Sheward v. City of Henryetta ( 2020 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT April 24, 2020
_________________________________
Christopher M. Wolpert
Clerk of Court
HOWARD SHEWARD, JR.,
Plaintiff - Appellant,
No. 19-7036
v. (D.C. No. 6:18-CV-00295-RAW)
(E.D. Oklahoma)
CITY OF HENRYETTA; JENNIFER
CLASON; and FOUNTAIN VIEW
MANOR, INC.,
Defendants - Appellees.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before BRISCOE, McHUGH, and MORITZ, Circuit Judges.
_________________________________
Howard Sheward, Jr. is a politically active resident of the City of Henryetta,
Oklahoma. On August 31, 2018, Mr. Sheward filed suit against the City of Henryetta
(“the City”), Jennifer Clason, and Fountain View Manor, Inc. (“FVM”). Mr. Sheward
brought three claims against all defendants: (1) First Amendment retaliation pursuant to
42 U.S.C. § 1983, (2) conspiracy to deprive him of his First Amendment rights pursuant
to 42 U.S.C. § 1985, and (3) “Malicious Prosecution and Abuse of Process” pursuant to
42 U.S.C. § 1983. The district court granted summary judgment to defendants on all
*
This order and judgment is not binding precedent, except under the doctrines
of law of the case, res judicata, and collateral estoppel. It may be cited, however, for
its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
claims. We affirm the judgment below because Mr. Sheward has waived his right to
appellate review by failing to adequately brief any issue on appeal.1
I. BACKGROUND
A. Factual History
Mr. Sheward lives in the City of Henryetta, Oklahoma, across the street from
FVM, a private nursing home. Ms. Clason, the administrator and part owner of FVM,
was also the Mayor of the City of Henryetta during the relevant time period.
Mr. Sheward’s claims against the City, Ms. Clason, and FVM arise out of
communications from the City and two lawsuits filed against Mr. Sheward in Oklahoma
state court: a declaratory judgment action brought by the City and Ms. Clason, and a
separate defamation action brought by FVM.
1. The City and Ms. Clason’s Declaratory Judgment Action
In 2010, Mr. Sheward successfully used the initiative petition process outlined in
title 34 of the Oklahoma Statutes to initiate an audit of the City by the Oklahoma State
Auditor and Inspector pursuant to title 74, § 212(L) of the Oklahoma Statutes. In 2015,
the Oklahoma State Auditor and Inspector issued an Investigative Audit report for the
period of July 1, 2010, through June 30, 2012. The Investigative Audit explored, inter
alia, whether the City had complied with the Oklahoma Open Meeting Act and the
Oklahoma Open Records Act. The Investigative Audit also reviewed the possible misuse,
mismanagement, or misappropriation of funds for the City’s new water system.
1
Our decision not to reach the merits should not be interpreted as indicating a
disagreement with the district court.
2
In 2016, Mr. Sheward submitted another initiative petition to the Henryetta City
Clerk for certification. This petition requested that a proposed amendment to the City’s
Charter be placed on the ballot for approval during the City’s next regular election in
August of 2016. The proposed amendment would have prevented the City Council from
raising water, sewer, or garbage collection rates without first submitting the increase to
the voters for approval or rejection. The City Clerk found the petition insufficient in
several respects and rejected it on May 11, 2016. Mr. Sheward did not appeal this
decision.
On May 19, 2016, the City and Ms. Clason jointly filed a petition for declaratory
judgment against Mr. Sheward in the District Court of Okmulgee County. The
declaratory judgment action alleged that Mr. Sheward “made numerous accusations to the
office of the State Auditor of Oklahoma that the City had denied due process for the
Initiative Petition and otherwise acted inappropriately in finding the Initiative Petition to
be fatally flawed.” App., Vol. I at 229. The declaratory judgment action also alleged that
Mr. Sheward’s accusations to the State Auditor included “statements that the City
regularly wastes public funds” and that these statements were unsupported by the
Investigative Audit published in 2015. App., Vol. I at 229–30. The action sought “a
declaration that the City and [City] Clerk acted appropriately in finding the Initiative
Petition to be deficient and fatally flawed under Oklahoma law, costs and attorney’s fees,
and any other relief to which [the Petitioners] are entitled.” App., Vol. I at 230.
On October 23, 2016, Mr. Sheward contacted the attorney representing the City
and Ms. Clason in the declaratory judgment action to resolve the case because the August
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2016 election had passed. The case remained at a standstill until counsel for Mr. Sheward
entered an appearance and filed a motion to dismiss on July 19, 2017. After the parties
had fully briefed Mr. Sheward’s motion to dismiss, the City and Ms. Clason voluntarily
dismissed the declaratory judgment action without prejudice on August 21, 2017.
2. Third Initiative Petition and the City’s Response
During the fall of 2016, while the declaratory judgment action was pending,
Mr. Sheward circulated a third petition that, like the first petition, sought an investigative
audit of the City. The county election board validated the third petition. The City Council
subsequently held a meeting at which it discussed the third petition and a water rate
increase to pay for the requested audit. Two undated articles from TheHenryettan.com
document statements made at that City Council meeting.2 At that meeting, Ms. Clason
said, “If we can get everybody to come together to stop the petitions, it would be a
significant change in the city.” App., Vol. III at 696. She additionally noted that citizens
“were told that if they signed the petition, their water bills can’t be raised.” App., Vol. III
at 696, 742. The second article reports that Ken Williams, the attorney who represented
the City in the declaratory judgment action, “said ultimately a class action lawsuit against
[Mr.] Sheward as well as others who were passing around the petition could be filed.”
2
Based on these two undated articles, the City Council meeting likely took place
in December of 2016, or at least prior to January 31, 2017. The first article reports that
“[a] letter explaining the surcharge and the audit petition is going to be mailed along with
the utility bills in January.” App., Vol. III at 696. A letter explaining the surcharge and
audit petition was sent with utility bills and dated January 31, 2017. The second article
reports on a water rate increase “[s]tarting in February” and references a statement made
at “the December city council meeting” that mirrors a statement documented in the first
article. App., Vol. III at 742.
4
App., Vol. III at 742. “Local residents . . . and city attorney John Insabella [were] looking
for people who want to provide affidavits.” App., Vol. III at 742.
In early 2017, the City enclosed a letter dated January 31, 2017, (the “January
2017 letter”) with each citizen’s water bill. The letter explained that a new $6 monthly
charge would be added to each water bill to pay for a special audit.3 The letter reads in
full:
As you will see in your next water utility statement from your
Municipal Authority, a new $6 monthly charge is included. This new
charge is an unfortunate necessity to generate funds to pay the Oklahoma
State Auditor and Inspector for a Special Audit requested by misinformed
residents of our City. A copy of the CITIZEN PETITION REQUEST FOR
SPECIAL AUDIT BY THE STATE AUDITOR & INSPECTOR is
available upon request at City Hall but the specific language causing the
new charge for your water service is as follows:
“The estimated cost of said investigation will range from $50,000 to
$75,000, which shall be paid by the City of Henryetta, Okmulgee
County, Oklahoma, in accordance with 74 0.S. §212(L)(7).”
One of the specific accusations made by misinformed residents of
our City is the “Use of public resources for private benefit including
compliance with regulations governing cleanup of raw sewage.” Your
Municipal Authority can assure you that the accusation is completely false
but the Special Audit must still be performed by law. Payment of the cost
of the Special Audit is not an anticipated item in your Municipal
3
The district court stated, “The [letter] explained that a new $6 monthly charge
was included to pay for the cost of the previous Audit.” App., Vol. III at 903 (emphasis
added). On appeal, Mr. Sheward contends that this statement is incorrect.
Mr. Sheward testified that a “second citizens petition for an audit . . . was
validated in the fall of 2016.” App., Vol. I at 195. One of the news articles corroborates
Mr. Sheward’s testimony, noting that the $6 charge was prompted by “notification that a
petition to the state Auditor’s office was valid.” App., Vol. III at 696. The news article
explains, “The petition . . . is the second one that has the necessary number of signatures
to force an audit.” App., Vol. III at 696. Thus, the $6 charge appears to relate to a
separate, second audit that was requested in 2016.
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Authority’s 2017 budget or the City’s 2017 budget, which is why the new
charge is necessary.
The irony of the situation is that many residents who signed the
CITIZEN PETITION REQUEST FOR SPECIAL AUDIT BY THE STATE
AUDITOR & INSPECTOR did so because they were told by the persons
circulating the PETITION that the goal was to reduce the cost of water
service, which was a false statement. Your Municipal Authority regrets the
necessity of the new charge and commits to cancel the new charge just as
soon as the cost of the Special Audit is paid.
App., Vol. III at 695.
3. FVM’s Defamation Action
On December 23, 2014, Mr. Sheward submitted an open records request regarding
city services provided to address sanitary issues at FVM. In 2015, FVM hired a private
contractor to make repairs related to a sewer issue. The private contractor serviced
FVM’s facility and repaired an issue with the City’s sewer line that runs underneath
FMV’s property. Mr. Sheward claims he observed city personnel using a sump truck
during those repairs, which caused him to believe “that [Ms.] Clason was taking
advantage of her position [on City Council] in order to avoid hiring a private contractor
to assist in any sewage cleanup.” App., Vol. I at 31–32.
On July 31, 2015, FVM filed a Notice of Tort Claim with the City, claiming
$102,953.96 in damages for repairs FVM made to the City’s sewer line. On August 2,
2015, Mr. Sheward submitted an open records request to the City, seeking documents
related to inspections and construction of FVM.
At a City Council meeting in September of 2015, FVM requested the City pay
$39,500 toward the cost of the sewer repairs. Following that meeting, Mr. Sheward
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prepared and distributed a flyer requesting that citizens contact the City Council to
encourage the Council to reject FVM’s settlement demand. On October 9, 2015,
Mr. Sheward renewed his 2014 records request. The City never responded to
Mr. Sheward’s 2014 records request.
On October 21, 2015, FVM filed a lawsuit against Mr. Sheward in state court,
bringing claims of slander per se and libel per se. The lawsuit also sought a permanent
injunction to prohibit Mr. Sheward from trespassing on FVM’s property. After
Mr. Sheward agreed to refrain from certain activities, FVM moved to dismiss the lawsuit
without prejudice on January 20, 2016, and the state court granted that motion on
January 22, 2016. On January 27, 2016, Mr. Sheward corresponded with some local
journalists by email, telling them that the defamation action was frivolous. On
February 10, 2016, FVM refiled the lawsuit, incorporating Mr. Sheward’s new
comments.
On January 5, 2018, the state district court denied FVM’s motion for summary
judgment and granted Mr. Sheward’s motion for summary judgment. The state court
found that Mr. Sheward
has presented substantial evidence that [FVM] engaged in “Strategic
Litigation Against Public Participation” – or “SLAPP” litigation – when it
filed this lawsuit, which is prohibited under Oklahoma law, specifically:
[FVM] filed the above-captioned matter primarily as its purpose to silence
[Mr. Sheward] from being critical of “public figures” about “matters of
public concern.” [FVM’s] alleged injuries, if any, were the result of
[Mr. Sheward’s] privileged communications involving the “right to
petition” and/or “right to free speech” that are protected by the First
Amendment to the United States Constitution.
App., Vol. II at 415.
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On April 5, 2019, the Oklahoma Court of Civil Appeals affirmed the state district
court’s grant of summary judgment to Mr. Sheward. The appellate court concluded that
Mr. Sheward “successfully demonstrated FVM brought suit against him in an effort to
keep him from publicly criticizing the mayor and questioning the use of city finances.”
App., Vol. II at 561. The appellate court reasoned that “[t]he mayor’s own deposition
testimony indicates [Mr.] Sheward’s silence was the objective of the lawsuit as well.”
App., Vol. II at 561. On November 18, 2019, the Oklahoma Supreme Court denied
FVM’s petition for certiorari.
B. Procedural History
Mr. Sheward filed the present suit in the United States District Court for the
Eastern District of Oklahoma against the City, Ms. Clason, and FVM on August 31,
2018. He filed a First Amended Complaint on November 6, 2018. In that First Amended
Complaint, Mr. Sheward brought three claims against all defendants: (1) a First
Amendment retaliation claim pursuant to 42 U.S.C. § 1983, (2) a claim alleging a
conspiracy to deprive him of his First Amendment rights pursuant to 42 U.S.C. § 1985,
and (3) a “Malicious Prosecution and Abuse of Process” claim pursuant to 42 U.S.C.
§ 1983.
Defendants moved for summary judgment on all claims and the district court
granted the motions. The district court concluded that (1) the statute of limitations had
lapsed on Mr. Sheward’s § 1983 First Amendment retaliation claim, (2) Mr. Sheward had
failed to demonstrate any class-based invidiously discriminatory animus as required to
succeed on his § 1985 claim, and (3) Mr. Sheward’s “Malicious Prosecution/Abuse of
8
Process” claim failed because it was not based on a criminal prosecution and a Fourth
Amendment violation. Mr. Sheward timely filed his notice of appeal, and we have
jurisdiction pursuant to 28 U.S.C. § 1291.
II. DISCUSSION
Pursuant to Federal Rule of Appellate Procedure 28(a)(8)(A), an appellant’s brief
“must contain . . . appellant’s contentions and the reasons for them, with citations to the
authorities and parts of the record on which the appellant relies.” “Consistent with this
requirement, we routinely have declined to consider arguments that are not raised, or are
inadequately presented, in an appellant’s opening brief.” Bronson v. Swensen, 500 F.3d
1099, 1104 (10th Cir. 2007). Accordingly, “issues will be deemed waived if they are not
adequately briefed.” Utahns for Better Transp. v. U.S. Dep’t of Transp., 305 F.3d 1152,
1175 (10th Cir. 2002), as modified on reh’g, 319 F.3d 1207 (10th Cir. 2003); see also
Phillips v. Calhoun, 956 F.2d 949, 954 (10th Cir. 1992) (“[I]ssues designated for review
are lost if they are not actually argued in the party’s brief.”).
“It is insufficient merely to state in one’s brief that one is appealing an adverse
ruling below without advancing reasoned argument as to the grounds for the appeal.” Am.
Airlines v. Christensen, 967 F.2d 410, 415 n.8 (10th Cir. 1992). Similarly, an issue is not
adequately briefed when it is “merely includ[ed] . . . within a list.” Utahns for Better
Transp., 305 F.3d at 1175. To advance a reasoned argument, an appellant must support
his position with legal argument and authority. Phillips, 956 F.2d at 953–54. And
incorporating by reference arguments made in the district court does not satisfy the
briefing requirements of Rule 28. United States v. Patterson, 713 F.3d 1237, 1250 (10th
9
Cir. 2013) (“[P]arties appearing before this court cannot satisfy Rule 28 by incorporating
their claims by reference to either appendices or records from the court below.”); see also
Fulghum v. Embarq Corp., 785 F.3d 395, 410 (10th Cir. 2015) (explaining that
incorporating by reference briefing below “is not acceptable appellate procedure”
because “[a]llowing litigants to adopt district court filings would provide an effective
means of circumventing the page limitations on briefs set forth in the appellate rules and
unnecessarily complicate the task of an appellate judge” (quotation marks omitted)).
Mr. Sheward’s brief demonstrates a misunderstanding of the nature of this court’s
review of the record below and his responsibility to brief arguments on appeal. According
to his statement of the issues on appeal, Mr. Sheward intended to challenge the district
court’s grant of summary judgment on each of his three claims. But he has waived his
right to appellate review by failing to develop and advance a reasoned argument to
support any of his three assignments of error. Phillips, 956 F.2d at 954.
With respect to Mr. Sheward’s § 1983 First Amendment retaliation claim, he
provides no legal argument or citation to authority to support his contention that the
district court erred when it concluded that his First Amendment retaliation claim was
untimely.4 Rather, Mr. Sheward contends the district court failed to consider all the
4
Mr. Sheward does not make any argument regarding the tolling of the statute of
limitations, despite a statement of law in the standard of review section that he “carr[ies]
the burden of proving the existence of facts which, if proven true, would warrant a tolling
of the statutes of limitation.” Aplt. Br. at 4 (citing Dow v. Chilili Co-op Assn., 728 P.2d
462, 464 (N.M. 1986)). Mr. Sheward’s brief is devoid of any other facts or authority from
which we could divine a tolling argument. See Dodds v. Richardson, 614 F.3d 1185,
1205 (10th Cir. 2010) (“A court of appeals is not required to manufacture an appellant’s
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evidence in the summary judgment record, and he identifies six sets of evidentiary
materials documenting various events and statements that he alleges are connected to the
January 2017 letter.5 Critically, however, Mr. Sheward fails to explain how the January
2017 letter is connected to a conspiracy between FVM and the City to retaliate against
Mr. Sheward for exercising his First Amendment rights. Mr. Sheward also fails to explain
how any of the events or statements related to the January 2017 letter constitute discrete
acts of First Amendment retaliation, or to identify when any of those events or statements
occurred.
With respect to Mr. Sheward’s § 1985 conspiracy and § 1983 malicious
prosecution/abuse of process claims, he contends the district court’s dismissal of these
claims was “clear error[]” and “[w]hen . . . considered in context with the First
Amendment, . . . there is an abundance of caselaw/precedent that support Plaintiffs [sic]
contentions.” Aplt. Br. at 3. But Mr. Sheward does not advance any legal argument or
cite any of the “abundan[t] caselaw/precedent” to counter the district court’s conclusion
argument on appeal when it has failed in its burden to draw our attention to the error
below.” (quotation marks omitted)).
5
One set of evidentiary materials listed is three video clips from at least one,
perhaps more than one, City Council meeting. Although Mr. Sheward claims he
submitted these clips with his response to FVM’s motion for summary judgment, they
were in fact submitted with his response to the City’s motion for summary judgment. The
record reflects that Mr. Sheward conventionally filed a DVD containing these clips in the
district court. But Mr. Sheward has not electronically or conventionally filed these clips
on appeal. We are “not obligated to remedy th[is] failure[] by counsel to designate an
adequate record.” Burnett v. Sw. Bell Tel., L.P., 555 F.3d 906, 910 (10th Cir. 2009).
Without these video clips in the record on appeal, we are unable to verify Mr. Sheward’s
assertions about what they contain, and we need not consider his unverified allegations.
See Fed. R. Civ. P. 56(c)(1)(A).
11
that his § 1985 claim fails as a matter of law. To be sure, Mr. Sheward’s brief does
include a block quotation from Beedle v. Wilson, 422 F.3d 1059 (10th Cir. 2005), related
to his § 1983 malicious prosecution/abuse of process claim. Notably, this is
Mr. Sheward’s only citation to legal authority related to the merits of his appeal.6
Mr. Sheward, however, does not advance any legal argument or otherwise explain how
the quotation from Beedle alters the district court’s conclusion that his § 1983 malicious
prosecution/abuse of process claim fails as a matter of law.
Rather than develop a reasoned argument on appeal, Mr. Sheward attempts to
incorporate by reference his briefing below:
The factual and legal arguments advanced by Plaintiff throughout the
summary judgment briefing was [sic] extensive, and won’t be regurgitated
word for word in this appellate brief. Given that this Court’s review will be
restricted to the summary judgment motions to be submitted to this Court,
the Plaintiff is extremely confident that a review will result in a full reversal
on all counts.
Aplt. Br. at 11. Not only does this incorporation by reference fail to comport with the
requirements of Rule 28, it is also insufficient to invoke our appellate review. Patterson,
713 F.3d at 1250 (explaining a party must develop an argument in “this court” to
preserve a claim for appellate review).
In sum, Mr. Sheward has failed to develop a reasoned argument on appeal with
respect to any of his three claims of error because he does not explain the significance of
his record citations, elaborate on his single citation to authority related to the merits, or
6
The other authority cited in Mr. Sheward’s brief pertains solely to his
jurisdictional statement and the appropriate standard of review.
12
otherwise advance any legal argument to support the conclusion that the district court
erred. Phillips, 956 F.2d at 953–54. We will not craft Mr. Sheward’s arguments for him.
See Perry v. Woodward, 199 F.3d 1126, 1141 n.13 (10th Cir. 1999). Therefore,
Mr. Sheward has waived his right to appellate review by failing to adequately brief his
challenges to each of the district court’s conclusions.
III. CONCLUSION
Because Mr. Sheward failed to adequately brief the issues on appeal, he has
waived his right to appellate review, and so we AFFIRM the district court’s grant of
summary judgment to defendants on all claims.
Entered for the Court
Carolyn B. McHugh
Circuit Judge
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