Spreadbury v. Bitterroot Public Library et al

Filing 23

RESPONSE to Motion re 5 MOTION to Dismiss All Counts Against Lee Enterprises, Inc., filed by Michael E. Spreadbury. (ASG, )

Michael E. Spreadbury
P.O. Box 416
Hamilton, MT 59840

FILED

Telephone: [phone]

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[e-mail]
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Pro Se Plaintiff

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IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MONTANA

MISSOULA DIVISION

W,
MICHAELSPREADBURY
Plaintiff

)

Cause No: CV-l1;M-'M-DWM

)

v.

) RESPONSE TO LEE'S INITIAL

BITTERROOT PUBLIC LIBRARY,

) PLEADING; MOTION TO SET

CITY OF HA~nL TON,

) ASIDE, BRIEF IN SUPPORT

LEE ENTERPRISES, INC.,

)

BOONE KARLBERG, PC,

)

--------------------------)

Comes now the Plaintiff with motion to set aside, brief in support, initial response

to Defendant Lee Enterprises in the aforementioned.
Motion:
WHEREFORE, Plaintiff respectfully moves that Honorable Court set aside
Defendant Lee Enterprises motion to dismiss with cause as pled herein.

Motion to Set Aside Lee Motion to Dismiss

Cause 9:2011-CV-11-61-M-DWM

May 5,2011

This motion is opposed by Defense counsel.
Brief in Support:
Section 1983 litigation, 42 USC § 1983 is established to permit persons who have
had constitutional rights violated, and to sue the wrongdoer for redress of injuries.
Liability attaches if the defendant acted in "color of law", and the action(s)
deprived the Plaintiff of some right, privilege, or immunity secured by the
Constitution Monroe v. Pape 365 US 167 (1961).
Spreadbury alleges several constitutional deprivations in complaint, amended
complaint, 2nd Amended complaint filed before this court in the aforementioned.
The Due Process Clause ofthe 14th Amendment of the US Constitution protects
civil litigants who seek recourse .....as plaintiff attempting to redress grievances

Logan v. Zimmerman Brush Co. 455 US 422 (1982). This same clause is
interpreted as preventing states from denying potential litigants use of established
adjudicated procedures to dismiss, such an action would be the equivalent of
denying litigants an opportunity to be heard of their claimed rights Logan at 430.
A meaningful right to be heard, and an attempt to settle claims of right and duty
through the judicial process must be given a right to be heard Boddie v.

Connecticut 401 US 371 (1979).

Motion to Set Aside Lee Motion to Dismiss

Cause 9:2011-CV-11-61-M-DWM

May 5,2011

The fundamental right, amongst several pled by the Plaintiff in the complaint
properly filed with this court is for peaceful assembly on public property. Peaceful
assembly is a fundamental constitutional right found in Amendment 1 US
Constitution. Defendants in this case, conspired to make illegal, and publish as
such the fundamental right to peaceful assembly Schneider v. State (Town of

Irvington) 308 US at 162 (1939).
No state shall make or enforce any law which shall abridge the privileges or
immunities ofThe United States; nor shall any state deprive any person life,
liberty, or property without due process oflaw; nor deny to any person
within its jurisdiction the equal protection ofthe laws.
--Amendment 14, US Constitution.
In the aforementioned, Defendant Lee Enterprises acted in concert with local
officials, a willful participant engaged in joint action with local officials in
Hamilton, Montana effecting a deprivation of Plaintiff s right to peaceful assembly
on public property Dennis v. Sparks 449 US 24 (1980). Defendant is a newspaper
company whose reporters are trained in First Amendment rights in Journalism
School prior to employment. Negligence, intentional interference, defamation
attaches as Lee Enterprises: 1) intentionally and willfully covered a story of
Plaintiff engaged in peaceful assembly on public property; Defendant had duty to

J

Motion to Set Aside lee Motion to Dismiss

Cause 9:2011-CV-11-61-M-DWM

May 5,2011

Plaintiff to not violate, or participate with unlawful actions of City of Hamilton 2)
Defendant breeched that duty by publishing, republishing story to a intrastate,
interstate and international audience; 3) Defendant Lee Enterprises did with the
purpose of destroying plaintiff character, co-acting with other defendants, acting in
violation of all 3 of 3 defamatory journalistic precepts: i) Plaintiff committed
criminal act which did not occur, ii) Financial status of Plaintiff revealed, and iii)
mental health of Plaintiff defamed in online comments. 4) Actions of Defendant
Lee Enterprises, other defendants resulted in loss of ability to be gainfully
employed, and is categorized by the State of Montana as disabled; proof of
tortious interference Sebena v. Am. Automobile Assn. 280 Mont. 305 (1996).
No altercation occurred at the library, Plaintiff asked for, and was never given
policy promised by former Director in written correspondence. Plaintiffwas
attempting to lawfully exhaust administrative remedies at Bitterroot Public
Library, including meeting with Director, suggested by Senior Librarian Roddy.
No meeting was allowed, privileges unlawfully removed per MCA§ 22-1-311
without administrative remedy by Defendants.
Defendant Lee Enterprises published 33 articles, online comments, and 2 AP
submissions printed in 6 Lee newspapers in The State of Montana within a 3 year
time span. News, radio, national and international publication of defamatory
falsehood on or around August 20, 2010 was a malicious act by then Editor Perry

4

Motion to Set Aside Lee Motion to Dismiss

Cause 9:2011-CV-1l-61-M-DWM

May 5,2011

Backus which had intent of harm to character per MCA§ 27-16-102(2) entitles
Plaintiff to request the arrest of Perry Backus due to calculated, malicious acts
which disabled Plaintiff ability to work. Law is established to protect people,
disabling the public with use of unlawful criminal charges, international
defamation by Defendants precluded by constitutional right, Plaintiff has lawful
ability to request civil arrest of Backus by court affidavit, discretion of a Judge.
The Due process clause indicates no law can abridge Plaintiff right to peaceful
assembly, which includes MCA§ 27-1-804 as pled by Defense counsel as defense
to publishing Plaintiff involved in criminal act, other false light information when
no criminal act had occurred. The judicial misrepresentation, and intentional
deprivation of Plaintiff right in this case does not exempt Defendant Lee
Enterprises from duty to not deny Plaintiff when clear constitutional right is
involved Shuttlesworth v. Birmingham 394 US at 159 (1969).
The cause of action for lIED, NIED have jurisdiction in a State court, the remand
to that court is proper, this Honorable court should expect a Plaintiff motion.
Defense misrepresents a prima facie case of ED to this court. Simply, a Defendant
that has availability of position of power over Plaintiff, deprives established right,
or his interests, acts in an unreasonable or outrageous manner with reasonable
expectation of ED to Plaintiff, then ED inflicted upon Plaintiff. The standard in

Motion to Set Aside lee Motion to Dismiss

Cause 9:2011-CV-11-61-M-DWM

May 5, 2011

the State of Montana is Johnson v. Supersave 211 Mont. 465 (1984) and serves as

lIED litmus test for the Montana Supreme Court:

whether tortuous conduct results in a substantial invasion of a legally

protected interest and causes a significant impact upon the Plaintiff.

Defendant Lee Enterprises avers incorrectly that physical or psychological
evidence of harm must be produced to inact ED Johnson. In Stensvad v. Towe 232
Mont. 378 (1988 ) The Montana Supreme court awarded damages absent physical
injuries when Defendant conduct resulted in substantial invasion of legally
protected interest which caused significant impact on person ofPlaintiff.
Plaintiff was never out of "compliance" with public library staff, or law
enforcement in Hamilton MT in summer 2009. Plaintiffhas right to peaceful
assembly on public property, and although never asked to leave the public library,
had liberty, property interests deprived by the Defendants in this case.
A complaint invoking federal civil rights statute as jurisdictional basis, attempting
to state claim under such statute sufficient to establish subject matter jurisdiction
under 42 USC§ 1983, F.R.Civ. P. 12(b)(1), 28 USCA; Shaw v. Los Angeles 797 F.
2d 743 (9th Cir. 1986). A §1983 pro se complaint which avers a policy or custom
under Monroe is sufficient to withstand a motion to dismiss "even ifthe claim is
based on nothing more than bare allegation that the individual officer conduct

Motion to Set Aside Lee Motion to Dismiss

Cause 9:20ll-CV-1l-61-M-DWM

May 5, 2011

conformed to official policy, custom or practice." Shah. Defendant Lee
Enterprises acted with City of Hamilton to deprive Plaintiff right to peaceful
assembly, and as a co-conspirator must answer the deprivation of Spreadbury's
rights. Plaintiff has pled in ~50, 51 of Amended Complaint specific details of
malicious defamation per se by Defendant Lee Enterprises, as well as dates of
mass republishing of defamation on or around August 20, 2010.
Defendant Lee Enterprises violated 42 USC§ 1983 by acting in color of law, and
depriving Plaintiff right to peaceful assembly as protected in Amendment 1 US
Constitution. Further, Defendant Lee Enterprises used position of power over
Plaintiff to maliciously defame and distribute this information to a very large
audience in conspiracy with the other Defendants in the aforementioned.
There is no privilege for Defendant Lee Enterprises articles when the court
proceeding violated a clearly established right of the Plaintiff under 42 USC§
1983. The references to Cox v. Lee Enterprises Inc. 222 Mont. 527 (1986) in
Defendant motion to dismiss do not indicate a violation of Cox's fundamental
right, or Cox pleading to a court for redress of deprivation of constitutional right as
herein by Spreadbury.

Motion to Set Aside Lee Motion tb Dismiss

Cause 9:2011-CV-11-61-M-DWM

May 5, 2011

!

Plaintiff right to be heard, kiven equal protection of property, liberty under
precepts of 14th Amendment supersedes all claims made by Defendant Lee
Enterprises.
A cause of action is a species of property protected by the 14th Amendment US
Constitution Logan v. Zimmerman Brush Co. 455 US 422 (1982). The use ofa
library is a liberty interest, paid by taxpayers; a cause of action is a property
interest Logan. Substantive rights of life, liberty, property cannot be deprived
except pursuant to constitutionally adequate procedures; Defendant is asking court
to deprive Plaintiff these rights by dismissal; once it is determined that the due
process clause applies, question only remains what process is due Amendment 5,
14 US Constitution, Cleveland Bd. O/Education v. Lo uderm ill 470 US 532 (1985).
In the Federal courts, a motion to dismiss for failure to state a claim is viewed with
disfavor and is rarely granted Guiliani v. Chuck IHaw. App.620 P. 2d 733 (1980).
Intentional harm to property interests, herein Spreadburys ability to work is a
cognizable cause of action sounding in tort Guliani at 733.
Defendant Lee Enterprises acted in concert with Defendant City of Hamilton,
Defendant Boone Karlberg to deprive Plaintiff right to peaceful assembly, a clearly
established right. A violation of a clearly established constitutional right is
actionable in this Honorable court as a violation of 42 USC§ 1983. No law,

.L

,

Motion to Set Aside Lee Motion

tP Dismiss

Cause 9:2011-CV-1l-61-M-DWM

May 5, 2011

including Trespassing on private property, can abridge this right per Amendment
i

14, US Constitution.
Defendant Lee Enterprises did act with other Defendants in this case to violate
Plaintiff's established right, and motion to dismiss from 28 April 2011 should be
properly set aside.

Respectfully submitted this

BY:

51k day of Ma

------~--~~~~------~----------

Michael E. Spreadbury, Pro e

700 S. Fourth St.

Hamilton MT 59840

I

.J.

Certificate of Service
Cause No. CV-11-0064-DWM
I certify as Plaintiff in this action, a copy of the 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 for service:
Response to Lee's Initial Fleading; Motion to Set Aside, Briefin Support
Russell Smith Federal Courthouse
Clerk of Court
200 E. Broadway
Missoula, MT 59803

Defendant Counsel:

Plaintiff Counsel:

William L. Crowley

Michael E. Spreadbury

Boone Karlberg PC

PO Box416

POBox 9199

Hamilton, MT 59840

Missoula MT 59807

( self-represented)

Jeffrey B Smith
Garlington, Lohn, & Robbinson PLLP
POBox 7909
Missoula MT 59807

Dated

51-11 ------,------­

-1~f1

Michael E. Spreadbury, Pro Se Plaintiff