Spreadbury v. Bitterroot Public Library et al

Filing 17

MOTION for Recusal by Plaintiff Michael E. Spreadbury. (Attachments: # 1 Exhibit A) (ASG, )

Exh\'~~t
United States Court of Appeals for the Ninth Circuit

Cause No. 10-36086,

A.

Plaintiff Opening Brief

Table of Contents:
Statement of Issues for Review ............................................................9

Subject Matter Jurisdiction, Standard of Review, Timeline of Appeal. ............. 10

Case Statement ........................................................................... 10-12

Case Argument ........................................................................... 12-32

I. Unauthorized law student
A. Absolute Immunity does not apply to Defendant Wetzsteon ....... 12

II. Appearance of Conflict of Interest
A. Magistrate Lynch ..................................................... 13-15

B. US District Judge Malloy ............................................ 15-16

III. Clearly Established Rights Deprived by Defendants
A. Speedy Trail ................... , ., ........................................ 17

B. Confrontation Clause ..................... ,............................. 18

C. Procedural Due Process ............................................. 19-20

D. Abuse of Power.......................................................20-23

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United States Court of Appeals for the Ninth Circuit

Cause 1'110. 10-36086,

Plaintiff Opening Brief

II. Appearance of Conflict of Federal Judges per 28 USC§ 455
A. Conflict of Interest involving Magistrate Lynch
US Magistrate Lynch screened Spreadbury's § 1983 complaint twice under 28 USC
§1915 (TR. #4; TR. #9). US Magistrate Lynch assigns Defendant law clinic
attendee absolute immunity as unlicensed law student, compares Supreme Court
intern in administrative task, not in prosecutorial fashion to an unauthorized law
student Wetzsteon practicing law unsupervised in Spreadbury's criminal
courtroom August 8, 2007. Magistrate Lynch cites case to Spreadbury which was
overturned (TR. # 7--Objection to Findings and Recommendations). Magistrate
Lynch misrepresented the Montana Recall Act MCA§ 2-16-600 et. seq. to attempt
to preclude or "chill" Spreadbury from pleading a first amendment violation by the
Defendants O'Keefe v. Van Boening 82 F. 3d 322 (ffh Cir. 1996). The instances
indicate bias against Spreadbury in Magistrate Lynch's findings and
recommendations to the District court. 28 USC § 455(a) states:

Any justice, judge, magistrate ofthe US shall disqualifY himselfin any
proceeding which his partiality might reasonably be questioned
--Liljeberg v. Health Services Acq. Corp. 486 US at 488 (1988).
F .R. C.P. 60 (b)( 6) states that an appeals court is better to determine violation, if
party is relieved of fmal judgment of District Court. This court recognizes the
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United States Court of Appeals for the Ninth Circuit

Cause No. 10-36086,

IJlaintiff Opening Brief

potential for bias in Judges, and need to vacate judgment with appearance of
conflict of interest US v. Conforte 624 F. 2d 869 (9 th, 1980). Totality of
circumstances, combination of factors, statutes involved in analysis of the bias
including 28 USC§ 455 and 28 USC§ 144 US v. Olander 584 F. 2d 876 (9 th Cir.

1978). In Magistrate Lynch situation, former clinic attendant as a Defendant·
certainly qualifies before this court as an instance where actual bias as indicated in
record, and appearance of bias by Defendant's clinic director allows self­
disqualification Preston v. US 923 F. 2d 731 (9 th Cir. 1991); Davis v. Xerox 811 F.

2d 1293 (9 th 1987).
Magistrate Lynch, in TR.#4 Order Setting imposed the "shorter an more concise"
decree not imposed upon pleadings before District court, establishing bias with to
Spreadbury unseen to litigants in the Missoula District Eldridge v. Block 832 F. 2d

at 1136 (g'h Cir. 1989). Spreadbury followed a pleading by Boone Karlberg PC of
Missoula, Montana in a § 1983 matter before Honorable Malloy with Cause No.
9:08-cv00172-DWM §1983with Ravalli County as Defendant.

B. Conflict of Interest involving US District Judge Malloy
US District Judge Donald W. Malloy sits on advisory board for the University of
Montana Law School, the "Board of Supervisors" (Appendix A). This position is
paid for travel and expenses of appointed members of state boards per MCA§ 2­

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United States Court of Appeals for the Ninth Circuit

Cause No. 10-36086,

Plaintiff Opening Brief

18-501(Meals, lodging, and transportation of persons in state service). Malloy's
appointment to Board ofSupervisors for the University of Montana Law School
sets up the criteria for 28 USC§ 455(b) a financial interest in conjunction with a
conflict of interest: a Defendant law student, and clinic attendee at District Court.
Financial interest in case for federal jurist, even slightest indication of bias,
prejudice sufficient to disqualify US v. Conforte 624 F. 2d at 881. A financial
interest, even small requires disqualification In re: cement Antitrust Litigation 688

f

th

2d 1297 (9 Cir. 1982). With respect Jurists Malloy, Lynch in this instant case,

the appearance of impropriety is as dangerous as the fact of it US v. McDonald 576
F. 2d 1350 (gth Cir. 1978).

A reasonable observer expects US Judge Malloy to reveal sitting on Board of
Supervisors for University of Montana Law School in conflict with Defendant Law
Student Wetzsteon, attended legal clinic in District Court Liljeberg v. Health
Services Acq. Corp. 486 US at 852 (9 th Cir., 1988). Under 28 USC§ 455(b)(4) a

US Judge is obligated to disqualify himself in the following circumstances:
financial interest in subject matter of the case. The Liljeberg court established an
obvious conflict of interest in having a university trustee preside over a case. In
the instant case, US Judge Malloy on paid advisory board for the University of
Montana Law School in Missoula Montana; Wetzsteon attended this school as she

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prosecuted Spreadbury without a license, unsupervised; Wetzsteon attended a
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United States Court of Appeals for the Ninth Circuit

Cause No. 10-36086,

Plaintiff Opening Brief

clinic at the US District court in Missoula, Montana. US Judge Malloy failed to
adhere to 28 USC§ 455(b)(4): required recusal if fiduciary interests with party.

Ill. Clearly Established Right Deprived by Defendants
A. Issue of Speedy Trial --Amendment 6
Spreadbury's right to Speedy trial violated by Defendants, issue which ultimately
dismissed cause of action. Spreadbury's 2nd amended complaint citing § 1983lists
count 40 as speedy trial against Defendants in Ravalli County, Montana.
Spreadbury initially appeared January 5, 2007, available for July 31, 2007 trial
date. That date continued by Defendants beyond speedy trial provisions,
Spreadbury had prior professional obligation to deploy August 1, 2007 to a
federally declared disaster. Defendants made August 8, 2007 court date without
written notice, which forced Spreadbury to miss the misdemeanor trial.
This circuit uses Barker v. Wingo 407 US 517 (1972) to establish elements for
speedy trial at common law. Trial delays caused by Defendants as "key witnesses"
were out of town for a wedding. Spreadbury's counsel asserted Speedy trial in
August 6, 2007 (Appendix B) motion to dismiss and supporting brief served upon
Defendants, Justice Court, JP Jim Bailey presiding. Prejudice to Spreadbury
included evidence gathering after discovery deadline, intentionally catching

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