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Legal Battle of Frank Sharpe Opinion Filed January 9, 2001 In The Court of Appeals Fifth District of Texas at Dallas No. 05-99-01614-Cv FRANK SHARPE, Appellant V. ROMAN CATHOLIC DIOCESE OF DALLAS, Appellee This is a consolidated appeal and petition for writ of mandamus complaining of the trial court's order granting appellee the Roman Catholic Diocese of Dallas's (the Diocese) motion for return of documents. The sole issue presented is whether the trial court had jurisdiction to order documents that a nonparty to litigation produced in discovery turned over to the Diocese. Appellant Frank Sharpe's sole complaint is that the trial court lacked jurisdiction because its plenary jurisdiction had expired when it entered its order. For the reasons that follow, we conditionally grant the writ of mandamus. We dismiss the appeal as moot. This appeal arises out of a lawsuit filed by several plaintiffs against
the Diocese. On January 29, 1998, a final judgment was entered against
the Diocese. The Diocese appealed. While the appeal was pending, the plaintiffs
conducted post-judgment discovery. In particular, plaintiffs served a
subpoena and notice of deposition duces tecum on Frank Sharpe. In response,
Sharpe produced various documents to the plaintiffs. The documents consisted
of papers that Sharpe had recovered from a trash dumpster on Diocese property.
The record shows that Sharpe did not merely produce the documents and
allow plaintiffs to inspect them; he allowed plaintiffs to retain the
original documents. On July 15, 1998, the plaintiffs sent Sharpe a letter
informing him that they were turning the documents over to the Diocese.
On July 27, 1998, the Diocese filed a motion in the trial court asserting
the documents were privileged and had been "improperly taken"
by Sharpe. The Diocese requested the trial court to allow it to retain
the documents in its possession and to also require Sharpe to return any
other Diocese documents he may have in his possession. Thereafter, on April 5, 1999, Sharpe filed a response to the Diocese's motion for return of the documents asserting the trial court's plenary jurisdiction expired thirty days after signing the dismissal order and thus the trial court lacked jurisdiction to determine ownership of the documents. Sharpe further asserted that the trial court's jurisdiction over post-judgment discovery matters did not include the determination of the ownership of original documents that had been produced in discovery. Sharpe reasoned that the discovery rules only allow the parties to litigation to inspect and make copies of documents that are produced, and determination of the ownership of originals is beyond the scope of discovery. On April 9, 1999, outside its plenary jurisdiction, the trial court signed an order appointing a special master and requiring the master to take custody of "Court Reporter's exhibits 1 through 48 admitted in the hearing on date 5/5 & 5/6."1 On June 8, 1999, the trial court granted the Diocese's motion for return of documents and protection and ordered the special master to deliver the documents in its possession to the Diocese. Sharpe filed a writ of mandamus and an appeal from the June 8, 1999 order. In both proceedings, appellant asserts the June 8, 1999 order was void because the trial court lacked jurisdiction. WRIT OF MANDAMUS Mandamus relief is generally available only if the court clearly abused its discretion and the party has no adequate remedy by appeal. See In re Southwestern Bell Telephone Co., 43 Tex. Sup. Ct. J. 1005,1006-1007,2000 WL 854253 (Tex. June 29,2000)(per curiam); In re Long, 984 S.W.2d 623, 625 (Tex. 1999)(per curiam). Mandamus is proper if a trial court issues an order beyond its plenary jurisdiction. See Southwestern Bell Telephone Co., 43 Tex. Sup. Ct. J. at 1007; In re Dickason, 987 S.W.2d 570, 5 71 (Tex. 1998)(per curiam). When attacking a void order by mandamus, it is not necessary to show no adequate remedy at law exists. Southwestern Bell Telephone, 43 Tex. Sup. Ct. J. at 1007. JURISDICTION A trial court's jurisdiction is the court's judicial power expressly authorized by the constitution or statutes. Eichelberger v. Eichelberger, 582 S.W.2d 395, 398 (Tex. 1979). A trial court's jurisdiction must be legally invoked or its power to act does not exist. Hjalmarson v. Langley, 840 S.W.2d 153,455 (Tex. App.-Waco 1992, orig. proceeding.) A trial court's jurisdiction is invoked by the filing of a petition. See Ex parte Fleming, 532 S.W.2d 122, 123 (Tex. Civ. App.-Dallas 1975, orig. proceeding); Moreno v. Moore, 897 S.W.2d 439, 442 (Tex. App.-Corpus Christi 1995, no writ). A judgment unsupported by a petition is void. Douthit v. Anderson, 521 S.W.2d 127, 129 (Tex. Civ. App.-Dallas 1975, no writ). Furthermore, a trial court's plenary jurisdiction expires thirty days after a final judgment is entered if no motion extending the trial court's plenary jurisdiction is timely filed. See Scott & White Memorial Hosp. v. Schexnider, 940 S.W.2d 594, 596 (Tex. 1996). APPLICATION The trial court's jurisdiction in this case was initially invoked by the plaintiffs filing a petition in the underlying litigation. Those claims were ultimately dismissed with prejudice on February 19, 1999. No post-judgment motions were filed that would extend the trial court's plenary jurisdiction; thus the trial court's plenary jurisdiction expired thirty days after the dismissal. Nevertheless, after the trial court lost plenary jurisdiction, it held a hearing on the motion for return of the documents, appointed a Special Master to take possession of the documents, granted the Diocese's motion and ordered the documents returned to the Diocese. The question presented is whether the trial court had jurisdiction to perform these acts. The Diocese relies on two bases for the proposition that the trial court had jurisdiction notwithstanding its lack of plenary jurisdiction: (1) rule 62 1 a of the rules of civil procedure and (2) its general "inherent" authority to act as a court. The Diocese first asserts the trial court had jurisdiction under rule 621 a of the rules of civil procedure to order the documents returned to the Diocese because the dispute arose out of post- judgment discovery. Every court having jurisdiction to render a judgment has the inherent power to enforce its judgments. Arndt v. Farris, 633 S.W.2d 497, 499 (Tex. 1982). In this regard, rule 621 a is an aid to the enforcement of the court's judgment and gives the trial court continuing jurisdiction over post-judgment discovery to aid in the enforcement of the judgment. See id; TEX. R. Civ. P. 621 a. The trial court also has jurisdiction over matters incidental to post-judgment discovery. Cf. Metzger v. Casseb, 839 S.W.2d 160,161 (Tex. App.-Houston [lst Dist. 1992, orig. proceeding). The trial court does not, however, have continuing jurisdiction over matters that do not relate to the trial court's enforcement of its judgment. See Allen v. Allen, 717 S.W.2d 311, 312 (Tex. 1986) (per curiam); Jobe v. Lapidus, 874 S.W.2d 764, 767 (Tex. App.-Dallas 1994, writ denied). Under the facts of this case, we conclude rule 62 1 a did not give the trial court jurisdiction to determine ownership of the documents. The documents were produced in post-judgment discovery at a time the parties were seeking to enforce the trial court's January 28, 1998 judgment. However, that judgment was subsequently set aside at the parties request and the cause was remanded to the trial court. At that time, the trial court's rule 621a jurisdiction necessarily ceased. Furthermore, before litigating the dispute surrounding ownership of the documents, the trial court dismissed the cause with prejudice leaving no judgment to enforce. Thus, the parties could no longer engage in discovery to enforce the prior judgment. Additionally, plaintiffs did not obtain custody of the originals pursuant to the rules of discovery. Rather, the rules would only have allowed plaintiffs to inspect and copy the originals. See TEX. R. Civ. P. 205. Thus, while plaintiffs' access to the documents may have been a part of proper post-judgment discovery, Sharp's gratuitous action in allowing plaintiffs to retain the originals did not make litigation of the ownership of the documents a discovery dispute. Finally, the trial court's complained-of actions did not settle a discovery dispute between litigants, but rather a property dispute between a litigant and a nonparty. Rule 621 cannot be used to independently join additional claims or parties. See Butler v. Stonewall Bank, 569 S.W.2d 542, 544 (Tex. Civ. App.-Corpus Christi 1978, no writ). We conclude the trial court's actions were not incidental to post-judgment discovery or otherwise performed to aid in the enforcement of its judgment. Therefore, the trial court did not have jurisdiction under rule 621a. The Diocese also generally asserts the trial court had the "inherent authority" to determine ownership of the documents because the documents were in the trial court's "constructive possession." In addition to the express grants of judicial power to each court, the trial courts possess certain "inherent powers" which are "woven into the fabric of the constitution." See Eichelberger, 582S.W.2dat389. "The [i]nherent judicial power of a court is not derived from legislative grant or specific constitutional provision, but from the very fact that the court has been created and charged by the constitution with certain duties and responsibility." Id. (emphasis added.) The inherent powers of a court are those which it may call upon to aid in the exercise of its jurisdiction, in the administration oflustice, and in the preservation of its independence and integrity. See Eichelberger, 582 S.W.2d at 398. The power exists to enable our courts to effectively perform their judicial functions and to protect their dignity, independence and integrity. Id. at 398-99. Inherent power is not, however, a substitute for plenary jurisdiction. See Lane Bank Equipment Co. v. Smith Southern Equipment, 10 S.W.3d 308, 311 (Tex. 2000)(citing Hjalmarson, 840 S.W.2d at 155). Nor does a court's inherent judicial power confer jurisdiction where none pre-exists by statutory or constitutional grant. See Hjalmarson, 840 S.W.2d at 155. Moreover, "inherent" judicial powers do not include the authority to make substantive rulings on controversies between parties in the absence of pleadings invoking the court's jurisdiction. See In re Polybutylene Plumbing Litigation, 23 S.W.3d 428, 438 (Tex. App.-Houston [Ist Dist.] 2000, no pet.). None of the rationale supporting inherent judicial authority would be furthered by allowing a trial court to litigate ownership of documents a third party produced in discovery in the absence of pleadings to support such a determination. Specifically, it was not necessary for the trial court to determine ownership of the documents to protect its judicial function, independence, or integrity. Cf. Continental Carbon Co. v. Sea-Land Serv., Inc., 27 S.W.3d 184, 189 (Tex. App.-Dallas 2000, pet. denied). Rather, the dispute should be resolved by a suit in which Sharpe is made a party. We conclude the trial court's actions after it lost plenary jurisdiction were null and void. We conditionally grant the writ of mandamus, and direct the trial court to vacate its April 9, 1999 and June 8, 1999 orders and to direct the special master to return the documents to the party who had possession of the documents before the trial court's void actions.2 The writ will issue only if the trial court fails to comply. Because we conditionally grant the writ of mandamus, we need not determine whether Sharpe, a nonparty to the litigation, may appeal the trial court's order. We dismiss the appeal as moot. Signed by Michael J. O’Neill, Justice IN THE UNITED STATES DISTRICT COURT FRANCIS SHARPE, Plaintiff, ' ROMAN CATHOLIC DIOCESE OF 'DALLAS, PLAINTIFF’S SECOND AMENDED ORIGINAL COMPLAINT COMES NOW, Francis Sharpe, Plaintiff, complaining of Defendants, the Roman Catholic Diocese of Dallas, Reverend Charles Grahmann, his predecessors and Successors, as Bishop of the Roman Catholic Diocese of Dallas, Windle Turley, Randal Mathis and Monte Fite, and for cause of action would respectfully show: JURISDICTION AND VENUE 1. This action is brought pursuant to 42 U.S.C.'1983, 42 U.S.C.'1985 subsections (2) and (3) and the First, Fourth, Fifth and Fourteenth Amendments to the United States Constitution. Jurisdiction exists by 42 U.S.C.'1343(1). Also, federal question jurisdiction is conferred on this honorable Court by 42 U.S.C.'1331 because this action arises under the Constitution of the United States of America. Venue is proper in this Division because the events which are the subject of this cause of action occurred in Dallas, Texas which is located in the Dallas Division of the Northern District of Texas. PARTIES
3. Defendant, the Roman Catholic Diocese of Dallas (“the Diocese”), is an unincorporated religious association located with in the boundaries of the Northern District of Texas. The Roman Catholic Diocese has appeared herein. 4. Defendant, Reverend Charles Grahmann, his predecessors and Successors, as Bishop of the Roman Catholic Diocese of Dallas (“Grahmann”), is an individual and at all times relevant hereto was and remains a United States citizen and a resident of the State of Texas in the Northern District of Texas. Grahmann has appeared herein. 5. Defendant, Windle Turley (“Turley”), is an individual and at all times relevant hereto was and remains a United States citizen and a resident of the State of Texas in the Northern District of Texas. Turley is an attorney and at all times relevant to this case has been practicing law in Dallas, Texas. Windle Turley may be served with process at his place of business to wit: Law Office of Windle Turley, P.C., 1000 Turley Law Center, 6440 North Central Expressway, Dallas, Texas 75206. 6. Defendant, Randal Mathis (“Mathis”) is an individual and at all times relevant hereto was and remains a United States citizen and a resident of the State of Texas in the Northern District of Texas. Mathis is an attorney and at all times relevant to this case has been practicing law in Dallas, Texas. Randal Mathis has appeared herein. 7. Defendant, Monte Fite (“Fite”), is an individual and at all times relevant hereto was and remains a United States citizen and a resident of the State of Texas in the Northern District of Texas. Fite was an agent of Defendant Windle Turley at all times relevant to this case. Monte Fite may be served with process at his place of business to wit: Law Office of Windle Turley, P.C., 1000 Turley Law Center, 6440 North Central Expressway, Dallas, Texas 75206. 8. In July 1997, Sharpe ( a Catholic who was openly critical of the Diocese and, therefore, not a “a good” Catholic) began retrieving items (documents, notes, memos, etc.) from the dumpster located adjacent to the Diocese. Sharpe continued to retrieve items from the dumpster and items from bags which had fallen out of the dumpster until on or around the end of December, 1998. Sharpe retrieved these items with no complaint from the Diocese. The dumpster was not enclosed by a fence or other structure as required by the City of Dallas, nor was the dumpster posted with a “No Trespassing” sign. The Diocese never advised Sharpe that he could not retrieve items that the Diocese had clearly thrown away in the dumpster. When the Diocese learned Sharpe was retrieving items from the dumpster, and told him not to do it any longer, Sharpe never went back to the dumpster. During this same period of time, other people were also rummaging through the dumpster without complaint from the Diocese. 9. After accumulating the evidence from in and around the dumpster (the refuse would often be contained in plastic bags, sometimes opaque and sometimes clear, and on some occasions was contained within open cardboard boxes), Sharpe would take the refuse home, separate it, and organize it. Sharpe found that many of the items he had retrieved from the Diocese dumpster were clearly damaging to the Diocese with respect to then ongoing litigation involving the Diocese, Rudy Kos and the John Doe plaintiffs, to wit: the paperwork the Diocese was throwing away was evidence relevant to the Kos case, and therefore, the Diocese was destroying evidence. The documents reflected other acts of pedophilia and child abuse by Catholic Priests, knowledge of pedophilia by the Diocese and efforts by the Diocese to influence the Texas State judicial system during and after the Kos trial. Sharpe segregated and separated the items, ultimately cataloging them and organizing them in his own fashion so as to be able to expose the vagaries (unlawful/illegal conduct) of the Diocese. 10. After the verdict in the Kos trial, but prior to entry of judgment, the Diocese filed a motion to recuse Judge Ann Ashby from further involvement in the Kos case. After the motion to recuse Judge Ashby was filed, but prior to the hearing on the motion, Sharpe identified a document taken from the dumpster which later became known as the “Tower Club” memo. Prior to the hearing on the motion to recuse Judge Ashby, Sharpe provided to the plaintiffs’ attorneys in the Kos case a copy of the Tower Club memo. The Tower Club memo is, in reality, minutes of a meeting/advisory group to Bishop Grahmann dated August 11, 1997 which evidences potential ethical violations by lawyers and illegal ex-parte influence on the Texas State judiciary by the Diocese. Sharpe continued to provide documents to the plaintiffs’ attorneys in the Kos case following the disclosure of the Tower Club memo. Defendant Turley was one of the attorneys representing the plaintiffs in the Kos case. Beginning early in 1997, Turley used an intermediary, Monte Fite, and attorneys who worked for Turley to communicate with Sharpe. Fite identified himself to Sharpe as a “go between” for Turley. Sharpe was told by Fite not to contact Turley directly, but to contact Fite through Turley’s law office. Fite would come to Sharpe’s residence, many times with lawyers from Turley’s office, to review the evidence Sharpe possessed regarding the Diocese’s knowledge of pedophilia by members of the Diocese, child abuse, destruction of evidence of assets, telephone messages between a Texas State Judge and the Diocese, and the ability of the Diocese to satisfy the approximate 126 million dollar verdict and judgment in the Kos case. Sharpe provided some of the information to Fite which Fite told Sharpe he would then provide to Turley. Sharpe had retained a lawyer to assist him with his situation and problems with the Diocese’s conduct. The lawyer was the Hon. Joseph Ashmore. 11. Fite, in and around March 1998, prepared a letter for Sharpe to send to Joseph Ashmore (Sharpe’s lawyer) which terminated Sharpe’s relationship with Ashmore. After Ashmore’s representation of Sharpe was terminated, Fite and others proportedly on behalf of Turley “prepared” Sharpe for the upcoming deposition . In preparing Sharpe for the deposition Fite and the other yet unnamed co-conspirators advised Sharpe if asked how he got the documents from the dumpster to respond that it was a “simple trespass” full well knowing no trespass had occurred because the dumpster was not posted “No Trespassing” nor had anyone advised Sharpe that he could not retrieve items from in and around the dumpster. Turley, thereafter, subpoenaed Sharpe to produce documents at a deposition on or about April 30, 1998 for use in the Kos litigation. Sharpe provided documents, which he retrieved from the dumpster and other places, which reflected the illegal evidence destruction by the Diocese, evidence of other acts of pedophilia by other Diocesan Priests, possible aggravated perjury and sexual perversion which existed within the Diocese. Sharpe appeared at Turley’s office and provided documents to Turley that Sharpe had retrieved from the Diocese dumpster and other places. In the deposition stipulations and on the record, during the deposition of Sharpe, Turley represented to Sharpe, with Randal Mathis present (then attorney for the Diocese), that Sharpe would always have access to the records and that copies would be made and the originals returned to Sharpe. Turley also maintained to Mathis that the documents were clearly Sharpe’s, that the Diocese had abandoned any ownership right and that Mathis and the Diocese were out of luck. 12. The items were not returned as promised to Sharpe by Turley and all of the lawyers present at Sharpe’s deposition, including Randal Mathis, Dennis Sullivan and George Bramblett. Thereafter, Turley, the Diocese, and others settled the Kos litigation on or around July 11, 1998. 13. After learning about the Kos settlement from the news media (The Dallas Morning News), Sharpe then received a letter on or about July 16, 1998, from the Law Offices of Windle Turley, stating, “We are turning over the documents you brought to us to Mr. Mathis. We will be filing a motion with the court to request that these documents be returned to you, but until the time of that hearing and subsequent ruling, Mr. Mathis will have possession of these documents.” 14. The Defendants combined and conspired to dispossess Sharpe of his property. The documents were given to Mathis by Turley, although Turley had not obtained permission from Sharpe to do anything other than copy the documents and return them to Sharpe. Despite Turley’s representation that he would move the court for the return of Sharpe’s documents, Turley never filed such a motion. Instead, Sharpe filed a pro se motion for return of the documents, which the Diocese fought. Ultimately, in and around April 1999, long after any case or controversy amongst the parties to the litigation had been resolved, Judge Ashby ordered the documents placed in receivership with an attorney named Paul Lockey. Lockey then rented a storage unit located at the Lock & Key Storage facility on Buckner Blvd. in Dallas, Dallas County, Texas. When Mr. Lockey rented the unit, he obtained three (3) keys. To date, it is unknown why Mr. Lockey obtained so many keys. However, it is known that Randal Mathis was another contact with potential ability to access the documents. Moreover, Sharpe was not provided with a key to the storage unit. The documents had been deposited with Lockey supposedly for safekeeping. 15. Ultimately, Sharpe appealed the trial court’s order and , the Dallas Court of Appeals, in a opinion dated January 9, 2001, ordered that the documents be returned to the person last in possession of the documents concluding that the trial court lacked jurisdiction to order the documents be sent to Lockey. On February 7, 2001, Judge Ashby vacated her prior order and complied with the mandate from the Court of Appeals. The Dallas Court of Appeals stated in its opinion that the Diocese and Sharpe should be parties to a lawsuit to determine ownership even though the Diocese had thrown the documents away, had abandoned the property and all of their lawyers agreed prior to the deposition of Sharpe to return the documents to Sharpe. As suggested by the Court of Appeals, Sharpe sued the Diocese and the lawyers for conspiracy, conversion, fraud and other state law claims to regain the documents Sharpe took from the dumpster. On November 21, 2001, written demand was made on the Diocese and the other Defendants for the return of the items. The Diocese and other Defendants, nevertheless, refused to comply with the agreement made at the deposition. To date, the documents have not been returned to Sharpe. 16. As described above, the combined efforts of the Defendants, have deprived Sharpe of his property and dispossessed him of 48 boxes and some large plastic bags of incriminating evidence that he had gathered against the Diocese over a long period of time. This property has value in that it could be used by Sharpe to author a book, write a series of articles or make a documentary regarding the Diocese and those involved in the legal machinations in the Kos case. This property has value to the Plaintiff as it provides proof of the truth of the subject matter of any such book, article or documentary and protects him from meritless allegations of slander. Also, as Sharpe disclosed in the deposition, he intended to take the evidence to Federal Investigators to use to potentially prosecute the Diocese and their employees. 17. The documents which are the subject of this case are currently in possession of Frank Andrews who was appointed sua sponte by Judge Joe D. Clayton to take possession of Sharpe’s property. Most recently, Mr. Lockey turned over one of the keys to the Honorable Frank Andrews, Special Master appointed by the Honorable Joe D. Clayton, to “segregate” the documents. Despite having discarded the documents, the Diocese maintains its position with Judge Clayton that the documents are “private.” That is the extent of the objection voiced by the Diocese in Sharpe’s State law conversion claim. Sharpe has, by efforts of the Defendants, been denied access to the documents since April, 1998. The Diocese maintains they “have” the documents and will not return them and they are private although they made no effort to steal them from Turley who had them from April 1998 until July 15, 1998. Moreover, the Diocese did not seek any judicial relief until Judge Ashby’s jurisdiction expired. Also, the Diocese did not seek relief with the trial court in the Kos case until they had possession of Sharpe’s documents for 6 months or more. This constitutes an abuse by the Defendants of the State judicial system in violation of 42 U.S.C. ''1983 & 1985(2) and (3). Moreover, the Defendants have engaged in ex parte communication with Judge Joe D. Clayton in the state court proceeding initiated by Sharpe, utilized Judge Ashby to steal the documents when she clearly had no jurisdiction over Sharpe or any case or controversy, prevailed upon Judge Clayton to prohibit most any sort of discovery, prevented Sharpe from copying the documents with the approval of Judge Clayton, ignored all of the representations previously made to Sharpe at the deposition, with the approval of Judge Clayton, and have prevailed upon Judge Clayton to rule that the documents were not “legally abandoned” (even though clearly thrown away by the Diocese in a non-secured dumpster open to the general public), and prevailed upon Judge Clayton to extinguish all of Sharpe’s causes of action in state court even though Judge Clayton gave Sharpe no opportunity to be heard or conduct discovery to prove the impropriety of the Defendant’s position. It is beyond dispute that all of this occurred with Judge Clayton’s active and/or passive participation. 18. The documents in question are original documents obtained by Sharpe from the Diocese dumpster which were clearly thrown away. Sharpe did not make and does not have copies of all of these documents. By this suit, Sharpe seeks in part the return of what is left of the documents. Based on the facts and applicable law, Sharpe has a substantial likelihood of success on the merits of his claims. Because of the sensitive nature of the contents of the documents, there is a substantial threat that, absent an injunction, the documents will be further affected by the efforts of the Defendants. Particularly since all of the original keys to the storage unit originally rented by Mr. Lockey have not been accounted for. Sharpe will suffer irreparable harm, damage and injury unless the Defendants are enjoined from destroying or otherwise damaging in any manner the documents in question or otherwise cause the documents to be illegible to Sharpe because damage, destruction or illegibility of the documents would prevent their intact return to Sharpe and prevent their use by Sharpe as supporting proof for a potential book, article, documentary or criminal prosecution. This would consequently destroy the value of the documents to Sharpe and prevent Sharpe from exercising his constitutional rights to freedom of speech and freedom from being deprived of his property without due process of law and reporting of perceived criminal acts. The value to Sharpe is both emotional and monetary; however, because of the nature of the subject matter of the documents and the varying media by which Sharpe may elect to publish the documents, the monetary value is especially speculative and difficult to ascertain. Therefore, Sharpe has no adequate remedy at law or otherwise in the event that the documents are altered in any manner or otherwise caused to be illegible. 19. Sharpe would further show that the granting of the injunctive relief sought herein would not prejudice or harm the Defendants, and alternatively, that the harm caused to Sharpe if the Defendants are not enjoined from destroying or damaging the documents outweighs any harm to the Defendants if injunctive relief is granted. Further, the granting of injunctive relief does not disserve the public interest as the Defendants should be enjoined from damaging or destroying the property of another and evidence of criminal acts. 20. Therefore, pursuant to Fed. R. Civ. P. 65, Sharpe seeks issuance of a temporary restraining order, restraining Defendants and their agents, servants, employees and anyone with access to the documents, from destroying or otherwise damaging in any manner the documents described above which are the subject of this case or otherwise causing the documents to be illegible to Sharpe, until a hearing is had on Sharpe’s application for a preliminary injunction. Sharpe further requests issuance of a preliminary injunction enjoining the Defendants and their agents, servants and employees, from destroying or otherwise damaging in any manner the documents described above which are the subject of this case or causing the documents to be illegible to Sharpe, during the pendency of this action. Sharpe further requests that on final hearing, the Defendants and their agents, servants and employees, be permanently enjoined from destroying or otherwise damaging in any manner the documents described above which are the subject of this case or causing the documents to be illegible to Sharpe. CAUSE OF ACTION UNDER 42 U.S.C. ' 1985(2) and (3) 21. As a direct and proximate result of the above described unlawful and malicious acts of the Defendants, Frances Sharpe was deprived of his property and concomitant right to the use of his property, which is in violation of his rights under the laws and Constitution of the United States, in particular the First, Fourth, Fifth and Fourteenth Amendments, and 42 U.S.C. ''1985(2) and (3). Based on the above facts, and based on information and belief, the Defendants conspired for the purpose of depriving Sharpe, either directly or indirectly, of the equal protection of the laws including Sharpe’s First Amendment constitutional right to freedom of speech in violation of 42 U.S.C. '1985(3). The Defendants utilized the judicial system of the State of Texas to effectuate a conspiracy and prior restraint when the Defendants used the deposition process for an unlawful purpose (theft), sought the appointment of Mr. Lockey through Judge Ashby, the order of impoundment and the legal sojourn the Defendants have forced Sharpe to trek until this day. As described above, the Defendants also conspired to unlawfully dispossess Sharpe of his property and prevent his further access to the documents by using the State judicial system, i.e., the deposition subpoena and subsequent proceedings before Judge Ashby, the Dallas Court of Appeals and currently with the Hon. Joe D. Clayton to cause injury to Sharpe, deprive him of his property and violate his First, Fourth, Fifth and Fourteenth Amendment Constitutional rights. Sharpe was the owner of the documents at the time of the deposition and has been deprived of their use by the Defendants’ abuse of the State Judicial Process. 22. Further, based on the above facts, and based on information and belief, the Defendants conspired for the purpose of impeding, hindering, obstructing or defeating the due course of justice in the State of Texas with the intent to deny Sharpe the equal protection of the laws, or to injure Sharpe or his property for lawfully attempting to enforce Sharpe’s rights to equal protection of the law in violation of 42 U.S.C. '1985(2). The Defendants’ conduct as described above constituted a conspiracy to obstruct justice. 23. The object of the above described conspiracy in violation of '1985(2) and (3) was to deprive Sharpe of equal protection under the laws because of his religion. After all, good Catholics are permitted ex-parte communications, the exercise of improper influence on the state judicial system to illegally deprive Sharpe of his documents in order to avoid their own criminal prosecution. CAUSE OF ACTION UNDER 42 U.S.C. ' 1983 24. Additionally, and based on the facts set forth above, Plaintiff also sues the Defendants under 42 U.S.C. ' 1983 for violating his federally protected constitutional rights, including: (1) his Fifth and Fourteenth Amendment right to due process of law; (2) his Fourth Amendment right to be free from unreasonable seizure; and (3) his First Amendment right to freedom of speech. The Defendants’ conduct violated Plaintiff’s well established constitutional rights and the Defendants failed to act in an objectively reasonable manner based on the clearly established law at the time Sharpe’s property was unlawfully seized and taken from him. 25. Plaintiff would further show that the Defendants’ deprivation of Plaintiff’s constitutional rights occurred while the Defendants were acting under color of state law, were state actors and the Defendants abused the state judicial process with active participation and/or passive approval of Judge Ashby and Judge Clayton as alleged herein above. WHEREFORE, Plaintiff demands the following relief, jointly and severally, against all of the Defendants: 1. A temporary restraining order, restraining Defendants and their agents, servants and employees, from destroying or otherwise damaging in any manner the documents described above which are the subject of this case or otherwise causing the documents to be illegible to Plaintiff, until a hearing is had on Plaintiff’s application for a preliminary injunction; 2. A preliminary injunction enjoining the Defendants and their agents, servants and employees, from destroying or otherwise damaging in any manner the documents described above which are the subject of this case or causing the documents to be illegible to Plaintiff, during the pendency of this action; 3. On final hearing, a permanent injunction against Defendants from destroying or otherwise damaging in any manner the documents described above which are the subject of this case or causing the documents to be illegible to Plaintiff; 4. A declaratory judgment that the policies, practices, and acts complained of herein are illegal and unconstitutional and that the Plaintiff is the sole and rightful owner of the property in question and ordering the Defendants to transfer the property to the custody of a court appointed federal marshal for return to the Plaintiff; 5. Compensatory damages; 6. Punitive damages; and 7. Such other and further relief as this Court may deem appropriate, including costs and reasonable attorney fees. Respectfully submitted, PLAINTIFF’S CERTIFICATE OF INTERESTED PERSONS COMES NOW, Plaintiff, Francis Sharpe, and files this his Certificate of Interested Persons pursuant to Local Rule 3.1(f). The following persons and entities have a financial interest in the outcome of the case:
CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the above and foregoing document has been forwarded to opposing counsel on this 24th day of April, 2002, as follows: Via U.S. Mail Via U.S. Mail AFFIDAVIT OF FRANCIS SHARPE
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