Copy of Lawsuit Filed Against Sharon Keller by Widow of Michael Richard

8/14/2019 Copy of Lawsuit Filed Against Sharon Keller by Widow of Michael Richard

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UNITED STATES DISTRICT COURTSOUTHERN DIVISION OF TEXAS

HOUSTON DIVTSIONt

MARSHA RICHARI), X.

Plaintiff, X CIVI ACTION NO.:

V.X

HONORABLE SHARON KELLER, XIndividually, and in an official capacity,and JOHN DOES, individually, and in an Xofficial capacity.

XDefendants.

PLAINTIFF'S ORIGINAL COMPLAINT

TO THE HONORABLE TJDGE F THISCOTJRT:

NOW COMES Plaintiff Marsha Richard and complains of Honorable Sharon Keller,

individually, arrd in an individual capacity and iolm Does, individuaily, and in their officiai

capacitiesandwill showthe Court the following:

STATEMENT OF THE CASE

l. TexasCourt of Criminal AppealsJudgeSharonKeller without any authority o do

so, or, in the alternative, in her administrative function, prevented a death penalty appeal (the

Appeal) to be filed with the Texas Court of Criminal Appeals, thereby, causing the death of

plaintiff s husband,Michael Richard,by lethal injectionon September25,2007.

JURISDICTION AND VENUE

2. This Court has urisdiction over Plaintiffs federal claims, under 23 U.S.C. $$

1331 ffid, 2201, 42 U.S.C. $$ 1983, 1985 and 1988,and supplementalurisdiction, under 28

U.S.C. $ 1367(a),o hearPlaintiffs state aw claims.

:

PLAINTIFF' S ORIGINAL CO}TPLAINT Page



3. Venue s proper n this Court,under28 u.S,C. $ 1391(b), ecausehe ncidentat

issue ook place n Huntsville,Walker County,Texas,within the United StatesSouthernDistrict

of Texas

PARTIES

4. Plaintiff is a residentof Harris County.Texas.

5. DefendantSharonKeller is a residentof Travis County, Texas,and a Judgeon the

TexasCourt of Criminal Appealsand canbe servedwith processat the TexasCourt of Criminal

Appeals,SupremeCourtBuilding,20l West 14thStreet,Austin, Texas78701.

6. DefendantJohnDoesare thosestateactors,who by action or inaction,along with

DefendantKeller caused he Appealnot to be filed.

FACTS

NOT EXECUTING CONVICTED MURDERERS IS A "H(JMA]VRIGHTS VIOLATIOI{"

7 Defendant Keller was first elected to the Texas Court of Criminal Appeals (the

CCA) in 1994.'DefendantKeller waselectedpresiding

udgeof the CCA in 2000and re-elected

to that position in 2006. During her 1994campaigrrDefendantKeller criticized the CCA as too

lenient and openly supported he deathpenalty. While campaigning DefendantKeller called the

failure to impose capital punishmenton convicted murderers "a human rights violation."2 Since

DefendantKeller assumed he CCA bench THREE HUNDRED TWENTY-ONE (321) people

have been executed n Texas and over FOUR HLTNDRED (400) have receiveda sentenceof

death. Judge Keller has reviewed hundreds of, if not more than a thousand, appeals n death

penalty casesmaking her intimately familiar with proceduresand the law, including all the laws

tThe Texas Court of Criminal Appeal is the highest statecourt having urisdiction over criminal cases.

2Houston Chronicle. February l, ZOO|,quoting an earlier election editorial.

PLAINTIFF'S ORIGINAL COMPLAINT Page 2



contained n the nstantpleading.

8. Plaintiff Marsha Richard is the wife3 of deceasedMichael Richard who was

executedby the Stateof Texas, he eveningof September25.,2007,by lethal injection--the25th

such executionby the Stateof Texasfor the year.4Richard'sexecutionocclrred in Huntsville,

Texas n Walker County n the [JnitedStatesSouthernDistrict of Texas.

g. The morning of Septemb r 25, 2007the SupremeCourt of the United States the

Supreme Court) granted writ of certiorari to answer the question of whether or not the current

method of lethal injection execution is Cruel and Unusual Punishment and, therefore,

constitutionallyprohibitedby the 8thAmendment o the Constitution.s

10. On September25,20A7, JudgeKeller ordered he clerk of the CCA not to accept

any paperworkconcerningMichael Richardafter 5:00 pm. Prior to 5:00 pm and throughout he

day attorneys for Michael Richard were working feverishly to finish and file the necessary

paperwork (the Appeal) to staythe execution basedon the samo ssues hat the SupremeCourt of

the united Stateshad grantedwritof certiorari in the Bazecase.

11. Prior to 5:00 pm Michael Richard's attorneysmade it clear to JudgeKeller, the

clerk of the CCA, and others that the appeal paperwork was forthcoming but that, due to

circumstances eyond heir control, the paperworkwould be filed a few minutespast 5:00 pm.

Because of the actions of JudgeKeller and other unknown govemment employeesand officials

'PlaintiffandMichael Richardwerem:uried November 2,2A02.

o In2007 Texashas executed25 while all 36 other deathpenalty statescombined have execute 16.twhile the casebefore the SupremeCourt, Ralph Baze,et al., v. John D. Rees, t al., is from Kentucky all37 states,including Texas, hat perform lethal injections use the same hree-drug ethal injection method. The three drugsconsist of an anesthetic-sodium thiopental, a muscle paralyzer--pancuroniumbromide, and a substanceo stop theheart--potassiumchloride. BesidesEight Amendment considerationsappellants n Baze also raise the questionofwhether substantivedue process equires halting an execution if a stay s grantedduring the lethal injection process.

Page3LAINTIFF'S ORIGINAL COMPLAINT



(the John Does) the Appeal was not acceptedby the CCA6 and Michael Richard was executed.

At least hree otherCCA judgeswere waiting after5:00 pm for the Appeal so that theycould rule

on it not knowing that DefendantKeller had stopped he filing of the Appeal. Previously other

deathpenaltyappealshadbeenconsidered fter 5:00pm by the CCA.

12. Every scheduledexecution n the United Statesafter Michael Richard's hasbeen

stayed becauseof the writ of certiorari granted by the SupremeCourt of the United States

including all scheduledexecutions n Texas.

13. No law or rule gaveDefendantKeller the authority to close the court to prevent

the Appeal. Moreover,at least hreeCCA judges waited after 5:00 pm for an appeal o be filed

as was the custom and procedureand which had occurred on occasionsprior to September25,

2007.

I. PROCEDURALDUE PROCESS

14. Proceduraldue process' function is to provide "an opportunityto be heard...ata

meaningful time and a meaningful place," promotingfairness in dispute resolution. Fuentes

v.

Shevin,407 U.S. 67 (1972). The 5th and l4th Amendments require that deprivationsof life,

liberty, or property activatesdue process guarantees.Liberfy interests are "those privileges long

recognized as essential to the orderly pursuit of happiness by free men". Meyer v. State of

Nebraskq, 62 U.S. 390(1923).

15. Defendant Kellers' act of stopping the filing of the Appeal denied

Richardan opportunity o be heardat a meaningfi.rlime and a meaningfulplace.

Richardhad a disputeconcerning ethal injectionand due to DefendantKeller's acts

Michael

Michael

was not

oIn order for the SupremeCourt to consider the Michael's appeal he Appeal must, by law, have first been

ionsidered by the CCA.

PLAINTIFF'S ORIGINAL COMPLAINT Page4



allowed o resolve he ssue.

II. DEFBNDANT KELLER'S ACrS WERE Urrft,4 I4ft,ES

16. DefendantKeller can'point to no law, authority,, tatuteor any colorable basis or

stopping he filing the Appeal subjectingDefendantKeller to individual liability for deathof Mr.

Richard. llth Amendment mmunity doesnot preventan action in federal court againsta state

official for ultra vires actions beyond the scope of statutory authority, or pursuant to authority

deemed o be unconstitutional. ennhursf,supra"465 U.S. at 101-102,n. ll ; Schamv. District

Courts,967 F. Supp 230,232-233 (S.D.Tex. 1997). Ultra vires actionsare hose"without any

authoritywhatever;"claim restson the officer's lack of delegated ower. Pennhursf,supra, 465

U.S. at 101-102.n. 11. The testhas beenstatedas whether herewas anv "colorablebasis or the

exercise of authority by state officials." A claim of error in the exercise of that power is

insufficicnt.

III. DEFENDAFIT KELLBR FAILS TO HAVE OUALIFIBD IMIVIUNITI

17. Alternativelyto her acts being ultra vires, if Defendant Keller has administrative

authority to stop the appeal, hen an analysis of her qualified immunity is in order, however, such

analysis can only lead to a denial of qualified immunity. Qualified immuniry is designedto

shield government officials from actions "insofar as their conduct does not violate clearly

establishedstatutory or constitutional .ights of which a reasonableperson would have known.'o

Harlow v. Fitzgerald,4sTU.S. 800(1982).

18. Here Judge Keller hasparticipated n hundredsof deathpenalty appealsand knew

the consequenceof her actions would be the death of Michael Richard without a due process

review of his issue regarding lethal injection and a violation of Michael Richard's right to an

open court underthe TexasConstitution.

PLAINTIFF' S ORIGINAL COMPLAINT

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Page5



IV. DEFENDANTKELLER VIOLATBD THB "OPBN COURTS'PROVISION OFTHE TEXAS CONSTITUTION

19. The TexasConstitution;Article 1, section13provides hat:

Excessivebait shall not be required, nor excessiveines imposed,nor cruel or unusualpunishment nflicted.All courts shall be open,and every person for an injury done him, in his lands, goods,person or reputation,shall hsveremedyby duecourseof lnv.

20. DefendantKeller's act of closing the court with an execution ooming could not

more clearly violate this provision.

V. ARSITRARY AND CAPRICIOUS

21. A ruling is arbitrary and capricious in the absenceof a rational connection

between he facts found andthe choice made.Natural Resources. . U.S., 966F 2d 1292,97 (gth

Cir. 1992). Dcfcndant Kcllm's decisionto close the court to Michael Richard's appealhad no

rationalbasis.

VI. VIOLATION OF FOURTH AMENDMENT

22. The Fourth Amendment guaranteeseveryone the right "to be secure in their

persons,houses,papers, and effects, against unreasonablesearchesand seizures." LI.S. Const.

amend. V.

23. Defendants violated Michael Richard's Fourth Amendment rights when they

unlawfully executedhim--seizinghis person--withoutconsideringhis appeal.

yII. WRONGFUL DBATH AttD SURVML ACTION

24. A person is liable for damages or wrongfi.rl death arising from an injury that

causes an individual death if the i"jq.y was caused by the person(s) or agent(s) or servant(s)

wrongful act, neglect,carelessness, llskillfulness or default." Tex. Civ. Prac. & Rem. Code

PLAINTIFF' S ORIGINAL COMPLAINT Page6



Ann. $71.002(b). Plaintiff Marsha Richard as the wife of Michael Richard is a statutory

beneficiaryunder he Texaswrongful deathstatute.

25. Plaintiff Marsha Richard also contemplatesa survival action under the Teaxs

Survival Statuteand as he wife she s the naturalchoiceas administratorof the estate.A probate

action creating he Estateof Michel Richardwith MarshaRichard as administratorwill be filed

in the appropriateprobatecourt as time allows. Defendants hrough their action and inaction

causedplaintiff the loss of his protection, care, assistance, ociety, companionship,comfort,

guidance,counseland advice,and funeralandburial expenses.

26. Plaintiff MarshaRichard as the representative f the Estateof David Brian Scott,

deceased, eeks o recoverdamageso compensatehe consciouspain and suffering,economic

lossesand damagesor the awareness f impendingdeath,all of which were sufferedby Michael

Richard beforehis untimely,painful andunnecessaryeath.

42USCSBgTrpN1983

27. A 42 USC Section 1983 claim requires hat a state actor violate an individual's

right. While 42 USC Section 1983 is not a sourceof substantive ights it allows rights found

elsewhere to be addressed n federal (and state) court. Michael Richard had a Fourteenth

Amendment right to due processboth procedural and substantialyet these rights and the other

rights--wrongfi.rl death, survivor action, open courts, fourth amendment--described erein were

met with deliberate ndifferenceby DefendantKeller and he John Does.

28. The deliberate indifference and the i"jr.y must have a causal connection.

Thompson . (Ipihur County,Texas,245F.3d 447,457 sthCir. 2001). [D]eliberatendifference

has three compooents: l) subjectiveknowledgeof a risk of seriousharm; (2) disregardof that

risk; (3) bV conduct hat is more than mere negligence. arrow v. West,320F.3d 1235, 1245

PLAINTIFF' S ORIGINAL COIVTPLAINT Page 7



(1lth Cir. 2003). The evil intentof deliberate ndifferencecan be inferredfrom the actsof state

actor. Hope v. pelzer,536 U.S. 730QA\D. In the caseat bar DefendantKeller knew thatdeath

was coming for Michael Richardwithout the legal intervention of his appellate attorneys and

deliberatelydisregardedhat risk by closingthe courthouse-

Zg. As JudgeKeller claims to be a policymakerin the areaof acceptingor rejecting

appealshe State s liable for injunctive relief and damages nder42 USC Section1983

COT]NT.-42U.S.C.SECTION 1985

30. In order o statea claim under42 U.S.C. $ 1985(3),a plaintiffmust allege: 1) a

conspiracy; (Z) motivated by a racial or classbaseddiscriminatoryanimusdesigned o deprive,

directly or indirectly, any personor classof persons o the equal protection of the laws; (3) an act

in furtheranceof the conspiracy,and (a) an injury to personor property or the deprivation of any

right or privilege of a citizen of the United States. d. at 828-29;Grffin v- Breckenridge,403

U.S. at 102-03403U.S. 8S (l 971);Bray v. Alexandria Women'sHealth Clinic, 506 U-S- 263,

26S lgg3). DefendantKeller and the John Does acted n concert to deprive Michael Richard of

his rights to due process, ife and liberty, his day in court, and to be free from arbitrary and

capricious actsand unlawful seizureof his person'

3l . Defendantsall acted n callous and total disregardof the United Statesand Texas

Constitution, and violated well-established law and precedent. Defendants' actions were

objectively unreasonable nd done n bad faith-

RATIFICATION

32. Despite the solid evidence of Defendant Keller having improperly caused the

death of Michael Richard JudgeKeller is still serving on the bench. As suchthe Stateof Texas

has ratified the conduct of Defendant Keller as its own policy, practice, c.ustomand procedure'

PLAINTIFF' S ORIGINAL COTVTPLAINTPage8





ATTORNEYS'FEES

38. Marsh Richard is entitled to recover attorneys' fees and costs to enforce hisa

Constitutional ightsandunder42U.S.C.Section1983and 1985 iom Defendants.

PRA).ER FOR RBLTBT

WHEREFORE, Plaintiff MarshaRichardrequestshat the Court:

A. Enter declaratoryudgment, specifying Plaintiff s US Constitutional Rights and

TexasConstitution'sBill of Rights;

B. Find that Plaintiff Marsha Richard is the prevailing party in this caseand award

attorneys' feesand costs,pursuant o federal aw, asnoted;

C. Award damages o Marsha Richard againstDefendants,separatelyand ointly; for

the violations of Michael Richard's rights under the United StatesConstitution and his rights

under he Texasconstitutionand ort law asnotedabove;

D. Award punitive darnagesagainsteach ndividual Defendant o Marsha Richard for

violations of Michael Richard rightr his rights andunder Texas aw, as noted above;

E. Enter injunctive relief againstDefendants,preventing them from again unlawfully

interfering with the due processappeal rights of the condemned under the United Statesand

Texas Constitutions: and.

F. Grant such other and fruther relief as appea$ reasonableand just, to which,

MarshaRichardshowsherselfentitled.

PLAINTIFF'S ORIGINAL COMPLAINT Page 0



RESPECTFULLYUBMIMED.LAW OFFICE F RAND

ALL L. KALLINEN-operatingattorneyfor the

AmericanRightsAssociation,

a Texas non-profit civil rights and liberties organization

UnitedStatesSouthernDist. of TexasBarNo.: 19417

Admitted, United StatesFifth Circuit Court of Appeals

StateBar of TexasNo.: 0A790995

1406CastleCourt"Houston.Texas77006

Telephone:

Cellular:FAX:

E-mail:

713ts28-8s86

[email protected]

PLAINTIFF' S ORIGINAL COMPLAINT Page l

Copy of Lawsuit Filed Against Sharon Keller by Widow of Michael Richard

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