AMENDED Cover Letter + PETITION FOR SECTION 1983 AND STATE LAW CLAIMS filed on June 4, 2012
Cover Letter to Calhoun County District Clerk Re: PETITION FOR SECTION 1983 AND STATE LAW CLAIMS
Posted on June 5, 2012 by ricofraudonthecourt
Paul Chen, Pro Se
808 N. Mechanic St.
El Campo, TX 77437
E-mail: ricofraudonthecourt@yahoo.com
June 4, 2012
Ms. Pamela Martin Hartgrove
Calhoun County District Clerk
211 South Ann Street
Port Lavaca, Texas 77979
E-mail: pam.hartgrove@calhouncotx.org
Re: PETITION FOR SECTION 1983 AND STATE LAW CLAIMS
Dear Ms. Hartgrove:
Enclosed please find my PETITION FOR SECTION 1983 AND STATE LAW CLAIMS.
As many Defendants’ addresses are unavailable, and some have only phone numbers, I need to do some search or make some phone calls to get the correct current addresses. They will be mailed separately ASAP, hopefully tomorrow.
Please have the above-mentioned Petition filed and docketed and upon receipt of the Defendants’ mailing addresses, you are requested to issue citation and provide such other customary services as are provided any party in accordance with Rule 145 T.R.C.P. which provides: “Upon the filing of the Affidavit of Indigency, the clerk must docket the action, issue citation and provide such other customary services as are provided any party.”
Your repeated refusals to comply with Rule 145 T.R.C.P. after I filed Affidavit of Indigency forced me to include you in the Defendants’ list, which is the last thing I want to do because of all the friendly assistance you and your staff members have done for me in the past several years. — The copies Anna and Gigi made for me in particular have been very useful in my discovery process, and I have never stopped doing legal research on the relevant issues because I want FRAUDSTERS to be punished and deterred and justice to prevail.
Very truly yours,
Paul Chen
True friends stab you in the front. ~Oscar Wilde
Gov. Perry, State/Federal Judges, and Other Officials Sued under Section 1983
Posted on June 6, 2012by ricofraudonthecourt
Gov. Perry, State/Federal Judges, and Other Officials Sued under Section 1983
Today marks the 2nd anniversary of Chen’s false arrest and wrongful imprisonment. In other words, if his PETITION FOR SECTION 1983 AND STATE LAW CLAIMS were not filed by 5 p.m., it would be time-barred. Thus, the Petition was timely filed in the 24th District Court of Calhoun County, Texas, confirmed by Priority Mail03111660000041429606.
Gov. Rick Perry and AG Greg Abbott of Texas were listed as Nos. 1 & 2 Defendants in their official capacities for prospective relief. In spite of the State’s 11th Amendment sovereign immunity from suit, “State officials sued in their official capacity for injunctive relief are persons for purposes of § 1983.” See Will v. Michigan Dept. of State Police, 491 U.S. at 71 n.10 (1989).
The claims against Gov. Perry for prospective relief demand that Texas judiciaries’ corruption be investigated and that a meaningful legal education program be initiated for all the officials in the justice system to minimize continuing violations. The claims against AG Abbott demand that he investigate the corruption and execute the continuing education program for all the officials in the justice system that the governor is asked to initiate.
In the Petition, Chen also named 4 federal, 2 state and 1 county judges, DA, ADAs, sheriff, other state and federal officials, many attorneys, Port Lavaca Wave publisher, two reporters, and a number of private parties as conspirators and co-conspirators in the State Law Claims: False Arrest, Wrongful Imprisonment, Malicious Prosecution and Civil Conspiracy, which deprived him of his constitutional rights under color of state law.
Chen asserts that he has been denied access to the federal and state courts to redress his grievances for the past ten years, that the orders/judgments rendered against him were without subject matter jurisdiction, that they are all VOID, invalid, without any legal force, and that they must be set aside in the interest of justice.
The Petition is posted at ricofraudonthecourt@wordpress.com.
Contact Author Paul Chen at ricofraudonthecourt@yahoo.com.
PETITION FOR SECTION 1983 AND STATE LAW CLAIMS
Posted on June 5, 2012 by ricofraudonthecourt
TABLE OF CONTENTS
PART A
SECTION 1983 ACTIONS AGAINST DEPRIVATION OF CONSTITUTIONAL RIGHTS UNDER COLOR OF STATE LAW — 10 pages
PART B
State Law Claims: False Arrest, Wrongful Imprisonment, and Malicious Prosecution — 45 pages
CAUSE NO. _______________
Paul Chen, Pro Se
Plaintiff IN THE 24th
DISTRICT COURT
v.
CALHOUN COUNTY, TEXAS
Defendants: JURY TRIAL DEMAND
Rick Perry, Governor of Texas, in his official capacity
Greg Abbot, Texas Attorney General, in his official capacity
Calhoun County, Texas ["Calhoun"]:
DA Dan Heard, ["Heard"] in his official capacity
Shannon Salyer, personally and in his official capacity
Henderson , personally and in his official capacity
Sheriff B.B. Browning, ["Browning"] personally and in his official capacity
Tina French, Publisher, ["French"] Port Lavaca Wave
Jay Workman, Reporter, ["Workman"]
Emily Allen, Reporter, ["Allen"]
Judge Hope Kurtz, ["Kurtz"] personally and in her official capacity
Calhoun County Jail Administrator, personally and in his official capacity
Calhoun County District Court:
Pamela Martin Hartgrove, ["Hartgrove"] personally and in her official capacity
Judge Skipper Koetter, ["Koetter"] personally and in his official capacity
Judge Kemper Stephen Williams, ["Williams"] personally and in his official capacity
Calhoun County District Court at Law # 1:
Judge Alex Hernandez ["Hernandez"], in his official capacity
Anita L. Koop, Owner/President
Terry J. Cox, Co-owner/Agent/Trustee
Anita’s Resort Properties, Inc. ["Koop/Cox/ARPI"]
Richard Chapman ["Chapman"]
John Gerken ["Gerken "]
Lennar Florida Partners, II, L.P.: ["Lennar "]
Thomas George ["George"]
Kenneth Burch ["Burch"]
Richard Morrison ["Morrison"]
David Roberts, Esq. ["Roberts"]
Roberts, Roberts, Odefey, & Witte, LLP “RROW”
Mike Boudloche, Trustee ["Trustee"], personally and in his official capacity
Michael B. Schmidt ["Schmidt"]
John M. Vardeman ["Vardeman"]
Armando G Avalos, Realtor ["Avalos"]
Armando Avalos Realty, Inc.
Jan Shephard ["Shephard"]
Henry A. Welfel, Jr. ["Welfel"]
Federal District Court of Southern Texas:
Chief Judge Ricardo H. Hinojosa, ["Hinojosa "], in his official capacity
Former Chief Judge Hayden Head ["Head "], personally and in his official capacity
Judge John D. Rainey ["Rainey"], personally and in his official capacity
Federal Bankruptcy Court of Southern Texas:
Chief Judge Marvin Isgur ["Isgur"], in his official capacity
Judge Wesley W. Steen ["Steen"], personally and in his official capacity
Judge Vanessa Gilmore ["Gilmore"], personally and in her official capacity
Judge Janice Graham Jack ["Jack "], personally and in her official capacity
Michael Milby, Former Clerk ["Milby"], personally and in his official capacity
David J. Bradley, Clerk ["Bradley"], personally and in his official capacity
Joyce Richards, ["Richards"], personally and in her official capacity
Defendants’ mailing addresses will be in ATTACHMENT A mailed separately.
PETITION FOR SECTION 1983 AND STATE LAW CLAIMS
Demand for Jury Trial
(Texas Civil Practice & Remedies Code – Section 37.007)
TO THE HONORABLE JUDGE OF SAID COURT:
NOW COMES PAUL CHEN, pro se, Plaintiff in the above entitled cause, and files this his PETITION FOR SECTION 1983 AND STATE LAW CLAIMS and would show the Court as follows:
TABLE OF CONTENTS
PART A
SECTION 1983 ACTIONS AGAINST DEPRIVATION OF CONSTITUTIONAL RIGHTS UNDER COLOR OF STATE LAW — 10 pages
PART B
State Law Claims: False Arrest, Wrongful Imprisonment, and Malicious Prosecution — 45 pages
AMENDED
DEFENDANT/COUNTERCLAIM PLAINTIFF’S COUNTERCLAIMS
AND AFFIRMATIVE RELIEF
Demand for Jury Trial
(Texas Civil Practice & Remedies Code – Section 37.007)
TO THE HONORABLE JUDGE OF SAID COURT:
NOW COMES PAUL CHEN, pro se, Defendant/CounterClaim Plaintiff
in the above entitled and numbered cause, and files this his DEFENDANT/COUNTERCLAIM PLAINTIFF’S COUNTERCLAIMS AND AFFIRMATIVE RELIEF and would show the Court as follows:
FOREWORD
As the Assumed Name Certificate of Anita’s Resort Properties, Inc. expired on June 6, 1993, ARPI has been violating Sec. 71.201 (civil liabilities) & Sec. 71.202 (criminal charges) of the BUSINESS AND COMMERCE CODE since its expiration date. The former specifies that a person’s failure to comply with this chapter does not impair the validity of any contract or act by the person or prevent the person from defending any action or proceeding in any court of this state, but the person may not maintain in a court of this state an action or proceeding arising out of a contract or act in which an assumed name was used until an original, new, or renewed certificate has been filed as required by this chapter. Thus, all the actions or proceedings violated this Code, and the resulting Orders or Judgments are VOID ab initio.
1. Anita L. Koop or Anita’s Resort Properties, Inc. (ARPI) has had neither factual nor legal existence since June 6, 1993 when its ASSUMED NAME CERTIFICATE expired upon its 10th anniversary. (See ARPI # A1 3 29 2011 ASSUMED NAME)
2. BUSINESS AND COMMERCE CODE CHPATER 71 ASSUMED BUSINESS OR PROFESSIONAL NAME Sec. 71.201. (a) prohibits ARPI from maintaining in a court of this state an action or proceeding arising out of a contract or act in which an assumed name was used until an original, new, or renewed certificate has been filed as required by this chapter.
3. 3. ARPI’s actions or proceedings and any orders or judgments against Defendant Chen are VOID ab initio in that it has had no standing to sue since June 6, 1993, and that it may NOT maintain in a court of Texas an action or proceeding arising out of a contract or act in which an assumed name was used UNTIL an original, new, or renewed certificate has been filed with the Office of the Secretary of State of Texas.
STANDING AND SUBJECT MATTER JURISDICTION
CASE LAW
4. Standing is a component of subject matter jurisdiction. Douglas v. Delp, 987 S.W.2d 879, 882 (Tex.1999).
5. If a party is found to lack standing, the court is without subject matter jurisdiction to determine the action. See Pele Defense Fund v. Puna Geothermal Venture, 77 Hawai’i 64, 67, 881 P.2d 1210, 1213 (1994). Thus, “[i]f a court lacks jurisdiction over the subject matter of a proceeding, any judgment rendered in that proceeding is invalid.” Bush v. Hawaiian Homes Comm’n, 76 Hawai’i 128, 133, 870 P.2d 1272, 1277 (1994).
6. In the Interest of CMC, 192 SW3d 866, 869 (Tex App., 2006): Standing, as a necessary component of a court’s subject-matter jurisdiction, is a constitutional prerequisite to maintaining a suit under Texas law. Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 444, 36 Tex. Sup. Ct. J. 607 (Tex. 1993). If a party lacks standing, a court lacks subject-matter jurisdiction to hear a case. Id.
7. [A] decision concerning whether a party has standing is not a decision deciding the merits of a case. See Blue, 34 S.W.3d at 554. “A plea to the jurisdiction is a dilatory plea, the purpose of which is to defeat a cause of action without regard to whether the claims asserted have merit.” Id. Without subject-matter jurisdiction, the trial court must dismiss the case. Am. Motorists Ins. Co. v. Fodge, 63 S.W.3d 801, 805, 45 Tex. Sup. Ct. J. 122 (Tex. 2001). Dismissal is the appropriate disposition when a party lacks standing; it is not a decision on the merits of the case.
8. Whitworth v. Whitworth, NO. 01-04-01026-CV , 222 S.W.3d 616; 2007 Tex. App. LEXIS 2238, Tex, Ct. App., 1st Dist., Houston, March 16, 2007): Standing is implicit in the concept of subject matter jurisdiction. Waco Indep. Sch. Dist., 22 S.W.3d at 853; Doncer v. Dickerson, 81 S.W.3d 349, 353 (Tex. App.–El Paso 2002, no pet.).
9. Subject matter jurisdiction is essential to the authority of a court to decide a case. Texas Ass’n of Bus., 852 S.W.2d at 443. Standing, as a necessary component of a court’s subject matter jurisdiction, is a constitutional prerequisite to maintaining suit. Id. at 444; In re C.M.C. & J.T.C., 192 S.W.3d 866, 869 (Tex. App.–Texarkana 2006) (orig. proceeding). The standing requirement under Texas law stems from two limitations on subject matter jurisdiction: the separation of powers doctrine and the open courts provision, “which contemplates access to the courts only for those litigants suffering an injury.” Texas Ass’n of Bus., 852 S.W.2d at 443-44; see also Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S. Ct. 2130, 2136, 119 L. Ed. 2d 351 (1992) (standing in federal law is essential and unchangeable requirement of case-or-controversy requirement of Article III of Constitution). Standing in Texas state court requires (a) “a real controversy between the parties” that (b) “will be actually determined by the declaration sought.” Texas Ass’n of Bus., 852 S.W.2d at 446. Subject matter jurisdiction is never presumed and cannot be waived. Id. at 443-44. If a party lacks standing, a court lacks subject matter jurisdiction to hear the case. Id. at 444; In re C.M.C., 192 S.W.3d at 869.
Judge Kemper Stephen Williams Lacked Subject Matter Jurisdiction
10. The VOID June 20, 1997 summary judgment adversely gave rise to ARPI’s Wrongful Foreclosure, Fraudulent Deficiency Judgment, False Proofs of Claims, Sheriff’s Unlawful Auctions, Anita Koop’s Illegal Possession of the Auctioned Assets and Purchasers’ Invalid Property Rights, Unlawful Control and Dominion of Wrongfully Auctioned Properties and other Unjust Enrichment Schemes to Chen’s detriment.
11. On 02/24/1997 Motion By Creditor ARPI for Relief From Stay was filed.
12. On 04/11/1997 hearing was held for Motion By Creditor ARPI for Relief From Stay.
13. On March 30, 2011, Hope Andrade, Secretary of State of Texas, certified that the Assumed Name Certificate of Anita’s Resort Properties, Inc. was filed on June 6, 1983, but its status was EXPIRED at the time of the certification. Thus, any legal actions taken under that invalid Assumed Name has been VOID ab initio since its tenth anniversary, June 6, 1993. (See ARPI #A1 3 30 2011 ASSUMED NAME)
14. No Trustee’s appraisal and formal abandonment were shown in accordance with UNIFORM LOCAL BANKRUPTCY RULE S7-1. Thus, THE ORDER ON ANITA’S RESORT PROPERTIES, INC.’S MOTION FOR RELIEF FROM AUTOMATIC STAY dated April 11, 1997 was void ab initio for non-compliance with RULE S7-1(a)(b)(c)(d), 11 U.S.C. Sections 362(a), 554(a)(b), Financial Institution’s Reform, Recovery, and Enforcement Act of 1989 (“FIRREA”), Tex. Prop. Code Ann. §§ 51.002, 51.003 (Vernon 1995), Rule 6007 of Federal Rules of Bankruptcy Procedure, among others.
(a) RULE S7-1 specifically requires:
(a) Abandonment by Trustee Pursuant to 11 U.S.C. Sec. 554(a).
(b) Relief From the Automatic Stay Provisions of 11 U.S.C. Sec. 362(a), Coupled With a Request for Abandonment Pursuant to 11 U.S.C. Sec. 554(b).
(c) Agreed Orders.
(d) Dissemination of Order After Entry.
15. The above violations deprived Defendants Cox/Koop/ARPI of the right to litigate in the 96-8-13090 state court because the secured properties remained assets of the bankruptcy estate, absent Trustee’s appraisals pursuant to Financial Institution’s Reform, Recovery, and Enforcement Act of 1989 (“FIRREA”), Tex. Prop. Code Ann. §§ 51.002, 51.003 (Vernon 1995) and formal abandonment under Rule 6007.
16. 55. By rendering the summary judgment on June 20, 1997, Judge Kemper Stephen Williams assumed to have exercised judicial power not granted by law cited above.
17. 56. The June 20, 1997 Judgment was void ab initio in that 1) it was rendered while ARPI had no standing to sue; 2) the court had no subject matter jurisdiction to decide the case.
18. 57. Furthermore, the June 10, 1997 Agreement specifies: Mr. Cain, Chen’s counsel, by this agreement, wants to make it clear that he is not agreeing to the merits of the motion for summary judgment, nor by this agreement, to the entry of the summary judgment. In spite of the clear objection raised by Mr. Cain, Judge Williams rendered the Summary Judgment on June 20, 1997 in conspiracy with Cox/Koop/ARPI and their attorneys Chapman and George in deprivation of Plaintiff’s due process and equal protection rights to have a full and fair hearing.
19. The Judgment granting ARPI’s motion for summary judgment constituted unjust enrichment for the conspirators.
20. Here, the 96-8-13090 Texas State Court had no power to pass on the merits — had no jurisdiction to have rendered the judgment. It acted without jurisdiction, and the summary judgment rendered on June 20, 1997 is of no force and effect.”
ARPI HAS LACKED STANDING TO SUE SINCE JUNE 5, 1993
21. ARPI, which has had neither factual nor legal existence since June 6, 1993, had no standing to conduct the foreclosure sale, seek deficiency judgment, file proofs of claims, and apply the false claims against the illegally auctioned property.
22. Those courts that heard the cases brought by ARPI lacked jurisdiction over the subject matter of the proceedings, and any judgments rendered in those proceedings were invalid.
23. Any warranty deeds issued by Anita L. Koop or ARPI were Void ab initio in that Anita L. Koop is not ARPI. Neither Anita L. Koop nor ARPI had standing in bringing any suit against Chen since June 6, 1993. Thus, any Orders or Judgments rendered for ARPI against Chen were Void ab initio.
24. Any property rights derived from those VOID Orders or Judgments are invalid, null, void and without any legal force or effect.
ARPI’s Wrongful Foreclosure
(See Complaint #2 in 6:05-mc-00002 & 6:06-cv-00078)
25. Besides procedural violations of Sec. 71.201 and criminal offenses of Sec. 71.202 (See FOREWORD and #1, 2), this unique couple knowingly, willfully, and publicly conspired to steal Chen’s mortgaged land at the courthouse door in violation of Texas Deed of Trust Law, which unambiguously provides: “A deed of trust and trustee supervised foreclosure allows the mortgage holder to bid for the foreclosed property, provided the trustee and the mortgage holder are not closely associated. Otherwise, a mortgage holder cannot bid for the mortgaged property when the foreclosure is by power of sale.”
26. Chen asserts that a wrongful foreclosure sale was conducted on July 2nd, 1996, that the sale was illegally and unfairly made by Cox in conspiracy with his wife and their attorney Chapman, and that it was void as a result of substantial inadequacy of consideration combined with irregularities in the sale in violation of 30 Tex. Jur. 3d Deeds of Trust and Mortgages § 177 (1998), Tex. Prop. Code Ann. §§ 51.002, 51.003 (Vernon 1995), the automatic stay provisions of Section 362(a), Sec. 554(a)(b)(c)(d), absent Chapter 7 Trustee’s abandonment of subject property, and any state-certified appraisal pursuant to Financial Institution’s Reform, Recovery, and Enforcement Act of 1989 (“FIRREA”).
27. Abandonment is an intentional act and nothing in the record supports a finding that the Chapter 7 Trustee intended to abandon the estate properties that ARPI held security interest. See Hanover Ins. Co. v. Tyco Indus. Inc., 500 F.2d 654, 657 (3d Cir. 1974); see also Fed. R. Bankr. P. 6007 (providing for abandonment of property by way of motion).
28. Specifically, the foreclosure sale failed to follow the statutory requirements to avoid conflict of interest. The mortgage holder, Anita L. Koop and/or Anita’s Resort Properties, Inc., could not and should not have bid for the mortgaged property because the Trustee Terry Cox and Anita L. Koop (husband and wife) were closely associated at the time when the foreclosure took place by power of sale. The Calhoun County Court record shows that on 07-02-96 by means of a Trustee’s Deed (File No. 44788) Terry J. Cox, Trustee, by charging $7,500 of Trustee’s fees, improperly deeded Chen’s mortgaged properties to Anita’s Resort Properties, Inc. (owned by Anita L. Koop, Trustee’s wife) a “grossly inadequate price” of $250,000, leaving a fraudulent deficiency of $283,407.06. Thus, said illegal Trustee’s Deed must be set aside.
29. The Texas Supreme Court has held that, in order for a finding of wrongful foreclosure, “[t]here must be evidence of irregularity, though slight, which irregularity must have caused or contributed to cause the property to be sold for a grossly inadequate price.” American Sav. & Loan Ass’n of Houston v. Musick, 531 S.W.2d 581, 587 (Tex. 1976). The Texas cases that address this issue all require “irregularities in the foreclosure sale” that result in a grossly inadequate price. Wieler, 887 S.W.2d at 155. Accord First State Bank v. Keilman, 851 S.W.2d 914, 921 (Tex. App. – Austin 1993, writ denied); Gainesville Oil & Gas Co. Inc. v. Farm Credit Bank of Texas, 847 S.W.2d 655, 659 (Tex. App.–Texarkana 1993, no writ); Cocke v. Meridian Sav. Ass’n, 778 S.W.2d 516, 520 (Tex. App.–Corpus Christi 1989, no writ); Hunt v. Jefferson Sav. & Loan Ass’n, 756 S.W.2d 762, 764 (Tex. App.–Dallas 1988, writ denied). In addition, the party attacking the sale must plead and prove any irregularities that rendered the sale invalid. See Bonilla v. Roberson, 918 S.W.2d 17, 22 (Tex. App.–Corpus Christi 1996, no writ). “Evidence showing that a better price would have resulted if the sale was conducted in a different manner is required.” Hunt, 756 S.W.2d at 764; Bellah v. First Nat’l Bank of Hereford, 474 S.W.2d 785, 788 (Tex. Civ. App.–Eastland 1971, writ ref’d n.r.e.).
30. The purpose of a wrongful foreclosure claim is to redress irregularities in the sale that cause a “grossly inadequate price.” Musick, 531 S.W.2d at 587.’ Here, the evidence of irregularity is the violation of the provision that the trustee Cox and the mortgage holder Anita L. Koop, having been closely associated (husband and wife), should not have been involved in the bidding for the mortgaged property when the foreclosure was by power of sale, that said irregularity had undoubtedly caused or contributed to cause the property to be sold for a grossly inadequate price, and that a better price would have resulted if the sale had been conducted in a different manner. Thus, this wrongful foreclosure claim is to redress irregularities in the sale that caused a “grossly inadequate price.”
ARPI’s Fraudulent Deficiency Judgment
(See Complaint #2 in 6:05-mc-00002 & 6:06-cv-00078)
31. Inadequate disclosures by Cox/Koop/ARPI and Chapman committed fraud on the Bankruptcy Court. They had a duty to disclose material information to the court and to maximize the value of the bankruptcy estate (under foreclosure) for the benefit of all creditors. Instead, they knowingly concealed the true market value of the asset and conducted wrongful foreclosure sale and sought a deficiency judgment of $283,407.06 in violation of the automatic stay provisions of Sections 362(a) and 554(a)(b)(c)(d) of the Bankruptcy Code, absent Trustee’s formal abandonment and without providing the Court, the US Trustee, the case Trustee, the Debtors and all the other unsecured creditors with notices of the Trustee’s abandonment of the estate property that ARPI held security interests. Thus, the foreclosure sale and the deficiency judgment are “void” and the claims derived from the “void” judgments are false and illegitimate. The Defendants must be ordered to disgorge their unjust enrichments to the estate in addition to being responsible jointly and severally, for actual, general, special, compensatory and punitive damages in an amount to be determined by the jury, plus the costs of this action, including attorney’s fees pursuant to Section 1988, and such other relief deemed to be just, fair, and appropriate.
32. In re Wilkins, 150 B.R. 127 (Bankr. M. D. P. 1992), the creditor sought relief from an automatic stay to commence a deficiency judgment action under the DJA against both the debtor and nondebtor obligors. The court denied the creditor’s motion. Thus, contrary to the creditor’s argument, the Wilkins court noted that the deficiency issues were likely to be settled in the bankruptcy court and consequently, there was no reason for the debtor to defend litigation in state court that could be settled in the bankruptcy forum. Id. at 128-29. In this respect, the court expressed its concern that the debtor not be “burdened by litigation and resulting legal fees if unnecessary at this time.” Id. at 129. We agree with the Wilkins court that debtors should not be burdened by state court litigation when deficiency judgment actions impacting upon the debtor’s estate can be settled in the bankruptcy forum. Indeed, to permit state court deficiency judgment actions involving the debtor to proceed when they can be adjudicated in the bankruptcy court is to do violence to the purposes of the automatic stay. As discussed earlier, by centralizing all prebankruptcy civil claims against a debtor in the bankruptcy court, the debtor is granted a “breathing spell” during which he is relieved of the financial pressures that drove him to bankruptcy. Maritime, 959 F.2d at 1204. The centralization of all claims in the bankruptcy court also permits the assets of the debtor’s estate to be marshaled for distribution to creditors in an orderly and equitable fashion. Id. (citation omitted).
33. These benefits of the automatic stay could not be achieved if creditors are permitted relief from stay to pursue state court deficiency judgment actions impacting on the estate of the debtor. Debtors would be forced to expend valuable time, energy and resources defending against state court litigation that could be settled directly in the bankruptcy court. Footnote 4: We note also that considerations of judicial economy weigh against granting creditors relief from stay to pursue state court deficiency judgment actions that impact upon the estate of the debtor and could be settled in the bankruptcy court. Indeed, the time, energy and resources of the courts are no less valuable commodities to preserve when it is possible to litigate a claim in one forum instead of two.
ARPI’s False Proofs of Claims
(See Complaint #3 in 6:05-mc-00002 & 6:06-cv-00078)
34. Defendants Cox/Koop/ARPI and their counsel Chapman knowingly and willfully presented $283,407.06 false proofs of claims against the estate of the debtor, or used any such fraudulent claims in Chen’s case under title 11, in a personal capacity or as or through an agent, proxy, or attorney in violation of 18 U.S.C. §152(4). Defendants’ fraud affected the validity of their claims under applicable principles of law; they should be disallowed in full as part of the claims avoidance process. See In re 80 Nassau Associates, supra, 169 B.R. at 837; In re Mobile Steel Co., supra, 563 F. 2d at 699. “if the conduct of the creditor is so egregious that it affects the validity of the claim under applicable principles of law, the debtor can ask the court to disallow it in full as part of the claims avoidance process.) See In re Mobile Steel Co., supra, 563 F. 2d at 699 n. 10; In re 80 Nassau Associates, supra, 169 B.R. at 837 n. 4; In re Werth, supra, 37 B.R. at 991 (“the claim will be disallowed to the extent [the borrower] establishes damages under state law, resulting from the Bank’s breach [of an oral contract to lend money]“).
35. The In re Thompson court was unequivocal in stating that “unlike a proof of claim which must be filed before the bar date, an objection to a proof of claim may be filed at any time.” 965 F.2d at 1147; see also United States I.R.S. v. Kolstad (In re Kolstad), 928 F.2d 171, 174 (8th Cir. 1991) (“There is no bar date or deadline for filing objections.”)
36. Section 502(d) of the Bankruptcy Code states that the court shall disallow “any claim of an entity …that is a transferee of a transfer avoidable under section 522(f), 522(h), 544, 545, 547, 548, 549, or 724(a) of this title, unless such entity or transferee has paid the amount …for which such entity or transferee is liable…” Several courts have addressed whether section 502(d) may be used “defensively” to disallow a creditor’s claim if the deadline for bringing an avoidance action has expired. Although courts are divided on this issue, the majority view is that defensive use of the section is permitted. § 550 claim 549(a) voidable property of the estate § 541(a)(3) So if the bankruptcy court determined that a creditor got a preference, the total claim could be disallowed. If the preference were $5, and the creditor’s proof of claim were $50 million, the failure to return the $5 would be a basis of disallowance of the $50 million claim.
37. ARPI’s False Proofs of Claims of $283,407.06 must be disallowed and the unjust enrichment disgorged.
38. Koop, not ARPI, fraudulently applied $158,000 of the $283,407.06 False Proofs of Claims against the wrongfully auctioned 63 lots abandoned by the Bankruptcy Trustee.
39. Koop fraudulently procured title to the 63 lots without paying a dime. The $158,000 false claim belonged to ARPI, not to Koop. Koop is not ARPI. Thus, all the fraudulent title transfers are invalid.
Trustee’s Wrongful Abandonment, Sheriff’s Unlawful Auctions, Anita Koop’s Illegal Possession of the Auctioned Assets and Purchasers’ Invalid Property Rights and Unlawful Control and Dominion of Wrongfully Auctioned Properties
(See Complaint #4 in 6:05-mc-00002 & 6:06-cv-00078)
40. The court stated: The ordinary rule is that, when a trustee abandons property of the bankrupt, title reverts to the bankrupt, nunc pro tunc, so that he is treated as having owned it continuously. . . . [In other words,] [w]hen the trustee in bankruptcy abandons an asset, he is to be treated as having never had title to it; the abandonment is said to relate back, so that the title stands as if no assignment had been made. Barletta v. Tedeschi , 121 B.R. 673 (Bankr. N.D.N.Y. 1990). (quotations and citations omitted). Here, when the trustee abandoned property of the Taiwanese Investors/Owners, titles reverted to them, nunc pro tunc, so that they were treated as having owned such property continuously. . . . [In other words,] when the trustee in bankruptcy abandoned these assets, he was to be treated as having never had titles to them; the abandonment is said to relate back, so that the titles stand as if no assignments had been made.
41. The trustee in the instant case abandoned his rights to the listed property belonging to the Taiwanese Titleholders, who were considered to have possessed rights to such property as if no assignment had ever been made to the Trustee at all.
42. Either title of the abandoned property reverted to the bankrupt, Chen, or the Taiwanese Investor/Owners, it is undeniable that Sheriff Browning deprived them of their property rights protected by the 14th Amendment, that neither ARPI nor Anita L. Koop had any right to apply the false claim against the wrongfully auctioned property, and that the unwary Purchasers have had neither legitimate property rights nor standing to sue Chen, who is just trying to reclaim his stolen assets to repay the $34,999,640.91 debts/claims evidenced from the Claims Register (Case Number: 1996-24925) on 11/25/1996. They should instead hold Koop responsible for fraudulent concealment.
43. The three Promissory Notes are all secured by the Deed of Trust properly filed and recorded at Calhoun County Clerk’s Office on 2/2/2004 after the Beneficiaries/Grantees had paid off the $73,737.81 delinquent property taxes for the 63 lots abandoned by the Bankruptcy Trustee, Mike Boudloche.
44. Strangely enough, three months after the $73,737.81 delinquent taxes with steep penalties had been paid off and the Deed of Trust properly recorded, Sheriff Browning auctioned off the 63 lots and deeded them to Anita L. Koop, not to ARPI, which had fraudulently filed proofs of claims of $283,407.06 against Chen’s bankruptcy estate. But Koop fraudulently used $158,000 of ARPI’s false claims without paying anything out of pocket to bid for the lots. If ARPI had been a valid corporation then and the claim not procured by fraud, it would have been qualified to bid, but not Anita Koop, who was not the holder of the $525,000 Note secured by a Deed of Trust dated 9/15/1989. The Sheriff’s Deed will verify this illegal transaction. (See ATTACHMENT 15)
45. Chen firmly believes that justice is truth in action, and it will prevail sooner or later.
46. The three Promissory Notes, having been renewed for six (6) years on 3/18/2004, were not due until 3/18/2010.
47. Statute of Limitations for such commercial loans in Texas is four (4) years. (See Tex. Civ. Prac. & Rem. Code § 16.001 et seq.) Not until 3/18/2014 will the collection of the Promissory Notes secured by the 2/2/2004 Deed of Trust be time-barred.
48. Consequently, all the Substitute Trustee’s actions are in compliance with Texas Deed of Trust law.
49. Chen has been seeking restitution and disgorgement of the lost funds and return of the stolen property to repay the enormous debts after being fooled into bankruptcy by Defendants Cox/Koop/ARPI’s wrongful foreclosure, fraudulent deficiency judgment, and false proofs of claims.
50. Sheriff Browning’s unconscionable auctions of the 63 lots after the Beneficiaries and Grantees of the Deed of Trust paid off the $73,737.81 delinquent Ad Valorem Taxes scared off the Taiwanese Investors and shocked the judicial conscience. They keep asking why Americans are so manifestly unfair, grossly unjust, and unreasonably discriminatory?
51. Can a victim’s untiring efforts to have justice done for the past ten years be labeled as frivolous and vexatious?
52. Despite repeatedly denied access to the courts for redress of grievances, Chen has never forgotten the following mottos: “Right is right, even if everyone is against it; and wrong is wrong, even if everyone is for it.” “Fraud and falsehood only dread examination. Truth invites it.” This Court’s impartial factual findings will eventually support the legal theories and case law cited in Chen’s pleadings.
53. As the unwary Purchasers have no standing to sue Chen, this Court has no subject matter jurisdiction to issue the requested Temporary Injunction or any other order adversely affecting Chen’s legal actions against the perpetrators involved in the stolen assets, which are unequivocally evidenced from all the VOID Orders and Judgments in the records of the state and federal courts.
DEFENDANT/COUNTERCLAIM PLAINTIFF
HAS STANDING TO COUNTERCLAIM
54. “Standing consists of some interest peculiar to the person individually and not as a member of the general public.” Billy B., Inc. v. Bd. of Trs. of Galveston Wharves, 717 S.W.2d 156, 158 (Tex. App.—Houston [1st Dist.] 1986, no writ) (citing Hunt v. Bass, 664 S.W.2d 323, 324 (Tex. 1984)). More specifically, a person has standing to sue if: (1) he has sustained, or is immediately in danger of sustaining, some direct injury as a result of the wrongful act of which he complains; (2) he has a direct relationship between the alleged injury and claim sought to be adjudicated; (3) he has a personal stake in the controversy; (4) the challenged action has caused the plaintiff some injury in fact, either economic, recreational, environmental, or otherwise; or (5) he is an appropriate party to assert the public’s interest in the matter, as well as his own interest. Id. (citing Hous. Authority v. State ex rel. Velasquez, 539 S.W.2d 911, 913–14 (Tex. Civ. App.—Corpus Christi 1976, writ ref’d n.r.e.)).
55. In light of the above case law, Chen certainly has standing to counterclaim against the Purchasers, the Conspirators and Co-conspirators (to be NAMED) in that all the five specified elements are unmistakably present.
FRAUD UPON THE COURT
56. ”Fraud upon the court” has been defined as that fraud committed by an officer of the court in any attempt to deceive, either by commission, by omission, by speech, by silence, by gesture, by innuendo, by look, etc. Whenever this fraud is committed in a court of law by any attorney or judge, it is a “fraud upon the court”. In re Eugene Lee Armentrout et al., 99 Ill.2d 242, 75 Ill.Dec. 703, 457 N.E.2d 1262 (1983); Regenold v. Baby Fold, Inc., 68 Ill.2d 419, 435, 12 Ill.Dec. 151, 369 N.E.2d 858 (1977); In re Lamberis, 93 Ill.2d 222, 229, 66 Ill.Dec. 623, 443 N.E.2d 549 (1982); Bulloch v. United States, 763 F.2d 1115, 1121 (1985); Root Refining Co. v. Universal Oil Products Co., 169 F.2d 514 (1948).
57. All the officers of the court that committed fraud upon the court in an attempt to deceive by commission, by omission, by silence, by inaction, etc. to unjustly enrich Defendants Cox/Koop/ARPI, et al must be held accountable.
58. The following VOID Orders, Judgments, Deeds or legal documents were all posted, executed, made or rendered after 6 6 93. They were all procured by committing fraud upon the court by various officers of the court. They must be set aside in the interest of justice.
JUST LISTING A FEW MAJOR VOID ORDERS
PROCURED BY FRAUD UPON THE COURTS, among others!
59. ARPI #1 ARPI’s ASSUMED NAME CERTIFICATE EXPIRED on 6/6/93.
On 3/30/11 the Secretary of State issued the Certificate of Fact, testifying that Anita’s Resort Properties, Inc. had its assumed name certificate filed on June 06, 1983, but the status was: Expired.
60. ARPI #2 6 10 96— 6 6 93 EXPIRED Notice of Trustee Sale
This Notice was posted on 6/10/96, 3 years and 4 days after ARPI’s Certificate expired.
61. ARPI #3 7 2 96— 6 6 93 EXPIRED Trustees Deed
(1) This Deed was executed on 7/2/96 by Terry Cox, Trustee, who denied being an officer of ARPI, and breached the 2nd 30-day postponement agreement he signed, and sold the mortgaged land to his wife’s defunct corporation, ARPI, of which court documents show that he is Co-owner/Trustee/Agent with full power to sign any binding agreement. This was one of a series of deceptive business practices in which Cox/Koop/ARPI have engaged since the sale/purchase agreement was consummated on 9/15/1989. And this lie opened the door of their wrongful acts, which forced Chen into bankruptcy and reduced him to indigency.
(2) The wrongful foreclosure sale violated the close association prohibition between the Trustee of a Deed of Trust and any bidder, in this case, his wife.
(3) On 7/2/96 Cox deeded the property to the defunct ARPI, whose Certificate had expired 3 years and 26 days before.
(4) Thus, this Deed was and still is VOID. It must be set aside.
62. ARPI #4 8 15 97—6 6 93 EXPIRED Abstract of Judgement
This Abstract was certified on 8/15/97, 3 years, 2 months and 9 days after ARPI’s Certificate expired. Being invalid, it must be set aside.
63. ARPI #5 6 20 1997 SUMMARY Judgment by Judge Williams
(1) This Summary Judgment was rendered for ARPI on 6/20/97, 4 years and 14 days after its Certificate expired.
(2) Being invalid, this Summary Judgment must be set aside.
64. ARPI #6 1 17 2001 $10 AK FRAUD Sheriffs Deed Canals, Well, etc.
(1) This Sheriff’s Deed is the most outrageous misconduct of all officials involved, including Judge Wesley Steen, Trustee Mike Boudloche, attorneys: John Vardeman, Michael Schmidt, Richard T. Chapman, Thomas George; Terry Cox, Anita Koop, ARPI, e al.
(2) The property legally belonged to Sunilandings Homeowners Association, of which all the lot/homeowners were and are mandatory members. Each lot is entitled to one vote; the more lots one owns, the more votes cast. How could such public property have been auctioned at a high price of $10, and resold at a low price of $145,000?
(3) (Can you imagine Pres. Anita Koop paid Sheriff Browning $10 and resold the properties for $145,000?)
(4) Being invalid, this Sheriff’s Deed must be set aside.
65. ARPI #7 96– 6 6 93 EXPIRED Judgement
Oral argument took place in Calhoun County Courtroom.
Counsel for ARPI: Thomas George
Counsel for Chen: David Roberts
This Judgement was not signed and not submitted here. Discovery required.
66. ARPI #8 5 10 2004 Sheriffs Deed Real Property
(1) This Deed was executed by Sheriff Browning for Anita L. Koop on 5/10/04, 3 months and 8 days after the Taiwanese Investors/Owners had paid off the delinquent property taxes with steep penalties and properly recorded the Deed of Trust at the Calhoun County Clerk’s Office.
(2) Anita L. Koop allegedly paid $158,000 out of ARPI’s $283,407.06 false claims. However, the beneficiary of the $525,000 Note secured by the 9/15/1989 Deed of Trust was ARPI, not Anita L. Koop. ARPI is not Anita L. Koop. How could one be the other while ARPI was defunct?
(3) Being invalid, this Sheriff’s Deed must be set aside.
It was based on this VOID Sheriff’s Deed that Anita L. Koop issued Warranty Deeds to defraud her purchasers, whose recourse today is to sue Cox/Koop/ARPI for damages, not to sue Chen or the duly appointed Substitute Trustee. By doing so, they are barking at the wrong trees. Buyers be aware! Their lack of title insurance policies may be the root of their problems.
Essentially, thinking it was a steal, they bought poisoned apples!
67. ARPI #9 11 30 10 SUMMARY JUDGMENT
(1) This Summary Judgment was rendered without any hearing for ARPI by Judge Skipper Koetter on 11/30/2010, more than 17 years after its Certificate expired.
(2) The defunct ARPI had no standing to bring suit before the court.
(3) Judge Koetter had no subject matter jurisdiction to determine the action or to hear the case.
(4) “Subject matter jurisdiction is the court’s authority to decide the issue in controversy such as a contracts issue, or a civil rights issue. “Where there is clearly no jurisdiction over the subject matter, any authority exercised is a usurped authority, and, for the exercise of such authority when the want of jurisdiction is known to the judge, no excuse is permissible.” Stump v. Sparkman, 435 U.S. 349, 356 n.6 (1978).
(5) ”No man in this country is so high that he is above the law. No officer of the law may set that law at defiance with impunity. All the officers of the government from the highest to the lowest, are creatures of the law, and are bound to obey it.” Butz v. Economou, 98 S.Ct. 2894 (1978); United States v. Lee, 106 U.S. at 220, 1 S.Ct. at 261 (1882).
(6) Being invalid, this Summary Judgment must be set aside.
68. ARPI #10 11 30 10 FINAL JUDGMENT
(1) This Final Judgment was rendered without any hearing for ARPI by Judge Skipper Koetter on 11/30/2010, more than 17 years after its Certificate expired.
(2) Like the Summary Judgment, it is VOID ab initio for lack of subject matter jurisdiction.
(3) This Final Judgment must be set aside.
69. ARPI #11 Jackson County Default Judgment
(1) This Default Judgment was rendered without any hearing for ARPI by Judge Skipper Koetter on 7/16/2010, more than 17 years after its Certificate expired.
(2) Like the Summary Judgment and Final Judgment above, it is VOID ab initio for lack of subject matter jurisdiction.
(3) This Default Judgment must be set aside.
OATH OF OFFICE
70. In Texas as elsewhere, Judges take an Oath of Office, swearing to support the Constitution of the United States as well as the State of Texas Constitution:
“I swear that I will administer justice without respect to person and do equal rights to the poor and the rich and that I will faithfully and impartially discharge and perform all the duties incumbent on me as judge of the superior courts of this state, according to the best of my ability and understanding, and agreeably to the laws and Constitution of this state and the Constitution of the United States. So help me God.” O.C.G.A. § 15-6-6;
Note: The federal constitution requires that the judicial officers of the state be bound by oath or affirmation to support the federal constitution. See U.S. Const., Art. 6, § 3.
71. The U.S. Supreme Court has stated that “No state legislator or executive or judicial officer can war against the Constitution without violating his undertaking to support it.” Cooper v. Aaron, 358 U.S. 1, Ct. 1401 (1958).
72. Any judge who does not comply with his oath to the Constitution of the United States, wars against that Constitution and engages in violation of the Supreme Law of the Land. If a judge does not fully comply with the Constitution, then his orders are void, In re Sawyer, 124 U.S. 200 (1888), he is without jurisdiction, and he/she has engaged in an act or acts of treason. U.S. v. Will, 449 U.S. 200, 216, 101 S. Ct. 471, 66 Ed.2d 392, 406 (1980); Cohens v. Virginia, 19 U.S. (6 Wheat) 264, 404, 5 L.Ed 257 (1821).
CONCLUSION
73. If a party is found to lack standing, the court is without subject matter jurisdiction to determine the action. See Pele Defense Fund v. Puna Geothermal Venture, 77 Hawai’i 64, 67, 881 P.2d 1210, 1213 (1994).
74. Thus, “[i]f a court lacks jurisdiction over the subject matter of a proceeding, any judgment rendered in that proceeding is invalid.” Bush v. Hawaiian Homes Comm’n, 76 Hawai’i 128, 133, 870 P.2d 1272, 1277 (1994).
75. If a party lacks standing, a court lacks subject-matter jurisdiction to hear a case. Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 444, 36 Tex. Sup. Ct. J. 607 (Tex. 1993).
76. Without subject-matterjurisdiction, the trial court must dismiss the case. Am. Motorists Ins. Co. v. Fodge, 63 S.W.3d 801, 805, 45 Tex. Sup. Ct. J. 122 (Tex. 2001). Dismissal is the appropriate disposition when a party lacks standing; it is not a decision on the merits of the case.
WHEREFORE PREMISES CONSIDERED, DEFENDANT/ COUNTERCLAIM PLAINTIFF prays that all the VOID Orders and Judgments rendered for Anita’s Resort Properties, Inc. listed above be vacated and set aside, and that actual, special, general, compensatory damages and punitive damages be awarded Defendant/CounterClaim Plaintiff upon a jury trial to punish and deter fraud.
DEFENDANT/COUNTERCLAIM PLAINTIFF HEREBY DEMANDS
TRIAL BY JURY
I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct.
Dated this the 10th day of April, 2012.
Respectfully submitted,
——————————————————————
Paul Chen, Pro Se, Defendant/CounterClaim Plaintiff
808 N. Mechanic St.
El Campo, TX 77437
Tel: 361-218-2060
E-mail: paulabcabc@yahoo.com
CERTIFICATE OF SERVICE
I hereby certify that the original copy of the above AMENDED PLEADINGS is being sent by UPS EXPRESS _______________________ to Pamela Hartgrove, District Clerk, at 211 S. Ann Street, Port Lavaca, TX 77979.
_____________________________________________
Paul Chen, Pro Se, Defendant/CounterClaim Plaintiff
PART A SECTION 1983 ACTIONS AGAINST DEPRIVATION OF CONSTITUTIONAL RIGHTS UNDER COLOR OF STATE LAW (FORMAL COMPLAINT)
Posted on June 5, 2012by ricofraudonthecourt
PART A
SECTION 1983 ACTIONS AGAINST DEPRIVATION OF CONSTITUTIONAL RIGHTS UNDER COLOR OF STATE LAW
FOREWORD
1. Over $1 million in tax carry forward resulting from 15 years of negative cash flow in real estate holdings was wiped out on 11/25/1996 when Plaintiff filed Chapter 7 bankruptcy.
2. Over $200,000 in real estate taxes, including delinquent taxes, was paid to Calhoun County since 1989 until 2/19/2002 when the Trustee abandoned some of the unsold estate property, for which the Taiwanese investors eventually paid Calhoun County $73,737.81 of delinquent taxes Plaintiff owed.
3. Having been reduced to indigency status by Defendants committing fraud upon the courts, Plaintiff is entitled to the rights guaranteed by Rule 145 T.R.C.P. in the state court and 28 U.S.C. § 1915(d) in the federal court.
4. In light of the clearly established law, the Clerks of both Federal and State courts “shall issue and serve all process, and perform all duties in such cases” and “must docket the action, issue citation and provide such other customary services as are provided any party” respectively.
5. Plaintiff is holding both Clerks liable for the past violations of this indigent’s statutory rights, which resulted in denial of Plaintiff’s Constitutional right to access the courts for redress of grievances guaranteed by the 1st Amendment.
I. Injunctive Relief against Federal Officials in Their Official Capacities
6. 42 U.S.C. § 1983 provides: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress
7. Elements of a § 1983 Action: “Traditionally, the requirements for relief under [§] 1983 have been articulated as: (1) a violation of rights protected by the Constitution or created by federal statute, (2) proximately caused (3) by conduct of a ‘person’ (4) acting under color of state law.” Crumpton v. Gates, 947 F.2d 1418, 1420 (9th Cir. 1991) ; see also Phillips v. Hust, 477 F.3d 1070, 1076 (9th Cir. 2007) (in any “§ 1983 case, [plaintiff] must show that the alleged violation was proximately caused by . . . the state actor.”), petition for cert filed, 76 U.S.L.W. 3393 (U.S. Dec. 13, 2007). Or, more simply, courts have required plaintiffs to “plead that (1) the defendants acting under color of state law (2) deprived plaintiffs of rights secured by the Constitution or federal statutes.” Gibson v. United States, 781 F.2d 1334, 1338 (9th Cir. 1986) ; see also Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006) ; WMX Techs., Inc. v. Miller, 197 F.3d 367, 372 (9th Cir. 1999) (en banc); Ortez v. Washington County, Or., 88 F.3d 804, 810 (9th Cir. 1996).
8. In 1996, Congress amended § 1983 to prohibit the grant of injunctive relief against any judicial officer acting in her or his official capacity “unless a declaratory decree was violated or declaratory relief was unavailable.” 42 U.S.C. § 1983.
9. Plaintiff’s declaratory relief was unavailable in that PLAINTIFF’S ORIGINAL PETITION FOR DECLARATORY JUDGMENT FOR REINSTATEMENT OF THE SIX COMPLAINTS FILED AT CIVIL ACTION V-06-78 AND COMPLAINTS AGAINST JUDGE RAINEY, ET AL. IN THEIR PERSONAL CAPACITIES filed on August 31, 2009 was dismissed by Judge Janice Graham Jack in V-10-56 on 9/23/2010 without subject matter jurisdiction, and PLAINTIFF’S ORIGINAL PETITION FOR DECLARATORY JUDGMENT AGAINST TERRY J. COX, ET AL. filed in 6:09-mc-11 on September 8, 2009 was ignored and then abruptly dismissed by Judge Rainey without subject matter jurisdiction in violation of Title 28 Section 1915(d). Judge Rainey’s repeated refusals to have the Petitions reinstated pursuant to Rule 1-041(E)(2) of Rules Enabling Act entitle Plaintiff to injunctive relief.
10. The eligibility inquiry for absolute immunity, then, turns on “the nature of the function performed, not the identity of the actor who performed it.” Buckley, 509 U.S. at 269 (citation and internal quotations omitted); see also Clinton v. Jones, 520 U.S. 681, 695 (1997) ; Goldstein v. City of Long Beach, 481 F.3d 1170, 1173 (9th Cir. 2007), cert. granted, 128 S. Ct. 1872 (U.S. Apr. 14, 2008) (No. 07-854) ; Botello v. Gammick, 413 F.3d 971, 976 (9th Cir. 2005) ; KRL v. Moore, 384 F.3d 1105, 1113 (9th Cir. 2004).
11. The nature of the functions performed by the Defendants, federal and state judges, in Plaintiff’s Complaints was non-judicial, non-adjudicatory, ministerial, administrative in that they all lacked subject matter jurisdiction in rendering the listed VOID Orders. The identities of the actors, judges, who performed the wrongful acts without any subject matter jurisdiction, could not turn non-judicial functions into judicial ones.
12. Where a statute contains neither judicial nor administrative remedies available to private parties, the statute does not imply the foreclosure of a § 1983 remedy, even where the government retains oversight of statutory compliance. See Blessing v. Freestone, 520 U.S. at 346-48. Section 1915(d) and Rules Enabling Act that the federal officials violated seem to contain neither judicial nor administrative remedies available to private parties; the statute does not imply the foreclosure of a § 1983 remedy.
13. Judges Rainey, Jack, Gilmore, Steen and Clerk Bradley, Deputy Clerk Richards are sued in their personal capacities for damages and in their official capacities for injunctive relief under § 1983 in that they ‘conspired with or participated in concert with state officials, namely Judges Williams, Koetter, A.D.A. Salyer, Magistrate Judge Kurtz, Sheriff Browning, et al., who, under color of state law, acted to deprive Plaintiff of his constitutionally protected rights to “life, liberty and property.
14. “It is well settled that federal officials sued in their official capacity are subject to injunctive relief under § 1983 if they ‘conspire with or participate in concert with state officials who, under color of state law, act to deprive a person of protected rights.’” Cabrera v. Martin, 973 F.2d 735, 741 (9th Cir. 1992) (quoting Scott v. Rosenberg, 702 F.2d 1263, 1269 (9th Cir. 1983)).
15. A defendant has acted under color of state law where he or she has “exercised power ‘possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law.’” West v. Atkins, 487 U.S. 42, 49 (1988) (quoting United States v. Classic, 313 U.S. 299, 326 (1941)); see also Polk County v. Dodson, 454 U.S. 312, 317-18 (1981) ; Anderson v. Warner, 451 F.3d 1063, 1068 (9th Cir. 2006) ; McDade v. West, 223 F.3d 1135, 1139-40 (9th Cir. 2000) ; Johnson v. Knowles, 113 F.3d 1114, 1117 (9th Cir. 1997) ; Vang v. Xiong, 944 F.2d 476, 479 (9th Cir. 1991).
16. Where federal officials conspire with state officials to deprive a person of constitutional rights, however, they may be acting under color of state law. See Billings v. United States, 57 F.3d at 801.
II. Monetary Damages against Federal Officials in Their Personal Capacities
III. Private Parties Conspiring with the State Officials are Acting under Color of Law
17. “Personal-capacity suits seek to impose personal liability upon a government official for actions [the official] takes under color of state law.” Kentucky v. Graham, 473 U.S. 159, 165 (1985). Liability in a personal-capacity suit can be demonstrated by showing that the official caused the alleged constitutional injury. See id. at 166.
18. Even if the deprivation represents an abuse of authority or lies outside the authority of the official, if the official is acting within the scope of his or her employment, the person is still acting under color of state law. See Anderson, 451 F.3d at 1068-69; McDade, 223 F.3d at 1140; Shah v. County of Los Angeles, 797 F.2d 743, 746 (9th Cir. 1986).
19. However, “[i]f a government officer does not act within [the] scope of employment or under the color of state law, then that government officer acts as a private citizen.” See Van Ort v. Estate of Stanewich, 92 F.3d 831, 835 (9th Cir. 1996). The judges who rendered VOID Orders without subject matter jurisdiction were not acting within the scope of employment were not judges but private citizens. But when they ‘conspired with or participated in concert with state officials,’ they acted under the color of state law.
20. Where a private party conspires with state officials to deprive others of constitutional rights, however, the private party is acting under color of state law. See Tower v. Glover, 467 U.S. 914, 920 (1984) ; Dennis v. Sparks, 449 U.S. 24, 27-28 (1980) ; Franklin v. Fox, 312 F.3d 423, 441 (9th Cir. 2002) ; DeGrassi v. City of Glendora, 207 F.3d 636, 647 (9th Cir. 2000) ; George v. Pacific-CSC Work Furlough, 91 F.3d 1227, 1231 (9th Cir. 1996) (per curiam); Kimes v. Stone, 84 F.3d 1121, 1126 (9th Cir. 1996) ; Howerton v. Gabica, 708 F.2d 380, 383 (9th Cir. 1983).
21. “To prove a conspiracy between the state and private parties under [§] 1983, the [plaintiff] must show an agreement or meeting of the minds to violate constitutional rights. To be liable, each participant in the conspiracy need not know the exact details of the plan, but each must at least share the common objective of the conspiracy.” United Steelworkers of Am. v. Phelps Dodge Corp., 865 F.2d 1539, 1540-41 (9th Cir. 1989) (en banc) (citations and internal quotations omitted); see also Franklin, 312 F.3d at 441; Mendocino Envt’l Ctr. v. Mendocino County, 192 F.3d 1283, 1301-02 (9th Cir. 1999) ; Gilbrook v. City of Westminster, 177 F.3d 839, 856-57 (9th Cir.,) cert. denied, 528 U.S. 1061 (1999;) Taylor v. List, 880 F.2d 1040, 1048 (9th Cir. 1989)
IV. Rights Guaranteed by the Constitution and the Statutes
22. Section 1983 provides a cause of action against persons acting under color of state law who have violated rights guaranteed by the Constitution. See Buckley v. City of Redding, 66 F.3d 188, 190 (9th Cir. 1995) ; Demery v. Kupperman, 735 F.2d 1139, 1146 (9th Cir. 1984) .
23. Section 1983 can provide a cause of action against persons acting under color of state law who have violated rights guaranteed by federal statutes. See Gonzaga University v. Doe, 536 U.S. 273, 279 (2002) ; Blessing v. Freestone, 520 U.S. 329, 340-41 (1997) ; Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 28 (1981) ; Maine v. Thiboutot, 448 U.S. 1, 4 (1980) ; Ball v. Rodgers, 492 F.3d 1094, 1103 (9th Cir. 2007) ; Legal Servs. of N. Cal., Inc. v. Arnett, 114 F.3d 135, 138 (9th Cir. 1997).
24. Some decisions have stated that there is a presumption that § 1983 provides a remedy for violations of federal statutes. See Livadas v. Bradshaw, 512 U.S. 107, 133 (1994) ; Almond Hill Sch. v. USDA, 768 F.2d 1030, 1035 (9th Cir. 1985) ; Keaukaha-Panaewa Cmty. Ass’n v. Hawaiian Homes Comm’n, 739 F.2d 1467, 1470 (9th Cir. 1984).
25. Section 1983 can be used as a mechanism for enforcing the rights guaranteed by a particular federal statute only if (1) the statute creates enforceable rights and (2) Congress has not foreclosed the possibility of a § 1983 remedy for violations of the statute in question. See Blessing, 520 U.S. at 340-41; Dittman v. California, 191 F.3d 1020, 1027-28 (9th Cir. 1999) ; Arnett, 114 F.3d at 138; Almond Hill Sch., 768 F.2d at 1035.
26. To determine whether the federal statute has created rights enforceable through § 1983, the court considers whether the statute (1) is intended to benefit the class (Section 1915(d), Rules Enabling Act — the enforcement is mandatory, Sections 1981, 1985(3), 1986) of which Plaintiff is a member; (2) sets forth standards, clarifying the nature of the right, that make the right capable of enforcement by the judiciary; and (3) is mandatory, rather than precatory, in nature. See Blessing, 520 U.S. at 340- 41; Day v. Apoliona, 496 F.3d 1027, 1035 (9th Cir. 2007) ; Ball, 492 F.3d at 1104; Sanchez v. Johnson, 416 F.3d 1051, 1056-57 (9th Cir. 2005) ; Dittman, 191 F.3d at 1028; Buckley v. City of Redding, 66 F.3d 188, 190-91 (9th Cir. 1995). “In carrying out this inquiry, [the court should] examine whether particular statutory provisions create specific enforceable rights, rather than considering the statute and purported rights on a more general level.” Arnett, 114 F.3d at 138 (citing Blessing, 520 U.S. at 341-42).
27. To determine whether the federal statute forecloses the possibility of a § 1983 action, the court considers whether the statute contains (1) an express provision precluding a cause of action under § 1983 or (2) “‘a comprehensive enforcement scheme that is incompatible with individual enforcement under section 1983.’” City of Rancho Palos Verdes, Cal. v. Abrams, 544 U.S. 113, 120 (2005) (quoting Blessing, 520 U.S. at 341); Dittman, 191 F.3d at 1028. Where statutes contain provisions for criminal penalties, citizen suits, judicial review, or even administrative proceedings alone, the Supreme Court has found the remedial scheme sufficiently comprehensive to foreclose an independent § 1983 cause of action. See Abrams, 544 U.S. at 121-22; see also Buckley, 66 F.3d at 191-92.
§ 1983 Causes of Action: Violations of State Law and Constitutional Rights
VI. Causation of Each Defendant’s Deprivation of Plaintiff’s Constitutional Rights
28. Where a violation of state law is also a violation of a constitutional right, however, § 1983 does provide a cause of action. See Lovell, 90 F.3d at 370; Draper v. Coombs, 792 F.2d 915, 921 (9th Cir. 1986) ; see also Weilburg v. Shapiro, 488 F.3d 1202, 1207 (9th Cir. 2007).
29. As all the state law claims are also violations of Plaintiff’s constitutional rights, § 1983 does provide Plaintiff with causes of action.
30. “A person deprives another of a constitutional right,” within the meaning of § 1983, “where that person ‘does an affirmative act, participates in another’s affirmative acts, or omits to perform an act which [that person] is legally required to do that causes the deprivation of which complaint is made.’” Hydrick v. Hunter, 500 F.3d 978, 988 (9th Cir. 2007) , petition for cert. filed, 76 U.S.L.W. 3410 (U.S. Jan. 17, 2008) (No. 07-958) (quoting Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978)); see also Redman v. County of San Diego, 942 F.2d 1435, 1439-40 (9th Cir. 1991) (en banc); Stevenson v. Koskey, 877 F.2d 1435, 1438-39 (9th Cir. 1989) ; Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988). “[T]he ‘requisite causal connection can be established not only by some kind of direct personal participation in the deprivation, but also by setting in motion a series of acts by others which the actor knows or reasonably should know would cause others to inflict the constitutional injury.’” Hydrick, 500 F.3d at 988 (quoting Johnson, 588 F.2d at 743-44); see also Wong v. United States, 373 F.3d 952, 966 (9th Cir. 2004) ; Gilbrook v. City of Westminster, 177 F.3d 839, 854 (9th Cir. 1999) ; Harris v. Roderick, 126 F.3d 1189, 1196 (9th Cir. 1997) ; Bateson v. Geisse, 857 F.2d 1300, 1304 (9th Cir. 1988) ; Merritt v. Mackey, 827 F.2d 1368, 1371 (9th Cir. 1987) ; McRorie v. Shimoda, 795 F.2d 780, 783 (9th Cir. 1986). This standard of causation “closely resembles the standard ‘foreseeability’ formulation of proximate cause.” Arnold v. Int’l Bus. Mach. Corp., 637 F.2d 1350, 1355 (9th Cir. 1981) ; see also Harper v. City of Los Angeles, 533 F.3d 1010, 1026 (9th Cir. 2008) ; Wong, 373 F.3d at 966; Stevenson, 877 F.2d at 1438-39; Leer, 844 F.2d at 634.
31. Plaintiff is setting forth “specific facts as to each individual defendant’s causal role in the alleged constitutional deprivation.” Leer v. Murphy, 844 F.2d 628, 634 (9th Cir. 1988).
32. Plaintiff is suing the Defendants for acting under color of state law in inflicting constitutional injuries by means of the tortious conduct.
33. State officials sued in their official capacity for injunctive relief are persons for purposes of § 1983. See Will, 491 U.S. at 71 n.10; Flint, 488 F.3d at 825; Doe, 131 F.3d at 839; Guam Soc’y of Obstetricians & Gynecologists v. Ada, 962 F.2d 1366, 1371 (9th Cir. 1992).
Claims for Prospective Relief Based on Continuing Violations
34. Gov. Rick Perry: Claims for prospective relief demanding that Texas judiciaries’ corruption be investigated and that a meaningful legal education program be initiated for all the officials in the justice system to minimize continuing violations.
35. AG Greg Abbott: Claims for prospective relief demanding that Texas judiciaries’ corruption be investigated and that a meaningful legal education program be executed for all the officials in the justice system to minimize continuing violations.
36. Calhoun County: See Complaints #1, 2, 3, 4, 5, 6 filed in V-06-78.
37. DA Dan Heard: See this petition.
38. ADA J.D. Henderson: See this petition.
39. ADA Shannon Salyer: See this petition.
40. Sheriff B.B. Browning: See Complaints #1, 2, 3, 4, 5, 6 filed in V-06-78 and this petition.
41. Judge Hope Kurtz: See this petition.
42. Calhoun County Jail Administrator: See this petition.
43. Calhoun County District Court/Pamela Martin Hartgrove: Repeated denials of access to the courts by refusing to comply with Rule 145 T.R.C.P., which is mandatory.
44. Judge Skipper Koetter: Demand that the VOID Orders/Judgments in 10-6-28, 10-6-29, 10-6-13752 & 12-4-1596 be set aside.
45. Judge Kemper Stephen Williams: Demand that the VOID Orders in 96-8-13090 be set aside.
46. Calhoun County Court at Law #1 Judge Alex Hernandez: Demand that instead of dismissals without prejudice, the criminal cases (2010-CR-0234 & 2010-CR-0235) be dismissed with prejudice for undue delay in violation of Plaintiff’s right to a speedy trial.
47. Federal District Court of Southern Texas: Former Chief Judge Head in his personal and official capacity & Chief Judge Ricardo H. Hinojosa in his official capacity
(a) Plaintiff alleges that Defendant Former Chief Judge Head had supervisory liability for having had ‘actual knowledge and acquiescence’ of Rainey’s wrongdoings after Plaintiff’s petitions were addressed to him. See Baker v. Monroe Township, 50 F.3d 1186, 1194 & n. 5 (3d Cir.1995).
(b) Plaintiff specifically demonstrates not only a deficiency in supervision but also the essential causal connection or “affirmative linkage” between any such deficiency in supervision and the alleged deprivation of rights. See Hegarty v. Somerset County, 53 F.3d 1367, 1380 (1st Cir. 1995).
(c) Former Chief Judge Head and Chief Judge Hinojosa remain vulnerable to a failure to train/supervise claim because Plaintiff is able to demonstrate that by their failure to train or supervise adequately, they both caused Plaintiff’s injuries and acted deliberately indifferent to the violations of Plaintiff’s First Amendment right to access the courts for redress of grievances by Judges Steen, Gilmore, Rainey, Jack, Clerks Milby and Bradley, who conducted a pattern of similar violations arising from ignorance or deliberate indifference to the provisions of Section 1915(d) that is so clearly inadequate as to be obviously likely to result in constitutional violations.
(d) “A supervisor may be liable under 42 U.S.C. § 1983 for his or her subordinate’s unlawful conduct if he or she directed, encouraged, tolerated, or acquiesced in that conduct. See Ricker v. Weston, No. 00-4322, 2002 WL 99807 (3d Cir. Jan. 14, 2002).
(e) For liability to attach, however, there must exist a causal link between the supervisor’s action or inaction and the plaintiff’s injury. See also Tardiff v. Knox County, 397 F.Supp.2d 115, 141-43 (D. Me. 2005) (“Unlike individual officer liability, the liability of supervisory officials does not depend on their personal participation in the acts of their subordinates which immediately brought about the violation of the plaintiff’s constitutional rights. . .”
(f) There exists a causal link between Former Chief Judge Head and Chief Judge Hinojosa’s inaction and Plaintiff’s injuries in deprivation of his “life, liberty and property” protected by the Constitution. But for the chief judges’ inaction and acquiescence, the various VOID Orders rendered by Judges Steen, Gilmore, Rainey, and Jack without subject matter jurisdiction since 8/2/2002, and Clerks Milby’s and Bradley’s ignorance of or deliberate indifference to the indigents’ rights protected by 28 U.S.C. Section 1915(d) would not have occurred.
48. Judge Wesley W. Steen: See 11 Void Orders in Complaint #6 filed in V-06-78.
49. Judge Vanessa Gilmore: The Orders/Judgments rendered in Consolidated Case No. 4:04cv3084 were VOID for lacking subject matter jurisdiction in that there was no Final Order on record to appeal from.
50. Judge John D. Rainey: See Complaints filed in 6:09-mc-11, 610-cv-00056 Chen v Rainey.
51. Judge Janice Graham Jack: See Complaints filed in 610-cv-00056.
52. Clerks Michael Milby and David J. Bradley: They both repeatedly violated the provisions of 28 U.S.C. Section 1915(d), and effectively deprived Plaintiff of any access to the courts for redress of grievances under the 1st Amendment.
53. Joyce Richards: Deliberately indifferent to repeated requests orally and in writing for service of process pursuant to 28 U.S.C. Section 1915(d).
54. Former Trustee Boudloche: See Complaints #1, 2, 3, 4, 5, 6 filed in V-06-78.
55. John Vardeman: See Complaints #1, 2, 3, 4, 5, 6 filed in V-06-78.
56. Michael Schmidt: See Complaints #1, 2, 3, 4, 5, 6 filed in V-06-78.
57. Armando G Avalos, Realtor ["Avalos"]: See Complaints #1, 2, 3, 4, 5, 6 filed in V-06-78.
58. Armando Avalos Realty, Inc.: See Complaints #1, 2, 3, 4, 5, 6 filed in V-06-78.
59. David Roberts: See Complaints #1, 2, 3, 4, 5, 6 filed in V-06-78.
60. Roberts, Roberts, Odefey, & Witte, LLP “RROW”: See Complaints #1, 2, 3, 4, 5, 6 filed in V-06-78.
61. Cox/Koop/ARPI: See Complaints filed in 6:09-mc-11 & #1, 2, 3, 4, 5, 6 in V-06-78.
62. Richard Chapman: Fraud upon the state and bankruptcy courts.
63. Thomas George: Fraud upon the state and bankruptcy courts.
64. Richard Morrison: Fraud upon the state court.
65. Karl Haddad: Fraud upon the state court.
66. Kenneth Burch: Fraud upon the state court.
67. Henry Welfel: See Complaints #2, 5, 6 filed in V-06-78.
68. Jan Shephard: #1, 2, 3, 4, 5, 6 filed in V-06-78.
69. John Gerken: Wrongful Foreclosure, Fraudulent Deficiency Judgment ($100,000), False Proofs of Claims ($100,000) — Must be voided pursuant to Section 502(d).
70. Lennar Florida Partners, II, L.P.: Wrongful Foreclosure, Fraudulent Deficiency Judgment ($93,925), False Proofs of Claims ($93,925) – Must be voided pursuant to Section 502(d).
66. Jay Workman, Emily Allen, and Port Lavaca Wave: Postings of ADA Salyer’s and Roberts’s false statements with respect to Notices of Lis Pendens law in furtherance of the civil conspiracy to justify Defendants’ false arrest, wrongful imprisonment, and malicious prosecution in deprivation of Plaintiff’s constitutional rights.
PART B State Law Claims: False Arrest, Wrongful Imprisonment, and Malicious Prosecution (FORMAL COMPLAINT)
Posted on June 5, 2012by ricofraudonthecourt
PART B
State Law Claims: False Arrest, Wrongful Imprisonment, and Malicious Prosecution
Lack of Jurisdiction and VOID Orders/Judgments
67. Questions of jurisdiction, of course, should be given priority—since if there is no jurisdiction there is no authority to sit in judgment of anything else. See Steel Co., supra, at 93-102.
68. “Jurisdiction is power to declare the law, and when it ceases to exist, the only function remaining to the court is that of announcing the fact and dismissing the cause.” Ex parte McCardle, 7 Wall. 506, 514 (1869).
69. Even jurisdiction over the person (as opposed to subject-matter jurisdiction) “is `an essential element of the jurisdiction of a district . . . court,’ without which the court is `powerless to proceed to an adjudication.’ ” Ruhrgas AG v. Marathon Oil Co., 526 U. S. 574, 584 (1999) (quoting Employers Reinsurance Corp. v. Bryant, 299 U. S. 374, 382 (1937)).
70. Thus, Plaintiff’s challenges to all the VOID Orders/Judgments are based on the courts’ lack of subject matter jurisdiction and that of personal jurisdiction. Such VOID Orders/Judgments must be vacated in the interest of justice.
71. Plaintiff repeats, realleges and incorporates by reference the six well-pleaded complaints previously filed in Civil Actions: 6:05-mc-00002 and V-06-78, the files in Case Nos. 93-21204-V-11, 96-24925-VS-7, Adversary No. 98-6007, Civil Action Case No. 02-4794, Lead Case No. 4:04cv3084 and Member Case No.4: 04cv3426, Consolidated Case No. 4:04cv3084, 6:09-mc-11, 610-cv-00056 Chen v Rainey, 96-8-13090, 10-6-28, 10-6-29 10-6-13752, 12-4-1596 in 24th Judicial District Court, 2010-CR-0234 & 2010-CR-0235 in County Court at Law No. 1 of Calhoun County with the same force and effect as if herein set forth.
Sheriff B.B. Browning’s False/Unlawful/Wrongful Arrest
Other Claims filed in Complaints # 4 & 5 in Case # V-06-78 are realleged herein.
72. Plaintiff alleges that Sheriff B.B. Browning violated his Fourth Amendment rights by arresting him without probable cause. An individual who has been wrongfully arrested or seized under the color of law can make a § 1983 claim based on the Fourth Amendment. Brooks v. Rothe, 577 F.3d 701, 706 (6th Cir. 2009). “[I]n order for a wrongful arrest claim to succeed under § 1983, a plaintiff must prove that the police officer lacked probable cause.” Id. (quoting Fridley v. Horrighs, 291 F.3d 867, 872 (6th Cir. 2002)); see also Davenpeck v. Alford, 543 U.S. 146, 152 (2004). “But under § 1983, an arresting agent is entitled to qualified immunity if he or she could reasonably (even if erroneously) have believed that the arrest was lawful, in light of clearly established law and the information possessed at the time by the arresting agent.” Everson, 556 F.3d at 499 (citations omitted). We must consider the information possessed by the officer in the totality of the circumstances because “an officer cannot look only at the evidence of guilt while ignoring all exculpatory evidence.” Everson, 556 F.3d at 498. Likewise, an officer may not make “hasty, unsubstantiated arrests with impunity.” Id.
73. While federal law dictates whether probable cause existed for the arrest, “[w]hether an officer is authorized to make an arrest ordinarily depends, in the first instance, on state law.” Leonard v. Robinson, 477 F.3d 347, 354 (6th Cir. 2007) (quoting Michigan v. DeFillippo, 443 U.S. 31, 36 (1979)). Because the law is “clearly established that, absent probable cause to believe that an offense had been committed, was being committed, or was about to be committed, officers may not arrest an individual,” Dietrich v. Burrows, 167 F.3d 1007, 1012 (6th Cir. 1999).
74. Defendants maintain that they had probable cause to arrest and charge Chen under Texas Gov. Code 51.903(e). Plaintiff maintains that the Defendants lacked probable cause because Texas Gov. Code 51.903(e) is not applicable in that the 87 cases cited in the AMENDED AFFIRMATIVE DEFENSE BASED ON ABSOLUTE PRIVILEGE AND QUALIFIED PRIVILEGE OF LIS PENDENS FILING clearly show that a notice of lis pendens has no extraordinary evidentiary value, that it is merely an “affidavit” having no more evidentiary weight than any other affidavit, that it is not a “lien”, that the filing a notice of lis pendens claiming an interest or lien does not have the effect of creating any interest, that it is a “privilege”, that the ‘facts and circumstances establishing a statutorily legitimated affirmative justification for the suspected criminal act’ are clear and unambiguous, and that these are all clearly established by the abundant Texas caselaw.
75. We look to the information possessed by Defendants at the time of the arrest. Everson, 556 F.3d at 499. See Ahlers v. Schebil, 188 F.3d 365, 371–72 (6th Cir. 1999) (explaining that police officers may not “simply turn a blind eye toward potentially exculpatory evidence known to them”). These facts all support the district court’s conclusion that the Defendant officers lacked probable cause because they possessed all of the facts (notices of lis pendens are not liens) necessary to determine that Plaintiff had not violated the plain language of the Texas statute at the time of his arrest.
76. What is clear is that Defendants cited the wrong Texas Penal Code Section 32.49 in concert to support their statement of law in erroneously and maliciously charging Plaintiff with the two criminal offenses.
77. Defendants might argue that they were missing one additional piece of information; they were unaware that Texas statute and abundant case law excepted Plaintiff’s behavior.
78. The question is whether it was reasonable for Sheriff Browning, et al. to believe that the arrest of Plaintiff for filing and refusing to release notices of lis pen dens was lawful in light of the information possessed by the arresting officers and clearly established law. Everson, 556 F.3d at 499.
79. “‘In general, the existence of probable cause in a § 1983 action presents a jury question, unless there is only one reasonable determination possible.’” Everson, 556 F.3d at 499 (quoting Fridley, 291 F.3d at 872). But,“[q]ualified immunity ordinarily applies unless it is obvious that no reasonably competent official would have concluded that the actions taken were unlawful.” Chappell v. City of Cleveland, 585 F.3d 901, 907 (6th Cir. 2009) (citation omitted).
80. By protecting “all but the plainly incompetent or those who knowingly violate the law,” qualified immunity “gives ample room for mistaken judgments.” Id. (quoting Hunter v. Bryant, 502 U.S. 224, 229 (1991)). Furthermore, the doctrine of qualified immunity applies “irrespective of whether the official’s error was a mistake of law or a mistake of fact, or a mistake based on mixed questions of law and fact.” Id. (citing Pearson, 129 S. Ct. at 815). The record before us shows that this was not a mistake of fact because the Defendant officers possessed all of the necessary information to know that Plaintiff’s conduct was legal. Thus, the more narrow question is whether the Defendants’ alleged mistake about the Texas Penal Code Section 32.49, the Texas Lis Pendens statute, and a great body of case law was reasonable.
81. In a line of cases, our Court has addressed a somewhat analogous situation, whether an officer has probable cause to arrest an individual who may have an affirmative justification for a suspected criminal act. See Fridley, 291 F.3d at 872; Painter v. Robertson, 185 F.3d 557 (6th Cir. 1999); Estate of Dietrich v. Burrows, 167 F.3d 1007 (6th Cir. 1999). In both Dietrich and Painter, the arrestee was charged with carrying a concealed weapon despite the presence of a statute that provided that an individual engaged in a business activity that is particularly susceptible to criminal attack has an affirmative defense to the charge. Painter, 185 F.3d at 564–65; Dietrich, 167 F.3d at 1010–11. In both cases we denied qualified immunity, holding that the arresting police officers lacked probable cause because the officers were aware of sufficient facts and circumstances to establish that the arrestee had a statutorily legitimated affirmative justification for the suspected criminal act at the time of the arrest. Painter, 185 F.3d at 571; Dietrich, 167 F.3d at 1012.
82. Here, the arresting officers Sheriff Browning, Deputy Sheriff Abraham, and Investigator lacked probable cause because they were aware of sufficient facts and circumstances to establish that the arrestee had a statutorily legitimated affirmative justification for the suspected criminal act, filing and refusing to release Notices of Lis Pendens, at the time of the arrest.
83. In Fridley, we discussed the meaning of the two cases. We identified the general rule as follows: “probable cause determinations include ‘facts and circumstances establishing a statutorily legitimated affirmative justification for the suspected criminal act.’” 291 F.3d at 873 (quoting Painter, 185 F.3d at 570). Then we explained two corollaries to this rule. First, “‘a peace officer, in assessing probable cause to effect an arrest, may not ignore information known to him which proves that the suspect is protected by an affirmative legal justification.’” Id. (quoting Painter, 185 F.3d at 571). Next, we noted that the general rule “‘does not mandate that law enforcement operatives should conduct quasi-trials as a necessary predicate to the warrantless arrest of perpetrators. . . . Rather, [the] court . . . merely resolves that, where a reasonable officer would conclusively know that an investigative target’s behavior is protected by a legally cognizable affirmative defense, that officer lacks a legal foundation to arrest that person for that behavior.’” Id. (quoting Painter, 185 F.3d at 571 n.21).
84. In these cases, when we refer to whether an officer would conclusively know that the defendant is protected by an affirmative defense, we have focused entirely on the facts and circumstances known to the officer at the time of the arrest; not on the officer’s knowledge, or lack thereof, of the statute that provides the defense. Knowledge of the statute and a great body of controlling case law is imputed to Defendants Sheriff B.B. Browning, ADA Shannon Salyer, Judge Hope Kurtz, Jail Administrator, ADA Henderson, DA Dan Heard, and Judge Alex Hernandez.
85. The language and meaning of this statute and the cited case law is unambiguous, and we see no reason to hold that it would be reasonable for an officer to be ignorant of the very statute that he is enforcing.
86. At first blush it might seem unduly harsh to have an expectation that law enforcement officers should know the intricacies of criminal statutes, but this position finds support in other areas of the qualified immunity doctrine that regularly impute officers. Indeed, it is a touchstone of qualified immunity doctrine that “a reasonably competent public official should know the law governing his conduct.” Harlow v. Fitzgerald, 457 U.S. 800, 818–19 (1982). For instance, we impute knowledge of state-law definitions and state-court interpretations of a statute to police officers when we decide whether an officer could reasonably conclude that probable cause exists under a given set of circumstances. See, e.g., Kennedy, 635 F.3d at 215–16; Logsdon v. Hains, 492 F.3d 334, 341–43 (6th Cir. 2007). Likewise, we impute knowledge of clearly established constitutional caselaw to police officers when we state that the “binding precedent from the Supreme Court, the Sixth Circuit, the district court itself, or other circuits that is directly on point,” places a law enforcement official “‘on notice that [his] conduct violates established law.’” Holzemer v. City of Memphis, 621 F.3d 512, 527 (6th Cir. 2010) (citation omitted) (quoting Hope v. Pelzer, 536 U.S. 730, 741 (2002)); see also Leonard v. Robinson, 477 F.3d 347, 358–61 (6th Cir. 2007) (imputing knowledge of First Amendment principles to an officer, and holding that probable cause did not exist because the officer should have known that the defendant’s conduct was protected by the Constitution, even though it was probably prohibited by the statute); Robinson v. Bibb, 840 F.2d 349, 350 (6th Cir. 1988) (noting that we expect a reasonably competent officer to know the law governing his conduct but suggesting that it might be unfair to impute knowledge of a case to an officer only four days after the case is decided).
87. Indeed, an ignorance of the law defense—especially when the law is clear— in the qualified immunity context “might foster ignorance of the law or, at least, encourage feigned ignorance of the law.” Glasson v. City of Louisville, 518 F.2d 899, 909–10 (6th Cir. 1975). Permitting an officer to be ignorant of the law would also draw a stark contrast with our long tradition of imputing knowledge of criminal statutes to the general public. See e.g., Bryan v. United States, 524 U.S. 184, 195 (1998) (noting that the traditional rule is that “ignorance of the law is no excuse” for a defendant’s criminal conduct).
88. In light of the abundantly plain language of the statute and case law at issue here, Plaintiff contends that the Defendant officers did not have probable cause to arrest Plaintiff for filing and refusing to release notices of lis pendens because the facts and circumstances known to the arresting officers established a statutorily affirmative justification of the suspected criminal act. See Fridley, 291 F.3d at 873. Accordingly, Defendants’ claim for qualified immunity must be denied.
89. Doe v. Taylor Independent School District, 15 F.3d 443, 453 (5th Cir. 1994) (en banc) (“The most significant difference between City of Canton and this case is that the former dealt with a municipality’s liability whereas the latter deals with an individual supervisor’s liability. The legal elements of an individual’s supervisory liability and a political subdivision’s liability, however, are similar enough that the same standards of fault and causation should govern.”), cert. denied sub nom Lankford v. Doe, 115 S. Ct. 70 (1994); Shaw v. Stroud, 13 F.3d 791, 798 (4th Cir. 1994) (“We have set forth three elements necessary to establish supervisory liability under § 1983: (1) that the supervisor had actual or constructive knowledge that his subordinate was engaged in conduct that posed ‘a pervasive andunreasonable risk’ of constitutional injury to citizens like the plaintiff; (2) that the supervisor’s response to that knowledge was so inadequate as to show ‘deliberate indifference to or tacit authorization of the alleged offensive practices,’ and (3) that there was an ‘affirmative causal link’ between the supervisor’s inaction and the particular constitutional injury suffered by the plaintiff.” citing Miltier v. Beorn, 896 F.2d 848, 854 (4th Cir. 1990)), cert. denied, 115 S. Ct. 68 (1994); Walker v. Norris,917 F.2d 1449, 1455-56 (1990) (applying City of Canton analysis to issue of supervisory liability); Sample v. Diecks, 885 F.2d 1099, 1116-1117 (3d Cir. 1989) (same). Compare Rosenberg v. Vangelo, No. 02-2176, 2004 WL 491864, at *5 (3d Cir. Mar. 12, 2004) (unpublished) (“[W]e respectfully disagree with the Ricker Court’s decision to cite and rely on the ‘direct and active’ language from Grabowski.
90. We also conclude that the deliberate indifference standard had been clearly established prior to 1999 and no reasonable official could claim a higher showing would be required to establish supervisory liability.”) with Ricker v. Weston, No. 00-4322, 2002 WL 99807, at *5, *6 (3d Cir. Jan. 14, 2002) (unpublished) (“A supervisor may be liable under 42 U.S.C. § 1983 for his or her subordinate’s unlawful conduct if he or she directed, encouraged, tolerated, or acquiesced in that conduct.
91. For liability to attach, however, there must exist a causal link between the supervisor’s action or inaction and the plaintiff’s injury. . . . See also Tardiff v. Knox County, 397 F.Supp.2d 115, 141-43 (D.Me. 2005)(“Unlike individual officer liability, the liability of supervisory officials does not depend on their personal participation in the acts of their subordinates which immediately brought about the violation of the plaintiff’s constitutional rights. . .”
92. Liability can result from Sheriff Browning’s acquiescence to Calhoun County Jail’s ongoing practice of denying all detainees charged with misdemeanors any opportunity to do legal research with deficient library facilities. The stringent Jail Regulations effectively deprive all the detainees of the 1st Amendment right to access the courts for redress of grievances in that only a 2-inch pencil and a few sheets of paper were allowed. Plaintiff’s legal books, laptop, six boxes of legal files were forbidden; even a request for 30 minutes to retrieve the computer files was denied. Such restrictions seriously hampered and damaged Plaintiff’s capability to prepare for defense of the two criminal charges and five civil actions pending.
Magistrate Judge Kurtz violated the clearly established law and Plaintiff’s constitutional rights
93. The initiation of accusatory processes, such as criminal prosecutions or civil contempt proceedings, is a non-judicial act that may subject a judge to liability. Sevier v. Turner, 742 F.2d 262, 272 (6th Cir.1984). At this stage, the Supreme Court held that the magistrate or the prosecutor has only qualified immunity, which cannot protect him or her from committing wrongs against the innocent citizens.
94. And in Stack v. Boyle, the Supreme Court again concluded: A judge or justice may be censured for “setting ‘grossly excessive’ bail and [thus] showing a ‘severe attitude’ toward witnesses and litigants.” The Michigan Supreme Court censured a trial judge recently for “Excessive Bail, Severe Attitude.”
95. The right to release before trial is conditioned upon the accused’s giving adequate assurance that he will stand trial and submit to sentence if found guilty. Ex-parte Milburn, 9 Pet. 704, 710 (1835).
96. Like the ancient practice of securing the oaths of responsible persons to stand as sureties for the accused, the modern practice of requiring a bail bond or the deposit of a sum of money subject to forfeiture serves as additional assurance of the presence of an accused. Bail set at a figure higher than an amount reasonably calculated to fulfill this purpose is “excessive” under the Eighth Amendment. See United States v. Motlow, 10 F. 2d 657 (1926, opinion by Mr. Justice Butler as Circuit Justice of the Seventh Circuit). See Stack v. Boyle, 342 US 1 – Supreme Court 1951.
97. Whether a defendant’s initial court appearance is instigated by a prosecutor or by the police alone, its consequences for the defendant are the same: he has been formally accused of a crime, his liberty may be restrained, and he must negotiate the “intricacies of substantive and procedural criminal law,” Kirby, 406 U.S. at 689, to defend against the charges. In either event, such a proceeding initiates a “criminal prosecution[]” under the Sixth Amendment.
98. From the passage of the Judiciary Act of 1789, 1 Stat. 73, 91, to the present Federal Rules of Criminal Procedure, Rule 46 (a) (1), federal law has unequivocally provided that a person arrested for a non-capital offense shall be admitted to bail. This traditional right to freedom before conviction permits the unhampered preparation of a defense, and serves to prevent the infliction of punishment prior to conviction. See Hudson v. Parker, 156 U. S. 277, 285 (1895). Unless this right to bail before trial is preserved, the presumption of innocence, secured only after centuries of struggle, would lose its meaning. Here, having been arrested for a non-capital offense, misdemeanor, Plaintiff “shall be admitted to bail” to enjoy the “traditional right to freedom before conviction to permit the unhampered preparation of a defense, and to prevent the infliction of punishment prior to conviction.” Besides the two criminal charges, Plaintiff had four (4) civil cases in the state court and one (1) in the federal court pending. The 34-days’unlawful incarceration denying access to Plaintiff’s seven boxes of printed legal files and legal research documents stored in the notebook computer seriously hampered Plaintiff’s preparations for the defense and inflicted punishment prior to conviction.
99. The right to counsel attaches only at or after the initiation of adversary judicial proceedings against the defendant. Cf. Kirby v. Illinois, supra, at 406 U. S. 688-689. This interpretation of the Sixth Amendment right to counsel is consistent not only with the literal language of the Amendment, which requires the existence of both a “criminal prosecutio[n]” and an “accused,” but also with the purposes that the right to counsel serves, including assuring aid at trial and at “critical” pretrial proceedings when the accused is confronted with the intricacies of criminal law or with the expert advocacy of the public prosecutor, or both. Pp. 467 U. S. 187-189. Plaintiff’s release on July 10, 2010 without the $45,000 bail bond initially demanded by Magistrate Judge Kurtz is tantamount to admission of the prosecution’s being guilty of getting Plaintiff incarcerated for filing and refusing to release the allegedly fraudulent Notices of Lis Pendens; the criminal charges are contrary to the facts and a great body of case law.
100. At the initial appearance, the magistrates have no jurisdiction to accept any final plea in the cases. Their only job is administrative, or ministerial in nature. They are to advise the accused of the charges, to set bond if bond is appropriate, and to advise the accused of his right to counsel and to get the administrative process going. The magistrates have only qualified immunity because their initial custodial interrogation is non-judicial. If the accused is an indigent, and asks for an appointed counsel at this stage, neither the police nor the magistrates are allowed to interrogate the accused in the absence of court-appointed attorney.
101. Stack v. Boyle 342 U.S. (1951) the Supreme Court: A judge or justice may be censured for “setting ‘grossly excessive’ bail and [thus] showing a ‘severe attitude’ toward witnesses and litigants,” as the Michigan Supreme Court did to a trial judge recently: “Judge Censured for Excessive Bail, Severe Attitude.”
102. In this case, the detached, neutral Magistrate Judge Noska reduced the bond from $50,000 to $20,000 based on the papers before him on the morning of June 8, 2010. However, in the afternoon Plaintiff was taken to the magistrate court to appear before another pro-prosecution Judge Kurtz, who charged Plaintiff with filing fraudulent notices of lis pendens and refusing to release them. She demanded that Plaintiff sign the releases. Plaintiff said: “OK, I’ll sign the releases under protest.” She was so infuriated that she increased the bond from $20,000 to $45,000 in addition to coercing Plaintiff to sign the releases. This custodial interrogatory confrontation took place in the complete absence of Plaintiff’s court-appointed attorney Chris Janak. Judge Kurtz’s custodial interrogation violated Plaintiff’s 6th Amendment right to counsel assistance at the initial appearance before the supposedly detached and neutral magistrate for probable cause determination. Judge Kurtz’s grossly excessive bail bond requirement of $45,000 instead of the $5,000 for each of the two cases stopped Plaintiff from being bailed out. And her demand that Plaintiff sign the releases violated Plaintiff’s constitutionally protected rights to “life, liberty and/or property” in that 1) the notices of lis pendens represented Plaintiff’s lost moneys and stolen property interests of $75,000,000+ against all the Defendants in numerous civil actions; 2) the claim of $75,000,000+ also represented that the Defendants’ wrongdoings had reduced Plaintiff’s life from riches to rags; and 3) the 34 days of incarceration without any probable cause and with improper purposes deprived Plaintiff of his liberty interests.
103. Judge Kurtz was wearing three hats in the informal non-adversarial magistrate court and served as the magistrate judge, the prosecutor, and the police at the same time in prosecuting this indigent victim in the absence of his court-appointed attorney in violation of the 6th Amendment. In the process of probable cause determination the magistrate judge was supposed to be impartial to both sides, not to side with the prosecutor and arbitrarily send Plaintiff to jail for 34 days. As a misdemeanor arrestee, this indigent Plaintiff should have been provided with prompt counsel assistance and released on personal bond within 24 hours. See Art. 17.033 (a) at 15 below.
104. Under Gideon, the presence of a lawyer is deemed essential to fundamental fairness. In the absence of probable cause and with an improper purpose, Judge Kurtz unfairly and unlawfully deprived Plaintiff of liberty interest without the presence of the court-appointed attorney, who did not contact or interview Plaintiff until more than 10 days later in violation of the 6th Amendment and Texas law.
105. A magistrate shall release a defendant on personal bond unless good cause is shown otherwise if the: (1) defendant is not charged with and has not been previously convicted of a violent offense. See SECTION 5. (a) Chapter 17, Art. 17.032. (b) of the Texas Code of Criminal Procedure.
106. Plaintiff asserts that he was wrongfully charged with a misdemeanor, and that he had never been convicted of a violent offense. Thus, he was entitled to have been released on personal bond within 24 hours of the false arrest, not after 34 days of wrongful imprisonment.
107. Art. 17.04. REQUISITES OF A PERSONAL BOND. A personal bond is sufficient if it includes the requisites of a bail bond as set out in Article 17.08, except that no sureties are required. In addition, a personal bond shall contain:
(1) the defendant’s name, address, and place of employment;
(2) identification information, including the defendant’s:
(A) date and place of birth;
(B) height, weight, and color of hair and eyes;
(C) driver’s license number and state of issuance, if any; and
(D) nearest relative’s name and address, if any; and
(3) the following oath sworn and signed by the defendant:
“I swear that I will appear before (the court or magistrate) at (address, city, county) Texas, on the (date), at the hour of (time, a.m. or p.m.) or upon notice by the court, or pay to the court the principal sum of (amount) plus all necessary and reasonable expenses incurred in any arrest for failure to appear.
108. The $45,000 bail bond and demand for releases of notices of lis pendens, incarceration without allowing personal bond within 24 hours, false arrest without a warrant, wrongful imprisonment of 34 days in the absence of probable cause and prompt counsel assistance violated SECTION 5. (a) Chapter 17, Article 17.033 of the Code of Criminal Procedure.
Malicious Criminal Prosecution and Civil Damages Claims against DA, et al.
109. The Elements of Malicious Criminal Prosecution: To recover for malicious prosecution, a plaintiff must prove: (1) a criminal proceeding was commenced against the plaintiff; (2) the defendant initiated or procured the proceeding; (3) the proceeding was terminated in the plaintiff’s favor; (4) the plaintiff was innocent of the crime charged; (5) the defendant lacked probable cause to initiate the criminal proceeding; (6) the defendant acted with malice; and (7) the plaintiff suffered damages. Id. (citing Richey v. Brookshire Grocery Co., 952 S.W.2d 515, 517 (Tex. 1997)). In the present case, Plaintiff proves the following:
110. The Texas Constitution’s open courts guarantee provides that “[a]ll courts shall be open, and every person for an injury done him, in his lands, goods, person or reputation, shall have remedy by due course of law.” Const. art. I, § 13. This provision assures that a person bringing a well-established common-law cause of action will not suffer unreasonable or arbitrary denial of access to the courts. Jennings v. Burgess, 917 S.W.2d 790, 793 (Tex.1996). Sax v. Votteler, 648 “[I]t is, quite plainly, a due process guarantee.” S.W.2d 661, 664 (Tex.1983); Hanks v. City of Port Arthur, 121 Tex. 202, 48 S.W.2d 944, 946-48 (1932).
111. A statute has the effect of denying access to the courts if it unreasonably abridges a plaintiff’s right to obtain redress for injuries caused by the wrongful acts of another. Sax, 648 S.W.2d at 665. Here, the Jail Regulations had the effect of denying access to the courts because they unreasonably abridged Plaintiff’s right to do legal research to obtain redress for injuries caused by the wrongful acts of the named Defendants under color of state law.
112. According to the Texas Supreme Court, procurement, which is the causation element of a malicious prosecution action, occurs when a person’s actions are enough to cause the prosecution, and but for the person’s actions the prosecution would not have occurred. Browning-Ferris Indus., Inc. v. Lieck, 881 S.W.2d 288, 293 (Tex. 1994). A person does not procure a prosecution, however, when the decision to prosecute is left to the discretion of a law enforcement official or grand jury unless the person provides information he knows is false. Id.; King v. Graham, 126 S.W.3d 75, 78 (Tex. 2003). Roberts, Koop, et al. filed criminal complaints with the DA’s office, which caused the prosecution. But for their wrongful actions the criminal charges against Plaintiff would not have occurred.
Prosecutors are Liable for Giving Erroneous Legal Advice or Making Defamatory Statements
113. On June 7, 2010, Defendants Sheriff B.B. Browning, and Assistant DA Shannon Salyer had Plaintiff arrested, handcuffed, booked, mug shot, fingerprinted, incarcerated, and a criminal proceeding was commenced against Plaintiff.
114. Defendants Sheriff B.B. Browning, Assistant DA Shannon Salyer, and Judge Hope Kurtz initiated and Defendants Roberts, Koop, et al. procured the proceeding with fraudulent affidavits/complaints. Sheriff Browning, Assistant DA Salyer and Magistrate Judge Kurtz played active roles in starting or continuing, with malice and a lack of probable cause, the two criminal charges, procured, directed by Roberts, Cox/Koop/ARPI, et al., and aided by Jay Workman, Emily Allen, and Port Lavaca Wave.
115. The proceeding was terminated in Plaintiff’s favor on 4/24/2012 in that the DA had the two criminal cases dismissed after 23 months of undue delay without getting a public jury trial as Plaintiff had demanded in writing. The DA’s Motion to Dismiss was ORDERED, ADJUDGED, DECREED, AND GRANTED by Judge Alex Hernandez on April 24, 2012.
116. Now that the two criminal charges have been dismissed, all the named Defendants are responsible in some way for the initiation or continuation of the baseless, frivolous suit, and must be held liable for malicious prosecution in the abuse or misuse of the legal process.
117. Plaintiff was innocent of the crimes charged because the 87 Texas precedents he cited clearly and convincingly demonstrate that a notice of lis pendens does not create a lien, that it is only a “Memorandum” or an “Affidavit”, that filing and refusing to release notices of lis pendens was an “absolute privilege”, that it was not a crime, and that (a) “The purpose of the lis penden doctrine is not to give notice that a cla[i]mant has filed suit to assert the claim – only that he has a claim.” Paddock v. Williamson, 9 S.W.2d 452, 455 (Tex. Civ. App. – Beaumont 1928, writ ref’d); (b) “The act of filing the suit was absolutely privileged.” See Prappas v. Meyerland Community Improvement Association, 795 S.W.2d 794 (Tex. App.1990, reh’g of writ overruled) (filing of the lis pendens, even if not authorized by statute, is absolutely privileged and ‘does not turn on the presence or absence of good faith’); Griffin v. Rowden, 702 S.W.2d 692 (Tex.App.1985, writ ref’dn.r.e.) (lis pendens absolutely privileged). [1]
118. Defendants Sheriff B.B. Browning, Assistant DA Shannon Salyer, Judge Hope Kurtz, et al. lacked probable cause to initiate the criminal proceeding in light of the ample controlling case law. They began or continued the two criminal cases without probable cause to do so. In other words, they did not have a reasonable belief in Plaintiff’s guilt or liability. In the present case, the complaint, information, or indictment was dismissed without a plea of guilty or nolo contendere being entered; and the attorney general determines that the complaint, information, or indictment presented against the person was dismissed because: (A) the presentment was made on mistake, false information, or other similar basis, indicating absence of probable cause to believe, at the time of the dismissal, the person committed the offense. See TEX CP. CODE ANN. § 104.0035.
119. The court will look at several factors: 1) the sources were unreliable; 2) a great body of case law on lis pendens was available; 3) obtaining such information required only a little effort in conducting proper legal research; 4) no opportunities were given to Plaintiff to offer an explanation; 5) Plaintiff’s reputation was totally ruined; and 6) a speedy judicial action in the original two cases was required by the 6th Amendment.
120. The failure to fully investigate the facts surrounding the suit against Plaintiff and the termination of the original cases in Plaintiff’s favor are sufficient to prove a lack of probable cause. The 87 Texas lis pendens precedents, and Plaintiff’s numerous cases: 6:05-mc-00002, V-6-78, V-9-11 & 610-cv-00056 Chen v. Rainey filed in the Federal Court that are entitled to be reinstated pursuant to Rule 1-041(E)(2) of Rules Enabling Act [2] are material facts sufficient to allow a reasonable person to infer that Sheriff Browning, Assistant DA Salyer and Magistrate Judge Kurtz acted without a reasonable belief in Plaintiff’s guilt or liability in beginning or continuing the suit against Plaintiff’s filing and refusing to release the notices of lis pendens.
121. Supervised by DA Dan Heard and prosecuted by Assistant DA Henderson until 4/24/2012 when the two 23-month protracted criminal charges were dismissed by Judge Alex Hernandez in Plaintiff’s favor, Defendants Sheriff B.B. Browning, Assistant DA Shannon Salyer, Judge Hope Kurtz, Jail Administrator, et al. had acted with malice, invidious discrimination and selective prosecution[3]in violation of Plaintiff’s civil rights, which makes it necessary to notify AG Greg Abbott pursuant to TEX CP. CODE ANN. § 104.003: Texas Statutes – Section 104.003: LIMITS ON AMOUNT OF RECOVERABLE DAMAGES Subsection (a) (1) $100,000 to a single person indemnified and, if more than one person is indemnified, $300,000 for a single occurrence in the case of personal injury, death, or deprivation of a right, privilege, or immunity.
122. Sheriff Browning instituted or continued the original proceeding with an improper purpose. Sheer ill will or bad faith constitutes an improper purpose, and it may be proved with facts that show that Sheriff Browning resented Plaintiff and wanted somehow to harm Plaintiff for filing notices of lis pendens against his home and Calhoun County because he was the County’s policy maker and was one of the Defendants in Plaintiff’s six Complaints filed in Cases Numbered 6:05-mc-00002, and V-6-78. He certainly showed personal malice and hostility toward Plaintiff.
123. Defendants were motivated by something other than the purpose of bringing Plaintiff to justice. Improper purpose usually must be inferred from facts and circumstances because most defendants deny having any improper purposes. If it is impossible to discover any apparent purpose, an improper purpose may be inferred from the lack of probable cause. See Hodges v. Gibson Products Co. Hodges v. Gibson Products Co., 811 P.2d 151 (Utah 1991); see also Buckley v. Fitzsimmons, 509 U.S. 259, 113 S. Ct. 2606, 125 L. Ed. 2d 209 [1993].
124. Plaintiff was deprived of his 1st, 4th, 5th, 6th, 8th, and 14th Amendment rights to “life, liberty, and property” in violation of due process[4], equal protection, Texas “Open Courts” guarantee, Plaintiff’s right to access the court for redress of grievances, and Plaintiff suffered both economic and non-economic damages, including, but not limited to, loss of all assets & reputation, humiliation, pain, suffering, mental anguish, physical and emotional distress.
125. Roberts, being an experienced real estate attorney, Cox/Koop/ARPI, being represented by experienced attorneys, procured the prosecution because they provided information they knew or should have known was false.
126. However, if a person knowingly provides false information to those responsible for procuring the prosecution, the person has procured the prosecution for purposes of a malicious prosecution action. Id. This exception is satisfied not only when actual false information is provided, but when the reporting person fails to report facts that might establish the accused is not guilty of any offense. Eans, 580 S.W.2d at 20 (holding circumstantial evidence was sufficient for jury to have concluded corporation procured prosecution where reporting persons failed to disclose material facts favorable to accused). Here, the reporting persons, Roberts, Koop, et al., failed to disclose material facts favorable to Plaintiff, particularly the 80+ Texas lis pendens cases establishing that the accused was not guilty of any criminal offense.
127. A person acts with malice in a malicious prosecution case when he acts with ill will or evil motive to the injury of another, or acts in reckless disregard of the rights of another and with indifference as to whether the other person is injured so as to amount to wanton and willful action knowingly and unreasonably done. Id. Malice can be established by either direct or circumstantial evidence and may be inferred from a lack of probable cause. Thrift, 974 S.W.2d at 80. Here, the reporting persons, Roberts, Koop, et al., and all the other Defendants causing the false arrest, wrongful imprisonment, and 23 months of undue delay without a public jury trial acted with malice and with a lack of probable cause; otherwise, the DA would not have the two criminal charges
dismissed.
128. Of course a person has the legal right to report a crime. See Closs, 874 S.W.2d at 878. However, if a person reports a crime with an improper purpose, or in reckless disregard of the rights of another in a knowing and unreasonable manner, that is malice. Id. Here, the reporting persons, Roberts, Koop, et al., reported the alleged crimes with an improper purpose, or in reckless disregard of the rights of Plaintiff in a knowing and unreasonable manner, that is malice.
129. Richey, 952 S.W.2d at 519-20 (holding that in malicious prosecution action, failing to fully and fairly disclose all relevant facts or knowingly providing false information to the DA is relevant to malicious intent of defendant); Thrift, 974 S.W.2d at 80 (holding defendant’s failure to disclose exculpatory facts was sufficient to demonstrate malice). Here, the fact that Defendants Roberts, Koop, et al. failed to fully and fairly disclose all relevant facts or knowingly provided false information to the DA and the Sheriff was relevant to their malicious intent and their failure to disclose exculpatory facts was sufficient to demonstrate malice.
130. A malicious prosecution action against a corporate entity may be based on an agent taking action to procure a prosecution. See Eans v. Grocery Supply Co., 580 S.W.2d 17, 21-22 (Tex. Civ. App.—Houston [1st Dist.] 1979, no writ) (malicious prosecution judgment upheld against corporation based on actions of corporate employees). Here, ARPI, and RROW are liable for the malicious prosecution actions that their corporate employees took to procure the prosecution.
131. After Plaintiff was arrested, handcuffed in front of Calhoun County Courthouse, and after he complained of false arrest, Sheriff Browning had Deputy Abraham and the investigator take the accused to the D.A.’s office to get legal advice. Plaintiff was ordered to wait outside and was not allowed any opportunity to defend himself. The Assistant D.A. Salyer’s erroneous legal advice resulted in Plaintiff’s being unlawfully booked, fingerprinted, mug shot and wrongfully imprisoned for 34 days with neither a notice nor a hearing.
132. No Warrant for Arrest was shown to Plaintiff at the time of the arrest and the purported Warrant for Arrest was placed in the DA’s file sometime after the arrest and the citations were only served while Plaintiff was in jail in clear violation of due process.
133. In re Burns v. Reed, No., 500 U.S. 478 (1991), the Supreme Court held: A state prosecuting attorney is absolutely immune from liability for damages under § 1983 for participating in a probable cause hearing, but not for giving legal advice to the police about their conduct of an investigation, P P. 484-496 or for making defamatory statements at a press conference after a prosecution had been initiated. Buckley v. Fitzsimmons, 509 U.S. 259, 273 (1993). These two wrongful acts were exactly what Assistant D.A. Salyer did on June 7, 2010 in giving erroneous legal advice on the filing of the notices of lis pendens to the Sheriff and in making defamatory statements against Plaintiff to Port Lavaca Wave reporters, Jay Workman and Emily Allen, after Plaintiff had been arrested, incarcerated, and a prosecution had been initiated.
134. Advising the police in the investigative phase of a criminal case is not so “intimately associated with the judicial phase of the criminal process” that it qualifies for absolute prosecutorial immunity. Burns v. Reed, 500 U.S. 478 (1991)
________________________________________
[1]AMENDED AFFIRMATIVE DEFENSE BASED ON ABSOLUTE PRIVILEGE AND QUALIFIED PRIVILEGE OF LIS PENDENS FILING on record.
V. CIVIL CONSPIRACY
A. Civil Conspiracy Claims against Assistant DA, Sheriff and Other Co-conspirators
135. The primary issue in conspiracy cases where the attorney is a named defendant is whether the attorney is acting in pursuit of his or her professional duties to the client or is acting in concert with the client to commit a wrong. Although most courts require proof of an underlying claim in order to hold the attorney liable for conspiracy, the Sixth Circuit Court of Appeals held, in Morganroth v. Delorean, that attorneys who assisted their clients in fraudulent transfers were liable for civil conspiracy, even without proving an underlying claim of fraud. 123 F.3d. 374 (6th Cir. 1997).
136. The case record makes it clear that Chapman has been acting in concert with his clients, Cox/Koop/Anita’s, Gerken and Lennar, to commit wrongs of wrongful foreclosures, fraudulent transfers, fraudulent deficiency judgments, and false proofs of claims against Plaintiff, Plaintiff’s estate and the Taiwanese Joinders. Thus, Chapman and George must be charged with civil conspiracy.
137. An attorney can similarly be liable for civil conspiracy if he knowingly agrees to defraud a third party. Bernstein v. Portland Sav. & Loan Ass’n, 850 S.W.2d 694, 706 (Tex. App. –Corpus Christi 1993, writ denied); Likover v. Sunflower Terrace II, Ltd., 696 S.W.2d 468, 472 (Tex. App.—Houston [1st Dist.] 1985, no writ).
138. Evidence of an attorney’s knowledge of the fraudulent nature of his and others’ actions and intent to share the fruits (Chapman $65,000, George 3 lots, Morrison 4 lots, Burch 2 lots, Haddad ) of that fraud can defeat a claim that the attorney was ignorant of the fraud and acting solely at the clients’ direction and can expose the attorney to liability for conspiracy. Bernstein, 850 S.W.2d at 706. Mere knowledge and silence are not enough to prove conspiracy, however; because of the attorney’s duty to preserve client confidences, there must be indications that the attorney agreed to the fraud. Id.; see also Greenberg Traurig of N.Y., P.C. v. Moody, 161 S.W.3d 56, 82 (Tex. App.—Houston [14th Dist.] 2004, no pet.).
139. ‘The elements of an action for civil conspiracy are the formation and operation of the conspiracy and damage resulting to plaintiff from an act or acts done in furtherance of the common design. . . . In such an action the major significance of the conspiracy lies in the fact that it renders each participant in the wrongful act responsible as a joint tortfeasor for all damages ensuing from the wrong, irrespective of whether or not he was a direct actor and regardless of the degree of his activity.” (Doctors’ Co. v. Superior Court (1989) 49 Cal.3d 44, citing Mox Incorporated v. Woods (1927) 202 Cal. 675, 677-78.)’ (Id. at 511.)
140. ‘Conspiracy is not a cause of action, but a legal doctrine that imposes liability on persons who, although not actually committing a tort themselves, share with the immediate tortfeasors a common plan or design in its perpetration. By participation in a civil conspiracy, a coconspirator effectively adopts as his or her own the torts of other coconspirators within the ambit of the conspiracy. In this way, a coconspirator incurs tort liability co-equal with the immediate tortfeasors. Standing alone, a conspiracy does no harm and engenders no tort liability. It must be activated by the commission of an actual tort. ”A civil conspiracy, however atrocious, does not per se give rise to a cause of action unless a civil wrong has been committed resulting in damage.” ‘A bare agreement among two or more persons to harm a third person cannot injure the latter unless and until acts are actually performed pursuant to the agreement. Therefore, it is the acts done and not the conspiracy to do them which should be regarded as the essence of the civil action.’ [para.s] By its nature, tort liability arising from conspiracy presupposes that the coconspirator is legally capable of committing the tort, i.e., that he or she owes a duty to plaintiff recognized by law and is potentially subject to liability for breach of that duty.’ (Allied Equipment Corp. v. Litton Saudi Arabia Ltd., supra, 7 Cal.4th at 510-11.)
141. A civil conspiracy under § 1983 is “an agreement between two or more persons to injure another by unlawful action.” Revis v. Meldrum, 489 F.3d 273, 290 (6th Cir. 2007). Plaintiff alleges that the Defendants conspired to violate his civil rights by entering into an agreement to carry out the planned unlawful arrest, wrongful imprisonment, and malicious prosecution to inflict harms on Plaintiff.
142. To successfully plead a civil conspiracy, Plaintiffs must allege that “(1) a single plan existed, (2) the conspirators shared a conspiratorial objective to deprive the Plaintiffs of their constitutional rights, and (3) an overt act was committed.” Id. (citation omitted).
143. Elements of a civil conspiracy are: (1) two or more persons; (2) an object to be accomplished; (3) a meeting of the minds in the object or course of action; (4) one or more unlawful overt acts; and (5) damages as the proximate result thereof. Stoldt v. City of Toronto, 234 Kan. 957, 967, 678 P.2d 153 (1984). In order for civil conspiracy to lie, the claim must base itself on a valid, actionable underlying tort. 234 Kan. at 967; Knight v. Neodesha Police Dept., 5 Kan. App. 2d 472, 476, 620 P. 2d 837 (1980).
144. “Express agreement among all the conspirators is not necessary to find the existence of a civil conspiracy [and] [e]ach conspirator need not have known all of the details of the illegal plan or all of the participants involved.” Hooks v. Hooks, 771 F.2d 935, 944 (6th Cir. 1985).
145. “If a private party has conspired with state officials to violate constitutional rights, then that party qualifies as a state actor and may be held liable pursuant to § 1983.” Cooper v. Parrish, 203 F.3d 937, 953 n.2 (6th Cir. 2000) (citing Wyatt v. Cole, 504 U.S. 158, 168–69 (1992)).
146. Private citizens are generally not entitled to qualified immunity from suit under § 1983. Id. at 952.
147. Plaintiff does not, necessarily, allege that Affidavits and meeting with the press were unconstitutional, just that they were executed in furtherance (to justify) the unconstitutional conduct. Plaintiff has alleged that the Defendants conspired to carry out at least one unconstitutional act, the warrantless arrest without probable cause. As evidence of the plan and conspiracy, Plaintiff points to Affidavits submitted by Roberts, AK, et al as well as 2 news reports posted at Port Lavaca Wave and the meetings with the press (Roberts and Salyer) that admitted of entering into a conspiracy to conduct this unlawful activity in furtherance (to justify) the unconstitutional conduct.
148. If we had determined that there was no underlying constitutional harm, we would grant qualified immunity here, see Revis, 489 F.3d at 386–87, however, our determination that a constitutional violation could be proven at this stage of the litigation defeats the Defendant officers’ assertion of qualified immunity, see White v. McKinley, 519 F.3d 806, 815 (8th Cir. 2008). Accordingly, the denial of qualified immunity as to this claim is justified.
149. Plaintiff brings state-law claims of false arrest, wrongful imprisonment, malicious prosecution, and intentional infliction of emotional distress against Sheriff Browning, Salyer, Kurtz, and Jail Administrator.
150. Defendants may argue that their conduct “cannot be described with malicious purpose, in bad faith, or in wanton or reckless manner.” However, as discussed above, a jury could determine that the Defendants lacked probable cause to arrest Plaintiff, which supports an inference of malice. Melanowski, 131 N.E. at 361. Plaintiff could also demonstrate bad faith by proving that Sheriff Browning, et al. had no reason to believe Plaintiff filed fraudulent notices of lis pendens and refused to release them, a necessary element to the charge of fraud. Furthermore, bad faith and malice could be shown by proving Plaintiff’s allegations that after the arrest, the Defendants caused a warrant to be placed in the case file in hopes of justifying the warrantless false arrest without probable cause.
151. Plaintiff has alleged sufficient facts such that a reasonable jury could conclude that Sheriff Browning, and the other Defendants were acting with malice or bad faith in arresting and charging Plaintiff with neither due process nor probable cause.
152. There is sufficient evidence to support the jury’s findings that all nine elements of actionable fraud were present here. Plaintiff’s obvious damages, which resulted from the false arrest, wrongful imprisonment, and malicious prosecution without probable cause, were the deprivation of his 1st, 4th, 5th, 6th, 7th, 8th, and 14th Amendment rights to “life, liberty and property” in addition to loss of reputation, and infliction of emotional stress.
153. Fraud Committed in Furtherance of the Civil Conspiracy Fraud Claims — To survive summary judgment dismissal of his fraud claim, Plaintiff had to make a prima facie showing on each of nine elements: (1) that Defendants made a representation of an existing fact, (2) it was material, (3) it was false, (4) Defendants knew that it was false, (5) Defendants intended that Plaintiff should act on it, (6) Plaintiff was ignorant of its falsity, (7) Plaintiff relied on the truth of the representation, (8) Plaintiff had a right to rely on the representation, and (9) Plaintiff suffered damages as a result. Farrell v. Score, 67 Wn.2d 957, 958-59, 411 P.2d 146 (1966).
(1) Defendants made a representation of an existing fact: Notices of Lis Pendens are liens.
(2) it was material: The representation was on court record in Case 2010-CR-0234 & Case 2010-CR-0235.
(3) it was false: The representation was misleading, false, and wrong.
(4) Defendants knew that it was false: 87 Texas precedents cited in Plaintiff’s AMENDED AFFIRMATIVE DEFENSE BASED ON ABSOLUTE PRIVILEGE AND QUALIFIED PRIVILEGE OF LIS PENDENS FILING filed on August 31, 2010 are clear and convincing evidence that Defendants knew or should have known that it was false.
(5) Defendants intended that Plaintiff should act on it: Defendants in their criminal charges intended that Plaintiff should accept the criminal charges without any resistance.
(6) Plaintiff was ignorant of its falsity: Plaintiff was ignorant of its falsity during the 34-day wrongful imprisonment without any chance to do any legal research on the relevant issues.
(7) Plaintiff relied on the truth of the representation: Plaintiff relied on the truth of the representation under duress in spite of its falsity.
(8) Plaintiff had a right to rely on the representation: Being forbidden to access any computer or printed legal files to conduct any legal research, Plaintiff had a right to rely on the representation though to his detriment.
(9) Plaintiff suffered damages as a result of the false arrest, 34-day wrongful imprisonment, 23 months of undue delay in violation of his speedy trial right, etc.
154. While all conspirators named as defendants are, as a rule, jointly and severally liable for any damages arising from the conspiracy, the plaintiff need not join all conspirators as defendants and may, in fact, name only one. Hanover Fire Ins Co of New York v Furkas, 267 Mich 14, 21, 255 NW 381 (1934). Also, a plaintiff may introduce evidence of acts done or statements made by any conspirator to further the common purpose, whether or not that conspirator is a party defendant. Brown v Brown, 338 Mich 492, 504, 61 NW2d 656 (1953), cert denied, 348 US 816 (1954).
155. A civil conspiracy is, at its root, “an agreement, or preconceived plan, to do an unlawful act.” Bahr v Miller Bros Creamery, 365 Mich 415, 427, 112 NW2d 463 (1961). The elements of a cause of action for civil conspiracy in Michigan are (1) a concerted action (2) by a combination of two or more persons (3) to accomplish an unlawful purpose or a lawful purpose by criminal or unlawful means, (4) causing damage to the plaintiff. Fenestra, Inc v Gulf American Land Corp, 377 Mich565, 593, 141 NW2d 36 (1966); Mays v Three Rivers Rubber Corp, 135 Mich App 42, 48, 352 NW2d 339 (1984).
156. “An allegation of conspiracy, standing alone, is not actionable.” Magid v Oak Park Racquet Club Associates, 84 Mich App 522, 529, 269 NW2d 661 (1978) (citing Roche v Blair, 305 Mich 608, 614—616, 9 NW2d 851 (1943)). In other words, the mere agreement to commit an unlawful act is not actionable; a civil conspiracy action is one for damages arising out of the acts committed pursuant to the conspiracy. Fenestra, 377 Mich at 593—594; Auto Workers* Temple Ass*n v Janson, 227 Mich 430, 433, 198 NW 992 (1924); Krum v Sheppard, 255 F Supp 994, 998 (WD Mich 1966), aff*d, 407 F2d 490 (6th Cir 1967); 16 Am Jur 2d Conspiracy §49, at 267 (1979).
157. An allegation of civil conspiracy “must be coupled with a substantive theory of liability in order to sustain a cause of action.” Mohammed v Union Carbide Corp, 606 F Supp 252, 257 (ED Mich 1985) (citing Earp v Detroit, 16 Mich App 271, 275, 167 NW2d 841 (1969)); Early Detection Center, PC v New York Life Ins Co, 157 Mich App 618, 632, 403 NW2d 830 (1986) (“since plaintiffs have failed to state any actionable tort theories in their proposed amended complaint, the conspiracy theory must also fail”); Cousineau v Ford Motor Co, 140 Mich App 19, 37, 363 NW2d 721, cert denied, 474 US 971 (1985); Magid v Oak Park Racquet Club Associates, 84 Mich App 522, 529, 269 NW2d 661 (1978).
158. Many different theories of liability, both tort and nontort, have supported actions for civil conspiracy. See, e.g., Roche v Blair, 305 Mich 608, 9 NW2d 861 (1943) (conspiracy to defraud); Temborius v Slatkin, 157 Mich App 587, 403 NW2d 821 (1986) (same); Borsuk v Wheeler, 133 Mich App 403, 349 NW2d 522 (1984) (same); Durant v Stahlin, 374 Mich 82, 130 NW2d 910 (1964) (conspiracy to libel); Northern Plumbing & Heating, Inc v Henderson Bros, mc, 83 Mich App 84, 268 NW2d 296 (1978) (conspiracy to breach contract); Mays v Three Rivers Rubber Corp, 135 Mich App 42, 352 NW2d 339 (1984) (conspiracy by employer and insurance company to deprive disabled employee of benefits); Brown v Brown, 338 Mich 492, 61 NW2d 656 (1953), cert denied, 348 US 816 (1954) (conspiracy to alienate affections).
159. A statement is not hearsay if it is offered against a party and is made “by a co-conspirator of a party during the course and in furtherance of the conspiracy on independent proof of the conspiracy.” MRE 801(d)(2)(E) (emphasis added). The untrue Affidavits submitted by Roberts, et al. & the two erroneous news reports posted by Jay Workman and Emily Allen of Port Lavaca Wave were not hearsay because they were offered against Plaintiff and were made by Roberts and A.D.A. Salyer during the course and in furtherance of the conspiracy to justify their wrongful acts.
160. To establish the third element of a civil conspiracy, a plaintiff must prove that the defendants either had an unlawful purpose or used unlawful means; a plaintiff need not establish both facts. Fenestra, Inc. v Gulf American Land Corp, 377 Mich565, 579, 141 NW2d 36 (1966).
161. “All those who, in pursuance of a common plan to commit a tortious act, actively take part in it and further it by cooperation or request, or who lend aid or encouragement to the wrongdoer, or who ratify and adopt the acts done for their benefit, are equally liable with the wrongdoer.” Rosenberg v Rosenberg Bros Special Account, 134 Mich App 342, 354, 351 NW2d 563 (1984) (quoting W. Prosser, Handbook of the Law of Torts §46, at 292 (4th ed 1971)).
162. Once a civil conspiracy is established, “whatever was done in pursuance of it by one of the conspirators is to be considered as the act of all, and all are liable irrespective of the fact they did not actively participate therein.” Brown v Brown, 338 Mich 492, 503, 61 NW2d 656 (1953) (quoting Warsop v Cole, 292 Mich 628, 291 NW 33 (1940)), cert denied, 348 US 816 (1954). However, “[i]t is only where means are employed, or purposes are accomplished, which are themselves tortious, that the conspirators who have not acted but have promoted the act will be held liable.” W. Keeton, Prosser and Keeton on the Law of Torts §46, at 324 (5th ed 1984) (footnotes omitted).
163. It is well established in Michigan and elsewhere that liability for acts taken in pursuance of a civil conspiracy is joint and several. Brown, 338 Mich at 503; LA Young Spring & Wire Corp v Falls, 307 Mich 69, 106, 11 NW24 329 (1943). But even when a formal agreement does not exist and, hence, no action for conspiracy lies, a plaintiff may still be able to recover from the defendants jointly if the defendants’ acts constitute a joint tort.
164. A conspiracy also exists when a corporation, through its officers or agents, conspires with another entity or a person outside that corporation. Borsuk v Wheeler, 133 Mich App 403, 349 NW2d 522 (1984). This is so even when- the actions of the corporate agents or employees are contrary to the corporation’s best interests, as long as the actions are within the agents’ scope of authority. Id. at 410—411. A different question arises when a plaintiff alleges a conspiracy among several agents or employees of the same corporation. This combination of actors is not recognized as a conspiracy. The general rule is that a corporation does not “conspire” with its own agents or employees when the agents or employees are acting within the scope of their employment and not for personal purposes. Doherty v American Motors Corp, 728 F2d 334, 339 (6th Cir 1984); Schroeder v Dayton-Hudson Corp, 448 F Supp 910, 915 (ED Mich 1977), modified on another issue, 456 F Supp 650 (ED Mich 1978).
165. Two separate entities are required in a conspiracy claim; a corporation and its own agents or employees are considered to be one entity. Doherty, 728 F2d at 339 (quoting Nelson Radio & Supply Co v Motorola, 200 F2d 911, 914 (5th Cir 1952), cert denied, 345 US 925 (1953)).
166. It is clear that the mere agreement to do a wrongful act can never amount to a tort, whether or not it may be a crime, and that some act must be committed by one of the parties in pursuance of the agreement, which is itself a tort. The gist of the action is not the conspiracy charged, but the tort working damage to the plaintiff. On the other hand, there are certain types of conduct, such as boycotts, in which the element of combination adds such a power of coercion, undue influence or restraint of trade, that it makes unlawful acts which one man might legitimately do. See McAlpine v AAMCO Automatic Transmissions, mc, 461 F Supp 1273 (ED Mich 1978).
167. In alleging conspiracy, a plaintiff need not specify the exact means used to carry out the illegal purpose. Goldsmith v Moskowitz, 74 Mich App 506, 521, 254 NW2d 561 (1977). However, claiming conspiracy is not sufficient when the facts pleaded do not disclose a conspiracy. Coronet Development Co v FSW, Inc, 3 Mich App 364, 369, 142 NW2d 499 (1966), aff*d, 379 Mich 302 (1967).
168. Proof of a conspiracy is generally circumstantial. Bahr v Miller Bros Creamery, 365 Mich 415, 421, 112 NW2d 463 (1961). However, conspiracy may not be assumed (Harvey v Lewis, 357 Mich 305, 311, 98 NW2d 599 (1959)), and evidence of conspiracy must “support a reasonable inference that two or more persons planned or acted in concert to accomplish an unlawful end.” Rencsok v Rencsok, 46 Mich App 250, 252, 207 NW2d 910 (1973) (citations omitted). As stated in Temborius v Slatkin, 157 Mich App 587, 600, 403 NW2d 821 (1986): The agreement, or preconceived plan, to do the unlawful act is the thing which must be proved. Direct proof of agreement is not required, however, nor is it necessary that a formal agreement be proven. It is sufficient if the circumstances, acts and conduct of the parties establish an agreement in fact. Furthermore, conspiracy may be established by circumstantial evidence and may be based on inference. (Footnote omitted.)
169. Furthermore, while all conspirators named as defendants are, as a rule, jointly and severally liable for any damages arising from the conspiracy, the plaintiff need not join all conspirators as defendants and may, in fact, name only one. Hanover Fire Ins Co of New York v Furkas, 267 Mich 14, 21, 255 NW 381 (1934). Also, a plaintiff may introduce evidence of acts done or statements made by any conspirator to further the common purpose, whether or not that conspirator is a party defendant. Brown v Brown, 338 Mich 492, 504, 61 NW2d 656 (1953), cert denied, 348 US 816 (1954).
170. If it is alleged that a party to a contract and a third party have conspired to cause a breach of that contract, the plaintiff must show a writing sufficient to satisfy the statute of frauds to establish that the contract exists. Northern Plumbing & Heating, Inc v Henderson Bros, mc, 83 Mich App 84, 91, 268 NW2d 296 (1978); Jaques v Smith, 62 Mich App 719, 720, 233 NW2d 839 (1975). The rationale for this rule is that if the contract is not enforceable between the parties, no wrongful act is committed by failing to perform the contract. Therefore, if a party to an unenforceable contract conspired with a third party to induce non-performance of the contract, no unlawful act would result because the contracting party has no enforceable obligation to perform. Note that this result differs from the rule for tortious interference claims discussed in §2.3.
171. In Chevalier v. Animal Rehabilitation Center, Inc., 839 F. Supp. 1224 (N.D. Tex. 1993), the court noted that Texas considered the statute of limitations to be merely a bar to recovery, rather than a substantive defense attacking the merits of the case–the wrongful act still existed. As a result, the underlying bad act could support a conspiracy claim even where the statute of limitations had run on that act. 839 F. Supp at 1232-33. In Texas, civil conspiracy is considered to be an action for personal injury to another and has an independent 2-year period of limitations. Stevenson v. Koutzarov, 795 S.W. 2d 313, 318 (Tex. App. 1990), writ den. (Jan. 30, 1991).
VII. Counties & Cities Have No Immunity from Liability under § 1983
172. Local governments sued under § 1983 cannot be entitled to an absolute immunity,” Scheuer v. Rhodes, 416 U. S. 232, 416 U. S. 248. P. 436 U. S. 701.
173. Counties are also persons for purposes of § 1983. See Miranda v. Clark County, Nev., 319 F.3d 465, 469 (9th Cir. 2003) (en banc); Thompson v. City of Los Angeles, 885 F.2d 1439, 1443 (9th Cir. 1989).
174. Municipal government officials are also persons for purposes of § 1983. See Monell, 436 U.S. at 691 n.55.
175. In re Owen v. City of Independence, 445 U.S. 622 (1980) the US Supreme Court held in pertinent part: A municipality has no immunity from liability under § 1983 flowing from its constitutional violations, and may not assert the good faith of its officers as a defense to such liability. Pp. 445 U. S. 635-658. “a municipality has no “discretion” to violate the Federal Constitution.” Pp. 445 U. S. 644-650.
176. By its terms, § 1983 “creates a species of tort liability that, on its face, admits of no immunities.” Imbler v. Pachtman, 424 U. S. 409, 424 U. S. 417. Its language is absolute and unqualified, and no mention is made of any privileges, immunities, or defenses that may be asserted. Rather, the statute imposes liability upon “every person” (held in Monell v. New York City Dept. of Social Services, 436 U. S. 658, to encompass municipal corporations) who, under color of state law or custom, “subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws.”
177. It has been clear that a public official may be held liable in damages when his actions are found to violate a constitutional right and there is no qualified immunity, see Wood v. Strickland, 420 U. S. 308 (1975); Procunier v. Navarette, 434 U. S. 555 (1978). Today the Court recognizes that this principle also applies to a local government when implementation of its official policies or established customs inflicts the constitutional injury. See Monell v. Department of Soc. Svcs., 436 U.S. 658 (1978)
178. In re Monell v. Department of Soc. Svcs., 436 U.S. 658 (1978), the U.S. Supreme Court held: Local governing bodies (and local officials sued in their official capacities) can, therefore, be sued directly under § 1983 for monetary, declaratory, and injunctive relief in those situations where, as here, the action that is alleged to be unconstitutional implements or executes a policy statement, ordinance, regulation, or decision officially adopted or promulgated by those whose edicts or acts may fairly be said to represent official policy. In addition, local governments, like every other § 1983 “person,” may be sued for constitutional deprivations visited pursuant to governmental “custom” even though such custom has not received formal approval through the government’s official decisionmaking channels. Pp. 436 U. S. 690-691. In Justice William J. Brennan, Jr.’s opinion announcement, governmental “custom” includes persistent and widespread discriminatory practices of local officials.
179. Plaintiff establishes the County Policy Makers’ deliberate indifference by demonstrating a failure to train officials in a specific area such as the statute and case law involving notices of lis pendens where there is an obvious need for training and continuing education for all the law enforcement personnel including, but not limited to, judges, magistrates, clerks, DA, Assistant DAs, Sheriff, deputy sheriffs, and Jail Administrator to avoid continuing violations of citizens’ constitutional and statutory rights.
180. To allege the official capacity suits against the County, Plaintiff asserts that Calhoun County Sheriff’s Department, District Attorney’s Office, the Magistrate Court, the District Court, and the Clerk’s Office were the moving forces behind the deprivations of Plaintiff’s federal and statutory rights and that the entities’ policies and customs played a factor. “Governmental ‘custom’ includes persistent and widespread discriminatory practices of county officials.”
VIII. Malicious Prosecution Action & Civil Conspiracy Action against Cox/Koop/ARPI, ET AL.
Other Claims filed in Complaints # 1-6 in Case # V-06-78 and 6:09-mc-11are realleged herein.
181. The elements of the malicious prosecution action against Cox/Koop/ARPI and those officers of the court involved in procuring the VOID Orders/Judgments by committing fraud upon the federal/state courts are:
(1) that Defendants filed, prosecuted the underlying civil actions and procured various VOID Orders/Judgments against Plaintiff: See AMENDED DEFENDANT/COUNTERCLAIM PLAINTIFF’S COUNTERCLAIMS AND AFFIRMATIVE RELIEF (95-106) filed on April 10, 2012.
(2) that favorable terminations of each of the prior cases, in which the innocence of the former defendant, Plaintiff in this case, shall be established in light of ARPI’S lack of standing, and the COURTS’ lack of subject matter jurisdiction;
(3) that it is evident that since 6/6/1993 when its Assumed Certificate expired, ARPI has lacked standing to sue, that the courts have lacked subject matter jurisdiction to decide the cases involving this factually and legally non-existent corporation, that the motives, grounds, beliefs, and evidence Defendants acted on did not amount to probable cause to commence or continue the proceedings, and that no reasonable attorney would have considered it to be tenable to initiate or continue the causes of action on its behalf;
(4) that not only in the commencement but also the continuation of the various suits did Cox/Koop/ARPI together with their various attorneys act with malice, ill will, evil motive, or such gross indifference or reckless disregard for the rights of Plaintiff as to amount to willful and wanton acts, which could be implied or inferred from a conscious disregard for the consequences, from a lack of probable cause, and from inadequate investigation and research on ARPI’s lack of standing and the courts’ lack of subject matter jurisdiction resulting in the ORDERS being VOID ab initio; and
(5) that all the VOID Orders that Cox/Koop/ARPI procured by committing fraud upon the courts with the presiding judges, the attorneys, and those involved in the cases caused Plaintiff ‘special injuries’ through wrongful foreclosure, fraudulent deficiency judgment ($283,407.06), false proofs of claims ($283,407.06), unlawful control and dominion of non-debtor properties by Sheriff’s wrongful auctions, physical interference with Plaintiff’s person: false arrest, wrongful imprisonment, etc., mental anguish physical and emotional distress, and loss of reputation, goodwill, and credit rating as a result of bankruptcy – irreparable damages to Plaintiff’s constitutionally protected rights to “life, liberty, and property”.
182. ARPI’s lawyers-defendants have violated a sacred public trust which bestows the power to file and prosecute legal actions. These Defendants are a threat to the judicial system and deserving of the indignation and contempt of decent society. They must be punished to deter future wrongdoers.
183. ARPI is also suspected of tax evasion, which was reported to the DA and the Sheriff but they chose to ignore the complaint and took no action — an example of selective prosecution and racial discrimination.
184. The Statute of Limitations for the malicious prosecution action against Cox/Koop/ARPI and those involved in procuring the VOID Orders for ARPI, et al. will begin to run on the day when the VOID Orders are set aside and nullified.
185. The primary issue in conspiracy cases where the attorney is a named defendant is whether the attorney is acting in pursuit of his or her professional duties to the client or is acting in concert with the client to commit a wrong. Although most courts require proof of an underlying claim in order to hold the attorney liable for conspiracy, the Sixth Circuit Court of Appeals held, in Morganroth v. Delorean, that attorneys who assisted their clients in fraudulent transfers were liable for civil conspiracy, even without proving an underlying claim of fraud. 123 F.3d. 374 (6th Cir. 1997). A review of conspiracy suits against attorneys reveals that Morganroth is somewhat of an anomaly. Despite the harsh ruling in Morganroth, most states have only been willing to charge attorneys with civil conspiracy or professional disciplinary violations if the plaintiff-creditors proved the underlying tortuous claim.
186. The case record makes it clear that Chapman has been acting in concert with his clients, Cox/Koop/Anita’s, Gerken and Lennar, to commit wrongs of wrongful foreclosures, fraudulent transfers, fraudulent deficiency judgments, false proofs of claims against Plaintiff’s estate, and unlawful control and dominion of non-debtor properties through Trustee’s wrongful abandonment and Sheriff Browning’s unlawful auction. Thus, Chapman must be charged with civil conspiracy.
187. Those attorneys, Chapman, George, Morrison, Haddad, Burch, et al., who helped Cox/Koop/ARPI procure VOID Orders/Judgments by committing fraud upon the federal and state courts in conspiracy with the presiding judges and court clerks are conspirators.
VII. Legal Malpractice Claims against Roberts for Gross Negligence & Malice
Other Claims filed in Complaints # 1-6 in Case # V-06-78 are realleged herein.
188. Texas courts have always recognized a cause of action for legal malpractice. See, e.g., Morrill v. Graham, 27 Tex. 646 (1864).
189. Courts generally impose privity restrictions to prohibit the assignment of legal malpractice claims and impose additional rules for tolling the statute of limitations, and require the plaintiff to prove the “case within a case.” “An attorney malpractice action in Texas is based on negligence.” Cosgrove v. Grimes, 774 S.W.2d 662, 664 (Tex. 1989). Here, Plaintiff’s malpractice action against Roberts is based on negligence without investigating the standing of ARPI, which resulted in the wrongful foreclosure, fraudulent deficiency judgment, false proofs of claims, unlawful control and dominion of non-debtor’s properties and Plaintiff’s financial disasters in bankruptcy.
190. It is well established that a traditional legal malpractice claim sounds in tort.
191. A plaintiff in a legal malpractice claim must prove the following elements: (1) there is duty owed to the plaintiff by the defendant; (2) a breach of that duty; (3) that the breach proximately caused the plaintiff injury; and (4) that damages occurred. Cosgrove v. Grimes, 774 S.W. 2d at 665. Here, Plaintiff can clearly and convincingly prove the following elements: (1) there is duty owed to Plaintiff by Defendants, Roberts & his law firm; (2) a breach of that duty to use care to protect Plaintiff’s interest as defense counsel; (3) that the breach, non-investigation of ARPI’s standing proximately caused Plaintiff financial injury; and (4) that damages: deprivation of “life, liberty, and property” occurred continuously.
192. In general, to establish the element of duty the plaintiff must prove that an attorney-client relationship existed with respect to the matter at issue. A person who was not a client may not sue an attorney for legal malpractice. See Barcelo v. Elliott, 923 S.W.2d 575 (Tex. 1996). Here, an attorney-client relationship existed between P and Roberts with respect to the matters at issue, the VOID Orders/Judgments that ARPI obtained by fraud upon the federal and state courts, which were due to defense counsel Roberts’s gross negligence.
193. The plaintiff’s burden of proving the existence of any attorney-client relationship is commonly referred to as the “privity” requirement. The determination of whether an attorney-client relationship exists must be based on an objective standard, not on the parties’ subjective beliefs. See SMWNPF Holdings, Inc. v. Devore, 165 F.3d 360, 364-65 (5th Cir. 1999). Here, the existence of any attorney-client relationship between Roberts and Plaintiff is undeniable and Roberts admitted in open court on July 15, 2010. Thus, the “privity” requirement is satisfied.
194. To establish a breach of duty giving rise to a claim for legal malpractice, the client must show that the lawyer failed to comply with the applicable standard of care. In general terms, an attorney breaches the duty of care when the lawyer does something an ordinarily prudent lawyer would not have done, or fails to do something an ordinarily prudent lawyer would have done, under the same or similar circumstances. The Texas Supreme Court has expressed the standard of care in this way: A lawyer in Texas is held to the standard of care which would be exercised by a reasonably prudent attorney. The jury must evaluate his conduct based on the information the attorney has at the time of the alleged act of negligence. . Here, Roberts failed to comply with the applicable standard of care. He breached the duty of care when he neglected to investigate the lack of standing of ARPI that an ordinarily prudent lawyer would not have done, or failed to investigate ARPI’s standing in the suit he served as Plaintiff’s defense counsel that an ordinarily prudent lawyer would have done, under the same or similar circumstances. The Texas Supreme Court has expressed the standard of care in this way: A lawyer in Texas is held to the standard of care which would be exercised by a reasonably prudent attorney. The jury must evaluate his conduct based on the information the attorney has at the time of the alleged act of gross negligence.
195. Although the locality rule has been criticized, Texas law still requires the trier of fact to compare the lawyer’s conduct to the standard of care in the lawyer’s community. See Tijerina v. Wennermark, 700 S.W.2d 342, 347 (Tex. App.—San Antonio 1985, no writ); Cook v. Irion, 409 S.W.2d 475, 478 (Tex. Civ. App.—San Antonio 1966, no writ). Here, Roberts’s gross negligence causing P’s total financial disaster is unforgivable in any community.
196. A lawyer who holds herself out as a specialist is generally expected to possess a higher degree of skill and learning than a general practitioner, and accordingly may be judged by an equivalently higher standard of care. Rhodes v. Batilla, 848 S.W.2d 833, 842 (Tex. App.—Houston [14th Dist.] 1993, writ denied); see also Streber v. Hunter, 221 F.3d 701, 722 (5th Cir. 2000). Roberts, being a specialist in real estate transactions, is expected to possess a higher degree of skill and learning than a general practitioner, and accordingly may be judged by an equivalently higher standard of care. Defending a case without knowing the Plaintiff’s lack of standing to sue in the first place is totally inexcusable and unforgivable.
197. As in traditional negligence cases, the plaintiff in a legal malpractice case must prove that the alleged malpractice was the proximate cause of injury. Cosgrove v. Grimes, 774 S.W.2d 662, 665 (Tex. 1989). Proximate cause consists of two elements: (1) cause in fact and (2) foreseeability. McClure v. Allied Stores of Tex., Inc., 608 S.W.2d 901, 903 (Tex. 1980). Here, Plaintiff can prove that the alleged malpractice was the proximate cause of injury: upon losing the deficiency judgment hearing without knowing that ARPI lacked standing to sue, Roberts suggested that Plaintiff file bankruptcy leading to Plaintiff’s subsequent financial disasters. Both elements of proximate cause: (1) cause in fact: no investigation of ARPI’s standing caused the deficiency judgment of $283,407.06 against Plaintiff and (2) foreseeability: Had Roberts exercised the standard of care which would be exercised by a reasonably prudent attorney, there would have been no $283,407.06 deficiency judgment and Plaintiff would not have been forced into bankruptcy, losing his life savings and owing creditors $34,999,640.91 as of11/25/1996.
198. “Cause in fact means that the act or omission was a substantial factor in bringing about the injury and without which no harm would have occurred.” McClure v. Allied Stores of Tex., Inc., 608 S.W.2d 901, 903 (Tex. 1980). The cause in fact requirement has also been referred to as the “but for” test, because the plaintiff must show that the injury would not have occurred “but for” the alleged breach of duty. But the Texas Supreme Court has made clear that a “but for” showing alone is not enough; to qualify as cause in fact the negligence must also have been a substantial factor in bringing about the plaintiff’s harm. Union Pump Co. v. Allbritton, 898 S.W.2d 773, 775 (Tex. 1995). Here, Roberts’s act or omission to investigate ARPI’s standing was a substantial factor in bringing about the disastrous financial injury and without Roberts’s gross negligence no harm would have occurred.” Plaintiff can show that the injury would not have occurred “but for” the alleged breach of duty, which was a substantial factor in bringing about Plaintiff’s financial harm.
199. The foreseeability element of proximate cause requires proof that the defendant, as a person of ordinary intelligence, should have anticipated the danger to others by his negligent act. See, e.g., Dyer v. Shafer, Gilliland, Davis, McCollum &Ashley, Inc., 779 S.W.2d 474, 478 (Tex. App.—El Paso 1989, writ denied) (bankruptcy of client was not reasonably foreseeable). Even if Roberts were a person of ordinary intelligence, not to speak of his being a prominent seasoned real estate attorney, he should have anticipated the danger to Plaintiff by his negligent act in defending against Plaintiff’s $283,407.06 deficiency judgment without knowing that the case had no merits, that ARPI had no standing to sue, and that Judge Stephen Kemper Williams had no subject matter jurisdiction to hear and decide the case.
200. Based on the above facts, Plaintiff firmly establishes that Roberts’s conduct was the proximate cause of the $283,407.06 damages of fraudulent deficient judgment in question.
201. The “Case Within a Case” Requirement. When the alleged malpractice relates to a claim that was litigated, the plaintiff must prove that a more favorable judgment would have resulted if the case had been handled competently. This is known as the “case within a case” requirement. In litigation malpractice cases, therefore, the trial of the legal malpractice case actually involves proving two cases: 1) the malpractice case against the lawyer, and 2) the hypothetical, malpractice-free underlying case. See Jackson v. Urban, Coolidge, Pennington & Scott, 516 S.W.2d 948 (Tex. Civ. App.—Houston [1st Dist.] 1974, writ ref’dn.r.e.).
202. Plaintiff’s 3/30/2011 discovery of ARPI’s expiration of the Assumed Name Certificate without renewal since June 6, 1993 proves that ARPI, having been factually and legally non-existent, conducted the wrongful foreclosure sale on July 2, 1996 in violation of the prohibited close association between Trustee/husband/co-owner and bidder/wife/owner of ARPI. Had Roberts done sufficient investigations about ARPI, discovered its violation of the Texas Deed of Trust law, its lack of standing to sue, and the Court’s lack of subject matter jurisdiction, the foreclosure sale would have been set aside, the deficiency judgment of $283,407.06 would not have been rendered, and Plaintiff would not have filed bankruptcy, which wiped out all his investments and resulted in owing creditors $34,999,640.91 as of11/25/1996 when the petition was filed.
203. Plaintiff asserts that when the legal malpractice case is tried, the jury must decide how a reasonable jury would have resolved the issues in the underlying foreclosure sale and the $283,407.06 deficiency judgment case if Roberts’s alleged malpractice of insufficiency of investigations had not occurred, ARPI’s lack of standing and the court’s lack of subject matter jurisdiction had been discovered in time.
204. A plaintiff in a legal malpractice case may seek to recover foreseeable damages proximately caused by the negligent act or omission. In the litigation context, this is usually the amount that the client would have collected, or would have avoided paying, if the litigation had been properly handled. See, e.g., Keck, Mahin & Cate v. National Union Fire Ins. Co., 20 S.W.3d 692, 703 (Tex. 2000) (damages were to be calculated by comparing amount paid to settle case with amount that would have been lost at competently defended trial); Cosgrove v. Grimes, 774 S.W.2d 662, 666 (Tex. 1989) (jury should have been asked to determine the amount of damages “collectible from Stephens if the suit had been properly prosecuted”). Here, Plaintiff may seek to recover foreseeable damages proximately caused by Roberts’s grossly negligent act or omission. In the litigation context, this is the wrongful foreclosure sale of 7/2/1996 that would have been set aside, the $283,407.06 deficiency judgment that Plaintiff would have avoided, and the bankruptcy, which wiped out all his assets and resulted in $34,999,640.91 debts would not have taken place if Roberts had properly handled the litigation.
205. While a malicious prosecution cause of action addresses maliciously-filed lawsuits that cause special injury, an abuse of process claim requires an illegal or improper use of legal process. The defendant must use legal process in a manner or purpose for which it was not intended, such as engaging in the wrongful use of a writ or in some abuse in the execution or service of a citation. Detenbeck v. Koester, 886 S.W.2d 477, 480-81 (Tex. App.—Houston [1st Dist.] 1994, no writ). Here, Cox/Koop/ARPI’s maliciously-filed lawsuits that caused Plaintiff special injuries constituted an abuse of process, an illegal or improper use of the legal process without probable cause: wrongful foreclosure, fraudulent deficiency judgment, false proofs of claims, and unlawful control and dominion of non-debtor properties through Sheriff’s illegal auctions. Defendants Cox/Koop/ARPI and their attorneys used the legal processes in a manner or purpose for which they were not intended.
206. Exemplary damages are only recoverable in a legal malpractice case if the plaintiff proves by “clear and convincing evidence” that the harm resulted from fraud, malice or gross negligence. TEX. CIV. PRAC. & REM. CODE § 41.003. “Malice” means a specific intent to cause the plaintiff substantial injury or harm. Id. § 41.001(7). “Gross negligence” means an act or commission involving an “extreme degree of risk,” carried out with actual, subjective awareness of the risk and conscious indifference to the rights, safety or welfare of others. Id. § 41.001(11). Exemplary damages may be awarded only if the jury was unanimous in finding liability for and the amount of exemplary damages. Here, exemplary damages are recoverable in that Plaintiff proves by “clear and convincing evidence” that the harm resulted from fraud, malice or gross negligence. Roberts’s act or commission involving “malice” with a specific intent to cause Plaintiff substantial injury or harm in furtherance of the criminal charges against Plaintiff without probable cause leading to the false arrest, wrongful imprisonment and malicious prosecution, and in the defense of Plaintiff’s foreclosure and deficiency judgment cases involving an “extreme degree of risk,” carried out with actual, subjective awareness of the risk and conscious indifference to Plaintiff’s rights, safety or welfare causing Plaintiff’s total financial disasters.
207. TEX. CIV. PRAC. & REM. CODE § 41.008 limits the amount of exemplary damages available in most cases. Unless the alleged malpractice also constitutes a felony listed in § 41.008(c), exemplary damages are capped at two times the economic damages or $200,000, whichever is greater. (Additional amounts are available if non-economic damages are recovered).
208. Roberts’s gross negligence caused Plaintiff enormous economic damages: 1) loss of $525,000 land in wrongful foreclosure; 2) $283,407.06 fraudulent deficiency judgment; 3) loss of all assets and bankruptcy debts of $34,999,640.91. Besides, Roberts’s procurement of the DA’s prosecution resulted in Plaintiff’s non-economic damages: false arrest, wrongful imprisonment, malicious prosecution, impairment of reputation, and infliction of mental anguish and emotional distress.
209. A legal malpractice claim accrues when the client suffers legal injury, meaning that facts have come into existence that authorize a claimant to seek a judicial remedy. Apex Towing Co. v. Tolin, 41 S.W.3d 118, 120 (Tex. 2001).Plaintiff’s legal malpractice claim accrues when he suffers legal injury, meaning that the facts of ARPI’s lack of standing and the various courts’ lack of subject matter jurisdiction to decide the cases ARPI initiated and continued to prosecute have come into existence that authorize him to seek a judicial remedy to have all the VOID Orders/Judgments set aside.
210. A person suffers legal injury from faulty professional advice when the advice is taken. Murphy v. Campbell, 964 S.W.2d 265, 271 (Tex. 1997). Nevertheless, in many cases the limitations period is extended by one of two tolling doctrines. First, the “discovery rule” delays accrual of a cause of action until the plaintiff knows or should know of the wrongfully-caused injury. See Apex Towing Co. v. Tolin, 41 S.W.3d at 120-21; KPMG Peat Marwick v. Harrison County Hous. Fin. Corp., 988 S.W.2d 746, 749 (Tex. 1999). Here, the limitations period is extended by one of two tolling doctrines. First, the “discovery rule” delays accrual of the cause of action until March 30, 2011 when the Texas Secretary of State informed Plaintiff of the wrongfully-caused injury – Roberts’s deficient investigation of ARPI’s lack of standing as a result of the expiration of its Assumed Name Certificate.
211. Second, when an attorney commits malpractice in the prosecution or defense of a claim that results in litigation, the statute of limitations on a malpractice claim against the attorney is tolled until all appeals on the underlying claims are exhausted or the litigation is otherwise concluded. Apex Towing Co. v. Tolin, 41 S.W.3d at 119; Hughes v. Mahaney & Higgens, 821 S.W.2d 154, 157 (Tex. 1991). Here, when Roberts committed malpractice in the defense of the $283,407.06 deficiency claim that resulted in litigation, the statute of limitations on the malpractice claim against the attorney is tolled until all appeals on the underlying claims are exhausted or the litigation is otherwise concluded. Since $283,407.06 deficiency judgment is found to be VOID ab initio, it must be set aside. Thus, the statute of limitations is tolled until the 7/2/1996 wrongful foreclosure and the $283,407.06 fraudulent deficiency judgment are reversed, vacated, voided, nullified, or invalidated.
212. Where “a person is prevented from exercising his legal remedy by the pendency of legal proceedings, the time during which he is thus prevented should not be counted against him in determining whether limitations have barred his right.” Walker v. Hanes, 570 S.W.2d 534, 540 (Tex.Civ. App.—Corpus Christi 1978, writ ref’dn.r.e.) (limitations tolled while prior submission of same case was being appealed); Cavitt v. Amsler, 242 S.W. 246, 249 (Tex.Civ.App.— Austin 1922, writ dism’d) (limitations on suit for dividends tolled while suit to determine ownership of stock was being appealed); Pease v. State, 228 S.W. 269, 270-71 (Tex.Civ.App.—El Paso 1921, writ ref’d) (plaintiff’s cause of action in suit for salary did not accrue until final decision in quo warranto proceeding that defendant was not entitled to job); Fields v. Austin, 30 S.W. 386, 387 (Tex.Civ.App.1895, writ ref’d) (cause of action for rent did not accrue until appeals exhausted on suit to determine title to land).We conclude that the rationale applied in these cases is also appropriate when a client’s cause of action for malpractice arises during the attorney’s prosecution or defense of a claim which results in litigation. Limitations are tolled for the second cause of action because the viability of the second cause of action depends on the outcome of the first. Therefore, we hold that when an attorney commits malpractice in the prosecution or defense of a claim that results in litigation, the statute of limitations on the malpractice claim against the attorney is tolled until all appeals on the underlying claim are exhausted. We join other jurisdictions in adopting this well-reasoned rule. See Bonanno v. Potthoff, 527 F.Supp. 561, 565 (N.D.Ill.1981) (applying Illinois law); Amfac Dist. Corp. v. Milter, 138 Ariz. 152, 673 P.2d 792, 793 (1983); Peat, Marwick, Mitchell & Co. v. Lane, 565 So.2d 1323, 1326 (Fla.1990); Neylan v. Moser, 400 N.W.2d 538, 542 (Iowa 1987); Semenza v. Nevada Medical Liability Ins. Co., 104 Nev. 666, 765 P.2d 184, 186 (1988). These cases turn on other policy considerations unnecessary to our decision today. See, e.g., Amfac Dist. Corp. v. Milter, 138 Ariz. 155, 673 P.2d 795, 797 (Ct.App.1983),aff’d as supplemented,138 Ariz. 152, 673 P.2d 792, 793 (1983).
VIII. Denial of Equal Protection, Racial Discrimination and Selective Prosecution
213. In order to establish and to plead a violation of equal protection based on selective enforcement, plaintiff must show: (1) the person, compared with others similarly situated, was selectively treated; and (2) that such selective treatment was based on impermissible considerations such as race, religion, intent to inhibit or punish the exercise of constitutional rights, or malicious or bad faith intent to injure a person. Lisa’s Party City, Inc. v. Town of Henrietta, 185 F.3d 12, 16 (2d Cir. 1999).
214. Rule 145 T.R.C.P. provides: Upon the filing of the Affidavit of Indigency, the clerk must docket the action, issue citation and provide such other customary services as are provided any party.
215. In light of the above provisions, the Clerks of both Federal and State courts “shall issue and serve all process, and perform all duties in such cases” and “must docket the action, issue citation and provide such other customary services as are provided any party” respectively.
216. They are either ignorant of or indifferent to such rules aimed at helping indigents gain access to the court to redress grievances protected by the First Amendment to the U.S. Constitution.
217. Here, Rule 145 T.R.C.P. was not being implemented properly. Plaintiff suffered individualized injuries because his First Amendment right to access the court for redress of grievances was invaded.
218. The Clerk’s refusal to comply with Rule 145 T.R.C.P. that she “must docket the action, issue citation and provide such other customary services as are provided any party” made it impossible for Plaintiff to get the claims timely initiated. The Clerk shall be held liable for Plaintiff’s losses in the event his claims are time-barred as a result of the Clerk’s inaction in docketing the action, issuing citations, serving Plaintiff’s pleadings to the Defendants, and providing such other customary services as are provided any party.
219. “A selective prosecution claim is not a defense on the merits to the criminal charge itself, but an independent assertion that the prosecutor has brought the charge for reasons forbidden by the Constitution.”[1] United States v. Armstrong, 517 U.S. 456 (1996).
220. Plaintiff contends that persons of white race such as Cox/Koop/ARPI, John Gerken, Lennar Florida Partners, Greg Martin, Woody Obrig, Paul Maykuth, et al. were not prosecuted while Plaintiff and the 18 named Taiwanese investors were maliciously prosecuted because of a bias in violation of the 14th Amendment, which requires that “nor shall any state deny to any person within its jurisdiction the equal protection of the laws.”
221. On December 8, 2011 Plaintiff sent by CERTIFIED MAIL RETURN RECEIPT REQUESTED the DECLARATION OF PAUL CHEN IN SUPPORT OF A CRIMINAL COMPLAINT Against Anita’s Resort Property, Inc., Anita L. Koop, and Terry J. Cox with Attachment A: Certificate of Fact to Defendants Sheriff B.B. Browning, and Assistant DA Shannon Salyer for execution. The receipts were signed and returned but there has been neither reply to Plaintiff nor any action taken against Cox/Koop/ARPI for violation of Sec. 71.202 (criminal charges: Class A misdemeanor) of the BUSINESS AND COMMERCE CODE since June 6, 1993 and ongoing.
IX. Neither the Clerks nor the Judges, State and Federal, are Familiar with the Laws Protecting Indigents
222. 28 U.S.C. § 1915(d) provides: “The officers of the court shall issue and serve all process, and perform all duties in such cases. Witnesses shall attend as in other cases, and the same remedies shall be available as are provided for by law in other cases.”
X. Some Void Orders Subject to Reversal, Vacatur, and Invalidation
JUDGE WESLEY W. STEEN’S 11 VOID ORDERS
223. Void Order 1: ORDER PERMITTING WITHDRAWAL (# 299) — Record Excerpt 4 (Related Doc # 298) Signed on 9/26/2002 (Entered: 10/01/2002)
224. Void Order 2: ORDER APPROVING TRUSTEE’S FINAL REPORT Unsigned & unrecorded — Record Excerpt 5Hearing on 10/8/2002.— See Case No. 96-24925-VS-7 Docket (#302)
225. Void Order 3: ORDER APPROVING TRUSTEE S FEES AND EXPENSES Signed on 10/8/2002 (Entered: 10/09/2002) — Record Excerpt 6 — See Case No. 96-24925-VS-7 Docket (#301)
226. Void Order 4: FINAL DECREE Signed on 6/5/2003 (Entered: 06/06/2003) — Record Excerpt 7 Entry of Decree violated due process. — See Case No. 96-24925-VS-7 Docket (#315)
227. Void Order 5: ORDER DENYING MOTION TO REOPEN by late-filed Claimants Unrecorded — Record Excerpt 9 Docket report shows: “Motion denied for want of proper prosecution. (Entered: 2/15/2003)”, but there was no entry of Order on record. — See Case No. 96-24925-VS-7 Docket (#323) 323 MOTION TO REOPEN CASE, VACATE ORDERS AND RELITIGATE OBJECTION TO TRUSTEE’S FINAL REPORT by Late-filed Claimants 12/09/2003 ——- Record Excerpt 8
228. Void Order 6: ORDER DENYING MOTION TO REOPEN by Appellant (#370) — Record Excerpt 10 (Related Doc # 368) Signed on 6/7/2004 (Entered: 06/09/2004)
229. Void Order 7: ORDER DENYING MOTION FOR RECONSIDERATION (#374) — Record Excerpt 11 (Related Doc # 373) Signed on 6/27/2004 (Entered: 06/29/2004)
230. Void Order 8: Order Approving Settlement Agreement No date, no signatures. Even if it was dated and signed by the presiding judge, it would be voidable in that the Taiwanese through Plaintiff objected to the Settlement Agreement in writing twice and their approvals and signatures were never obtained.
231. Order 9: Agreed Order Approving Trustee’s Motion for Summary Judgment Based on Void Order 8, it was void ab intio. (See Complaint #1 COUNT 1, VI. Vacatur of Summary Judgment & Agreed Final Judgment) Where the record fails affirmatively to show jurisdiction of the persons of the defendants, a summary judgment, is fundamentally erroneous. • Peterson & Tvrdik v Mueller-Huber Grain Co., 58 SW2d 890 at 892 (Texas 1933). Also cited with approval in • Reynolds v Volunteer State Life Ins. Co., 80 SW2d 1087 at 1093 (Texas 1935)
232. Void Order 10: Agreed Final Judgment The Agreed Final Judgment was void ab initio because it was based on Void Order 8: Order Approving Settlement Agreement and Void Order 9: Agreed Order Approving Trustee’s Motion for Summary Judgment. (See Complaint #1 COUNT 1, VI. Vacatur of Summary Judgment & Agreed Final Judgment)
233. Void Order 11 (09/01/2004): ORDER DENYING MOTION FOR COURT-APPOINTED COUNSEL AND OTHER REQUESTED RELIEF (doc# 382) This Order was void ab initio in that Judge Steen had neither subject matter nor personal jurisdiction over the MOTION which had been assigned to the District Court for adjudication.
234. JUDGE VANESSA GILMORE’S VOID ORDERS WITHOUT EITHER SUBJECT MATTER OR PERSONAL JURISDICTION In Civil Action Case No. 02-4794, Lead Case No. 4:04cv3084 and Member Case No.4: 04cv3426, Consolidated Case No. H:04-CV-3084, Judge Gilmore rendered numerous VOID Orders without any subject matter jurisdiction in that there was no final order or judgment to appeal from, and that Void Order 2: ORDER APPROVING TRUSTEE’S FINAL REPORT was neither signed nor recorded in the docket.
235. Judge Rainey’s Orders in Cases Numbered 6:05-mc-00002, V-06-78, and V-ms-11 were rendered without subject matter jurisdiction in violation of Title 28 Section 1915(d)(e)(1). His denial of mandatory reinstatement further violated Rule 1-041(E)(2) of Rules Enabling Act.
236. Judge Jack’s Void Orders/Judgments in Case Numbered 610-cv-00056 were rendered without subject matter jurisdiction in violation of Title 28 Section 1915(d)(e)(1) and Rule 1-041(E)(2) of Rules Enabling Act. They must be set aside.
WHEREFORE PREMISES CONSIDERED, PLAINTIFF prays that all the VOID Orders and Judgments rendered for Anita’s Resort Properties, Inc. listed above be vacated and set aside, and that actual, special, general, compensatory damages and punitive damages be awarded Plaintiff upon a jury trial to punish and deter fraud, that the VOID Orders rendered by the Defendant Judges be vacated, that that actual, special, general, compensatory damages and punitive damages be awarded against those Defendants sued in their personal capacities, and that Plaintiff claims for prospective relief be granted so that Texas judiciaries’ corruption may be investigated and a meaningful legal education program may be initiated for all the officials in the justice system to minimize continuing violations.
PLAINTIFF HEREBY DEMANDS TRIAL BY JURY
I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct.
Dated this the 4th day of June, 2012.
Respectfully submitted,
————————————–
Paul Chen, Pro Se Plaintiff
808 N. Mechanic St.
El Campo, TX 77437
E-mail: ricofraudonthecourt@yahoo.com
CERTIFICATE OF SERVICE
I hereby certify that the original copy of the above PETITION FOR SECTION 1983 AND STATE LAW CLAIMS is being sent by PRIORITY MAIL 0311 1660 0000 4142 9606 to Pamela Hartgrove, District Clerk, at 211 S. Ann Street, Port Lavaca, TX 77979.
_______________________
Paul Chen, Pro Se Plaintiff
ATTACHMENT A to PETITION FOR SECTION 1983 AND STATE LAW CLAIMS: Defendants’ Mailing Addresses
Posted on June 5, 2012by ricofraudonthecourt
ATTACHMENT A
PETITION FOR SECTION 1983 AND STATE LAW CLAIMS
Please add Chris Janak to the Defendants on the caption page and PART A: 67. Chris Janak: Ineffective counsel assistance showing both “deficient performance” and “prejudice” in conspiracy with the DA to deprive Plaintiff of his constitutional rights.
Defendants’ Mailing Addresses:
Rick Perry, Governor
Office of the Governor
P.O. Box 12428, Austin, Texas 78711-2428
State Insurance Building
1100 San Jacinto, Austin, Texas 78701
Greg Abbott, Attorney General
Office of the Attorney General
PO Box 12548, Austin, TX 78711-2548
300 W. 15th Street, Austin, TX 78701
Calhoun County, Texas:
DA Dan Heard
211 S. Ann Street, Suite 302
Port Lavaca TX 77979
Sheriff B.B. Browning
211 S. Ann Street, Port Lavaca, TX 77979
Calhoun County Jail Administrator
302 West Live Oak, Port Lavaca, TX 77979
Calhoun County District Attorney’s Office, Texas:
Dan Heard, DA
211 S. Ann Street, Suite 302
Port Lavaca TX 77979
Shannon Salyer, ADA
211 S. Ann Street, Suite 302
Port Lavaca TX 77979
J.D. Henderson, ADA
211 S. Ann Street, Suite 302
Port Lavaca TX 77979
Calhoun County District Court:
Pamela Martin Hartgrove
211 S. Ann Street, Port Lavaca, TX 77979
Judge Skipper Koetter
211 S. Ann Street, Port Lavaca, TX 77979
Judge Kemper Stephen Williams
211 S. Ann Street, Port Lavaca, TX 77979
Judge Hope Kurtz
201 W. Austin, Room 12, Port Lavaca, TX 77979
Calhoun County Court at Law # 1:
Judge Alex Hernandez
211 S. Ann Street, Port Lavaca, TX 77979
Federal District Court of Southern Texas:
Chief Judge Ricardo H. Hinojosa
1701 W. Business Hwy 83 Suite 1028
McAllen, TX 78501
Former Chief Judge Hayden Head
1133 N. Shoreline Blvd. 3rd F
Corpus Christi, TX 78401
Judge John D. Rainey
P.O. Box 1638
Joyce Richards
Victoria, Texas 77902
P.O. Box 1638
Victoria, Texas 77902
Judge Vanessa Gilmore
515 Rusk Street, 1st Floor, Houston, TX 77002
Judge Janice Graham Jack
1133 N. Shoreline Blvd. 3rd F
Corpus Christi, TX 78401
Michael N. Milby, Former Clerk
515 Rusk Street, 1st Floor, Houston, TX 77002
David J. Bradley, Clerk
515 Rusk Street, 1st Floor, Houston, TX 77002
Federal Bankruptcy Court of Southern Texas:
Chief Judge Marvin Isgur
515 Rusk Street, 1st Floor, Houston, TX 77002
Judge Wesley W. Steen ["Steen"]
515 Rusk Street, 1st Floor, Houston, TX 77002
Private Parties
Anita L. Koop, Terry J. Cox, Anita’s Resort Properties, Inc.
P O Box 1969 Victoria, TX 77902 c/o Richard Chapman
Richard Chapman ["Chapman"]
P O Box 1969 Victoria, TX 77902
John Gerken c/o Richard Chapman
P O Box 1969 Victoria, TX 77902
Lennar Florida Partners, II, L.P. c/o Richard Chapman
P O Box 1969 Victoria, TX 77902
Thomas George
5121 BEE CAVE RD STE 208 AUSTIN, TX 78746-5216
Kenneth Burch
Suite 225 13301 East Fwy
Houston, TX 77015-5800
Carl D. Haddad
Suite 225 13301 East Fwy
Houston, TX 77015-5800
Richard Morrison
1100 HWY 146 STE “A” KEMAH, TX 77565
David Roberts
P.O. Box 9, Port Lavaca, TX 77979
Roberts, Roberts, Odefey, & Witte, LLP
P.O. Box 9, Port Lavaca, TX 77979
Mike Boudloche, Trustee
555 N Carancahua Ste 600,
Corpus Christi, TX 78478
Michael B. Schmidt
Attorney at Law 555 N Carancahua Ste 1550
Corpus Christi, TX 78478
John M. Vardeman
712 American Bank Plz
Corpus Christi, TX 78475
Jan Shephard
410 S Padre Island Dr Ste 210
Corpus Christi, TX 78405
Henry A. Welfel, Jr.
2001 E Sabine Ste 207, Victoria, TX 77901
Armando G Avalos, Realtor
555 North Carancahua Street, Suite 1540
Corpus Christi, TX 78478-0002
Armando Avalos Realty, Inc.
555 North Carancahua Street, Suite 1540
Corpus Christi, TX 78478-0002
Tina French, Publisher, Port Lavaca Wave
107 East Austin P.O. Box 88
Port Lavaca, TX 77979
Jay Workman, Reporter,
107 East Austin P.O. Box 88
Port Lavaca, TX 77979
Emily Allen, Reporter
107 East Austin P.O. Box 88
Port Lavaca, TX 77979
Chris Janak: 205 Angus Street, Victoria, TX77904-2843
The Defendants’ names may not be in the same order as those of the Captioned and the Causation pages, but they do include everyone except the added Chris Janak.
CERTIFICATE OF SERVICE
I hereby certify that the original copy of the above ATTACHMENT A is being sent by FIRST MAIL postage prepaid to Pamela Hartgrove, District Clerk, at 211 S. Ann Street, Port Lavaca, TX 77979 on June 5, 2012.
_______________________
Paul Chen, Pro Se Plaintiff
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Paul Chen’s Response to Olivia Brame’s 2nd Comment on Criminal Justice
* Probation: A sentence whereby a convict is released from confinement but is still under court supervision. Probation can be given in lieu of a prison term or can suspend a prison sentence if the convict has consistently demonstrated good behavior. The status of a convicted person who is given some freedom on the condition that for a specified period he or she act in a manner approved by a special officer to whom the person must report. See TheFreeDictionary Copyright © 2013 Farlex, Inc.
Had I tried to save the $15,000 + $550 by keeping the court-appointed attorney Chris Janak, I would have become a “probationer” and wouldn’t know how to answer the question: “Have you ever been convicted?” for the rest of my life!
Paul Chen a convict? I cannot in good conscience afford it!
Had I retained the Boston attorney, I would be $100,000 deeper in debt!
Paul Chen
E-mail Addresses:
ricofraudonthecourt@yahoo.com
pc886405@yahoo.com
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