Shero v. City of Grove, Okl.

Decision Date17 December 2007
Docket NumberNo. 06-5222.,06-5222.
Citation510 F.3d 1196
PartiesDavid Earl SHERO, Plaintiff-Appellant, v. CITY OF GROVE, OKLAHOMA, subdivision of the State of Oklahoma; Grove City Council, subdivision of the State of Oklahoma; William Galletly, also known as Bill Galletly; Dorothy Parker; Ivonne Buzzard, also known as Bonnie Buzzard; Carolyn Nuckolls; Randy Jobe; David Adzigian; David Helms, Defendants-Appellees, and Charles Rowe; Robert Nold, Defendants, Jack L. Smith, Movant.
CourtU.S. Court of Appeals — Tenth Circuit

Mark T. Hamby, Bonham & Howard, P.L.L.C., Tulsa, OK, for Plaintiff-Appellant.

Thomas A. LeBlanc, (Matthew B. Free, and J. Spencer Bryan, Best & Sharp, and James C. Hodges, Eller & Detrich, on the brief), Tulsa, OK, for Defendants-Appellees.

Before KELLY, BALDOCK, and BRISCOE, Circuit Judges.

PAUL KELLY, JR., Circuit Judge.

Plaintiff-Appellant David Earl Shero appeals from the district court's grant of qualified immunity to Defendants-Appellees Dorothy Parker (city attorney), William Galletly (city manager), and Ivonne Buzzard (city clerk) (collectively "City employees"). He also appeals from the grant of summary judgment in favor of Defendant-Appellee City of Grove, Oklahoma ("the City"). The district court granted qualified immunity to the above City employees on a motion to dismiss, essentially finding the absence of a constitutional violation. In a later opinion, the district court granted summary judgment for the City, finding that it had not violated any constitutional right, notwithstanding Mr. Shero's claims that the City denied him certain records, limited his speaking time at a city council meeting, and filed a state declaratory judgment suit against him allegedly in retaliation for requesting records. Our jurisdiction arises under 28 U.S.C. § 1291, and we affirm.

Background

In early 2003, Mr. Shero attended a Grove city council meeting and spoke in defense of a fired city employee. III Aplt. App. tab 16C at 34-35. He returned in the fall of 2003 to refute that the local airport board and a local contractor were engaging in criminal activity by removing dirt from airport property. Id. tab 16E at 84. He requested a copy of Ms. Parker's resume that same fall and Ms. Buzzard, the city clerk, denied his request after being instructed to do so by Mr. Galletly. Aplt. Br. at 4.

On January 2 and January 30, 2004, Mr. Shero requested a "council packet," a packet of information individually prepared for council members before each meeting containing agenda items and other information, from Ms. Buzzard. See III Aplt.App. tab 16 at 3; tab E at 66-68. He was denied each time, although previously he had been given copies. III Aplt.App. tab 16 at 3; IV Aplt.App. tab F at 19-20; Aplee. Br. at 4. Ms. Buzzard was following the advice of Ms. Parker who determined that the packets were not public after learning that Mr. Shero was receiving copies of council packets intended for a specific individual. III Aplt.App. tab 16 at 4-5; IV Aplt.App. tab F at 19-20; VI Aplt.App. tab 22 at 2. In between these denials, on January 6, 2004, Mr. Shero again spoke at a city council meeting, this time to voice his objections to being denied council packets and to allege that the council violated the Oklahoma Open Meetings Act ("OOMA"), Okla. Stat. tit. 25, § 301. II Aplt.App. part 2, tab 14K at 1; Aplt. Br. at 9. Immediately after the January 30 denial, Mr. Shero's attorney informed Ms. Buzzard that Mr. Shero would pursue legal action to get the packets. III Aplt. App. tab 16 at 12.

On February 2, 2004, Ms. Parker (on behalf of the City) filed a state declaratory judgment action naming Mr. Shero as the defendant pursuant to the Oklahoma Declaratory Judgment Act, Okla. Stat. tit. 12, § 1651. I Aplt.App. tab 2, part 2 at 1-3. Ms. Parker titled the pleading a "Motion for Protective Order and Order Determining Certain Materials Exempt from Public Disclosure" and asked for declaratory relief and a protective order pursuant to the Oklahoma Open Records Act ("OORA"), Okla. Stat. tit. 51, § 24A.1. Id. The state court ordered a hearing on the request for a protective order that same day. Id. part 2 at 4. Mr. Shero filed an answer and counterclaim on February 9, 2004, seeking a ruling that the council packets and Ms. Parker's resume are open records not subject to any exception under OORA. Id. part 2 at 5-10. On March 23, 2004, the state court denied the City's request for a protective order, held that it lacked subject matter jurisdiction over the declaratory action, and concluded that Mr. Shero's counterclaim could proceed to trial. I Aplt.App. tab 2, part 4 at 33-34.

Mr. Shero attended another city council meeting on February 17, 2004. V Aplt. App. tab 17 at 11. During the portion of the meeting devoted to public comments, the mayor informed Mr. Shero that he would be limited to three minutes. Id. There were no other speakers present. Aplt. Reply Br. at 16. Mr. Shero used his time to speak in opposition to the lawsuit against him and to speak about a district attorney opinion letter identifying the City as violating the OORA and the OOMA. II Aplt.App. tab 15E at 3. The parties dispute whether the City had a preexisting practice of limiting speakers during the public comments portion of city council meetings on February 17, 2004. See Aplt. Br. at 6; Aplt. Reply Br. at 17-18; Aplee. Br. at 15.

On April 26, 2004, the state court ruled that the council packets and Ms. Parker's resume are open records under state law and permanently enjoined the City from denying requests for these items. I Aplt. App. tab 2, part 6 at 3-5. Mr. Shero sought attorney's fees and on May 25, 2004, the parties entered into a settlement agreement wherein the City agreed to pay Mr. Shero approximately $28,000 in settlement of his claim for attorney's fees incurred in the state action. I Aplt.App. tab 2, part 6 at 37-38.

In March 2005, Mr. Shero brought this federal action against the City and some of its employees urging various claims pursuant to 42 U.S.C. § 1983 and the Oklahoma Governmental Tort Claims Act ("GTCA"), Okla. Stat. tit. 51, § 151. On September 20, 2006, the district court dismissed the City employees based upon qualified immunity and ruled that Mr. Shero's claims are not barred by the doctrine of res judicata. VI Aplt.App. tab 21 at 15. In a subsequent ruling dated November 2, 2006, the district court granted summary judgment to the City on both sets of claims, including those pursuant to the GTCA. VI Aplt.App. tab 22 at 18-19. The judgment concerning the GTCA claims is not on appeal.

Mr. Shero argues on appeal that the district court improperly granted summary judgment on his First Amendment claims that the City denied him certain records, limited his speaking time at a city council meeting, and filed a state declaratory judgment suit against him allegedly in retaliation for his expressive activities. He contends that even if these actions do not amount to First Amendment deprivations, a genuine issue of material fact exists as to whether these actions chilled his First Amendment rights. Finally, he argues that the City employees are not entitled to qualified immunity to the extent that we conclude that he has raised a viable constitutional claim.

Discussion

We review the district court's grant of summary judgment for the City de novo, applying the same legal standard as the district court. Darr v. Town of Telluride, Colo., 495 F.3d 1243, 1250 (10th Cir. 2007). Under Fed.R.Civ.P. 56(c), summary judgment is proper when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Judgment as a matter of law is appropriate when the nonmoving party has failed to make a sufficient showing on an essential element of his or her case with respect to which he or she has the burden of proof. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). "Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (internal quotation omitted). The question then is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). "[O]n summary judgment, the inferences to be drawn from the underlying facts ... must be viewed in the light most favorable to the party opposing the motion." Matsushita, 475 U.S. at 587, 106 S.Ct. 1348.

This court uses the same standard in evaluating dismissals in qualified immunity cases as to dismissals generally. Moya v. Schollenbarger, 465 F.3d 444, 455 (10th Cir.2006). Our review is de novo. Fed.R.Civ.P. 12(b)(6); Ridge at Red Hawk, L.L.C. v. Schneider, 493 F.3d 1174, 1177 (10th Cir.2007). In reviewing a dismissal, a court must accept as true all well-pleaded facts, as distinguished from conclusory allegations, and those facts must be viewed in the light most favorable to the non-moving party. Moya, 465 F.3d at 455. The complaint must plead sufficient facts, taken as true, to provide "plausible grounds" that discovery will reveal evidence to support the plaintiff's allegations. Bell Atlantic Corp. v. Twombly, ___ U.S. ___, 127 S.Ct. 1955, 1965, 167 L.Ed.2d 929 (2007).

We first review the district court's grant of summary judgment for the City.1 This review requires us to analyze whether Mr. Shero was deprived of any constitutional right when he was denied council packets by the City and when the mayor imposed a three-minute time limitation on his speech at the February 17, 2004 council meeting. We also analyze whether...

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