Spreadbury v. Bitterroot Public Library et al

Filing 136

RESPONSE to Motion re 108 MOTION for Summary Judgment DEFENDANT LEE ENTERPRISES INC'S MOTION FOR SUMMARY JUDGMENT ON REMAINING COUNTS filed by Michael E. Spreadbury. (Attachments: # 1 Appendix A and B) (APP, )

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Michael E. Spreadbury 700 S. 4th Street Hamilton, MT 59840 Telephone: (406) 363-3877 mspread@hotmail.com Pro Se Plaintiff IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MONTANA MISSOULA DIVISION Cause No.: CV-1l-64-DWM-JCL MICHAEL E. SPREADBURY ) ) RESPONSE TO LEE v. ) DEFENDANT PLEADING BITTERROOT PUBLIC LIBRARY, ) IN RE: SUMMARY CITY OF HAMIL TON, ) JUDGMENT ON LEE ENTERPRISES INC., ) REMAINING COUNTS BOONE KARLBERG PC, ) Plaintiff Defendants ) Comes now Plaintiff with response to Lee Enterprises with respect to summary judgment before this Honorable Court. Motion, Statement ofDisputed facts, brief in support before the Honorable Court presented herein. Motion: Plaintiff response to Lee Summary Judgment Cause CV-U-64-M-DWM-JCL October 28. 20U Spreadbury moves that court declines Defendant Lee motion for summary judgment due to issues of material facts that remain, grant of summary judgment improper via FRCP 56. Statement of Disputed Material Facts 1. Defendant Lee Enterprises is a publisher of newspapers in the United States under pretext before this court as an internet provider, interactive internet service. 2. Defendant Lee does not provide internet access or service to any individual. 3. Defendant Lee is not protected under 47 USC§ 230 et. seq. The Communications Decency Act; as newspaper publisher, its internet website www.RavalliRepublic.com, www.Missoulian.com and others are news publishers. Defamatory third party comments are liable to Defendant Lee Enterprises Inc. 4. Defendant Lee, by publishing the conviction of a crime August 9, 2010 never charged on Plaintiff Spreadbury is engaging in Defamation per se. 5. Lee Enterprises coverage with malice of a trial for trespass on public property is not privileged under Montana Code Ann. MCA§ 27-1-804(4) depriving Spreadbury right to peaceful assembly with malice at the Bitterroot Public Library public property August 20, 2009; submitting articles with malice to Associated Press to be mass published about Spreadbury protected activity. 2 Plaintiff response to Lee Summary Judgment Cause CV·ll·64·M·DWM·JCL October 28, 2011 6. There is no information within Lee's amended foundational affidavit of October 18, 2011to support Lee's "uncontroverted facts" although it is mentioned as such. 7. Spreadbury returned to being a private citizen November 3, 2009, after Defendants successfully defamed Spreadbury to alter a public election. S. Material fact is Spreadbury's right to peacefully assemble at the Bitterroot Public Library August 20, 2009 precludes any motion for summary judgment. 9. Defendant Lee August 9,2010 article went out of scope of hearings, misreported information without fact checking, falsely attributed Spreadbury with speech never uttered, false light of situation, contained defamatory third party comments published by Defendant Lee. 10. Lee failed to correct August 9, 2010 article concerning the false and incorrect published information: conviction for Disturbing the Peace by Spreadbury. 11. Defendant Lee added false light within the August 24, 2010 failed attempt at correction (Appendix B) by incorrectly reporting a Supreme Court decision imputing more crime and misconduct on Spreadbury; did not mention false charge. 12. Defendant Lee was in joint function, inter alia with Defendant City July 9, 2009 at 232 W. Main St as Spreadbury requested in writing Lee refrain from defaming Spreadbury and Defendant City Police arrive: false "threats" call. 3 Plaintiff response to Lee Summary Judgment cause CV-U-64-M-DWM-JCL October 28, 2011 13. A publisher ofnews such as Defendant Lee and their online resources are always liable for published third party comments defamatory in nature. 14. Spreadbury injury: unable to seek gainful employment due to stress, anxiety willfully and knowingly leveraged by Defendant Lee; affirmed in Social Security Disability notice of decision fully favorable (Exhibit A). 15. The willful and intentional defamation by Lee, willful publish of defamatory per se comments was tortious inference in Spreadbury's ability to work. 16. Lee knew or should have known that peaceful assembly on public property is a protected activity; published front page headline articles, AP stories, multiple articles about Spreadbury's alleged trespass done with actual malice. 17. Lee acted in actual malice to publish multiple articles in re: trespass on public property at the Bitterroot Public Library August 20, 2009. 18. Lee breeched duty to Spreadbury to not defame, deprive rights as sovereign American citizen. 19. Lee abused position as public news source with actual malice to deprive Spreadbury established right to peacefully assemble on public property at the Bitterroot Public Library August 20,2009. 4 '" ----~~~"~"." ......... . Plaintiff response to lee Summary Judgment cause CV-l1-64-M-DWM~JCl October 28, 2011 20. Publishing the false conviction of a criminal charge always carries liability, there are no "stages" of severity as implied by Lee counsel before this court. 21. Spreadbury's peaceful assembly August 20, 2009 on public property at 306 State St. Hamilton Montana USA site of Bitterroot Public Library. 22. The attempt at deception before this court by Defendant Lee counsel of submitting an edited version as the sworn true and accurate copy of the August 9, 2010 article shows intent by Lee to unlawfully and unethically absolve liability, damages to Spreadbury. Briefin SupPOrt It is improper for this honorable court to find summary judgment for Defendant Lee as Spreadbury has presented claim under 42 USC§ 1983 for deprivation of fundamental established right: peaceful assembly Amendment 1 US Constitution, and Defendant Lee failed to show absence of material fact Adickes v. SH Kress & Co. 398 US at 148 (1970). Lee counsel misrepresented correction, written, published in malice which did not correct the publication indicating Disturbing the Peace, a false charge against Spreadbury. The full text of the correction published August 24, 2010 with respect to the August 92010 article is: 5 Plaintiff response to Lee Summary Judgment Cause CV-ll-64-M-DWM·JCL October 28, 2011 Correction An article on thefront page ofthe Aug. 9 edtition ofthe Ravalli Republic incorrectly identified a charge against Hamilton resident Michael Spreadbury. The article should have stated that Spreadbury was appealing a conviction ofcriminal trespassing, a charge the city dropped earlier this month after the Montana Supreme Court upheld an order ofprotection restraining Spreadbury from entering the Bitterroot Public Library for five years. [full copy Exhibit B, attached] The Montana Supreme Court denied an out of time appeal on August 10, 2010 which was one day after the August 9, 2010 article. At no time did the Montana Supreme Court uphold the unlawful "ban", nor did Spreadbury willfully violate the rules ofthe Bitterroot Public Library per Montana Code Ann. MCA§22-1-311 (Use ofLihrary-Privileges). Spreadbury was arbitrarily removed from the Bitterroot Public Library without procedural due process, never asked to leave by Defendant Public Library staff or Defendant City Police. Disturbing the Peace is not mentioned or corrected in the Defendant Lee attempt at correction of August 24,2011. The order ofprotection was secured by Defendant City Attorney Bell by Official Misconduct, Montana Code Ann. MCA§ 45-7-401 (bXc) a city prosecutor 6 Plaintiff response to Lee Summary Judgment cause CV-l1-64-M-OWM-JCL October 28, 2011 unlawfully acting on behalf of Defendant Roddy in a civil courtroom. Further the Order of Protection was without rmding of fact, conclusion of law as contained in the written order, in violation ofMont. R Civ. P 52 (c), Spreadbwy's due process: no hearing was issued at District Court level. Honorable Court, must find that issues ofmaterial fact remain, and summary judgment for Lee is not proper FRCP 56 Lopez v. Smith 203 F. 3d 1122 (cjh Cir. 2000). Certificate of Compliance From LR 7(d)(2)(E) US District Court Rules Montana, I certify that this brief conforms with 14 point font, New Times Roman typeface, is double spaced, contains 1,074 words excluding title page, this compliance. ~ Respectfully submitted this f2J? day of October, 20 II Michae E. Spreadbwy, Pro Se Plaintiff 7 Certificate of Service Cause No. 9:2011-cv-II-0064-DWM-JCL I certify as Plaintiff in this action, a copy ofthe below named motion was served upon the US District Court Missoula Division and all opposing counsel for parties in this above named cause of action by first class mail. The following addresses were used fur service: Response to Lee Defendant Pleading in re: Summary Judgment on Remaining Counts. Russell Smith Federal Courthouse Clerk of Court 201 E. Broadway Missoula, MT 59803 Defendant Counsel: Plaintiff Counsel: William L. Crowley Michael E. Spreadbury Boone Karlberg PC PO Box416 PO Box 9199 Hamilton, MT 59840 Missoula MT 59807 (self-represented) Jeffrey B Smith Garlington, Lohn, & Robbinson PLLP POBox 7909 Missoula MT 59807 Dated _ _ _-0/28/2011 _ _ __ Michael E. Spreadbury, Pro Se Plaintiff

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