Spreadbury v. Bitterroot Public Library et al

Filing 203

RESPONSE to Motion re 202 MOTION in Limine filed by Bitterroot Public Library, City of Hamilton. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E) (Crowley, William)

William L. Crowley
Natasha Prinzing Jones
Thomas J. Leonard
BOONE KARLBERG P.C.
201 West Main, Suite 300
P.O. Box 9199
Missoula, MT 59807-9199
Telephone: [phone]
Facsimile: [phone]
[e-mail]
[e-mail]
[e-mail]
Attorneys for City and Library Defendants
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
MISSOULA DIVISION
MICHAEL E. SPREADBURY,

Cause No. CV-11-064-M-DWM-JCL

Plaintiff,
CITY AND LIBRARY
DEFENDANTS’ BRIEF IN
OPPOSITION TO PLAINTIFF’S
OBJECTION AND MOTION TO
EXCLUDE LIABILITY EXPERTS

v.
BITTERROOT PUBLIC LIBRARY,
CITY OF HAMILTON, LEE
ENTERPRISES, INC., BOONE
KARLBERG P.C., DR. ROBERT
BROPHY, TRISTA SMITH, NANSU
RODDY, JERRY STEELE, STEVE
SNAVELY, STEVEN BRUNERMURPHY, RYAN OSTER,
KENNETH S. BELL, and JENNIFER
LINT,
Defendants.

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INTRODUCTION
On January 18, 2012, Plaintiff filed his objection and motion to exclude the
City and Library Defendants’ liability experts. [Doc. No. 202.] This responds to
Plaintiff’s arguments concerning the liability experts. Specifically, Plaintiff’s
motion to exclude the liability experts should be denied. At best, Plaintiff’s
arguments go to the weight of the testimony and not whether the testimony is
admissible. A copy of the City and Library Defendants’ Liability Expert
Disclosure is attached as Exhibit “A.”
DISCUSSION
Plaintiff’s objection and motion are addressed to Trista Smith, Kenneth Bell
and Ryan Oster. Plaintiff presents no argument in connection with the opinion
testimony of Dr. Robert Brophy. With this in mind, Plaintiff’s arguments
concerning Ms. Smith, Mr. Bell and Mr. Oster are addressed below.
A.

Trista Smith
According to Plaintiff, the decision not to add Mr. Pilkey’s letter to

President Obama to the Bitterroot Public Library (“BPL”) collection violated the
right to read statement of the American Library Association (“ALA”). [Doc. 170,
pp. 4-5; Doc. 170-2; Doc. 170-3; Doc. 184, p. 5.] Ms. Smith’s testimony is
addressed to this matter.

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According to Plaintiff, Ms. Smith has limited experience, and she is not
qualified to testify concerning the application of the ALA right to read statement.
[Doc. 202, pp. 2-3 and 8.] Under Rule 702, Fed. R. Evid., an expert must be
qualified by his or her knowledge, skill, experience, training or education to testify
as an expert. Such qualification helps to insure the testimony represents
specialized knowledge and is helpful to the decision maker. See, e.g., Kumho Tire
Ltd. Co. v. Carmichael, 526 U.S. 137, 149 (199).
Contrary to Plaintiff’s argument, Ms. Smith is qualified by her knowledge,
skill, experience, training and education to testify concerning the application of
ALA standards. Ms. Smith holds a Master of Library Science degree from San
Jose State University. She is a member in good standing of the ALA. She worked
as a Library Aide for seven years in California. She was a Library Assistant at the
Los Angeles City Public Library in Valenico, California, in 2009. She also was
the Library Director for the Darby Community Public Library in Darby, Montana,
and she is the current Library Director at BPL. (Exhibits “B”-“D” hereto.) At best,
Plaintiff’s argument goes to the weight of Ms. Smith’s testimony, which is a
matter for the fact finder. Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S.
133, 150 (2000); C & E Services, Inc. v. Ashland, Inc., 539 F. Supp. 2d 316, 323
(D.D.C. 2008).

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Next, as Ms. Smith is BPL’s Library Director and she is a Defendant in this
action, Plaintiff argues she has a conflict of interest. [Doc. 202, p. 2.] However, to
show a conflict of interest, Plaintiff must show: (1) he had a confidential
relationship with Ms. Smith, and (2) he disclosed confidential information to Ms.
Smith which is relevant to the current litigation. Hewlett-Packard Co. v. EMC
Corp., 330 F. Supp. 2d 1087, 1092-93 (N.D.Cal. 2004). Here, there is no evidence
of a conflict, and Plaintiff has not presented any such evidence.
Plaintiff argues Ms. Smith is not independent and is biased. [Doc. 202, pp.
1-4.] However, again, Plaintiff presents no evidence in support of his argument.
Certainly Ms. Smith is the current Director for BPL and is a Defendant in this
action. However, she is not alleged to have committed any act, omission or
statement which is alleged to have violated Plaintiff’s rights. She was not
employed at BPL at the time of the events in this lawsuit, and she did not
participate in any decisions concerning Plaintiff. [Doc. 152, no. 56.]
Indeed, Ms. Smith’s Interrogatory No. 1 asks Plaintiff to identify her acts,
omissions or statements which violated Plaintiff’s federal rights. In response,
Plaintiff answered, “It is well established practice in 42 U.S.C. § 1983 cases to
name successor of defendant in the aforementioned Defendant Gloria Langstaff no
longer employed at Defendant Public Library. Defendant Trista Smith is named as
Defendant Langstaff absence . . . . (sic)” Ms. Smith’s Interrogatory No. 2 to

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Plaintiff asked him to identify those acts, omissions or statements which violated
Plaintiff’s State Constitutional Rights. Plaintiff answered, “Trista Smith is lawful
replacement for former Director Langstaff . . . .” In summary, Plaintiff has not
presented any legitimate basis for his claims against Ms. Smith, and at best, his
argument goes to the weight of her testimony. Reeves, id.; C & E Services, Inc.,
id. In summary, Plaintiff’s motion to exclude Ms. Smith’s testimony should be
denied.
B.

Kenneth Bell
As understood, a basic premise to Plaintiff’s lawsuit is his unique view that

he cannot be excluded from or charged with trespass upon public property. [See,
Doc. 160; Doc. 202, p. 4.] Mr. Bell’s testimony goes to this matter.
The BPL premises and building are a limited public forum. They are not
open for use by all members of the public regardless of their conduct. That is, a
person may be excluded as long as the exclusion serves a valid purpose, is not
based on expressive conduct and other alternatives exist for the person’s
communication. Souders v. Lucero, 196 F.3d 1040, 1043 (9th Cir. 1999); U.S. v.
Adams, 388 F.3d 708 (9th Cir. 2004).
In Souders, supra, Mr. Souders used the Oregon State University Library
and attended public events on campus. However, following complaints about him
by females, Mr. Souders was provided notice of his exclusion from the library.

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When he ignored the notice, he was arrested in the library for trespass. Further, in
affirming a summary judgment against Mr. Souders in his civil rights lawsuit, the
Court wrote in part as follows:
Souders’ argument-that he has a right to be on the OSU campus,
regardless of his conduct, because he is a member of the general
public and the campus is open to the public-goes too far. This cannot
be the case. Whatever right he has to be on campus must be balanced
against the right of the University to exclude him. The University
may preserve such tranquility as the facilities’ central purpose
requires. See Laurence H. Tribe, American Constitutional Law 690
(1980). Not only must a university have the power to foster an
atmosphere and conditions in which its education mission can be
carried out, it also has a duty to protect its students by imposing
reasonable regulations on the conduct of those who come onto
campus.
(196 F.3d at 1045.)
Next, some of Plaintiff’s arguments concerning Mr. Bell have already been
determined against Plaintiff by the Courts. For example, Plaintiff argues Mr. Bell
committed official misconduct by acting outside the scope of his duties at the
protective order hearing involving Ms. Roddy on November 20, 2009. [Doc. 202,
p. 4.] However, in a prior lawsuit by Plaintiff against Mr. Bell, the Ravalli County
District Court determined that Mr. Bell was acting within the scope of his office
on November 20, 2009. [Doc. 153-2, p. 4.] The state district court was affirmed by
the Montana Supreme Court. Spreadbury v. Bell, 264 P.3d 516 ¶¶ 5-6 (Mont.
2011).

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Plaintiff also argues Defendant Bell withheld public documents from
Plaintiff. [Doc. 202, p. 5.] However, in a prior separate lawsuit by Plaintiff against
Mr. Bell and the City of Hamilton, the Ravalli County District Court determined
the documents contained “confidential criminal justice information.” [Doc. 135-1,
pp. 7-8.] Specific to the “library report,” the Ravalli County District Court
determined “ . . . the demands of individual privacy with respect to such
statements and information clearly exceed the merits of public disclosure.” [Doc.
135-1, pp. 16-17.] Further, on November 23, 2011, the Ravalli County District
Court granted a summary judgment to Mr. Bell and the City of Hamilton on
Plaintiff’s damage claims, including his claims under 42 U.S.C. 1983, for an
alleged withholding of documents. (Exhibit “E” hereto.) Plaintiff has appealed the
decisions to the Montana Supreme Court.
Separately, Plaintiff argues Mr. Bell is biased, is unreliable, has a conflict of
interest and is not qualified. [Doc. 202, pp. 2-6.] However, as with Ms. Smith,
Plaintiff has not provided evidence to support the arguments. At best, Plaintiff’s
argument goes to the weight of Mr. Bell’s testimony. Reeves, supra; C & E
Services, Inc., supra. In summary, Plaintiff’s motion to exclude Mr. Bell’s
testimony should be denied.

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C.

Ryan Oster
Mr. Oster is the Police Chief for the City of Hamilton. As reflected in the

City and Library Defendants’ Expert Disclosure (Exhibit “A”), Chief Oster would
provide opinion testimony on whether cause existed to arrest and charge Plaintiff
with trespass and intimidation.
According to Plaintiff, Chief Oster deprived Plaintiff on July 9, 2009, of the
right to enter the place of business of Defendant Lee Enterprises. [Doc. 202, p. 6.]
However, Plaintiff’s argument has already been rejected by this Court. [Doc. 79, p.
9.] (“Those circumstances, however, fail to demonstrate that Spreadbury has a
protected liberty interest in accessing the business offices of Lee Enterprises – a
private entity.”) [Doc. 121, p. 13.]
Next, Plaintiff argues Chief Oster obstructed justice, tampered with
evidence and covered up a felony automobile accident on September 14, 2007.
[Doc. 202, p. 6.] However, Plaintiff made the same argument in Cause No. DV
11-535, Spreadbury v. Mahar, City of Hamilton, Boone Karlberg P.C., Montana
Twenty-First Judicial District Court, Ravalli County. However, upon the
Defendants’ motion to declare Plaintiff a vexatious litigator, he dismissed the
action. In any event, Plaintiff has not presented any evidence to support his
allegation. His allegations are contrary to the police report concerning the

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accident and the City Court records concerning the driver’s guilty plea to a
violation of the traffic rules.
Fundamentally, Plaintiff has not presented adequate evidence to support any
argument that Chief Oster has a conflict of interest, is unreliable or is unqualified
to provide his proposed testimony. Again, at best, Plaintiff’s argument goes to the
weight of Chief Oster’s testimony. Reeves, supra; C & E Services, Inc., supra. In
summary, Plaintiff’s motion to exclude Chief Oster’s testimony should be denied.
D.

Miscellaneous Matters
Plaintiff cites Bourjaily v. U.S., 483 U.S. 171 (1987), in support of his

motion. [Doc. 202, p.3.] However, that decision dealt with whether an out-of-court
statement of an alleged co-conspirator was hearsay evidence. It has no application
here.
Plaintiff also seeks to exclude the testimony of Ms. Smith, Mr. Bell and
Chief Oster under Rule 403, Fed. R. Evid. However, contrary to his burden,
Plaintiff has not established why the probative value of the proposed testimony is
substantially outweighed by a danger of unfair prejudice, confusion of issues,
misleading the jury or undue delay. Rule 403, Fed. R. Evid. As such, his
argument should be rejected.

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CONCLUSION
Plaintiff’s arguments concerning the proposed testimony of Ms. Smith, Mr.
Bell and Chief Oster is not well taken. Therefore, his motion to exclude the
testimony of these individuals should be denied.
DATED this 26th day of January, 2012.

/s/ William L. Crowley
William L. Crowley
BOONE KARLBERG P.C.
Attorneys for City and Library Defendants

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CERTIFICATE OF COMPLIANCE
Pursuant to Rule 7(d)(2)(E), Local Rules of the United States District Court,
District of Montana, I hereby certify that the textual portion of the foregoing brief
uses a proportionally spaced Times New Roman typeface of 14 point; is double
spaced; and contains approximately 1,811 words, excluding the parts of the brief
exempted by L.R. 7(d)(2)(E).
DATED this 26th day of January, 2012.

/s/ William L. Crowley
William L. Crowley
BOONE KARLBERG P.C.
Attorneys for City and Library Defendants

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CERTIFICATE OF SERVICE
I hereby certify that, on the 26th day of January, 2012, a copy of the
foregoing document was served on the following persons by the following means:
__1, 3__

CM/ECF

_______

Hand Delivery

__2____

Mail

_______

Overnight Delivery Service

_______

Fax

_______

E-Mail

1.

Clerk, U.S. District Court

2.

Michael E. Spreadbury
700 South Fourth Street
Hamilton, MT 59840

3.

Jeffrey B. Smith
Garlington, Lohn & Robinson, PLLP
350 Ryman Street
P.O. Box 7909
Missoula, MT 59807-7909

/s/ William L. Crowley
William L. Crowley
BOONE KARLBERG P.C.
Attorneys for City and Library Defendants

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