Spreadbury v. Bitterroot Public Library et al

Filing 170

RESPONSE to Motion re 150 MOTION for Summary Judgment on Plaintiff's State Law Claims, 148 MOTION for Summary Judgment on Plaintiff's Federal Claims filed by Michael E. Spreadbury. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C) (APP, )

Michael E. Spreadbury

FILED

700 S. 4th Street
Hamilton, MT 59840

NOV 2 8 2011

Telephone: [phone]
[e-mail]

Pro Se Plaintiff
IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MONTANA

MISSOULA DIVISION

Cause No.: CV-ll-64-DWM-JCL
MICHAEL E. SPREADBURY

)
)

OPPOSITION TO CITY

v.

)

DEFENDANT PLEADING

BITTERROOT PUBLIC LIBRARY,

)

IN RE: SUMMARY

CITY OF HAMILTON,

)

JUDGMENT

LEE ENTERPRISES INC.,

)

BOONE KARLBERG PC,

)

Plaintiff

Defendants

)

Comes now Plaintiff with response to City, Public Library with respect to
summary judgment before this Honorable Court.
Supporting concurrent Pleadings by Plaintiff
Plaintiff pleads motion to deny, continue, Rule 56(f), affidavit; disputed facts.

Plaintiff opposition to Summary Judgment

Cause CV-11-64-0WM-JCL

November 21, 2011

Motion:
Plaintiff moves court to deny Defendant City, Public Library motion for summary
judgment due to material fact that remain per FRCP 56, and material facts to be
obtained by discovery Rule 56(t) , inconsistency in witness statements supported
by affidavit, summary judgment not proper as a matter oflaw.
Defense opposes this motion.
Brief in Support:
Pleading background.
Defendant City of Hamilton, Public Library submitted approximately 700 pages to
Plaintiff week of Thanksgiving; while simultaneously obtaining confidential health
infonnation ofPlaintiff, seeking confidential education infonnation using full
Social Security Number (SSN) of Plaintiff in furtherance ofpublic fraud (TR. #49;

Notice 0/ Fraud) with an invalid subpoena with pretext ofvalid (e.g. exhibits A-C
Plaintiff Notice o/Unlawfol Activity served upon court Nov. 4, 2011). In other
words, Defendant Boone desired to distract a disabled IFP pro se in hopes of no
response. Plaintiff will detail material facts, material issues in aforementioned
which precludes summary judgment.
Plaintiff has made affidavit ofNovember 21, 2011 indicating no criminal activity
in Ravalli County Montana, nor has plaintiff admitted to any criminal conduct
2

Plaintiff opposition to Summary Judgment

cause OI·11·64·DWM·JCl

November 21, 2011

(SODF #2, Affuiavit in Support ofRule 56(/) #6 of I lI2I11 I by Plaintiff). Since
Defense counsel, Defendants wish to impute crime on Plaintiff without cause, this
sworn statement was necessary (SODF# 2,8,18, 22, 24,33,34,35,36,39,40).
Defendant Roddy imputed crime on Plaintiff November 4, 2009 as no probable
cause, or crime existed saying "(She) thought she knew how to help (Plaintiff)."
(SODF #34).
Material issue: Immunity of Defense actors
Plaintiff has established in the record Defense lack of functional analysis of actors
with respect to immunity Morley v. Walker 175 F. 3d at 759 (rJh Gir., ]999). The
lack of analysis for immunity for City Defense actors caused a noticeable rift
between parties in the aforementioned, evident in the transcript (SODF # 10, 17).
The controlling authority from the US Supreme court dictates immunity needs to
be settled "long before trial" Mitchell v. Forsyth 427 US at 527-529 (1985).
Plaintiff asked court ifDefendant Police officer can accuse a person oftrespassing
on public property, and the officer knew, or should have known that peaceful
assembly in public parks has been a court authority since 1939; would deprive
Plaintiff's fundamental rights (SODF # 18) Hague v. CIO 301 US 496 (1939),
Buckley v. Fitzsimmons 509 US 259(1993), Davis v. Scherer 468 US at ]97(1984).

Immunity not established by Defense holds up discovery, and by proxy, summary
judgment Harlaw v. Fitzgerald 457 US 800 (1982).
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Plaintiff opposition to Summary Judgment

Cause OJ-l1-64-DWM-JCL

November 21, 2011

Deception by Defendant Boone.
Within the current pleadings for summary judgment, Thomas J. Leonard esq. cites
authority that a library can reject a library patron's fIrst Amendment rights with
respect to submissions using US v. American Library Association 539 US at 210

(2003). The problem is, this is an internet fIlter case, and the citation line does not
mention anything about submissions to libraries by patrons as Plaintiff effected
May 2009 at the Bitterroot Public Library.
Material Submissions at BPL:
At time of submission, meeting with Defendant Roddy May 29, 2009 the Bitterroot
Public Library was acting under the American Library Association (ALA) "Right
to read" policy (SODF # 3, Appendix C). Paraphrasing the 1950's statement from
the ALA, only patrons of libraries can decide what they want to read, not librarians
deciding for the patrons (SODF # 28; Exhibit C). In the aforementioned, the
Bitterroot Public Library decided to censor the Plaintiff submission, deprive liberty
interest via unlawful removal of privileges, and impute crime of trespassing on
public property August 20, 2009, and other unlawful imputed crime (SODF # 3, 6,
7,16,28,32,35). Defendant City in motion for summary judgment admits
Plaintiff submission letter to Defendant Public Library "describes widespread

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Plaintiff opposition to Summary Judgment

Cause CV-1l-64-DWM-JCL

November 21, 2011

corruption" and therefore gains highest rung ofprotected speech as public concern

Dunn & Bradstreet v. Greenmoss Builders Inc. 472 US 749 (1985).
After denial of submission, Plaintiff submits "Request for Reconsideration" Form
July 8, 2009 (Exhibit A, SODF #4); Public Library, instead of abiding by process,
policy, Defendant Bitterroot Public Library sends first letter unlawfully banning
Plaintiff via certified mail as policy is expected due to request to Library Staff Jo
Frankfurter (SODF # 29). Written denial of Plaintiff submission occurs July 9,
2009 without referenced Defendant public library policy. Plaintiff requests policy
from Frankfurter and is refused (SODF # 30). Bitterroot Public Library policy
uses the ALA Library Bill of Rights (Exhibit B): written materials should be
provided for"... interest, information, and enlightenment of all people, and the
facility should resist censorship, resist abridgement of free expression, free access
to ideas." The Bitterroot Public Library did not follow the ALA guidelines,
adopted as Defendant public library policy in 2009 as Plaintiff submission given to
public library id.
Defendant fails to offer defense for conspiracy to deprive Plaintiff rights:
The aforementioned is a cause for 42 USC § 1983 inter alia which is conspiracy to
deprive civil rights, or federal laws Monroe v. Pape 365 US 167 (1961). Plaintiff

5

Plaintiff opposition to Summary Judgment

Cause CV-l1-64-DWM-JCL

November 21, 2011

in 2nd Amended Complaint (IN. # 10),25-27 prima facie evidence of Defendants
acting in conspiracy to deprive Plaintiff established rights. Examples follow:
L Bell unlawfully enters civil court to protect Roddy November 20, 2009.
2. Hamilton Judge Reardon enjoins protection order on Plaintiff making Roddy
victim without findings of fact, conclusions oflaw in violation of Mont. R
Civ. P. S2(a) to deprive Plaintiff protected liberty interest to enter, use, or
pass near Defendant public library.
3. City summons Plaintiff to court, Defendant Lee covers with headline, photo
of Plaintiff to meet goal of defamation.
4. City pays for litigation expense ofpublic library via municipal, public fraud.
5. Defendant Lee makes unlawful, defamatory call of threats without cause on
Plaintiff, City violates Plaintiff liberty to enter Lee storefront open to public.
6. Public Library bans Plaintiff submission, City keeps submission as evidence
at police station, accuses Plaintiff oftrespass on public property.
7. Defendant Lee, City, Boone, public library defame Plaintiff in Joint
Function; goal is reap injury on Plaintiff, interfere with ability to work, alter
public perception of Plaintiff, interfere with election (public function test.)
Defendants in conspiracy to deprive Plaintiff established rights Adickes v. SH

Kress & Ca. 398 US at 152 (1970). Burden is on moving party to prove no

6

Plaintiff opposition to Summary Judgment

Cause CV-ll-!i4-DWM-JCl

November 21, 2011

material facts remain Rule 56(c), ibid at 159. Defendant City fail in motion for
summary judgment.
"Policy or Custom" establishes Municipal Liability
nd

Plaintiff has pled municipal "policy or custom" in 2 amended complaint (TR.#IO)
allows punitive damages as Defendant City official policy makers Bell, Oster made
official municipal policy by actions, decisions described in the complaint Monell v.

NYC Dept. o/Social Services 436 US 658 (1978). As Bell made affidavit to
summon Plaintiff to court for peaceful assembly on public property he knew or
should have known action would violate Plaintiff fundamental right protected

Amendment 1 US Constitution, Hague. As policymaker Oster decided to deprive
Plaintiff liberty interest to enter Defendant Lee storefront open to the public
knowingly, and without cause; sets municipal policy (SODF #26) Monell. As
Policymaker Oster unlawfully enters Plaintiff residence October 4, 2011 (see

Plaintiff DVD exhibit served October 14, 2011) as Probation officers had no
reasonable suspicion to enter (SODF # 22) and called "everything ok (code 10­
38)" called over police radio, Oster made municipal policy that City Police could
unlawfully enter Plaintiff residence, deprive equal protection, liberty ofPlaintiff
(SODF # 22) Griffin v. Wisconsin 483 US 868 (1987), Monell. Defendant City of
Hamilton liable for punitive damages for official policy that deprives Plaintiff
established right; any decision of policymaker makes policy Monell. In Adiekes at
7

Plaintiff opposition to Summary Judgment

cause CV-11-64-DWM-JCL

November 21, 2011

153 the high court rejected the respondents summary judgment claim merely due
to a location of a police officer in the Kress store not covered in an affidavit.

Plaintiff has made affidavit on November 21, 20 II as to material facts sought from
Defendants, inconsistencies in testimony reported by witnesses before this
Honorable Court to deny summary judgment, or continue proceedings to allow
discovery, interrogatories.
Defense Actors conspired to deprive right:
As Plaintiff sent letter ofJuly 15,2009 to City Police, Library, Library Board
indicating knowledge of Montana Code Ann. MCA§ 22-1-311 (Use of Library­
Privileges); reinstating privileges due to never being told ofwillful violation of
rules, asked to leave Defendant Public Library, Defendants did not respond to
Plaintiff (SODF # 5, 7,8). Plaintiff did not enter public library after July 10,2009
(SODF # 27), As plaintiff assembled in gazebo on west commons of Public
Library accused of criminal trespass on public property by Defendant Snavely
Hamilton Montana Police (SODF # I, 2, 6, 8,18). Plaintiff prosecuted by
Defendant city for criminal trespass on public property a deprivation ofestablished
right by Defendants having position of power over Plaintiff, which knowingly

0,

caused much stress, actionable under lIED, NlED pled by Plaintiff (TR. # 1
86, SODF # 13,21).

8

78­

Plaintiff opposition to Summary Judgment

Cause 0I-11-64-DWM-JCl

November 21, 2011

Inconsistent Statements by Defendants, Witnesses:
Witness Jo Frankfurter recounted interaction with Plaintiff creatively, and
improperly (SODF # 29, 30); a court case seeks facts, not creative writing. The
court should take notice of cleft face, speech impediment ofFrankforter, motive to
lash out at Plaintiff without cause, not teU the truth about the refusal to remit public
library policy to Plaintiff on or around July 10,2009, impute improper behavior on
Plaintiff as Frankforter failed to ask Plaintiff to alter behavior, or ask Plaintiff to
leave public library (SODF # 2, 8, 11). Frankforter described Plaintiff as
"pathetic" for asking for library policy, not remitted by Frankforter, promised in
Defendant public library director'S July 9,2009 correspondence to Plaintiff.
Frankforter's inability to perform simple task to assert behavior problems, follow
public library policy, yet Frankforter authored "incident report" at Bitterroot Public
Library (see discovery of trespass trial sent by Defendant Bell). Sworn deposition
of Frankfurter of July 10, 2009 interaction with Plaintiff should cure the
inconsistency of statements from Frankforter (discovery pending; motion to deny
summary judgment, affidavit of inconsistencies concurrent with this pleading).
Mayor Jerry Steele's account of a conversation in Hamilton City Hall with Dick
White and Lorraine Crotty, residents of Hamilton, MT is not consistent. Steele
was reported to have said "We know (Plaintiff) is schizophrenic" although Defense
accounts attempt an attempt at simile, claiming Steele uttered an example of
9

--------------------------

Plaintiff opposition to Summary Judgment

Cause CV·ll·64-DWM·JCl

November 21, 2011

inconsistency: "like a schizophrenic". Slander is defined in Montana Code Ann.
MCA§ 21-1-803(2) "imputes in a person the present existence of an infectious,
contagious, or loathsome disease." The Montana defamation statute qualifY this
characterization by Defendant Jerry Steele directly injures the Plaintiff (SODF #
14, IS). Since a witness, defendant in aforementioned offer differing accounts,
supported by affidavit ofNovember 21, 2011 Plaintiff urges court to deny
Defendant City motion for summary judgment, continue proceedings for
discovery, interrogatories by Rule 56(f) motion and supporting affidavit (e.g. see 1
# 3,4 of 11/21111 affidavit).
Disputed facts remain:
Defendant City, public library impute need to protect staff from Plaintiff is pretext
to known deprivation ofPlaintiff established right Lowe v. City ofMonrovia 755 F.
h

2d 998 (!l Cir., 1985). Plaintiff was issued "public trust" national security

clearance Jan 2008 by the US Dept. ofHomeland Security (see exhibit A, Notice of

National Security Clearance (served on court 1011412011

».

Plaintiff further

affiants no criminal activity in Ravalli County, or near, around, or in the Bitterroot
Public Library (SODF # 2, 37; Affidavit ofPlaintiflNovember 21,2011 #6). These
disputed facts between parties may not be decided by motion for summary
judgment Harlow v. Fitzgerald 457 US at 816 (J 982). Plaintiff identifies

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Plaintiff opposition to Summary Judgment

Cause CV-11-64-DWM-JCl

November 21, 2011

'questions of subjective intent' present in the aforementioned that cannot be
decided on summary judgment id.
The Advisory Committee for § 1 for 42 USC § 1983 found:
where the evidentiary matter in support ofthe motion does not establish the
absence ofgenuine fact, summary judgment must be denied even

if no

evidentiary matter is presented.
Monell v. NYC Dept. ofSocial Services 436 US 658 (l978)
Plantiff presents to the court issue of material fact, Statement of Disputed Facts
(SODF), Affidavit in Support of Rule 56 (f), Motion for Continuance, Denial of
Defendant CityIPubJic Library motion for summary judgment on State, Federal
claims. Plaintiff pleads in good faith, court should deny Defense motions.

-dI.

Respectfully submitted this

23 day ofNovember, 2011

Michael E. Spreadbury, Pro Se Plaintiff

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