Spreadbury v. Bitterroot Public Library et al

Filing 42

MOTION to Stay Discovery by Plaintiff Michael E. Spreadbury. Motions referred to Jeremiah C. Lynch. (APP, )

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Michael E. Spreadbury P.O. Box 416 FILED Hamilton, MT 59840 MAY 192011 PATRICK! 8y~CleRI< Telephone: (406) 363-3877 OEPUTY CLERk. M1iilSiin­ mspread@hotmail.com Pro Se Plaintiff IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MONTANA MISSOULA DIVISION MICHAEL SPREADBURY Plaintiff ) t V-//- C tf-/1--(}tJl~ 1:1 , ~y Cause No: CV-11jrt-M-DWM ) v. ) BITTERROOT PUBLIC LIBRARY, ) MOTION, BRIEF IN CITY OF HAMILTON, ) SUPPORT TO STAY LEE ENTERPRISES, INC., ) DISCOVERY PENDING BOONE KARLBERG, PC, ) COURT ACTION --------------------------) Comes now the Plaintiff with motion to stay discovery pending decision from Honorable court, claim for summary judgment, qualified immunity pending. Motion: Spreadbury moves court stays discovery pending ruling on summary judgment, qualified immunity of Defendants before Honorable court. 'J~L Plaintiff Motion to Stay Discovery Cause 9:2011-CV-1l-61-M-DWM May 17,2011 Defense oppose this motion. Brief in Support: Defense actors in the aforementioned have pled to this court "subject" to qualified immunity [~7 pg. 19 Individual Defendants Answer; ~4 pg. 21 Main Defendant Answer] charging criminal trespass for Spreadbury's August 20, 2009 peaceful assembly on public property, established right Amendment 1 US Constitution. Qualified immunity for Defense actors nullified as reasonable officer, prosecutor, publisher knew, or should have known peaceful assembly on public property deprives established right of Spreadbury Anderson v. Creighton 483 US at 646 (1987), Davis v. Scherer 468 US at 197 (1984). Defense actors have responsibility to plead functional analysis of qualified immunity, Defense actors have not pled functional analysis before this court Buckley v. Fitzsimmons 509 US 259 (1993). Defendant City of Hamilton, other Defendants bear burden of demonstrating qualified immunity attaches to prosecuting, publishing, investigating, Spreadbury with trespass on public property inter alia Morley v. Walker 175 F. 3d at 759(9th Cir. 1999), Burns v. Reed 500 US 478 (1991). Qualified Immunity is an affinnative defense that must be pled by the Defendant official Gomez v. Toledo 446 US 635 (1980) citing Harlow v. Fitzgerald 457 US at 2 Plaintiff Motion to Stay Discovery Cause 9:2011-CV-11-61-M-DWM 815 (1982). At summary judgment, the court determines established constitutional right at time action occurred, but until threshold immunity question resolved, discovery should not be allowed Harlow 457US at 818. Immunity should be decided by court long before trial Mitchell v. Forsyth 472 US at 527-529 (1985). Discovery is stayed pending summary judgment Siegestv. Gilley 500 US at 230­ 231 (1991). For reasons herein pled, under lawful court authority, Spreadbury moves that discovery be halted due to pending summary judgment, decision on qualified immunity of Defense actors. 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 275 words excluding title page, this compliance. Id..~ Respectfully submitted this ~day ofMa~ Michael E. Spreadbury, Pro Se 3 011 Certificate of Service Cause No. CV-II-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: Motion to Stay Discovery Pending Court Action 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 Box 416 POBox 9199 Hamilton, MT 59840 Missoula MT 59807 (self-represented) Jeffrey B Smith Garlington, Lohn, & Robbinson PLLP POBox 7909 Missoula MT 59807 Dated _ _ _5/17/11 _ _~_ Michae< E. Spreadbury, Pro Se Plaintiff

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