United States District Court, E.D. Oklahoma
A. WHITE, UNITED STATES DISTRICT JUDGE
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. Â§1983; (2) conspiracy to deprive plaintiff of his
federal civil rights pursuant to 42 U.S.C. Â§1985; and (3)
malicious prosecution and abuse of process pursuant to 42
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
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
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.
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.
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.
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.
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.
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.
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
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
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
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, 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 ...