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Sheward v. City of Henryetta

United States District Court, E.D. Oklahoma

May 20, 2019

Howard Sheward, Jr., Plaintiff,
City of Henryetta, Jennifer Clason; and Fountain View Manor, Inc., Defendants.


         Before the court is the motion of the defendant Fountain View Manor, Inc. for summary judgment. Plaintiff alleges against all defendants claims of (1) retaliation for the exercise of the constitutional rights to free speech and petition pursuant to 42 U.S.C. §1983; (2) conspiracy to deprive plaintiff of his federal civil rights pursuant to 42 U.S.C. §1985; and (3) malicious prosecution and abuse of process pursuant to 42 U.S.C. §1983.

         Summary judgment is appropriate "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.'' Rule 56(a) F.R.Cv.P. A dispute is genuine when the evidence is such that a reasonable jury could return a verdict for the nonmoving party; a fact is material when it might affect the outcome of the suit under governing law. See Foster v. Mountain Coal Co., 830 F.3d 1178, 1186 (10th Cir.2016). The court must view all evidence and draw reasonable inferences therefrom in the light most favorable to the nonmoving party. Spring Creek Expl. & Prod. Co. v. Hess Bakken Inv., II, LLC, 887 F.3d 1003, 1027 (10th Cir.2018).

         Plaintiff is a resident of the City of Henryetta, in Okmulgee County. In 2010, he successfully used the initiative petition process outlined in 34 O.S. ''1-27 to commence an audit of the City by the Oklahoma State Auditor & Inspector. See 74 O.S. '212(L). This ultimately resulted in a Report (#49-20) for the period July 1, 2010 through June 30, 2012. The Report found fault with City officials in certain respects.

         Meanwhile, in 2016, plaintiff had prepared another initiative petition, which dealt with (among other things) a proposed charter change, placing the decision to raise or lower water rates to the voters. Plaintiff submitted the petition to the Henryetta City Clerk for certification in early May, 2016. The City Clerk found deficiencies and rejected the petition. Plaintiff states he had a right to appeal the decision (citing 11 O.S. '15-104(B)) but that he chose not to do so.

         On May 19, 2016, the City of Henryetta and Jennifer Clason (the Mayor of the City and also head administrator for defendant Fountain View Manor) filed a petition for declaratory judgment in the District Court of Okmulgee County (#50-3). Essentially, the lawsuit contended that after the City Clerk had rejected the proposed Initiative Petition, Sheward (via email) made numerous accusations to the office of the State Auditor that the City had denied due process in finding the proposed petition to be fatally flawed. Also alleged was that Sheward had made accusations to the State Auditor that the City regularly wasted public funds, despite no such finding being made in the Audit. The lawsuit sought a declaration that the City and City Clerk acted appropriately in finding the Initiative Petition to be deficient. The lawsuit sought costs and attorney fees. Plaintiff contends that (inasmuch as he had not appealed the City Clerk's finding) the manifest purpose of this state-court declaratory action was to have a "chilling effect" on his speech.

         Plaintiff sought resolution of the declaratory judgment matter but no agreement was reached. In August, 2017, the City and Clason dismissed their action without prejudice. Plaintiff alleges that prior to this time he incurred expenses relating to the hiring of an attorney and preparation for a scheduled hearing. He alleges the lawsuit was an attempt to intimidate him into seeking any more Initiative Petitions and deter him from exercising his right to free speech and petition. He also alleges that the City and Clason caused to be filed in the public record of the lawsuit a copy of the signature page of the proposed Initiative Petition, thus potentially exposing individuals named to public ridicule.

         The City and Clason, it is alleged, began enclosing a flyer to accompany each citizen's water bill. The flyer explained that a new $6 monthly charge was included to pay for the cost of the previous Audit. The flyer attributes the Audit to misinformed residents of our City," but did not mention plaintiff or anyone else by name.

         The remaining defendant in the present lawsuit is movant Fountain View Manor, Inc., (FVM or movant), a private nursing home in Henryetta. In 2015, movant was forced to undergo an expensive project related to a collapsed sewer line under its building. Plaintiff lived across the street from the movant's building and observed the project. As previously stated, defendant Clason was the City Councilor for the district (and soon to become Mayor of Henryetta). She was also the co-owner and administrator of FVM.

         As an observer, plaintiff had two concerns. He complained to the City about resolving the continuing hazard, but he also did not approve of seeing city personnel using a "sump truck" in the project. Essentially, the two concerns merged into plaintiff's concern that Defendant Clason was taking advantage of her position in order to avoid hiring a private contractor to assist in any sewage cleanup." (#24 at ¶64). Plaintiff made open records requests which did not receive a response.

         On July 31, 2015, FVM and Clason filed a Notice of Tort Claim" with the City wherein it identified $102, 953.96 in damages for the use of private plumbing company to repair the sewer line. After a September city council meeting, plaintiff prepared and distributed a flyer, requesting citizens to persuade city officials to vote against the payment demand. Eventually, the City Attorney for Henryetta directed the City's insurance provider to pay the claim, at least in part.

         On October 9, 2015, plaintiff sent an email to the City Attorney regarding his open records request. The City Attorney did not respond. Plaintiff alleges that an email sent by the City Attorney to the Mayor and the City Manager demonstrates a meeting of the minds" to violate the Open Records Act, which plaintiff alleges is a misdemeanor offense under Oklahoma Law.

         On October 21, 2015, FVM filed a lawsuit against plaintiff in state court for slander and libel and to seek a restraining order. After the plaintiff agreed to temporarily cease his activities, FVM dismissed the lawsuit on January 22, 2016. On January 27, 2016, plaintiff responded to some local journalists by email that he believed the defamation lawsuit filed against him by FVM was frivolous. Upon being advised of plaintiff's remarks, FVM re-filed the lawsuit on February 10, 2016 with an additional claim regarding the recent comment. The state court judge denied FVM's motion for summary judgment and granted Sheward's motion for summary judgment.

         In doing so, the state district court found that "the Defendant [i.e., Sheward] has presented substantial evidence that Plaintiff [i.e., FVM] engaged in "Strategic Litigation Against Public Participation" B or "SLAPP" litigation[1], when it filed this lawsuit, which is prohibited under Oklahoma law, specifically: the Plaintiff filed the above-captioned matter primarily as its purpose to silence the Defendant from being critical of 'public figures' about 'matters of public concern' Plaintiff's alleged injuries, if any were the result of Defendant's privileged communications involving the 'right to ...

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