Spreadbury v. Bitterroot Public Library et al

Filing 113

ORDER ADOPTING FINDINGS AND RECOMMENDATIONS for 75 Findings and Recommendations regarding 5 Motion to Dismiss filed by Lee Enterprises Incorporated and 51 Motion for Partial Summary Judgment filed by Michael E. Spreadbury. Signed by Judge Donald W. Molloy on 10/4/2011. (APP, ) Copy mailed to Spreadbury this date.

IN TIlE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MONTANA

MISSOULA DIVISION

CV 11-64-M-DWM-JCL
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Plaintiff,
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ORDER
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vs.
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BITTERROOT PUBLIC LIBRARY,
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CITY OF HAMILTON,
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LEE ENTERPRISES, INC., and
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BOONE KARLBERG P.C.
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Defendants.
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MICHAEL E. SPREADBURY,

July 28,2011, Magistrate Judge Lynch entered Findings and
Recommendations as to the dispute between Plaintiff Michael E. Spreadbury and

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Defendant Lee Enterprises (dkt # 75). Judge Lynch recommended this Court grant
in part and deny in part Lee Enterprises' 12(b)(6) motion to dismiss Plaintiffs
complaint for failure to state a claim upon which relief can be granted (dkt # 5),
and he recommended denial of Plaintiff Michael E. Spreadbury's motion for
summary judgment on his claims against Lee Enterprises (dkt # 51). Spreadbury
timely objected to the Findings and Recommendation on August 5, 2011 (dkt #
87), and Lee Enterprises filed a response to Spreadbury's objection (dkt # 96).
Spreadbury is entitled to de novo review of those findings and recommendations to
which he objected. 28 U.S.c. § 636(b)(1). The portions of the Findings and
Recommendation not specifically objected to will be reviewed for clear errOL
McDonnell Douglas Corp. v. Commodore Bus. Mach., Inc., 656 F.2d 1309, 1313
(9th CiL 1981).
Spreadbury alleges that Lee Enterprises published articles and comments
that contained false information about Spreadbury and conspired with the state to
deny him his constitutional rights (Second Amended Complaint, ~~ 70, 71, 72, 91,
dkt # 90). Spreadbury's claims against Lee Enterprises all arise from these
allegations. The claims asserted are defamation, defamation per se, violation of
his constitutional rights under 42 U.S.C. § 1983, negligence, negligence per se,
tortious interference with prospective economic advantage, and negligent and
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intentional infliction of emotional distress.
Judge Lynch found that four of the claims against Lee Enterprises should be
dismissed for failure to state a claim upon which relief can be granted because Lee
Enterprises' reports of the judicial proceedings were privileged, Lee Enterprises'
conduct did not qualify as state action, and Spreadbury did not allege sufficient
facts that suggest that Lee Enterprises engaged in a conspiracy. Additionally,
Spreadbury did not identify any statute Lee Enterprises violated to establish
negligence per se. Spreadbury argues that Montana's privilege statute does not
apply because Lee Enterprises' statements were made in malice, that Lee
Enterprises acted under color of law, and that he should have been granted an
opportunity to amend his complaint.
Because I agree with Judge Lynch's analysis and conclusions, I adopt his
Findings and Recommendations in full. The procedural and factual background of
the case will not be restated here as the parties are familiar with it and it is
described in the adopted Findings and Recommendations.
I.
Under Montana Code Annotated § 27-1-801, defamation is effected by libel
or slander. Libel and slander both require that there be a "false and unprivileged
publication." Mont. Code Ann. §§ 27-1-802 and -803 (emphasis added). The
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Montana Code Annotated lists four types of publication that are privileged and
cannot constitute defamation. § 27-1-804. Section 27-1-804(4) applies here: "A
privileged publication is one made ... (4) by a fair and true report without malice
of a judicial, legislative, or other public official proceeding or of anything said in
the course thereof." A second hand account ofthe content ofthe pleadings in a
court matter, such as a newspaper might publish, is an example of a report of a
judicial proceeding. Cox v. Lee Enters. Inc .. 723 P.2d 238, 240 (Mont. 1986).
"Judicial proceedings" include pleadings filed with a court, even ifthey have not
yet been acted on by the court. Id.
Ifthere is no dispute regarding the content of the judicial proceedings on
which a report is based, then the issue ofwhether a particular report is privileged
is a question oflaw for the court. Lence v. Hagadone Inv. Co., 853 P.2d 1230,
1237 (Mont. 1993), overruled on other grounds by Sacco v. High Country Indep.
Press. Inc., 896 P.2d 411,423-24,429 (Mont. 1995). A newspaper's publication
of articles describing allegations against an individual in a judicial proceeding are
privileged publications as a matter oflaw under § 27-1-804(4). Lence, 853 P.2d at
1237.
Spreadbury alleges that Lee Enterprises published articles about judicial
proceedings in which Spreadbury was involved. Specifically, Lee Enterprises
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reported that Spreadbuy had been charged with criminal trespass, that an order of
protection had been imposed against him, and that he was banned from the library
and this ban was upheld in court. Spreadbury's own allegations establish that
these publications were reports of a "judicial proceeding" as understood under §
27-1-804(4). However, Spreadbury argues that Lee Enterprises' statements, if
made with malice, would not be privileged under § 27-1-804(4).
In defamation actions, "[a] newspaper is only liable for malice where it
publishes with knowledge of falsity or with a reckless disregard of the truth."
Sible v. Lee Enters .. Inc., 729 P.2d 1271, 1274 (Mont. 1986). "[M]alice does not
include hatred, personal spite, ill-will, or a desire to injure." Rasmussen v.
Bennett, 741 P.2d 755, 758 (Mont. 1987} SpreadburycontendsthatLee
Enterprises acted with malice because he was on public property when he was
charged with trespass and Lee Enterprises should have known he could not be
charged with criminal trespass for peaceful assembly. (dkt# 87 at 7-8). However,
Spreadbury alleges that he was charged with criminal trespass, a judicial
proceeding regarding that charge occurred, and Lee Enterprise reported on that
proceeding. Thus, he alleges that Lee Enterprise did not report false information
and he provides no supporting facts that Lee Enterprises acted with a reckless
disregard for the truth.
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For these reasons, Spreadbury's Count 19 (as to defamation regarding
publications reporting judicial proceedings) is dismissed.
II

Neither can Lee Enterprises' privileged statements serve as a basis for
Spreadbury's claims of defamation per se. Defamation per se exists when a
private actor accuses an individual actor of committing a crime. See McCusker v.
Roberts, 452 P.2d 408,414 (Mont. 1969). Spreadbury alleges that Lee Enterprises
accused him of disturbing the peace and criminal trespass and made comments
regarding Spreadbury's pscyhological health. Pl.'s Objections (dkt # 87 at 6). As
alleged by Spreadbury, all of Lee Enterprises' articles reported only about matters
in judicial proceedings, i.e. accusations which others had made against
Spreadbury. Thus, those reports are privileged under § 27-1-804(4), and are not
defamation per se.
For these reasons, Spreadbury's Count 19 (as to defamation per se) is
dismissed.
III.
Spread bury further alleges that Lee Enterprises is liable for negligence per
se for "publishing comments about a person's psychiatric health." Pl.'s Second
Amended Compl. (dkt # 90 at'~ 184-185). Negligence per se exists where a
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defendant fails "to comply with a legal mandate." Doyle v. Clark, _P.3d_,
2011 WL 2162891, *6 (Mont. 2011) (citation omitted). An allegation of
negligence per se must establish:

(1) that the defendant violated a particular statute; (2) that the statute was
enacted to protect a specific class of persons; (3) that the plaintiff is a
member of the class; (4) that the plaintiff's injury is the kind of injury that
the statute was enacted to prevent; and (5) that the statute was intended to
regulate members of the defendant's class.

Spreadbury does not specifically identify any statute that Lee Enterprises
violated. As Judge Lynch discussed, as a matter of law, the defamation statutes at
Mont. Code Ann. §§ 27-1-801 through 804 do not meet the elements ofnegJigence
per se, and Spreadbury does not allege that they do. Therefore, Count 18
(negligence per se) is dismissed.

IV.
Spreadbury next contends that Lee Enterprises acted under the color of law
by engaging in a conspiracy to defame Spreadbury and deprive him ofhis
constitutional rights. Spreadbury alleges that Lee Enterprises violated his
constitutional rights under 42 U.S.CO § 1983. Section 1983 states, in part;
Every person who, under color of any statute, ordinance, regulation, custom,
or usage of any State or Territory ofthe District of Columbia, subjects, or
causes to be subjected, any citizen of the United States or other person
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within the jurisdiction thereof to the deprivation of any rights, privileges, or
immunities secured by the Constitution and laws, shall be liable to the party
injured[.]

42 U.S.C. § 1983. A plaintiff can bring a claim under § 1983 against a state
official or employee if the plaintiff can establish that person was acting under the
color of state law and deprived the plaintiff of a federal right. Kirtley v. Rainey_
326 F.3d 1088, 1092 (9th Cir. 2003). However, § 1983 does not generally apply
to conduct ofprivate parties. ld. "The state-action element in § 1983 'excludes
from its reach merely private conduct, no matter how discriminatory or
wrongfuL'" Caviness v. Horizon Community Learning Ctr., Inc., 590 F.3d 806,
812 (9th Cir. 2010)(quoting Am. Mfgs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40,50
(1999)). Though private actors are generally not liable under § 1983, they may be
if their conduct qualifies as "state action."
Spreadbury contends that, though Lee Enterprises is not a state actor, its
conduct constitutes state action for the purpose ofimposing liability on a private
party. The Ninth Circuit has recognized the following four tests to identify private
action that qualifies as state action: "(1) public function; (2) joint action; (3)
governmental compulsion or coercion; and (4) governmental nexus." Kirtley, 326
F.3d at 1092 (quotation omitted). Spreadbury alleges that the conduct of Lee

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Enterprises meets the requirements for state action under both the joint action and
public function tests. PI.' s Objection (dkt # 87 at 9).
A private individual may be liable under § 1983 "if she conspired or entered
joint action with a state actor," Crowe v. Co. of San Diego, 608 F.3d 406,440 (9th
Cir. 20 10Xquoting Franklin v. Fox, 312 F.3d 423, 441 (9th Cir. 2002», or the
state accepts the benefits ofthe private actor's conduct, Kirtley, 326 F.3d at 1093.
To state a viable claim of conspiracy to violate a plaintiff's constitutional rights
under 42 U.S.C. § 1983, "the plaintiff must [allege] specific facts to support the
existence of the claimed conspiracy." Bums v. Co. of King. 883 F.3d 819,821
(9th Cir. 1989Xcitation omitted).
Spreadbury's allegations are insufficient to support a joint action theory of
conspiracy. Spreadbury alleges generally that Lee Enterprises conspired with
others to defame him and deprive him of his rights to due process, liberty, and
peaceful assembly. Insofar as Spreadbury is alleging that Lee Enterprises engaged
in conspiracy to defame him, the Court has already determined publishing fair and
accurate reports on judicial proceedings is not defamatory because it is privileged
under § 27-1-804(4).
Insofar as Spread bury is alleging that Lee Enterprises conspired with the
City of Hamilton and the police to restrict his liberty interests by removing him
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from Lee Enterprises' premises on July 9, 2009, he has failed to allege specific
facts to support his claim. Spreadbury mistakenly relies on Adickes v. S.H. Kress
& Co. to make his argument. In Adickes, the plaintiff alleged the defendant­

restaurant conspired with the police to discriminate against her. The plaintiff, a
white teacher, had been refused service by the restaurant and arrested outside for
vagrancy after attempting to eat with a group ofAfrican American students. The
Court denied the restaurant's motion for summary judgment on the grounds that
the plaintiff CQuid prove conspiracy "if she proves that she was refused service by
[the restaurant] because of a state-enforced custom requiring racial segregation in
Hattisburg restaurants." Adickes v. S.H.Kress & Co., 398 U.S. 144, 148 (1970).
The restaurant conspired to deny her service or caused her arrest based on a
practice of illegal racial discrimination. Here, no illegal discrimination is alleged
and Lee Enterprises contends that its staff felt threatened by Spreadbury' s
behavior.
As Judge Lynch discussed, "[m]erely complaining to the police does not
convert a private party into a state actor" and such conduct does not automatically
rise to the level ofjoint action or conspiracy. Dietrich v. John Ascuaga's Nugget,
548 F.3d 892,899-900 (9th Cir. 2008) (quoting Collins y. Womancare, 878 F.2d
1145, 1155 (9th Cir. 1989)). Spreadbury alleges only that Lee Enterprises called
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the police and the police removed him from Lee Enterprises' storefront. Such bare
allegations ofjoint action are insufficient to overcome a motion to dismiss. ld.
Therefore, as a matter oflaw, Spreadbury has failed to allege conspiracy
amounting to joint action between Lee Enterprises and the state.
Spreadbury also contends that Lee Enterprises' conduct constitutes state
action based on the "public function test." Under the public function test, a
private actor's conduct qualifies as state action where the private actor is endowed
with state powers or functions that are traditionally and exclusively governmental
in nature. Kirtley, 326 F.3d at 1092. "Newsgathering is the quintessential private
activity, jealously guarded from impermissible government influence." Brunette
v. Humane SCYI of Ventura Co., 294 FJd 1205, 1214 (9th Cir. 2002).
Here, Spreadbury sues Lee Enterprises for its role as a private newspaper
company engaged in reporting on judicial proceedings. Spreadbury alleges that
Lee Enterprises engaged in a public function when it interfered with his candidacy
for mayor by "permanently alter[ing] public perception of Plaintiff." Pl.'s Second
Amended Complaint (dkt # 90 at ~ 26). Although the administration of elections
is considered within the purview of the state, Terry v, Adams, 345 U.S. 461, 484
(1953), private newsgathering that may affect an election outcome does not rise to
the level of state action.
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For the reasons stated, Spreadbury does not provide any facts from which
one could plausibly determine that Lee Enterprises' alleged conduct qualifies as
state action under any of the four tests. Spreadbury's allegations regarding
conspiracy between Lee Enterprises and the state are merely conclusory assertions.
Conclusory allegations of conspiracy are not sufficient to support a claim for state
action amounting to a violation of constitutional rights under § 1983. Woodrum v,
Woodward Co.. Qkla" 866 F,2d 1121, 1126 (9th Cir. 1989).
Because claims under 42 U.S,C. § 1983 are based on conduct of a state actor
and state action has not been shown here, Spreadbury's claims against Lee
Enterprises under 42 U.S.C. § 1983 are dismissed.

v,
Spreadbury's final contention is that he should have been granted leave to
amend his complaint prior to dismissal in order to address any deficiencies. As
Judge Lynch states, the Court has the authority to dismiss a defective pleading, but
a district court should grant leave to amend even if no request to amend the
pleading was made, unless it determines that the pleadings could not
possibly be cured by the allegation of other facts,
Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000)(quoting Doe v, United
States, 58 F.3d 494,497 (9th Cir. 1995», The record does not indicate the
existence of any set of facts on which Plaintiff could make a plausible argument
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that the allegedly false statements made by Lee Enterprises were not protected by
privilege or that Lee Enterprises' conduct qualifies as state action. Because all of
Plaintiff's dismissed claims stem from these determinations, the pleadings could
not be cured by allegations of other facts.
I find no clear error in Judge Lynch's remaining findings and
recommendations.

VI.
For all the above reasons, the Findings and Recommendation (dkt # 75) are
hereby ADOPTED, PlaintiffSpreadbury's Motion for Summary Judgment (dkt #
51) is DENIED, and Defendant Lee Enterprises' Motion to Dismiss (dkt # 5) is
DENIED IN PART, GRANTED IN PART. Spreadbury's claims against Lee
Enterprises, Counts 18 (as to negligence per se), 19 (as to defamation for
publications on judicial proceedings and defamation per se) and 26 (punitive
damages), are DISMISSED.
Dated this

~ay of October, 2011.

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