant J.J. OTTERMAN, with the full knowledge, consent, and 

encouragement of his supervisors at the CITY OF SURPRISE, initiated criminal 

proceedings against Plaintiff JESSIE THORNTON, despite lacking any objective or 

reasonable basis to do so. 

31. Defendant J.J. OTTERMAN’S decision to proceed with criminal charges 

against Plaintiff – despite knowing there was no reason to believe Plaintiff was guilty of 

the elements of that crime – displayed a willful, malicious, and callous disregard for 

Plaintiff’s federally protected constitutional rights. 

32. Defendant J.J. OTTERMAN’S actions were undertaken with the full 

knowledge and consent of his supervisors at the CITY OF SURPRISE, who had instituted 

a custom or defacto policy of unconstitutional stops and arrests. 

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33. Plaintiff JESSIE THORNTON was forced to retain counsel to represent 

him, as a result of Defendant J.J. OTTERMAN’s wrongful charging, and the City of 

Surprise’s wrongful and malicious prosecution. 

34. On or about February 5, 2013, the court dismissed the case against Plaintiff 

JESSIE THORNTON. 

35. On or about April 17, 2013, the Honorable Ruth H. Hillard with the 

Superior Court of Arizona granted a petition submitted by Plaintiff JESSIE THORNTON 

finding him innocent of charges an clearing his record pursuant to A.R.S. § 13-4051. 

36. Plaintiff JESSIE THORNTON was subjected to intentional harassment and 

racial discrimination by Defendant J.J. OTTERMAN and the CITY OF SURPRISE. 

COUNT II – 42 U.S.C. § 1983 – VIOLATION OF PLAINTIFF’S FOURTH 

AMENDMENT RIGHTS 

37. Plaintiff re-alleges and incorporates by reference the allegations set forth in 

the preceding paragraphs of this Complaint as if fully set forth herein. 

38. At all times, Defendant J.J. OTTERMAN was acting under the color of law. 

39. At all times, Defendant J.J. OTTERMAN was acting in the course and 

scope of his employment as a police officer for the City of Surprise. 

40. While in the course and scope of his employment with the City of Surprise, 

and acting under the color of law, Defendant J.J. OTTERMAN violated Plaintiff’s Fourth 

Amendment rights under the United States Constitution, when he unreasonably and 

unlawfully detained Plaintiff and seized his blood, property, and person without sufficient 

constitutional basis to do so. 

41. THE CITY OF SURPRISE is liable for Defendant J.J. OTTERMAN’S 

unlawful violation of Plaintiff’s Fourth Amendment rights because it fostered a custom 

and de facto policy of unconstitutional stops and arrests. 

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42. THE CITY OF SURPRISE is also liable for Defendant J.J. OTTERMAN’S 

unlawful violation of Plaintiff’s Fourth Amendment rights because it failed to adequately 

train Defendant J.J. OTTERMAN. 

43. The conduct of Defendant J.J. OTTERMAN and the CITY OF SURPRISE 

deprived Plaintiff of his constitutionally established rights to be free from unlawful search 

and seizure, and proximately caused him to incur damages, including costs, attorneys’ 

fees, humiliation, property damage, physical pain, and mental anguish. 

COUNT III – 42 U.S.C. § 1983 – VIOLATION OF PLAINTIFF’S 

FOURTEENTH AMENDMENT RIGHTS 

44. Plaintiff re-alleges and incorporates by reference the allegations set forth in 

the preceding paragraphs of this Complaint as if fully set forth herein. 

45. At all times, Defendant J.J.OTTERMAN was acting under the color of law. 

46. At all times, Defendant J.J. OTTERMAN was acting in the course and 

scope of his employment as a police officer for the City of Surprise. 

47. Plaintiff, an African-American, is a member of a protected class. 

48. While in the course and scope of his employment with the City of Surprise, 

and acting under the color of law, Defendant J.J. OTTERMAN violated Plaintiff’s 

Fourteenth Amendment rights when he denied Plaintiff the equal protection of the law by 

improperly stopping, seizing, arresting, and charging Plaintiff with driving under the 

influence of drugs or alcohol, and seizing Plaintiff’s property when he had no reasonable, 

constitutional basis to do so. 

49. Defendant J.J. OTTERMAN’S unconstitutional actions toward Plaintiff 

were committed with the intent or purpose to harass and discriminate against Plaintiff 

based on Plaintiff’s membership in a protected class. 

50. The CITY OF SURPRISE is liable for Defendant J.J. OTTERMAN’S 

unlawful violation of Plaintiff’s Fourteenth Amendment rights because it fostered a 

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custom and de facto policy of unconstitutional stops and arrests targeting AfricanAmericans. 

51. Moreover, the CITY OF SURPRISE is liable for Defendant J.J. 

OTTERMAN’S unlawful violation of Plaintiff’s Fourteenth Amendment rights because it 

failed to adequately train Defendant J.J. OTTERMAN. 

52. The conduct of Defendant J.J. OTTERMAN and the CITY OF SURPRISE 

deprived Plaintiff of his constitutionally established right to be treated the same under the 

law as similarly-situated Caucasians, and proximately caused him damages and injuries, 

including costs, attorneys’ fees, humiliation, property damage, physical pain, and mental 

anguish. 

COUNT IV – INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS 

53. Plaintiff re-alleges and incorporates by reference the allegations set forth in 

the preceding paragraphs of this Complaint as if fully set forth herein. 

54. Defendant J.J.OTTERMAN stopped, detained, arrested, and charged 

Plaintiff with driving under the influence of drugs or alcohol, despite the fact that he had 

no reasonable suspicion upon which to base the stop, and no probable cause upon which 

to base the arrest or the criminal charge. 

55. Defendant J.J.OTTERMAN’S conduct was extreme and outrageous, and his 

behavior in charging an innocent man with criminal conduct despite the absence of 

probable cause was done with reckless disregard of the certainty that his conduct would 

cause Plaintiff severe emotional distress. 

56. As a result of Defendant J.J.OTTERMAN’S extreme, outrageous, and 

unlawful conduct, Plaintiff experienced extreme emotional distress, anguish, upset, panic 

attacks, feelings of paranoia, and a constant suspicion that he is being “watched” by the 

police and can no longer trust the police to protect his person or property. 

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57. As a result of the CITY OF SURPRISE’S failure to properly train 

Defendant J.J.OTTERMAN, Plaintiff experienced extreme emotional distress, anguish, 

upset, panic attacks, feelings of paranoia, and a constant suspicion that he is being 

“watched” by the police and can no longer trust the police to protect his person or 

property. 

58. As a result of the CITY OF SURPRISE’S custom and de facto policy of 

treating African-Americans differently than similarly situated Caucasians by fostering a 

practice of unconstitutional stops targeting African-Americans, Plaintiff experienced 

extreme emotional distress, anguish, upset, panic attacks, feelings of paranoia, and a 

constant suspicion that he is being “watched” by the police and can no longer trust the 

police to protect him. 

COUNT V – FALSE IMPRISONMENT 

59. Plaintiff re-alleges and incorporates by reference the allegations set forth in 

the preceding paragraphs of this Complaint as if fully set forth herein. 

60. Defendant J.J.OTTERMAN acted intentionally to restrain Plaintiff to an 

area within Defendants’ control by unlawfully arresting and detaining Plaintiff, without 

legal authority to do so. 

61. Defendant J.J.OTTERMAN acted without lawful constitutional authority 

and without Plaintiff’s consent. 

62. Defendant J.J.OTTERMAN’S unlawful and intentional act resulted in the 

direct restraint of Plaintiff’s liberty by actual force. 

63. Defendant J.J.OTTERMAN act in restraining Plaintiff would have caused a 

reasonably prudent person in Plaintiff’s situation to believe that he was detained and 

unable to leave Defendants’ custody. 

64. Defendant CITY OF SURPRISE intentionally instigated, encouraged, and 

participated in Defendant J.J.OTTERMAN’S false imprisonment of Plaintiff because it 

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5101449v1/26076-0001 

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fostered a practice and de facto policy of improperly stopping, charging, and arresting 

African American citizens without a lawful constitutional basis to do so. 

65. Defendant CITY OF SURPRISE actively encouraged, instigated, and 

participated in Defendant J.J.OTTERMAN’S false imprisonment of Plaintiff by failing to 

properly train Defendant J.J.OTTERMAN. 

66. As a result of Defendants’ unlawful false imprisonment, Plaintiff was 

harmed. Plaintiff experienced mental suffering, anguish, humiliation, physical discomfort, 

inconvenience, and incurred monetary loss and property damage. 

COUNT VI – ABUSE OF PROCESS 

67. Plaintiff re-alleges and incorporates by reference the allegations set forth in 

the preceding paragraphs of this Complaint as if fully set forth herein. 

68. Defendants J.J.OTTERMAN and the CITY OF SURPRISE willfully used 

the legal process primarily to accomplish an ulterior purpose for which it was not 

designed. Specifically, Defendants used the legal process to harass and intimidate Plaintiff 

and other African-American citizens within their jurisdiction. 

69. Defendants’ abuse of the legal process against Plaintiff was not reasonably 

justifiable in light of the circumstances, and can only be explained by Defendants’ 

improper purpose to harass and intimidate Plaintiff. 

70. Defendants’ abuse of the legal process was performed with ill will, and 

caused humiliation, emotional distress, anguish, property damage, and monetary loss to 

Plaintiff. 

COUNT VII – MALICIOUS PROSECUTION 

71. Plaintiff re-alleges and incorporates by reference the allegations set forth in 

the preceding paragraphs of this Complaint as if fully set forth herein. 

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72. Defendants J.J.OTTERMAN and CITY OF SURPRISE initiated and took 

active part in the prosecution of a criminal action against Plaintiff, which terminated in 

Plaintiff’s favor. 

73. In initiating criminal prosecution against Plaintiff, Defendants J.J. 

OTTERMAN and the CITY OF SURPRISE acted with malice and without probable 

cause. 

74. Specifically, Defendant J.J. OTTERMAN proceeded to charge Plaintiff with 

driving while impaired by drugs or alcohol, despite the fact that he had no reasonable 

basis to believe Plaintiff was guilty of the elements of that crime. 

75. Defendant CITY OF SURPRISE, despite the fact that it was aware of the 

facts and the law, chose to continue prosecution of the criminal action against Plaintiff, 

causing Plaintiff to incur substantial costs to clear his driving record and criminal record. 

76. The malicious conduct of Defendants J.J. OTTERMAN and THE CITY OF 

SURPRISE caused humiliation, emotional distress, anguish, property damage, and 

monetary loss to Plaintiff. 

WHEREFORE, Plaintiff prays for judgment against Defendants, and each of them, 

as follows: 

1. For Plaintiff’s nominal, general and compensatory damages; 

2. For Plaintiff’s special damages incurred to date and to be incurred in the 

future for necessary medical and other related expenses; 

3. For Plaintiff’s damages for physical injuries, mental anguish, humiliation, 

emotional distress, physical and mental pain and suffering and limitation of normal 

activities, both past and future, in an amount to be proven at trial. 

4. For Plaintiff’s costs incurred herein; 

5. For pre-judgment and post-judgment interest at the maximum legal rate 

allowed by the Court; 

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6. For Plaintiff’s Attorneys’ fees pursuant to 42 U.S.C. § 1988(b); 

7. For punitive damages against Defendant J.J. Otterman due to his reckless 

and callous indifference to Plaintiff’s federally protected rights; and 

8. For such other and further relief as the Court deems just and proper. 

DATED this 26th day of October, 2015. 

GALLAGHER & KENNEDY, P.A. 

By: /s/ Kevin D. Neal 

Kevin D. Neal 

Lincoln Combs 

Liana J. Garcia 

2575 East Camelback Road 

Phoenix, Arizona 85016-9225 

Attorneys for Plaintiff Jessie Thornton 

COPY mailed same day to: 

Larry J. Crown 

Elan S. Mizrahi 

Titus Brueckner & Levine, PLC 

8355 E. Hartford Drive, Suite 200 

Scottsdale, AZ 85255 

Attorneys for Defendants 

Sharlee Weaver 

Case 2:15-cv-02236-MHB Document 1-4 Filed 11/06/15 Page 52 of 54
Michael K. Jeanes, Clerk of Court

*** Electronically Filed ***

11/02/2015 8:00 AM

SUPERIOR COURT OF ARIZONA

MARICOPA COUNTY

CV 2013-096393 10/28/2015

Docket Code 083 Form V000A Page 1

CLERK OF THE COURT

HON. DAVID K. UDALL K. Tiero

Deputy

JESSIE THORNTON KEVIN D NEAL

v.

CITY OF SURPRISE, et al. ELAN MIZRAHI

JESSICA OTTERMAN

NO ADDRESS ON RECORD

TELEPHONIC TRIAL SCHEDULING CONFERENCE RESET

On the Court’s own Motion, due to a calendaring conflict, 

IT IS ORDERED vacating the telephonic Trial Scheduling Conference set on January 8, 

2016 at 1:30 p.m. and resetting same to January 8, 2016 at 9:15 a.m. (15 minutes allotted) 

before: 

HONORABLE DAVID K. UDALL

SOUTHEAST ADULT FACILITY

222 EAST JAVELINA - COURTROOM 205

MESA AZ 85210

NOTE: Counsel for the Plaintiff is to initiate the telephonic conference by first arranging 

the presence of all other counsel or self-represented parties on the conference call and by calling 

this Division at (602) 506-5514 promptly at the scheduled time.

IT IS FURTHER ORDERED if the parties settle the matter, they shall contact this 

Division so the hearing can be vacated. 

Case 2:15-cv-02236-MHB Document 1-4 Filed 11/06/15 Page 53 of 54
SUPERIOR COURT OF ARIZONA

MARICOPA COUNTY

CV 2013-096393 10/28/2015

Docket Code 083 Form V000A Page 2

NOTE: All court proceedings are recorded by audio and video method and not by a 

court reporter. Pursuant to Local Rule 2.22, if a party desires a court reporter for any 

proceeding in which a court reporter is not mandated by Arizona Supreme Court Rule 30, 

the party must submit a written request to the assigned judicial officer at least ten (10) 

judicial days in advance of the hearing, and must pay the authorized fee to the Clerk of the 

Court at least two (2) judicial days before the proceeding. The fee is $140 for a half-day 

and $280 for a full day.

Case 2:15-cv-02236-MHB Document 1-4 Filed 11/06/15 Page 54 of 54