Spreadbury v. Bitterroot Public Library et al

Filing 37

RESPONSE to Motion re 11 MOTION to Dismiss filed by Michael E. Spreadbury. (APP, )

Michael E. Spreadbury
700 S. 4th Street

FILED

Hamilton, MT 59840

MAY 172011

Telephone: [phone]

PATRICK E. DUFFY, CLERK

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mspreadCiVhotmai I.com

Pro Se Plaintiff
IN THE UNITED STATES DlS'IRICT COURT

FOR THE DlS'IRICT OF MONTANA

MISSOULA DIVISION

MICHAEL E. SPREADBURY

)

Plaintiff

Cause No:

CV-ll~~M-DWM 4~L

)

v.

)

RESPONSE TO BOONE

BITTERROOT PUBLIC LIBRARY,

)

KARLBERG PC MOTION,

CITY OF HAMIL TON,

)

BRIEF IN SUPPORT TO

LEE ENTERPRISES, INC.,

)

DISMISS; RULE 12(b)(6)

BOONE KARLBERG, PC,

)
)

Comes now Spreadbury with timely response, brief in support to Defendant Boone
Karlberg PC motion to dismiss citing Rule 12(b)(6).
Spreadbury moves Honorable C{)urt find Boone Karlberg PC, person before this
court, acted in color of law established via well pled authority to this court, is
Defendant in aforementioned. Defense Counsel opposes motion.

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Plaintiff response to Rule 12(b)(6) motion to Dismiss Cause 9:2011-CV-1l-61-M·DWM

May 11, 2011

Contents
Motion........................................................................................ 1

Brief in Support (intro) .....................................................................2

Section I. Defendant Boone Karlberg PC misrepresents law......................... .4

Section II. Public Library owns no property in Hamilton, Montana ..................8

Section III. Boone has Duty to public to adhere to oath to uphold Constitution ....8

Section IV.•Spreadbury Established Prima Facie of 42 USC s. 1983 .................9

Section V. Boone Karlberg PC perpetuates Fraud to protect Civil Conspiracy ....! 1

Section VI. Stigma-Plus test met for Boone, Defendants .............................. 12

Section VII. Boone meets 4 independent tests to prove "in Color of Law" ......... 13

Section VIII. Malicious Conduct, defamation;

deprivation in color of law allow Punitive damages ........................... 15

Certificate of Compliance.................................................................. 16

Brief in Support

Defendant Boone Karlberg PC admitted in April 26, 2011 answer considered as
person in the State of Montana. Acting in color oflaw with named Defendants
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Plaintiff response to Rule 12(b)(6) motion to Dismiss cause 9:201l-at-1l-61-M-DWM

May 11, 2011

conspired to deprive Spreadbury's protected federal rights 42 USC§ 1983. To
deny Spreadbury access to court is a violation of liberty, property without due
process of law protected in Amendment 14 US Constitution Monroe v. Pape 365

US 167 (1961), Logan v. Zimmerman Brush Co. 455 US 422 (1982) cause of
action as property; Boddie v. Connecticut 401 US37 1(1979) right to be heard in
court.
In the Federal courts, a motion to dismiss for failure to state a claim Rule 12(bX6)
is viewed with disfavor and is rarely granted Guiliani v. Chuck 1Haw. 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.
As HPD Chief Oster requests Spreadbury's removal July 9, 2009 from the Ravalli
Republic without cause, Defendant Lee publishes articles depriving Spreadbury's
right to peaceful assembly, Lee Enterprise conspiracy with Defendant City of
Hamilton established 42 USC§ 1983. Defendant Boone Karberg protects
Defendant Public Library in conspiracy with City, for no retainer fee from public
library, (Notice of Fraud filed S/9/l1 usingF. R. Civ. P. 9(b». See Section VII.
pg. 13 for four (4) independent tests for private actor acting in "color of law" from
the US Supreme Court which Defendant Boone Karlberg PC meets Johnson v.

Knowles 113 F. 3d 1114 (9 th Cir., 1997). Dismissal improper before court.

Plaintiff response to Rule 12(bIl6) motion to Dismiss Cause 9:2011-CV-11-61-M-DWM

May 11, 2011

I. Defendant Boone Karlberg PC misrepresents Montana Law
Defendant Boone Karlberg PC avers all pleadings before a court are privileged.
false statement. Spreadbury invites court, Boone Karlberg to read Montana Code
Ann. MCA§ 27-1-804(4) [What Communications are Privileged] states:
by afair and true report without malice ofajudicia/, legislative, or otherpublic
official proceeding or ofanything said in the course thereof

Spreadbury pled before Honorable court in 2nd Amended complaint, 238 pg. 43
Defendant Boone Karlberg PC (hereafter "Boone") acting in actual malice:
1. Boone avers Spreadbury claimed to be a FBI agent, a federal crime under 18
USC§ 1912,27 pg. 29 Joint Answer Individual Defendants. Alleging
crime of Defendant is evidence of intent to harm, meeting criteria of MCA§
27-1-804(4) for non-privileged information.
2. In Appellee Brief before the Supreme Court for Montana Cause No. DA-lO­
442 dated December 22, 2010 Boone avers Spreadbury "_ ..repeatedly
attempted to persuade Roddy and other library staff..." false light said in
malice when truth is appointment made to meet with Roddy; only instance
Spreadbury asked staff to include submission; Defendant Bell acting in civil
courtroom November 20, 2009 as official misconduct MCA§ 45-7-401;
interferes with Spread bury due process in Order of Protection hearing.
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Plaintiff response to Rule 12(b)(6) motion to Dismiss Cause 9:2011-CV-11-61-M-DWM

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3. Although criminal charges were dismissed by Boone's client Ken Bell on
August 16,2010, in same pleading as #2 Boone pleading dated December
21,2010 told court "Nonetheless (Spreadbury) returned [implying library­
public property] and was charged with misdemeanor criminal trespass CR­
2009-53." Boone, implying a crime, peaceful assembly which is known to
have been dismissed, and not a crime due to the protected right of peaceful
assembly, Amendment 1 US Constitution, oath oflawyers as Bar licensed.
4. In same pleading, Boone states"...while that charge (trespassing) was
pending, Spreadbury approached Roddy ..... ". Most Honorable City Judge
Reardon stated in November 20, 2009 hearing Spreadbury did not violate
any court rules by conversing with Roddy November 4, 2009, Boone aware
charges dropped August 16, 2010, yet in December 21, 20 I 0 pleading
published defamation with malice against Spreadbury, in violation ofMCA§
27-1-804(4) knew, should have known charges dropped peaceful assembly
protected right indicates negligence of Spreadbury protected actions
Amendment 1 US Constitution.

5. In Cause No. DA-1O-352 before the Montana Supreme Court, Petitioner
Motion to Dismiss in Roddy v. Spreadbury (with fraudulent litigation
expenses paid) July 27, 2010 defamatory false light comments are published
(as in #3,4 above) break privilege in MCA§27-1-804(4) for malice intent.
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Pla1ntiff response to Rule U{b){6) motion to Dismiss Cause 9:2011·CV·11·61·M-DWM

MaV 11, 2011

6. In DV-10-224 Defendant Roddy Answer to Amended Complaint dated 27
May 2010 pg. 2,6 is defamatory falsehood with malice: "Roddy admits
that (Spreadbury) was convicted upon proof beyond a reasonable doubt of
the crime of criminal trespass. (Spreadbury) entered and remained
unlawfully in the Public Library (emphasis given)". Statement by Boone is
false, false light which is given to the State Court with malice, defeating
MCA§ 27-1-801 (4) for privileged communications before judicial hearing.
7. In same pleading as #6, pg. 3,3 "Probable cause existed to arrest and
prosecute (Spreadbury) for the crime of criminal trespass ...." Boone knew
or should have known, by Defending City of Hamilton that public library
sits on public property, peaceful assembly right abridges "crime" of trespass.
Boone pled with defamatory malice May 27,2010 which negates privilege
MCA§ 27-1-804(4).
8. Boone's pleading of24 June 2010 in DV-IO-224, Response to Request for
Reconsideration pg. 2 In 3 "Good cause exists to continue the protection
granted Ms. Roddy from Spreadbury's aggressive acts of intimidation and
harassment." Proper pleading in a courtroom not considered harassment, or
intimidation; published in defamatory malice by Boone to 21 st District
Court, violates MCA§ 27-1-801(4) for privilege ofpleading, fraud to court.

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Plaintiff response to Rule 12(b)(6) motion to Dismiss Cause 9:2011-<:V-11-61-M-DWM

May 11, 2011

9. In DV-IO-93 pleading by Boone 2 December 2010, republished #8 in
defamatory malice pg. 21n 19 which defeats privilege in MCA§27-1-801(4).
10. In Boone's 10intAnswer ofInmvidual Defendants April 26, 2011 pg.9,26
"Kenneth Bell voluntarily dismissed the criminal trespass charge [August
16, 20 I 0] against (Spreadbury) following (Spreadbury) no contest plea to the
crime of... (October 15,2010)." Spreadbury is not sure how an event on
August \6,2011 canfollowan event on October 15,2011 but will yield to
the court that this statement was said in malice which defeats the privilege of
court pleadings in MCA§27-1-801.
11. In loint Answer of Defendants pg. 6 ,19 " ...Spreadbury attempted to
persuade Nansu Roddy and other library staff to include a letter..." false
light defamatory statement. Spreadbury made appointment to meet with
Roddy, did not "persuade" any staff at public library. Comment published,
identifies Spreadbury, and gives false light privilege defeated MCA§27-1­
801(4) due to malice, intent to harm Spreadbury by publishing comment.
The court should be made aware the MCA§ 27-1-801 does not privilege court
pleadings written with malice. The above eleven (11) examples show
Defendant Boone writing defamatory callous indifference, malice against
Spreadbury Smith v. Wade 461 US 30 (1983). The callous indifference by
Boone in pleadings before this court shows malice by the indifference to
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Plaintiff response to Rule 12(b)(6) motion to Dismiss Cause 9:20U-CV-11-61-M-DWM

May 11, 2011

Spreadbury's protected right to peaceful assembly Smith at 56. Spreadbury is
required to show recklessness in Boone pleadings for punitive award; actual
malice is reckless disregard Smith at 45-48.

II. Public Library owns no property at 306 State St. Hamilton, Montana
The court should be give judicial notice Defendant Bitterroot Public Library
does not own private property in Hamilton, MT. Defendant Boone-Karlberg
PC refers to "library property" pg.2 1[2 which does not exist. Original Plat Map
City ofHamilton, MT sealed as true and correct copy February 25 2010 by
Clerk and Recorder employee Lynda Buie!. Block #18 owned by City of
Hamilton (Book #77 Page #58). Property owned by City of Hamilton, is public
property. Nexus of aforementioned is peaceful assembly on public property by
Spreadbury on August 20, 2009 in Hamilton, Montana USA as protected in
Amendment 1 US Constitution.

m. Boone bas Duty to public to adbere to oath to upbold Constitution
All attorneys in the state of Montana swear to uphold the constitution in the state of
Montana, a duty to every member of the public as a court officer. Defendant
Boone Karlberg PC has breached that duty to the Plaintiff by publishing items #1­
II in reckless disregard for Spreadbury's protected right to peaceful assembly_

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Pla1ntiff response to Rule 12(bl(6) motion to Dismiss Cause 9:2011-CV-11-61-M-DWM

May 11, 2011

By pleading to the court with malice that Spreadbury harassed and intimidated
Senior Librarian by filing redress for injury Art. II. s.16 (Administration ofJustice)

Montana Constitution. Civil cases allowed by those restrained: MCA§ 40-15­
201(6) court asked to keep a tally of all cases filed; Spreadbury avers to informing
court of actions against, and involving Roddy in oral argument against Boone
Karlberg PC, to little interest from a State Judge Larson; Spreadbury performed
due diligence to lawful authority in State of Montana.
Defamation by Defendant Boone Karlberg rises to the level of assisting other
Defendants in this cause of action, echoing their sentiments to courts in the State of
Montana with such recklessness, callous disregard, malice that would knowingly
cause Emotional Distress to Spreadbury as pled in 2 nd Amended Complaint.

IV. Spreadburv Established Prima Facie of 42 USC s. 1983
A pro se Plaintiff, such as Spreadbury has less stringent standard than formal
pleadings by attorneys for 42USC§ 1983Haines v. Kerrer 404 US 519 (1972). In
2

nd

Amended Complaint before this court, Spreadbury pled 1) Boone Karlberg PC

is considered a person ~22-24 pg.6 2) Spreadbury pled Boone Karlberg acted in
color oflaw 122-24 pg. 6 with other named Defendants, and 3) Pled deprivation of
Constitutional right in the US District Court ofMontana, Missoula Division, In 113
nd

Spreadbury 2 Amended Complaint Mathews v. Eldridge 424 US 319 (1976).

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Plaintiff response to Rule 12(b)(6) motion to Dismiss Cause 9:2011-CV-1l-61-M-DWM

May 11, 2011

Defendant Boone Karlberg by imputing criminal behavior recklessly into
published court pleadings with regard to Spreadbury is generally construed as
defamation per se Paul v. Davis 424 US 693 (1976). Defendant Boone acted in
concert with Defendants, a willing participant engaging in joint action with an
official in color of law effecting the deprivation of rights Dennis v. Sparks 449 US

24 (1980).
There is no state of mind requirement in 42 USC§ 1983 Boone pleads a "meeting
of the minds"; [see section vn below] a person in color oflaw, working in
conjunction with Defendant City, Defendant Public Library to deprive right to
peaceful assembly, procedural due process Monroe v. Pape 365 US 167 (1961).
City Judge Reardon did not find issues findings of fact, conclusions of law to make
the order permanent per MCA§ 40-15-201(2).
Defendant Boone Karlberg PC in a pleading filed in the case 21 st District Court
June 24, 2010 that Spreadbury was " ... collaterally attacking the order of
protection..." by requesting appeal to District Court; such a request was
" ... harassing and intirnidating ...(same #9 above)" Senior librarian Roddy
although civil cases Spreadbury's statutory right per MCA§ 40-15-201(6). The
right to appeal Order of Protection is found in MCA§ 40-15-302; Defendant Boone
Karlberg PC pled request for reconsideration should be denied, which deprives

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Plaintiff response to Rule 12(b)(6) motion to Dismiss Cause 9:2011-CV-11-61-M-DWM

May 11, 2011

Spreadbury right to procedural due process as protected in 14 Amendment US

Constitution, Fonda v. Gray 707F.2d435(!lh Or. 1983).
V. Boone Karlberg PC perpetuates Fraud to protect Civil Conspiracy
The unlawful act ofpublic fraud, which erodes confidence in local government,
perpetuated unlawfully against Spreadbury to maintain unlawful advantage, civil
conspiracy with Defendant Public Library, City of Hamilton. In DV-10-93 21 st
District, Defendant Boone Karlberg provides unlawful defense for City Library
Employee Roddy arranged by Defendant City of Hamilton insured Montana
Municipal Interlocal Authority (MMIA). Eligible city personnel and
municipalities in the State of Montana pay for liability insurance with public funds.
Defendant Public Library is not a municipality, and Senior Librarian Roddy does
not work for City of Hamilton, eligible policyholder with MMIA. In a June 24,
2010 court pleading not privileged under MCA§ 27-1-804(4) contains actual
defamatory malice against Spreadbury, Defendant Natasha Prinzing-Jones pg. 2 In
8 refers to "fraud against City (Hamilton) as "not new", Defendant Boone Karlberg
PC defrauds honorable court (Notice of Fraud F.R. Civ. P. 9(b) filed 5/9111).

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Plaintiff response to Rule 12(b)(6) motion to Dismiss Cause 9:2011-CV-11-61-M-DWM

May 11, 2011

VI. Stigma-Plus test met for BooDe, DefeDdaDts
The Federal Circuit has determined that when a liberty or property interest is
deprived under the 14th Amendment protected by state law, Plaintiff reputation
damaged by unlawful criminal charges a Stigma-Plus test is satisfied Paul,
Humpries v. Co. a/Los Angeles 554 F. 3d 1170 (tjh Cir., 2009). Defendant Boone

Karlberg PC on several occasions (see # 1-11) defamed Spreadbury with
recklessness not protected with normal pleading before a court MCA§ 27-1-804(4)

in conspiracy with Defendants in aforementioned. Defendants conspired to
deprive Spreadbury library privileges, a liberty interest protected in MCA§22-1­
31 1[Use of Library-Privileges]. When a government action that per se defames
and extinguishes of a statutory right in state law, stigma-plus test is met Paul at
708. Hart v. Parks, 450 F. 3d 1059 (tjh Cir., 2006).

Spreadbury was handed court restrictions by Hamilton Judge Reardon of loss of 2nd
Amendment right to arms, restricted travel misreported in Defendant Lee
Enterprises Newspaper as Ravalli County Montana only. City court restrictions
are a loss of liberty for a protected right, peaceful assembly on public property, use
of library privileges, submission to library Amendment 1 US Constitution, MCA§
22-1-311 [Use oflibrary-Privileges].

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Plaintiff response to Rule 12(b)(6) motion to Dismiss Cause 9:2011-CV-1l-61-M-DWM

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VII. Defendant Boone meets 4 independent tests to prove "in Color of Law"
Defendant Boone meets four (4) independent tests derived by the US Supreme
Court to determine ifprivate individual acted in color of law Johnson v. Knowles
113 F_ 3d at 1118-1120 (9h Gir. 1997).
1. Public Function Test

Defendants interfered with an election for public office Johnson at 1119.
Spreadbury was candidate for Mayor of Hamilton in November 3, 2009 election;
peaceful assembly on public property on August 20, 2009. Spreadbury pled prima
facie evidence of interference with election 2 nd Amended Complaint In 119 '\[26.
2. Joint Action Test
Defendant Boone Karlberg PC had agreement with Defendants to defame
Spreadbury deprive established right that can cause state action George v. Pacific­
CSC Work Furlough 91 F. 3d at 1231 (9 th Cir. 1996). When Defendant City,

Boone have common objective of defaming Spreadbury in re: deprived right of
peaceful assembly August 20, 2009 both are in color oflaw United Steelworkers of
America et. al. v. Phelps Dodge Corp. 865 F. 2d at 1540-1541 (9 th Gir. 1989).

Spreadbury alleges in 2nd Amended complaint that Defendant Boone acted in
concert with Defendant City in '\[26 pg. 7,in #1-11 section I, fraudulent
representation of Defendant public library Collins v. Womancare 878 F. 2d at 1154
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Plaintiff response to Rule 12(b)(6) motion to Dismiss Cause 9:2011-CV-1l-61-M-DWM

May 11, 2011

(gth cir. 1989), Burton v. Wilmington Parking Auth. 365 US at 725 (1961). When

City, Boone have common objective to defame, deprive Spreadbury constitutional
right to liberty, peaceful assembly on public property, joint action test is satisfied

United Steel Workers.
3. State compulsion Test
Defendant City ofHamilton exercised coercive power, significant encouragement
due to large purse strings over Boone; is joined with city in color oflaw Johnson at

1119-1120. It is unlikely that Defendant William L. Crowley, Natasha Prinzing­
Jones, Boone would publish criminal trespass on public property December 21,

2010 when client was City Attorney Bell who dismissed charges August 16,2010
unless "meeting of minds" created compulsion Collins. Defendant Boone as
private party has taken step with City that caused harm to Spreadbury; accepts
fraudulent retainer fees as benefit for unconstitutional behavior Nat'l Collegiate

Athletic Assn. v. Tarkanian 488 US 179 (1988).
4. Nexus Test
There is a sufficiently close nexus that Defendant City, Boone are
indistinguishable; actions blurred, fairly attributable to each other, interdependence
establish color oflaw of private actor Collins, Johnson at 1120.

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Plaintiff response to Rule 12(b}(6) motion to Dismiss Cause 9:2011-CV-11-61-M-OWM

May 11, 2011

VIII. Malicious Conduct, actions in color of law allow Punitive damages
Spreadbury has established non-privileged communication ofBoone through
lawful authority in Montana Code Ann. MCA§ 27-1-801(4) in Section I #1-11.
The Stigma-Plus test is met for the defendants for depriving Spreadbury a state
interest, depriving peaceful assembly on public property, while defaming with
continued reckless defamatory, false light comments in Defendant Lee
Newspapers, court pleadings before the Judiciary, public in Montana Paul.
Finally, Defendant Boone acted in reckless disregard for the truth with other
Defendants in color of law by meeting US Supreme Court criteria for private
parties acting in color of law to knowingly deprive Spreadbury liberty interests
procedural due process without due process of law Johnson, Matthews v. Eldridge

424 US 319 (1976).
Proof of constitutional deprivation is Defendant Boone including material from
November 2009 which is free speech, arbitrary assignment of Order ofProtection
outside Montana case precedent Edelen v. Bonemarte 337 Mont. 407 (2007) where
Bonemarte admitted to threatening Edelen, order was thrown out due to no finding
of fact conclusion oflaw as in Spreadbury. Boone given notice that evidence
presented contains no threat, irrelevant to case, proof of more reckless deprivation
of abridged rights Amendment 1,14, US Constitution. Spreadbury has no control

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Plaintiff response to Rule 12(b)(6) motion to Dismiss Cause 9:2011-CV-11-61-M-DWM

Mav 11, 2011

over Montana's rank as 48 th in nation, tainting ofjury by Defendant Lee
Enterprises. Spreadbury has proof of Roddy false swearing MCA§ 45-7-202 to
Judge Reardon with respect to Order of Protection, denied District court hearing
after Defendant Bell official conduct MCA§ 45-7-401 (appearing in civil
courtroom) outside duties of City Attorney MCA§ 7-4-4604 on Roddy's behalf
November 20,2009.
Dismissal for not stating a claim F. R. Civ. P. 12(b)(6) not appropriate for
Defendant Boone Karlberg acting in color law per US Supreme Court independent
tests, stigma-pius test requirements met for Boone as Defendant Johnson, Paul.
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 2880 words excluding title page, this compliance.

\~ of May, 2011

Respectfully submitted this 1

BY:____~~--r-~~--~--------___
Michael E. Spreadbury, Self Represented Plaintiff

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