Spreadbury v. Bitterroot Public Library et al

Filing 32

RESPONSE to Motion re 30 MOTION for Partial Summary Judgment filed by City of Hamilton. (Leonard, Thomas)

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 Defendants Bitterroot Public Library,
City of Hamilton and Boone Karlberg P.C.
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
MISSOULA DIVISION
MICHAEL E. SPREADBURY,

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

Plaintiff,

CITY DEFENDANTS’ BRIEF IN
OPPOSITION TO PLAINTIFF’S
MOTION FOR PARTIAL
SUMMARY JUDGMENT

v.
BITTERROOT PUBLIC LIBRARY,
CITY OF HAMILTON, LEE
ENTERPRISES, INC., and BOONE
KARLBERG P.C.
Defendants.

On behalf of Defendants Bitterroot Public Library, Dr. Robert Brophy,
Trista Smith, Nansu Roddy, City of Hamilton, Jerry Steele, Steve Snavely, Steven
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Bruner-Murphy, Ryan Oster, Kenneth S. Bell and Jennifer B. Lint (collectively,
“City Defendants”), this responds to Plaintiff Michael E. Spreadbury’s
(“Spreadbury”) motion for partial summary judgment. Spreadbury submits no
evidence to the Court in support of his motion, let alone the required Statement of
Undisputed Facts. See L.R. 56.1. Instead, Spreadbury claims he is entitled to
judgment as a matter of law based on certain of the City Defendants’ admissions in
answer to his Amended Complaint. Spreadbury is wrong. His motion should be
denied.
BACKGROUND
In May or June 2009, Spreadbury met with Senior Librarian Nansu Roddy at
the Bitterroot Public Library (the “library”). (City Defendants’ Statement of
Genuine Issues (“SGI”) 1.) Spreadbury requested that a hand-written letter written
by another person alleging local government corruption be placed on the reserve
shelf of the library. (SGI 2.) Ms. Roddy, on behalf of the library, refused. (SGI
3.) After multiple interactions with library staff, Spreadbury was banned from the
library. (SGI 4.)
Despite the ban, witnesses reported to local law enforcement that
Spreadbury returned to the library property, and he was subsequently charged with
criminal trespass. (SGI 5.) On February 18, 2010, based on proof beyond a
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reasonable doubt, a jury in the City Court for the City of Hamilton found
Spreadbury guilty of criminal trespass. (SGI 6.) Spreadbury appealed the
conviction.
While the criminal trespass charge was pending, Spreadbury approached
Ms. Roddy outside the library, and, as a result of that encounter, Ms. Roddy sought
and obtained an Order of Protection against him. (SGI 7.) Spreadbury repeatedly
attempted to modify, re-litigate or otherwise collaterally attack the Order of
Protection. (SGI 8.) All attempts were denied, including a Petition for Rehearing
where the Montana Supreme Court warned Spreadbury that further legal filings
against Ms. Roddy “may be sanctioned by the imposition of costs, attorney’s fees
and/or other monetary or non-monetary penalties under M.R.App.P. 19(5).” (SGI
9.)
Based on Spreadbury’s encounter with Ms. Roddy, Spreadbury was charged
with felony intimidation. (SGI 10.) He pleaded no contest to the felony
intimidation charge and was sentenced on October 20, 2010. (SGI 11.) Following
his plea, the charge for misdemeanor criminal trespass, which Spreadbury had
appealed, was voluntarily dismissed. (SGI 12.) Spreadbury has appealed the
felony conviction and the sentence has been stayed pending the appeal. (SGI 13.)

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Spreadbury filed the instant action against the City Defendants, Boone
Karlberg, P.C., and Lee Enterprises, Inc. He has asserted 25 causes of action.
Spreadbury’s motion for partial summary judgment concerns 17 of these.
Specifically, he moves for judgment as a matter of law on “count
#1,2,3,5,6,7,9,10,11,12,13,14,17,20,21,25,26 of 2nd Amended Complaint. . . .”
(Spreadbury’s Brief, p. 6.) The manner in which Spreadbury has listed claims in
his complaint is confusing and duplicative.1 As understood by the City
Defendants, Spreadbury seeks partial summary judgment on the following causes
of action:
1.
2.
3.
4.
5.
6.
7.
8.

Section 1983 – First, Fifth, and Fourteenth Amendment Violation(s)
Negligence
Negligent Misrepresentation
Abuse of Process
Defamation/Defamation Per Se
Infliction of Emotional Distress (NIED and IIED)
Injunctive Relief
Punitive Damages

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As titled by Spreadbury, the causes of action at issue in his motion are:
Negligence–Brophy/public library–Count 1; Abuse of Process/Brophy–public library–Count 2;
Procedural Due Process/14th Amendment–Brophy/public library–Count 3;
Misrepresentation–Brophy–public library–Count 5; 1st Amendment–Roddy/public library–Count
6; Malicious Prosecution–Public Library, City of Hamilton–Count 7; “Policy or Custom”
Policymaker Bell, 1st, 14th Amendments–Count 9; Policy of Custom-Amendment 5, 14–City of
Hamilton–Oster–Count 10; Negligence–City of Hamilton/Bell–Count 11; Negligence, City of
Hamilton/Snavely–Count 12; Negligence, City of Hamilton–Murphy–Count 13; Freedom to
Speak/1st Amendment, Abuse of Power/14th Amendment–HPD Det. Murphy–Count 14;
Defamation/Defamation per se– City of Hamilton–Count 17; Intentional Infliction of Emotional
Distress (IIED)–Defendants–Count 20; Negligent Infliction of Emotional Distress (NIED)
Defendants–Count 21; Injunctive Relief–City of Hamilton–Count 25; Punitive
Damages–Defendants–Count 26.
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Spreadbury has failed to sustain his burden under Fed. R. Civ. P. 56. His
motion has no merit and should be denied.
SUMMARY JUDGMENT STANDARD
Spreadbury has called his motion a motion for partial summary judgment.
While it may have been more accurately described as a motion for judgment on the
pleadings, the standard is essentially the same where the only evidence presented is
the pleadings themselves. Under Rule 12(c), a court must accept as true all
material allegations in the non-moving party’s pleadings and must construe those
allegations in the light most favorable to the non-moving party. Pillsbury,
Madison & Sutro v. Lerner, 31 F.3d 924, 928 (9th Cir.1994); Fajardo v. County of
Los Angeles, 179 F.3d 698, 699 (9th Cir.1999). Similarly, under Rule 56,
Summary judgment may be granted only when, drawing all inferences and
resolving all doubts in favor of the non-moving party, there are no genuine issues
of material fact and the moving party is entitled to judgment as a matter of law.
Fed. R. Civ. P. 56(c); see generally Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
247–55 (1986). The moving party bears the burden of identifying those portions of
the pleadings, discovery and affidavits that demonstrate the absence of a genuine
issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Any
inferences sought from the evidence must be reasonable. Conley v. R.V. Reynolds
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Tobacco Co., 286 F.Supp.2d 1097, 1103-04 (N.D. Cal. 2002). They cannot be
based on speculation, imagination, suspicion, conjecture or guesswork. Id. Only
after the moving party meets its initial burden must the non-moving party go
beyond the pleadings and set forth specific facts showing that there is a genuine
issue for trial. Fed R. Civ. P. 56(c); see Anderson, 477 U.S. at 250.
Here, Spreadbury has not met his initial burden. His own conclusory
allegations are not evidence. Although admissions in an opposing party’s
pleadings may serve as a basis for summary judgment, see Lockwood v. Wolf
Corp., 629 F.2d 603, 611 (9th Cir. 1980), the City Defendants’ admissions do not
establish liability here. To the contrary, they demonstrate the specious nature of
Spreadbury’s claims. None of the admissions cited by Spreadbury entitle him to
judgment as a matter of law. Indeed, the City Defendants did not admit much of
the matter which Spreadbury says was admitted.
ANALYSIS
I.

SPREADBURY HAS NOT SUSTAINED HIS BURDEN UNDER RULE
56.
A.

Spreadbury Mischaracterizes the Evidence.

Because the only evidence Spreadbury presents are the City Defendants’
responses in their Answers, it is important to set forth exactly what those responses

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say. This is particularly important because Spreadbury’s characterization of the
responses is wildly inaccurate.2
1.

Responses Regarding the Prosecution of Spreadbury.

According to Spreadbury, the City has admitted “to prosecuting Spreadbury
for peaceful assembly on public property. . . .” (Spreadbury’s Brief, p. 3.) Not
true. The responses cited by Spreadbury merely state that (1) Spreadbury was
prosecuted for misdemeanor criminal trespass and (2) the charge was voluntarily
dismissed after Spreadbury’s no contest plea to the crime of felony intimidation.
(SGI 14.)
2.

Responses Regarding Spreadbury’s Library Submission
Request.

Spreadbury asserts that “Bitterroot Public Library admits to refusing a
submission request by Spreadbury which deprives fundamental right of free speech
found in Amendment 1 US Constitution. . . .” (Plaintiff’s Brief. p. 3.) The
“admission” upon which Spreadbury’s statement is based, however, reads as
follows:
19. Answering the allegations in paragraphs 31-37, 40, 41 and 57
of the Amended Complaint, admit Plaintiff attempted to persuade

2

Spreadbury bases his motion upon 11 specific responses: Answer of Defendants
Bitterroot Public Library and City of Hamilton, ¶¶ 21, 26, 30, 32, 34, 37, 43, 45, 51, 57; Answer
of Individual City Defendants, ¶ 19.
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Nansu Roddy and other Library staff to include a letter written by
another Bitterroot Valley resident, other than Plaintiff, to President
Obama in the Library’s collection. Admit the request was refused.
Admit Plaintiff was eventually banned from the Library. Admit
Plaintiff sent one or more letters regarding the Library’s actions.
(SGI 15.)
3.

Responses Regarding Library Privileges.

Spreadbury claims the City Defendants have admitted tortious and
unconstitutional conduct in revoking his library privileges. However, in the
specific responses cited by Spreadbury, the City only admitted that “Plaintiff’s
library privileges were revoked,” and denied all remaining allegations.
4.

Responses Regarding Access to Ravalli Republic.

Spreadbury states “Defendant City of Hamilton admits to asking Spreadbury
not to enter 232 W. Main St. Hamilton MT the business of Defendant Lee
Enterprises, Inc. . . .” (Spreadbury’s Brief, p. 3.) Although Spreadbury appears to
cite the wrong response (¶19) in support, this much is true:
20. Answering the allegations in paragraphs 38 and 39 of the
Amended Complaint, admit a representative of the Ravalli Republic
called the Ravalli County Dispatch concerning Plaintiff’s conduct at
the offices of the Ravalli Republic. Admit representatives of the
Hamilton Police Department responded to the Ravalli Republic.
Admit one or more representatives of the Hamilton Police Department
have told Plaintiff that the Ravalli Republic did not want Plaintiff to
enter their business offices because of his conduct.
(SGI 17.)

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5.

Responses Regarding Investigating Spreadbury and
Writing Public Police Reports.

Spreadbury argues it is established he was defamed and his civil rights were
violated because “Defendant City of Hamilton further admits HPD Detective
Murphy investigated, published, and sent reports to Hamilton City Attorney Bell
for prosecution. . . .” (Spreadbury’s Brief, p. 4.) The admission Spreadbury cites
actually reads as follows:
51. Answering the allegations in paragraphs 151-155 of the
Amended Complaint, admit Plaintiff was investigated. Deny the
balance of the allegations in these paragraphs.
(SGI 18.)
6.

Responses Regarding Policymakers.

Plaintiff suggests the City has admitted City Attorney Kenneth S. Bell and
Hamilton Police Chief Ryan Oster were policymakers for all purposes.
(Spreadbury’s Brief, p. 4.) The City’s responses read as follows:
43. Answering the allegations in paragraphs 128-131 of the
Amended Complaint, admit Kenneth S. Bell is an official policymaker
in some respects. Deny the balance of the allegations in the
paragraphs.
...
45. Answering the allegations in paragraphs 133-135 of the
Amended Complaint, admit Police Chief Oster is an official
policymaker in some respects. Deny the balance of the allegations in
the paragraphs.
(SGI 19)
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B.

Spreadbury Has Not Proven a Federal Civil Rights Claim.
1.

Spreadbury Has Not Shown an Underlying Violation.

In order to prevail against any Defendant under 42 U.S.C. § 1983,
Spreadbury must first establish a violation of his federal constitutional rights. See
Menotti v. City of Seattle, 409 F.3d 1113, 1147 (9th Cir. 2005). In his complaint,
he asserts violations of the First, Fifth, and Fourteenth Amendments.
a.

First Amendment

Spreadbury contends his First Amendment rights were violated by the
library’s refusal to place certain materials into its collection, and also by being
prosecuted for “peaceful assembly on public property.” However, the City
Defendants’ Answers do not establish a First Amendment violation.
First, an individual has no constitutional right to require inclusion of
materials of his/her choosing in a municipal library collection. See U.S. v.
American Library Assoc., Inc., 539 U.S. 194, 210, n. 4 (2003) (“[A] public library
does not have an obligation to add materials to its collection simply because the
material is constitutionally protected.”) In other words, a library’s refusal to accept
certain materials does not, as Spreadbury contends, establish a per se violation of
the First Amendment.

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Next, the evidence does not support Spreadbury’s argument that he was
prosecuted for a “peaceful assembly” on public property. Rather, Defendants’
Answer demonstrates Spreadbury was prosecuted for trespass because he
continued to come to the library to harass library staff and disrupt operations, even
after being banned from the library grounds. (SGI 5.) Moreover, even assuming
Spreadbury was engaged in constitutionally-protected conduct, it is well settled
that the First Amendment’s right to assembly does not mean that everyone with
opinions to express may assemble and speak at any public place and at any time.
E.g., Cox v. State of Louisiana, 379 U.S. 536 (1965). This is particularly true in
the case of a library – a limited public forum – whose “very purpose is to aid in the
acquisition of knowledge through reading, writing and quiet contemplation.”
Kreimer v. Bureau of Police for Town of Morristown, 958 F.2d 1242, 1261-62 (3d
Cir. 1992); see also Armstrong v. Dist. of Columbia Pub. Lib., 154 F. Supp. 2d 67,
75 (D.D.C. 2001).
“In order to demonstrate a First Amendment violation, a plaintiff must
provide evidence showing that ‘by his actions [the defendant] deterred or chilled
[the plaintiff's] political speech and such deterrence was a substantial or motivating
factor in [the defendant's] conduct.’ ” See Mendocino Envtl. Ctr. v. Mendocino
County, 192 F.3d 1283, 1300 (9th Cir.1999) (quoting Sloman v. Tadlock, 21 F.3d

11

1462, 1469 (9th Cir.1994)). In other words, Spreadbury must demonstrate that, by
prosecuting him for criminal trespass, the City was motivated by a desire to
interfere with his First Amendment rights, and not by some permissible reason.
See id.; see also Brown v. Louisiana, 383 U.S. 131, 142 (1966) (“A library is a
place dedicated to quiet, to knowledge, and to beauty.”)
Besides bare conclusory allegations, Spreadbury offers nothing to suggest –
much less demonstrate as a matter of law – that this was the case. See Barney v.
City of Eugene, 20 Fed. Appx. 683, 685 (9th Cir. 2001) (dismissing protestor’s
claim for violation of right to assemble because she presented no evidence that
“deterrence or chilling of First Amendment activity was a substantial and
motivating factor for the defendants' conduct.”) The City’s admissions merely
establish Spreadbury was prosecuted for misdemeanor criminal trespass, and the
charge was voluntarily dismissed after Spreadbury’s no contest plea to the crime of
felony intimidation. (SGI 12.) This is insufficient to prove a First Amendment
violation.
b.

Fifth Amendment

Fifth Amendment due process applies to federal actors or entities. See, e.g.,
Public Utilities Commission of District of Columbia v. Pollak, 343 U.S. 451, 461
(1952); American Bankers Mortg. v. Federal Home Loan Mortg., 75 F.3d 1401,

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1406 (9th Cir. 1996). Here, Spreadbury’s own allegations prove the City
Defendants were acting on behalf of the City of Hamilton, not the federal
government. As such, the Court should grant summary judgment to the City
Defendants on Spreadbury’s Fifth Amendment claim.
c.

Fourteenth Amendment

The due process clause of the Fourteenth Amendment protects individuals
against governmental deprivations of life, liberty, and property without due process
of law. The Amendment affords substantive due process protection against the
illegitimate exercise of state power, and a procedural due process guarantee of
fundamental fairness. County of Sacramento v. Lewis, 523 U.S. 833, 845 (1998).
Here, Spreadbury has failed to establish an invasion of either of these protected
interests.
Spreadbury’s Fourteenth Amendment claim appears to be based on three
events: (1) prosecution for criminal trespass (Spreadbury’s Brief, p. 5); (2)
revocation of library privileges (Spreadbury’s Brief, p. 4); and (3) requests not to
enter the offices of the Ravalli Republic (Spreadbury’s Brief, pp. 3, 5).
With respect to the prosecution of Spreadbury, Section 1983 “is not itself a
source of substantive rights,” but merely provides “a method for vindicating
federal rights elsewhere conferred.” Baker v. McCollan, 443 U.S. 137, 144, n. 3

13

(1979). In this regard, it is well settled that there is no there is no substantive due
process right to be free from prosecution without probable cause. See Albright v.
Oliver, 510 U.S. 266, 271 (1994). Also, as set forth above, Spreadbury has not
established the violation of any other constitutional right in connection with his
prosecution. See Mendocino, 192 F.3d at 1300.
With respect to the revocation of library privileges, Spreadbury alleges a
procedural due process violation. (Spreadbury’s Brief, p. 4.) A threshold
requirement to a procedural due process claim is the plaintiff must show a liberty
or property interest protected by the Constitution. Wedges/Ledges of California,
Inc. v. City of Phoenix, 24 F.3d 56, 62 (9th Cir. 1994). Spreadbury argues he has a
“liberty interest” in access to the library, but cites no support for his claim.
Protectable liberty interests arise from the Due Process Clause itself, or from state
laws or regulations deemed to have created a liberty interest cognizable as a civil
right. Meachum v. Fano, 427 U.S. 215, 224-27 (1976); Smith v. Sumner, 994 F.2d
1401, 1405-06 (9th Cir.1993). No such right is at issue here. See Paul v. Davis,
424 U.S. 693, 701 (1976) (finding one must prove “some more tangible interest
such as employment” to invoke the procedural protection of the Due Process
Clause.) Spreadbury’s library privileges are exactly what he says they are –
“privileges,” not rights secured by the U.S. Constitution.

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Moreover, even if Spreadbury’s inability to access the library could be
characterized as a deprivation of a liberty interest, he fails to explain, let alone
offer evidence, to show he was not afforded the requisite amount of process. For
example, he does not show how conducting a hearing or other process would
reduce the risk of an erroneous decision under the circumstances presented, nor
does he discuss the library’s interest in maintaining order and providing a safe
environment for staff and patrons. See Matthews v. Eldridge, 424 U.S. 319, 332
(1976).
Finally, no constitutional right was invaded when Hamilton police asked
Spreadbury not to enter the offices of the Ravalli Republic. (Spreadbury’s Brief,
pp. 3, 5.) Needless to say, Spreadbury has no constitutional right to access
another’s private place of business. Moreover, both Spreadbury’s brief and the
City Defendants’ Answer confirm his liberty was not restrained in any way.
Rather, after a representative of the Ravalli Republic called police about
Spreadbury’s behavior, members of the Hamilton Police Department “told Plaintiff
that the Ravalli Republic did not want Plaintiff to enter their business offices
because of his conduct.” (SGI 17.) How this could conceivably constitute a
violation of the U.S. Constitution is unclear.

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2.

Spreadbury Has Not Established a Monell Claim.

The U.S. Supreme Court has “consistently refused to hold municipalities
liable under a theory of respondeat superior.” Bd. of County Comm’rs of Bryan
County, Ok. v. Brown, 520 U.S. 397, 403 (1997). A municipality is not liable
under § 1983 simply because it employs a tortfeasor. See also Monell v. New York
City Dept. of Social Servs., 436 U.S. 658, 689 (1979). Rather, “liability may attach
to a municipality only where the municipality itself causes the constitutional
violation through execution of a government’s policy or custom, whether made by
its lawmakers or by those whose edicts or acts may fairly be said to represent
official policy.” Menotti v. City of Seattle, 409 F.3d 1113, 1147 (9th Cir. 2005)
(emphasis added).
Spreadbury uses the terms “policy” and “custom” in his brief, but the
evidence refutes any claim for Monell liability. The existence of a municipal
policy or custom may be proven in one of three ways: (1) by showing a
longstanding practice or custom which amounts to the standard operating
procedure of the City; (2) by showing a decision-making official was, as a matter
of state law, a final policymaking authority whose edicts or acts may fairly be said
to represent official policy in the area of decision; or (3) by showing the official

16

with the final policymaking authority either delegated that authority to, or ratified
the decision of, a subordinate. See Menotti, 409 F.3d at 1147.
Spreadbury’s primary contention in this regard is that by “[r]estricting
Spreadbury’s access to the Ravalli Republic July 9, 2009,” the City implemented a
“new policy” that gives rise to municipal liability. (Spreadbury’s Brief, p. 5.)
However, there is no evidence the police officers who told Spreadbury he was not
wanted at the Ravalli Republic were final policymakers, or that policymaking
authority had been delegated to them. See Trevino v. Gates, 99 F.3d 911, 921 (9th
Cir. 1996). Also, regardless of what happened on the day in question, there is no
evidence of “a longstanding practice or custom.” See Menotti, 409 F.3d at 1147.
“A plaintiff cannot demonstrate the existence of a municipal policy or custom
based solely on a single occurrence of unconstitutional action by a nonpolicymaking employee.” McDade v. West, 223 F.3d. 1135, 1141 (9th Cir. 2000).
“Liability for improper custom may not be predicated on isolated or sporadic
incidents; it must be founded upon practices of sufficient duration, frequency and
consistency that the conduct has become a traditional method of carrying out
policy.” Trevino, 99 F.3d at 918 (emphasis added). No such evidence exists here.

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3.

Spreadbury Has Not Refuted Qualified Immunity.

As to the individual City Defendants, government officials performing
discretionary functions are generally shielded from liability so long as their
conduct does not violate clearly established statutory or constitutional rights of
which a reasonable person would have known. Harlow v. Fitzgerald, 457 U.S.
800, 818 (1982). The test for qualified immunity is: (1) identification of the
specific right being violated; (2) determination of whether the right was so clearly
established as to alert a reasonable officer to its constitutional parameters; and (3) a
determination whether a reasonable officer would have believed that the policy or
decision in question was lawful. McDade, 223 F.3d at 1142. Thus, even if
Spreadbury could establish, on the basis of the City Defendants’ admissions alone,
the violation of a constitutional right, he still falls far short of disproving the
reasonableness of the City Defendants’ conduct under the circumstances. See, e.g.
Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (if a right is violated,
the Court must then determine whether the officer’s actions were nonetheless
reasonable).

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C.

Spreadbury Has Not Proven a State Law Claim.
1.

Negligence-Based Claims.

Regarding negligence, Spreadbury must establish duty, breach, causation
and damages. Detert v. Lake County 674 P.2d 1097, 1100 (Mont. 1984). Because
issues of negligence ordinarily involve questions of fact, they are generally not
susceptible to summary judgment. Schmidt v. Washington Contractors Group,
Inc., 964 P.2d 34, 37 (Mont. 1998). That is certainly true here, where no admission
by the City Defendants establishes or suggests the breach of a legal duty to
Spreadbury.
The limited question of whether a legal duty exists, however, is a question of
law. Stratemeyer v. Lincoln County, 915 P.2d 175, 182 (Mont. 1996). Spreadbury
fails to identify evidence suggesting the City Defendants owed him an actionable
duty in tort. To the contrary, his own allegations demonstrate he was allegedly
wronged by those performing public functions. Under the public duty doctrine, a
government employee or unit performing duties for the public owes no duty of
protection to any particular individual. E.g., Phillips v. City of Billings 758 P.2d
772, 775 (Mont. 1998); Prosser v. Kennedy Enterprises, Inc.,179 P.3d 1178, ¶ 18
(Mont. 2008). Here, the parties’ pleadings establish the City Defendants’ actions

19

were public functions. As such, they did not give rise to an actionable duty owed
to Spreadbury.
2.

Abuse of Process

To prevail on abuse of process, Spreadbury must prove “an ulterior purpose”
and “a willful act in the use of the process not proper in the regular conduct of the
proceeding.” Seltzer v. Morton, 154 P.3d 561, ¶ 57 (Mont. 2007).
Spreadbury must prove an attempt to use process to coerce him to do some
collateral thing which he could not be legally and regularly compelled to do.”
Brault v. Smith, 679 P.2d 236, 240 (Mont. 1984). As set forth above, the pleadings
establish the City Defendants appropriately used process to deter and punish
criminal conduct.
3.

Defamation/Defamation Per Se

The City Defendants have not admitted any defamatory publication
regarding Plaintiff. Moreover, to the extent Plaintiff relies on admitted statements
in court proceedings, these are privileged as a matter of law.  Mont. Code Ann.
§ 27-1-804 (“A privileged publication is one made . . . in any legislative or judicial
proceeding or in any other official proceeding authorized by law.”); Montana Bank
of Circle, N.A. v. Ralph Meyers & Son, Inc., 769 P.2d 1208 (Mont. 1989).

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4.

NIED/IIED

When the Montana Supreme Court recognized the independent tort of
infliction of emotional distress, it provided a safeguard to protect against “a
floodgate of claims for emotional distress, particularly fraudulent claims.” Sacco
v. High Country Independent Press, Inc., 896 P.2d 411, 425 (Mont. 1995).
Specifically, it determined that only claims for “serious or severe” emotional
distress may be maintained. Id. Serious or severe emotional distress exists only
where the distress is so extreme that no reasonable person could be expected to
endure it. Id. at 426; see also McConkey v. Flathead Electric Co-op., 125 P.3d
1121, ¶55 (Mont. 2005); Renville v. Fredrickson, 101 P.3d 773, ¶¶ 14-16 (Mont.
2004). The City Defendants’ admissions do not establish negligent or wrongful
conduct, let alone the requisite degree of emotional injury, for Spreadbury to
prevail.
5.

Injunctive Relief

Montana law provides a party may seek a preliminary injunction to require a
person or entity to “refrain” from “a particular act.” Mont. Code Ann. § 27-19101. Although an applicant is not required to prove the ultimate merits of the case,
Montana courts have consistently denied applications that fail to establish
irreparable harm or otherwise present a prima facie case. See, e.g., Valley

21

Christian School v. Montana High School Assoc., 86 P.3d 554 (Mont. 2004).
Spreadbury has made numerous allegations, but has not made a prima facie case on
any claim, much less a showing of irreparable harm. See Bitterrooters for
Planning v. Board of Commissioners of Ravalli County, 189 P.3d 624 (Mont.
2008).
6.

Punitive Damages.

There is no independent cause of action for punitive damages. Mont. Code
Ann. § 27-1-220. Regardless, the City is immune from a claim of punitive
damages. See City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 271 (1981);
Mont. Code Ann. § 2-9-105. Under state law, so too are its employees. Mont.
Code Ann § 2-9-305.
Further, it has not been shown that any act or omission by a City Defendant
was motivated by an evil intent or involved a reckless or callous indifference to
Spreadbury’s federally protected rights, or amounted to actual malice or actual
fraud. Smith v. Wade, 461 U.S. 30 (1983); Mont. Code Ann. § 27-1-221.
CONCLUSION
Spreadbury’s motion is based on a gross mischaracterization of the City
Defendants’ answers to his complaint, and a misapplication of law. Because
Spreadbury has failed to demonstrate the absence of genuine issues of material fact

22

and an entitlement to judgment as a matter of law, his motion for partial summary
judgment should be denied.
DATED this 16th day of May, 2011.
/s/Thomas J. Leonard
Thomas J. Leonard
BOONE KARLBERG P.C.
Attorneys for Defendants
Bitterroot Public Library, City of
Hamilton and Boone Karlberg P.C.

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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 4,368 words, excluding the parts of the brief
exempted by L.R. 7(d)(2)(E).
DATED this 16th day of May, 2011.
/s/ Thomas J. Leonard
Thomas J. Leonard
BOONE KARLBERG P.C.
Attorneys for Defendants Bitterroot
Public Library, City of Hamilton and
Boone Karlberg P.C.

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CERTIFICATE OF SERVICE
I hereby certify that, on the 16th day of May, 2011, a copy of the foregoing
document was served on the following persons by the following means:
__1____

CM/ECF

_______

Hand Delivery

__2____

Mail

_______

Overnight Delivery Service

_______

Fax

_______

E-Mail

1.
2.

Clerk, U.S. District Court
Michael E. Spreadbury
700 South Fourth Street
Hamilton, MT 59840

/s/ Thomas J. Leonard
Thomas J. Leonard
BOONE KARLBERG P.C.
Attorneys for Defendants Bitterroot Public
Library, City of Hamilton,
and Boone Karlberg P.C.

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