copy of lawsuit filed against sharon keller by widow of michael richard
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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
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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
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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
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(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
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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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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
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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
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(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'
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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.
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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
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