Spreadbury v. Bitterroot Public Library et al

Filing 267

RESPONSE to Motion re 259 MOTION for Summary Judgment DEFENDANT LEE ENTERPRISES INC'S MOTION FOR SUMMARY JUDGMENT filed by Michael E. Spreadbury. (Attachments: # 1 Affidavit) (APP, )

RECEIVED

Michael E. Spreadbury
P.O. Box 416

APR 7Q 2012
CLeRK us
DISTRICT ~~~~ COURT
MISSOULA TANA

Hamilton, MT 59840
Telephone: [phone]
[e-mail]

Pro Se Plaintiff
IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MONTANA

MISSOULA DIVISION

MICHAEL SPREADBURY
Plaintiff

)

Cause 9:11-cv-064-DWM-JCL

)

v.

)

BITTERROOT PUBUC LIBRARY,

)

MOTION, BRIEF IN

CITY OF HAMILTON,

)

SUPPORT IN OPPOSITION

LEE ENTERPRISES, INC.,

)

TO LEE SERIAL

BOONE KARLBERG, PC,

)

SUMMARY JUDGMENT

)

Comes now the Plaintiff with motion in opposition to Lee summary Judgment.
Motion:
Spreadbury moves court to reject Lee summary judgment due to genuine material
fact remain, Lee publication in actual malice makes Spreadbury status irrelevant,
Lee August 9,2010 report on judicial hearing: Spreadbury is only private citizen.

Plaintiff opposition to lee Serial Summary Judgment

Cause 9:11·cv-064-DWM-JCl

April 18, 2012

Brief in Support:
Spreadbury serves concurrently with this motion, brief in support to reject Lee
Summary Judgment 1) Statement of Disputed Facts (SODF) in opposition to Lee
Summary Judgment; 2) Affidavit of Michael E. Spreadbury April 18, 2012.

Table of Contents:

pg.

Current, History of Lee Misconduct in aforementioned .............................. .3

Lee Argument Fails: Spreadbury is NOT a public figure by Court Authority ..... .4

Actual Malice Standard by Lee in August 9, 2010 article ............................ .5

Liability Standard for Emotional Distress in supplemental jurisdiction.............6

Lee did not dispatch Joint Function with Defendant City ..............................8

Lee did not dispatch public comments, omissions as Newspaper Publisher ........8

Jury is required to settle facts ............................................................. IO

Conclusion................................................................................... 11

2

Plaintiff opposition to Lee Serial Summary Judgment

Cause 9:11-cv-064-DWM-JCL

April 18, 2012

Current, History of Lee misconduct in aforementioned:
Lee Enterprises, through its counsel has filed serial summary judgment in this case
for the third (3rd) time in violation of this court's authority, in harassment of Court
as Honorable Court makes order (Doc. #249) March 6, 2012 Spreadbury status as
private or citizen to be briefed or sent to jury. Summary judgment filed before this
court in violation of Rule II April 4, 2012. Judicial notice given that Spreadbury
served motion April 12,2012, to find Lee in contempt of March 6, 2012 Order
(Doc. #249) and put Lee Enterprises in "safe harbor" April 12, 2012 for Rule 11
sanctions for the second time in this case.
Honorable Court reminded that Lee Counsel gave false sworn statement (Doc.
# 124) regarding true and accurate copy of the August 9, 2010 article with false
conviction for Disturbing the peace absent; a false sworn statement to the court.
In Sworn statement dated April 4, 2012 executed by former Lee editor Perry
Backus makes false and misleading statement about venue of court hearings, and
pretext and irrelevant reasoning for Lee coverage of Spreadbury, misleading before
this court. Court given notice that the "desire" for coverage by Lee does not
preclude the controlling authority on this court with respect to journalistic report
on a judicial hearing precluding public figure status Time Inc. v. Firestone 424 US
448 (1976). Lee has abused discretion before this court to file serial motions for

3

Plaintiff opposition to Lee Serial Summary Judgment

Cause 9:11-cv-064-DWM-JCL

April 18, 2012

summary judgment as material facts remain. actual malice standard established in
August 9, 2010 reporting on a judicial hearing as Lee publication offalse
conviction of Spreadbury as presenter Pierce v. Underwood 487 US 552 (1988).
Lee Argument fails that Spreadbury is public figure

It is well established in this Federal Circuit that a public figure" ... can influence
the resolution of public policy matters ..." Curtis Publishing v. Butts 388 US at
163-164 (1967). Spreadbury swears never to have any influence on the finalized
public policy and has no ear of any public official more than any other private
citizen (Affidavit of Michael E. Spreadbury April 18,2012, #9; SODF #6).
Controlling authority to this court dictates that a report on ajudicial hearing
August 6, 2010 with Lee article August 9, 2010 rejects standard ofpublication
meeting actual malice; Spreadbury private citizen as participant at judicial hearing
Time Inc.

11.

Firestone 424 US at 453 (1976); (affidavit ofMichael Spreadbury

# IS). Further controlling authority to this court does not extend the New York
Times (1964) standard to reports on court proceedings Ibid at 455 citing Cox v.
Cohn 420 US 469 (1975). As title of Lee August 9, 2010 article identifY
Spreadbury, judicial hearing, quote participants in hearing, no public figure status
can attach to Spreadbury Times Inc, Cox (SODF#35). More importantly, this
federal circuit does not accept all public controversies and convert the litigants into

4

Plaintiff opposition to lee Serial Summary Judgment

Cause 9:11-cv-064-DWM-JCl

April 18, 2012

public figures; Spreadbury did not ask to be prosecuted by an unsupervised law
student outside established rights, or published by Lee Time Inc. at 454, (Affidavit
ofMichael Spreadbury April 18, 2012 # 2, 3,11; (SODF 25,34,44).
Regardless of the implied intention, and false swearing of Lee as fonner editor
sworn document April 4, 2012, Lee publishes report on judicial hearing, status for
Spreadbury is private citizen, a material fact in the aforementioned Time Inc, Cox.
Actual Malice Standard met by Lee in August 9, 20 I 0 article
The actual malice standard in New York Times (1964) is "knowledge of untrue
facts, or a reckless disregard for the truth." Lee's fact checking, editorial control,
and publisher oversight was not disclosed in discovery, material to a jury to decide
actual malice (SODF# 27, 28,29, 30, 31,34,37,39,40,45); Affidavit of Michael
Spreadbury April 18,2012 #12,17. Lee choose to attack Spreadbury's personal
character with published comment, false conviction in August 9, 2010 article
which attaches actual malice liability to Lee New York Times v. Sullivan 376 US at
287 (1964). The New York Times(1964) court found liability for libel as "attacks
of a personal character" made in Lee August 9, 2010 article, a material fact in the
aforementioned (SODF # 19,20, 21, 27,30, 37,38,40,41,42,43, 44,45), Ibid.
Lee went well beyond a printed grievance against an alleged public figure;
protected by the 1st Amendment in their report of a judicial hearing published
5

Plaintiff opposition to lee Serial Summary Judgment

cause 9:11-cv-064-DWM-JCL

April 18, 2012

August 9, 2010 and would be convicted by a jury of negligence, actual malice,
Emotional Distress, Tortious Interference, and Defamation, punitive damages for
defamatory comments, inter alia Times v. Sullivan 376 US 254 (1964);Affidavit of

Michael Spreadbury April 18, 2012 #6, 7,8,9, 10,1 2,13,17.
Liability standard: Emotional Distress in Supplemental Jurisdiction
This Honorable Court has supplemental jurisdiction over Emotional Distress
claims by way of28 USC§ 1367. This court has not followed the prima facie case
in Montana as is required under supplemental jurisdiction of this court, a
corresponding example of personal privacy deferred to state jurisdiction under

Saucier v. Katz 533 US 194 (2001). This honorable court is given notice that
Johnson v. Supersave Markets Jnc. 686 P. 2d 209 Mont. (1984) is the standard for
Emotional Distress, and false conviction of crime published by Lee August 9,2010
meets the Johnson standard for emotional distress due to falsely accusing
Spreadbury of being convicted of a crime.
This court has discovered evidence of Spreadbury's full disability, possibly the
most pronounced manifestation of emotional distress this honorable court might
encounter. Notice is given that Johnson does not require a physical or
psychological damage to establish claim, Lee's publication August 9,2010

6

Plaintiff opposition to Lee Serial Summary Judgment

Cause 9:11-cv-064-DWM·JCL

April 18, 2012

establishes a prima facie case, and this court would err to deny Spreadbury this
property interest without due process of law Paul v. Davis 424 US 693 (1976).
Lee, in summary judgment motion has not removed material fact of emotional
distress from false publication of conviction of crime with actual malice and
associated liability to Spreadbury Celotex v. Catrett 477 US 317 (1986).
An element of negligence and duty to Spreadbury by Lee to not publish false
conviction in August 9, 2010 article was breeched as no fact checking, edit, or
publisher review caught false pUblication of conviction [Affidavit of Michael
Spread bury #17;(SODF # 19,21,24,26-30,35,38,39,42-45)]. Lee's negligence
caused damage to Spreadbury is just as disturbing as that action caused by Lee
intentionally; the relevance is the disability status of Spreadbury as a proximate
cause Johnson at 213. Lee has met the criteria of reckless conduct under
negligence to create a submissible issue to a jury on emotional distress from false
conviction August 9,2010 with these five damage elements to Spreadbury:
1. Damage to reputation
2. Social stigma from front page headline including Spreadbury's name
3. Shame and Embarrassment

7

Plaintiff opposition to Lee Serial Summary Judgment

Cause 9:11-cv·064-DWM-JCL

Aprit 18, 2012

4. Mental Anguish--severe due to continued defamation from failed correction
attempt (Affidavit ofMichael Spread bury April IS, 2012 #12, 17; (SODF #
30,33,37,45).
5. Damage to self-image severe as disability attaches to Spreadbury.

Lee has not Dispatched Joint Function with City
Lee Enterprises has not foreclosed the issue ofjoint function in depriving
Spreadbury established right to liberty, act in defamation of his character July 9,
2009 as City, Lee expelled Spreadbury without due process Adickes v. SH Kress
Co. 398 US 144 (1970). Although Honorable Court has been very effective in
deciding Spreadbury case does not have merit, burden is on Lee as jury would find
in Spreadbury's favor with respect to joint function and deprivation of liberty ibid.
Testimony of witnesses July 9, 2009 would determine no threat occurred, and
Spreadbury's right to liberty to enter Lee business deprived.
Lee has not Dispatched public comments, omissions as Newspaper publisher
Spreadbury has been defamed by published comments by Defendant Lee, an
admitted Newspaper Publisher (by court ordered discovery March 22, 2012) in the
aforementioned. As Newspaper Publishers are precluded from protection from the
Communications Decency Act 47 USC§230 et. seq. Lee has not foreclosed issue,

8

Plaintiff opposition to lee Serial Summary Judgment

Cause 9:11-cv-064-DWM-JCl

April 18, 2012

nor proven its case before this court, however this court has attempted to foreclose
issue for Lee. It is the burden of the moving party in Rule 56 Summary Judgment
to foreclose all material facts, Lee has not dispatched issue of online comments
defamatory to Spreadbury Adiekes v. SH Kress Co. 398 US 144 (1970), Batzel v.

Smith 333 F. 3d 1018 (!/h Gr., 2003).
As August 9,2010 article is a report on judicial hearing and Lee is precluded from
attaching public figure status to Spreadbury for presenting argument at hearing,
online comment of August 9, 2010 not a fair grievance protected by free speech,
but defamation per se as Spreadbury's mental health is targeted, and a personal
attack on character which meets actual malice standard Times v. Sullivan 396 US
254 (1964). Time Inc. v. Firestone 424 US 448 (1976), Batzel v. Smith 333 F. 3d

1018 (!/h Cir., 2003).
A jury would convict Lee Enterprises for online comments defamatory to
Spreadbury, in breach of duty to edit or limit comments; jury would fmd
" ... highly unreasonable conduct consisting of extreme departure from the
standards of investigation and reporting ordinarily adhered to by reasonable
publishers." Curtis Publishing Co. v. Butz 388 US 130 (1967), Gertz v. Robert

Welch Inc 418 US 323 (1974). As Lee "caves in" to checking on facts in August 9,
2010 article, reasonable jury would find punitive damages for Spreadbury Curtis

9

Plaintiff opposition to Lee Serial Summary Judgment

Cause 9:11-cv-Q64-DWM-JCL

April 18, 2012

Publishing at 156. The jury would find Lee proceeded with wanton and reckless
indifference to Spreadbury ibid.
Jury is required to settle facts
Spreadbury does not have to show with convincing clarity actual malice, although
actual malice is clearly shown by Lee in the aforementioned Anderson v. Liberty

Lobby Inc. 477 US 272 (1986). Lee failed to verify information or provide editor
process to check facts to Spreadbury in discovery; shows actual malice, negligence
and liability for defamation in aforementioned Anderson at 246.
Lee has failed to meet standard Rule 56(c) summary judgment due to material fact
of non-public figure status, actual malice, and preclusion ofpublic figure status in
journalistic report ofjudicial hearing Celotex Corp. v. Catrett 477 US 317 (1986).
As Lee publishes convictions, comments negating employment with FEMA, status
of mental health, a reasonable conclusion Spreadbury had no convictions as
national security clearance required for FEMA employment and jury would find in
Spreadbury's favor Anderson at 247.
Lee fails to show all material facts in aforementioned are resolved, jury would find
for Spreadbury regardless ofpublic figure status; evidence of actual malice,
requirement Spreadbury is private citizen, as Lee reports on judicial hearing in

10

Plaintiff opposition to lee Serial Summary Judgment

Cause 9:11-cv-064-DWM-JCl

April 18, 2012

August 9, 20 10 article Anderson at 248, citing First National Bank ofAZ v. Cites

Service Co. 391 US 253 (J968) Time Inc. v. Firestone 424 US 448 (J976).
Conclusion
As Lee has failed to remove material fact to this case as to Spreadbury status
presenting in oral argument, Lee reported article as judicial hearing, or removed all
liability and instances of actual malice to Spreadbury, this court cannot find Lee
has met a reasonable standard for summary judgment. The mere filing of serial
summary judgment motions as this Honorable Court has asked for briefing, (not
motions to dismiss) on Spreadbury's status is grounds for Rule 11 sanction, and
finding in Contempt of court authority, as Spreadbury has previously moved court.
The methods of fact checking at Lee for the August 9, 2010 article were not
disclosed in discovery requiring this court to allow a jury to determine actual
malice and liability to Lee for its negligence, omissions, and duty to Spreadbury.
Several genuine facts that this Honorable Court has removed for Lee Enterprises
include: published comments, joint function with Defendant City July 9, 2010
deprive Spreadbury liberty, property without due process. Lee has not sufficiently
resolved all material facts in their April 4, 2012 summary judgment. A desire to
cover what is considered "newsworthy" is pretext for the pathological coverage of
Spreadbury by Lee, has no place in a court of law. Lawful controlling authority to
11

Plaintiff opposition to Lee Serial Summary Judgment

Cause 9:11-cv-064-DWM-JCL

April 18, 2012

this court is Spreadbury's status as a private citizen while presenting at oral
argument August 6, 201 0 in judicial hearing, reported by Lee August 9, 20 to.
As Lee's argument of "reasonable mistake" for publication of false conviction fails
the New York Times 1964 standard for printed grievance against public figures,
and fails to remove all genuine issues of material fact in the aforementioned. Lee
is precluded from the grant of summary judgment for not removing all material
facts as presented in the aforementioned.
Spreadbury thanks the court for allowing this analysis, and apologizes for Lee's
harassment and serial pleadings before this court. As material fact remain,
controlling authority constrain this Honorable court: findings of fact and
conclusions of law require this court's denial of Lee Summary Judgment.
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 2257 words excluding title page, this compliance.
Respectfully submitted this.;tC-_

BY:_~~~~~~_~_ _ _ _ ____

Michael E. Spreadbury, Self Represented Plaintiff.
12