Myart v. Taylor et al

Filing 87

ORDER GRANTING IN PART AND DENYING IN PART 67 Motion for TRO; GRANTING IN PART AND DENYING IN PART 67 Motion for Preliminary Injunction; GRANTING IN PART AND DENYING IN PART 79 Motion for TRO; GRANTING IN PART AND DENYING IN PART 79 Motion for Preliminary Injunction. Signed by Judge David A. Ezra. (aej)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION
JAMES W. MYART, JR.,

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Plaintiff,
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vs.
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IVY TAYLOR, in her official capacity §
as Mayor of the City of San Antonio, §
SHERYL SCULLEY, individually and §
in her official capacity as City Manager §
of the City of San Antonio, WILLIAM §
McMANUS, individually and in his
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official capacity, ERIK WALSH,
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individual and in his official capacity, §
MARTHA SEPEDA, individually and §
in her official capacity as city attorney, §
TROY ELLIOTT, individually and in §
his official capacity as Finance Director, §
DEBRA OJO, individually and in her §
official capacity as Assistant Finance §
Director, THE CITY OF SAN
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ANTONIO, OFFICERS JOHN DOE
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1–6, RYAN McFARLAND, ADAM
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STALKER, MICHAEL BAGGETT,
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GILBERT GONZALEZ, ASHLEA
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BRUSTER, GEORGE MORALES,
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CHARLES McCATHERY, ART
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GARCIA, R. MOYNIHAN and M.
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MELTON, individually and in their
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official capacity, NIX HOSPITAL,
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PROSPECT MEDICAL HOLDING
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GROUP, P. QUARDINIO,
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No. SA:16–CV–455–DAE
(lead case)
No. SA: 5:16–CV–736–DAE
(member case)
No. SA: 5:16–CV–819–DAE
(member case)
No. SA: 5:16–CV–824–DAE
(member case)

ARMANDO GONZALEZ,
individually and in his official capacity,
and PAUL TOVAR, individually and in
his official capacity,
Defendants.

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ORDER GRANTING IN PART DEFENDANTS’ APPLICATION FOR
A PRELIMINARY INJUNCTION
Before the Court is an Application for a Temporary Restraining Order
and Preliminary Injunction and Supplemental Motion for a Temporary Restraining
Order and Preliminary Injunction filed by Defendants City of San Antonio, Ivy
Taylor, Sheryl Sculley, William McManus, Martha Sepeda, Officers Ryan
McFarland, Michael Baggett, Gilbert Gonzalez, and Ashlea Bruster (collectively,
“Moving Defendants”) (Dkts. ## 67, 79). Defendants seek to enjoin Plaintiff
James Myart from threatening, harassing, or verbally abusing any of the named
Defendants in this case. (Dkt. # 67 at 9.) The Supplemental Motion also seeks to
enjoin Mr. Myart from entering various City premises or personally serving any
legal documents on any of the Defendants or other City employees. (Dkt. # 79 at
4.)
The Court held a hearing on the matters on September 23, 2016. Mr.
James Myart, Jr. appeared on behalf of himself. 1 Mr. Mark Ralls, Esq., appeared

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Importantly, Mr. Myart was a practicing attorney for many years before
surrendering his bar card in lieu of disbarment in 2008.
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on behalf of every Defendant except for Adam Stalker. Mr. Alberto Lopez, Esq.,
appeared on behalf of Adam Stalker.
The Court heard testimony at the hearing by Mr. Arnoldo Garcia, the
claims manager for the City of San Antonio’s Risk Management Division of the
Finance Department (“Risk Management”); Mr. Paul Tovar, a claims adjuster with
the City of San Antonio; and Sandra Ojo, the Risk Manager and Finance Director.
Mr. Myart cross-examined each witness. Mr. Myart called Attorney Mark Rawls
and Doctor Leo Edwards to testify, and called Attorney Albert Lopez as a
character witness.
After careful consideration of Defendants’ motions, and in light of the
testimony at the hearing, the Court, for the reasons that follow, GRANTS IN
PART AND DENIES IN PART each of the Motions for Preliminary Injunctions
(Dkts. ## 67, 79).
BACKGROUND
As detailed in this Court’s September 2, 2016 order consolidating
three cases into the above-numbered lead case, Mr. Myart has brought eight
specific claims against the Defendants in connection with various instances of
alleged police brutality, use of force by officers at Nix Hospital, and the denial of
complaints filed with Risk Management. (Dkt. # 47.) These claims include
violations of his civil rights, pursuant to 42 U.S.C. § 1983; failure to implement
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appropriate policies, customs, and practices in violation of § 1983; use of excessive
force, in violation of § 1983; negligence under the Texas Tort Claims Act,
(“TTCA”) Tex. Civ. Prac. & Rem. Code § 101.001 et seq.; negligent supervision
under the TTCA; common law assault; and official oppression, in violation of the
Texas Penal Code. (See id. at 5–6.) According to the instant Motion, Mr. Myart
filed his first lawsuit in this Court after his claim was denied by the Risk
Management Office. (Dkt. # 67 at 3.)
The Moving Defendants’ motion documents various situations where
Mr. Myart has disrupted the activities of the City of San Antonio’s Risk
Management Division. (See Dkt. # 67.) The instant motion focuses on Mr.
Myart’s actions towards Arnoldo Garcia, the Claims Manager for Risk
Management, and Debra Ojo, the Risk Manager and Finance Director of the same
division. (Id. at 3–4.)
Mr. Garcia states that since the beginning of May, soon after Mr.
Myart’s first claim was denied, Mr. Myart has called him at least forty times,
calling him various racial epithets, using profane language, and on one occasion,
threatening to come to the Risk Management offices and break out all the windows
if he was not allowed in to speak to Ms. Ojo. (“Garcia Decl.,” Dkt. # 67, Ex. A at
2.) At the hearing, Mr. Garcia testified that after this incident, and as a direct result
of Mr. Myart’s behavior, electronic locks were installed on the doors to the offices
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on the 18th Floor of the Frost Tower. Mr. Garcia stated both in his affidavit and
during the hearing that he has met with Mr. Myart at least four times, and that on
each occasion, Mr. Myart has been confrontational, demeaning, and used various
racial slurs against him. (Id.) Mr. Garcia testified that Mr. Myart’s behavior has
disrupted the functioning of the Risk Management Office; each time an incident
occurs, the employees of the Office must meet and write memoranda documenting
the incident, which prevents them from completing official job duties.
Ms. Ojo states that after Mr. Myart’s first claim was denied, she has
received phone calls from Mr. Myart using profanity and offensive language.
(“Ojo Decl. 1,” Dkt. # 67, Ex. B at 2.) According to Ms. Ojo, Mr. Myart left her a
phone message stating he was “the ‘big bad Myart’ and that he knew [Ms. Ojo]
was afraid of him,” and sent her an e-mail calling her a pig and threatening that she
would “pay.” (Id.) Ms. Ojo also states that on September 20, 2016, she was
confronted by Mr. Myart, who was sitting outside the doors of the room where an
Audit Committee meeting was about to take place. (“Ojo Decl. 2,” Dkt. # 79, Ex.
B, at 2.) She states that Mr. Myart, who was flanked by two Security Officers,
began to stand up when he saw her, but sat down when instructed by the Security
Officers. (Id.) At the hearing, she testified that if the Officers had not been there,
she feared that Mr. Myart would have hit her. Ms. Ojo’s affidavit states that as she
walked by, Mr. Myart loudly called her a “bitch,” a “white bitch,” and said she was
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“nothing but a white woman.” (Id.) At the hearing, Ms. Ojo testified that for the
remainder of the day, she was unable to accomplish any work. She also stated she
is afraid Mr. Myart might kill her.
Ms. Ojo states that she is afraid to answer phone calls on her city
phone when she does not recognize the phone number, which has caused her to
miss at least one important call. (Ojo Decl. 1 at 3.) Ms. Ojo also states she is very
concerned about her personal safety, and will not leave the Risk Management
without an escort if she believes Mr. Myart is in the vicinity. (Id.; Ojo Decl. 2 at
2.) Further, Ms. Ojo states Mr. Myart’s conduct has delayed the Risk Management
office’s handling of new claims and the evaluation and resolution of existing
claims (Ojo Decl. 1 at 2), and that they have had a direct and detrimental impact on
her personal productivity (Ojo Decl. 2 at 2). Likewise, Mr. Garcia states Mr.
Myart’s behavior has been disruptive to the operations of Risk Management and
delayed the review and processing of claims. (Garcia Decl. at 3.)
The Moving Defendants include video footage of an encounter
between City officials and Mr. Myart. 2 The first was videotaped on the cell phone
of Risk Management employee Paul Tovar and authenticated by the affidavits of

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The Court did not consider additional videos attached as exhibits to the
Supplemental Motion. The videos were attested to by John Peterek (Dkt. # 79, Ex.
B) and Jerry Musquiz (Id., Ex. C). The City of San Antonio did not bring these
individuals to testify at the hearing on the Preliminary Injunction, and Mr. Myart
accordingly did not have the opportunity to cross-examine them.
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Mr. Garcia and Ms. Ojo, all of whom testified at the hearing. (“Video 1,” Dkt.
# 67, Ex. A-1; see also Garcia Decl. at 2; Ojo Decl. 1 at 2.) The video opens with
Mr. Myart sitting in the City Finance offices, surrounded by three EMTs who are
taking his vital signs. (Video 1; Garcia Decl. at 2.) In the video, Mr. Myart
refuses to leave the office until speaking with a lieutenant, whom the Moving
Defendants identify as Troy Elliott, the Director of Finance. (Video 1; Dkt. # 67 at
5.) Throughout the video, Mr. Myart uses racial slurs and other profane language
against Ms. Ojo and Mr. Tovar. (See Video 1.) Mr. Garcia testified at the hearing
that he was called from the Risk Management Office to the Finance Office during
the incident. He stated that eventually, Mr. Myart fell on the floor with a diabetic
attack and was taken out on a stretcher by EMTs. Mr. Garcia states Mr. Myart
ultimately walked out of the ambulance. Mr. Garcia states this episode took
approximately three hours from his morning and further disrupted the operations of
the Finance Department.
Mr. Tovar testified at the hearing regarding both the incident at the
Riverview Towers and his various contacts with Mr. Myart. Mr. Tovar testified
that he has had some civil conversations with Mr. Myart, but that Mr. Myart often
becomes angry and unpredictable. Likewise, Mr. Tovar said he is not always
afraid of Mr. Myart but believes Mr. Myart’s conduct could escalate from verbal to

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physical. Mr. Tovar also stated that Mr. Myart’s conduct and subsequent
documentation of his conduct has taken time away from his work.
The City has included as an exhibit phone records collected in the
regular course of business of the City’s Information Technology Department and
attested to by Diana Gonzalez, custodian of the records of the Phone Call Logs for
the Department. (“Phone Logs,” Dkt. # 67, Ex. C.) Between February 1, 2016 and
August 29, 2016, the city has received 626 phone calls from the number (210) 3302658 (id. at 22–35); 1,034 phone calls from the number [phone] (id. at 37–
59); and 181 phone calls from the number [phone] (id. at 61–65).
According to the Defendants, each of these phone numbers is known to belong to
Mr. Myart (Dkt. # 67 at 6.)
Mr. Myart’s doctor, Doctor Leo Edwards, testified at the hearing as
well. Doctor Edwards testified that he is a Licensed Physician and practices
internal medicine; he has been practicing since 1981 and testified that he is Mr.
Myart’s physician. During the hearing, Mr. Myart asked Dr. Edwards whether Dr.
Edwards thought he had a propensity for violence. Dr. Edwards stated that he
thought Mr. Myart did have a propensity for violence.
The Court concluded the hearing after the testimony of Doctor
Edwards, finding that sufficient evidence was presented at the hearing, and closing
arguments were unnecessary.
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The Moving Defendants state that “[b]ased upon conversations
between Mr. Myart and counsel for defendants, the sole reason for Mr. Myart’s
harassment, threats, insults, racial slurs, and disruptive, overbearing conduct is to
attempt to force a settlement of his cases.” (Dkt. # 67 at 8.) The Moving
Defendants seek a temporary restraining order and injunction enjoining Mr. Myart
from threatening, harassing, or verbally abusing any of the named Defendants in
the case, during the pendency of the litigation. (Id. at 9.) The Supplemental
Motion further seeks to enjoin this conduct with regard to “any future claims or
lawsuits filed by Mr. Myart against the City and/or any City Official or employee,
during the pendency of the claim or lawsuit.” (Dkt. # 79 at 4.) The Moving
Defendants further seek to enjoin Mr. Myart from personally serving any of the
defendants with any pleading, discovery, or other legal documents. (Dkt. # 67 at
10; Dkt. # 79 at 4.) The Supplemental Motion further seeks to enjoin Mr. Myart
from going onto the grounds of the San Antonio City Hall, to the Risk
Management Offices located on the 18th Floor of the Frost Bank Tower, or to the
City of San Antonio Finance Department Offices located on the 5th Floor of the
Riverview Tower building. (Dkt. # 79 at 4.)
LEGAL STANDARD
In order to obtain injunctive relief, the moving party must establish:
(1) there is a substantial likelihood that the party will prevail on the merits;
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(2) there is a substantial threat that irreparable harm will result if the injunction is
not granted; (3) the threatened injury to the moving party outweighs whatever
damage the proposed injunctive relief would cause the non-moving party; and (4)
the granting of the injunction is not adverse to the public interest. Anderson v.
Jackson, 556 F.3d 351, 360 (5th Cir. 2009) (quoting Canal Auth. v. Callaway, 489
F.2d 567, 572 (5th Cir. 1974)); Fed. R. Civ. P. 65.
DISCUSSION
The preliminary inquiry in this case is whether the Court has
jurisdiction to address the Moving Defendants’ motion as it relates to Plaintiff’s
conduct in connection with the above-numbered lawsuit, as opposed to the subject
of the lawsuit itself. Courts “have inherent power, within certain limits, to control
the conduct of the parties who have subjected themselves to the jurisdiction of the
courts. Injunctive relief, where warranted, can be a useful tool to aid a court in
controlling the conduct of litigants.” Lewis v. S.S. Baune, 534 F.2d 1115, 1121
(5th Cir. 1976). The conduct at issue appears, at least at this stage, to be directly
related to the instant suit. The individuals Mr. Myart has been contacting are the
parties he has sued in this Court, and it appears that the subject of this suit and the
subject of Mr. Myart’s conduct towards the Defendants in this case is the same.
Accordingly, this Court may appropriately exercise ancillary jurisdiction over the
matter.
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“The First Amendment generally prevents government from
proscribing speech, or even expressive conduct, because of disapproval of the ideas
expressed.” R.A.V. v. City of St. Paul, Minn., 505 U.S. 377, 382 (1992) (internal
citations omitted). These free speech protections are particularly strong with
regard to prior restraints, or “administrative and judicial orders forbidding certain
communications when issued in advance of the time that such communications are
to occur.” Alexander v. United States, 509 U.S. 544, 550 (1993) (quoting M.
Nimmer, Nimmer on Freedom of Speech § 4.03, 4–14 (1984)); see Test Masters
Ed. Servs., Inc. v. Singh, 428 F.3d 559, 597 (5th Cir. 2005) (“Prior restraints are
unconstitutional limitations on free speech except in exceptional circumstances.”).
However, “[c]ourts have made a distinction between communication
and harassment. . . . The difference is one between free speech and conduct that
may be proscribed.” Singh, 428 F.3d at 580 (citing Giboney v. Empire Storage &
Ice Co., 336 U.S. 490, 503 (1949); R.A.V., 505 U.S. at 389 3). Accordingly,
“courts do have the power to enjoin harassing communication.” Singh, 428 F.3d at

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R.A.V. v. City of St. Paul, the case underlying this distinction in Singh, explains
that “the reason why fighting words are categorically excluded from the protection
of the First Amendment is not that their content communicates any particular idea,
but that their content embodies a particularly intolerable (and socially unnecessary)
mode of expressing whatever idea the speaker wishes to convey.” R.A.V., 505
U.S. at 393.
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580; see also Lewis, 534 F.2d at 1122 (“There is no reason the current harassing
conduct of a party in pursuit of a settlement may not be enjoined.”).
The Court finds that the Moving Defendants have presented sufficient
evidence to demonstrate that Mr. Myart has crossed the line from civil
communications with Defendants to harassment in connection with this suit. This
harassment has occurred in the form of repetitive telephone calls, threats—either
real or perceived—to Defendants’ safety, contact with represented parties outside
the presence of their attorney, and behavior that has disrupted the daily functioning
of the Office of Risk Management, the Finance Department, and City Hall. (Dkts.
## 67, 79.) In certain circumstances, “the traditional standards of injunctive relief .
. . do not apply to the issuance of an injunction . . .” Baum v. Blue Moon Ventures,
LLC, 513 F.3d 181, 189 (5th Cir. 2008) (finding that a Court, when issuing a prefiling injunction sua sponte against a vexatious litigant, need not find that the
person’s actions are causing irreparable injury, nor need they find that there is no
adequate remedy at law). Here, the Moving Defendants do not put at issue their
likelihood of success on the merits in this case. Rather, Defendants seek only to
enjoin Mr. Myart from engaging in certain conduct in connection with prosecution
of the instant lawsuit. Accordingly, the Court finds that the Defendants have
submitted sufficient evidence and testimony in support of their Motion. While this
does not satisfy the traditional standard requiring the moving party to show a
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likelihood of success on the merits of their case, the Moving Defendants have
demonstrated a need for an injunction in connection with this case. The Court will
construe this as satisfying the first criterion for the issuance of a preliminary
injunction. See Anderson, 556 F.3d at 360.
This harassment appears to be causing psychological harm and fear to
various Defendants. The Moving Defendants state that this harm is irreparable,
because there is no adequate remedy, and Mr. Myart has allegedly informed
Defense counsel he has no intention to stop contacting the named Defendants.
Importantly, Mr. Myart’s own doctor, Dr. Edwards, stated during the hearing that
he believed Mr. Myart had a propensity for violence. At this stage, the Moving
Defendants have demonstrated that they will suffer irreparable harm in the absence
of relief, satisfying the second criterion for the issuance of a preliminary
injunction. See Anderson, 556 F.3d at 360.
Importantly, enjoining Mr. Myart from harassing the Defendants
named in this lawsuit does not prevent him from effectively prosecuting this case,
communicating with Defense counsel, or pursuing his claims in the Risk
Management Department. Nor does an injunction prevent Mr. Myart from filing
claims with Risk Management through the pendency of this lawsuit. Ms. Ojo
testified at the hearing that Mr. Myart may file any additional claims with Risk
Management during the pendency of this lawsuit through the City website, which
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allows claimants to electronically submit claim forms and upload supporting
documentation. Finally, an injunction does not prevent Mr. Myart from expressing
his views about the named Defendants, so long as he does so in a manner that does
not constitute personal harassment. Accordingly, at this stage, the Moving
Defendants have demonstrated that the balance of equities tips in their favor,
satisfying the third criterion for the issuance of a preliminary injunction. See
Anderson, 556 F.3d at 360.
Finally, Mr. Myart’s behavior is currently affecting the citizens of the
City of San Antonio, who are unable to see their complaints timely processed by
the Office of Risk Management. At this stage, an injunction is in the public
interest, satisfying the fourth criterion for the issuance of a preliminary injunction.
See Anderson, 556 F.3d at 360.
CONCLUSION
Accordingly, the Court GRANTS IN PART AND DENIES IN
PART the Moving Defendants’ Motion for Preliminary Injunction (Dkt. # 67) and
Supplemental Motion for Preliminary Injunction (Dkt. # 79), thereby restraining
and enjoining the following conduct by Mr. Myart:
1. Mr. Myart is enjoined from contacting the named Defendants regarding any
matter currently addressed in the instant suit, for the pendency of the
lawsuit;
2. Mr. Myart is enjoined from threatening or harassing the named Defendants
in this case for the pendency of the lawsuit;
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3. Mr. Myart is enjoined from entering City Hall, the Risk Management
Offices on the 18th Floor of the Frost Bank Building, and the Finance
Department Offices on the 5th Floor of the Riverview Tower building, for
the pendency of the lawsuit;
4. Mr. Myart is enjoined from calling City Hall, the Risk Management Offices,
and the Finance Department for the pendency of the lawsuit; and
5. Mr. Myart is prohibited from personally serving any documents related to
this case on any named Defendant represented by counsel for the pendency
of the lawsuit.
Failure to abide by the terms of this preliminary injunction could result in a finding
that Mr. Myart is in civil or criminal contempt of this Court’s order. In re Bradley,
588 F.3d 254, 263 (5th Cir. 2009).
Pursuant to Rule 65(c), the Moving Defendants are ORDERED to
post bond in the amount of $1,000.00, as security to pay Mr. Myart’s damages in
the event he was wrongfully enjoined. Fed. R. Civ. P. 65(c). The injunction will
become effective immediately after bond is posted.
IT IS SO ORDERED.
DATED: San Antonio, Texas, September 26, 2016.

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