Spreadbury v. Bitterroot Public Library et al
RESPONSE to Motion re 50 MOTION for Partial Summary Judgment filed by Boone Karlberg P.C.. (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
Facsimile: (406) 549-6804
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
MICHAEL E. SPREADBURY,
Cause No. CV-11-064-M-DWM
KARLBERG P.C.’S BRIEF IN
OPPOSITION TO PLAINTIFF’S
MOTION FOR PARTIAL
BITTERROOT PUBLIC LIBRARY,
CITY OF HAMILTON, LEE
ENTERPRISES, INC., and BOONE
Plaintiff Michael E. Spreadbury (“Spreadbury”) has moved for summary
judgment on his “1983, negligence, defamation, IIED, [and] NIED” claims against
Defendant Boone Karlberg, P.C. (“Boone Karlberg”). (Spreadbury’s Brief, p. 4.)
Spreadbury submits no evidence in support of his motion, however, let alone the
required Statement of Undisputed Facts. See L.R. 56.1. Instead, Spreadbury
claims the admissions in the City and Library Defendants’ Answer entitle him to
judgment as a matter of law. Spreadbury is wrong. His motion should be denied.
In 2009, Spreadbury met with Senior Librarian Nansu Roddy at the
Bitterroot Public Library. (Defendant Boone Karlberg’s Statement of Genuine
Issues (“SGI”) 1.) Spreadbury requested 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.
Despite the ban, Spreadbury returned to the library, and was subsequently
charged with criminal trespass. (SGI 5.) On February 18, 2010, a jury in the City
Court for the City of Hamilton found Spreadbury guilty of the charge. (SGI 6.)
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
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.)
Spreadbury’s claims against Boone Karlberg arise from civil litigation in the
Montana state court system in which Boone Karlberg represented parties adverse
Roddy v. Spreadbury, DV-10-93 (Protective Order Action): Bitterroot
Public Library Senior Librarian Nansu Roddy was granted an order of
protection against Spreadbury on November 20, 2009, following a
hearing before Hamilton City Judge Reardon. On appeal to the
District Court, Judge Larson affirmed the order of protection on
May 20, 2010, based upon a review of the record. Boone Karlberg
represented Ms. Roddy in DV-10-93 and during Spreadbury’s
appeal to the Montana Supreme Court in Appellate Cause No.
DA 11-0017. (SGI 14.)
Spreadbury v. Roddy, DV-10-224 (Emotional Distress Case - Roddy):
Spreadbury sued Nansu Roddy for infliction of emotion distress.
Summary judgement was entered in favor of Ms. Roddy on October 5,
2010, and Notice of Entry of Judgment was filed and served on
November 1, 2010. The time for appeal expired on or about
December 3, 2010. Spreadbury did not appeal. Boone Karlberg
represented Ms. Roddy in DV-10-224. (SGI 15.)
Spreadbury v. Bell, DV-10-223 (Emotional Distress Case - Bell):
Spreadbury sued Hamilton City Attorney Ken Bell for infliction of
emotional distress. Summary dismissal was granted in favor of City
Attorney Bell on September 22, 2010, and judgement was entered on
September 22, 2010. The dismissal was affirmed on appeal on
April 5, 2011, in Appellate Cause No. DA-10-442. Spreadbury’s
petition for rehearing under Rule 20 is pending. Boone Karlberg
represented City Attorney Bell in DV-10-223 and presently represents
City Attorney Bell in Appellate Cause No. DA-10-442. (SGI 16.)
It is Boone Karlberg’s representation of City Attorney Ken Bell and Senior
Librarian Nansu Roddy in matters 1-3 above that forms the basis of Spreadbury’s
allegations against Boone Karlberg. With his latest motion, Spreadbury requests
summary judgment against Boone Karlberg for “1983, negligence, defamation,
IIED, [and] NIED.” (Spreadbury’s Brief, p. 4.) However, Spreadbury has failed to
sustain his burden under Fed. R. Civ. P. 56.
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
Tobacco Co., 286 F.Supp.2d 1097, 1103-04 (N.D. Cal. 2002). 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), Spreadbury misstates the admissions in
the City and Library Defendants’ Answer, and those admissions do not establish
liability. To the contrary, they demonstrate Spreadbury’s claims are without merit.
SPREADBURY HAS NOT MET HIS BURDEN UNDER RULE 56.
Spreadbury’s Section 1983 Claim Against Boone Karlberg Fails
As a Matter of Law.
Spreadbury’s civil rights claim against Boone Karlberg is murky, at best.
Spreadbury’s brief focuses on an alleged violation of his right to peaceful
assembly. Specifically, he claims he was wrongfully prosecuted for criminal
trespass as a result of exercising this constitutional right. However, it is undisputed
Boone Karlberg did not prosecute Spreadbury for trespass, and did not remove him
from the library grounds. (SGI 17.) Boone Karlberg had no involvement in those
events. (SGI 17.) Rather, it has subsequently represented parties in litigation
arising from those events. (SGI 17) Spreadbury’s civil rights claim against Boone
Karlberg should be dismissed.
Boone Karlberg Did Not Act Under Color of State Law.
A plaintiff may not sue a lawyer in private practice for violations of civil
rights because private practice attorneys are not state actors. Simmons v.
Sacramento County Superior Court, 318 F.3d 1156, 1161 (9th Cir.2003) (holding
plaintiff could not sue opposing counsel under section 1983 “because he is a
lawyer in private practice who was not acting under color of state law” and
“plaintiff's conclusory allegations that the lawyer was conspiring with state officers
to deprive him of due process are insufficient.”); Briley v. State of Cal., 564 F.2d
849, 855 (9th Cir. 1977) (“We have repeatedly held that a privately-retained
attorney does not act under color of state law for purposes of actions brought under
the Civil Rights Act.”); Miranda v. Clark County, Nevada, 319 F.3d 465 (9th
Cir.2003) (even if employed by government agency, if attorney is engaged in
traditional lawyer role, lawyer is not state actor for § 1983 purposes); Dallas v.
Holmes, 137 F. Appx. 746, 752 (6th Cir. 2005) (allegations against opposing
counsel are “frivolous” in light of “well-settled” principle that a lawyer
representing a client is not state action); Stone v. Baum, 409 F. Supp. 2d 1164,
1176 (D. Ariz. 2005) (“Plaintiffs may not sue a lawyer in private practice for
violations of their civil rights because private practice attorneys are not state
actors.”); Polk County v. Dodson, 454 U.S. 312, 319 n. 9, 325 (1981) (noting that a
private attorney performing a lawyer's traditional function cannot be considered to
act under color of state law).
The rule relating to private attorneys, like Boone Karlberg, is consistent with
the general rule that private parties are not acting under color of state law. See, e.g.,
Price v. Hawaii, 939 F.2d 702, 707-08 (9th Cir.1991). The U.S. Constitution
protects individual rights only from government action, not from private action.
Single Moms, Inc. v. Montana Power Company, 331 F.3d 743, 746-47 (9th
Cir.2003). Thus, a § 1983 plaintiff must show that a defendant's actions are fairly
attributable to the government, which generally involves significant state
involvement in the action in question. Franklin v. Fox, 312 F.3d 423, 444-45 (9th Cir.2002).
The Ninth Circuit recognizes four different tests to identify state action: “(1)
public function; (2) joint action; (3) governmental compulsion or coercion; and (4)
governmental nexus.” Kirtley v. Rainey, 326 F.3d 1088, 1092 (9th Cir. 2003).
Here, Spreadbury alleges Boone Karlberg is a state actor under the first two tests –
i.e., the “Public Function [and] Joint Action tests.” (Spreadbury’s Brief, p. 3.)
“Under the public function test, when private individuals or groups are
endowed by the State with powers or functions governmental in nature, they
become agencies or instrumentalities of the State and subject to its constitutional
limitations.” Lee v. Katz, 276 F.3d 550, 554–55 (9th Cir. 2002) (internal quotation
marks omitted). The public function test is satisfied only on a showing that the
function at issue is “both traditionally and exclusively governmental.” Id. at 555.
The “function” which forms the basis of Spreadbury’s claims against Boone
Karlberg, however, is the representation of the private law firm’s clients in various
civil lawsuits. That is not a traditional or exclusive governmental function.
Under the joint action test, “courts examine whether state officials and
private parties have acted in concert in effecting a particular deprivation of
constitutional rights.” Franklin v. Fox, 312 F.3d 423, 445 (9th Cir. 2002). The test
focuses on whether the state has “so far insinuated itself into a position of
interdependence with [the private actor] that it must be recognized as a joint
participant in the challenged activity.” Gorenc v. Salt River Project Agric.
Improvement & Power Dist., 869 F.2d 503, 507 (9th Cir.1989). A plaintiff may
demonstrate joint action by proving the existence of a conspiracy or by showing
that the private party was “a willful participant in joint action with the State or its
agents.” Collins v. Womancare, 878 F.2d 1145, 1154 (9th Cir. 1989) (quotations
To be liable as co-conspirators, each participant must share the common
objective of the conspiracy. United Steelworkers of America v. Phelps Dodge
Corp., 865 F.2d 1539, 1540-41 (9th Cir. 1989). A private defendant must share
with the public entity the goal of violating a plaintiff's constitutional rights. Id.; see
also Gallagher v. Neil Young Freedom Concert, 49 F.3d 1442, 1453-54 (9th Cir.
1995) (holding that public university's acquiescence in private security team's patdown searches of concert-goers did not establish state action under joint action test,
despite shared goal of producing a profitable event). Spreadbury presents no
evidence Boone Karlberg conspired to deprive him of his civil rights. Indeed, it is
undisputed the subject publications by Boone Karlberg came after Spreadbury was
banned from the library and prosecuted for criminal trespass.
In his Amended Complaint, Spreadbury states he “believes, and is prepared
to show. . .that Defendants listed, together, individually, and as pairs conspired to
deprive the Constitutional rights of Plaintiff.” (SGI 18.) Spreadbury further
alleges “two or more Defendants...contrive[d], and execute[d] criminal
charges...keeping Plaintiff out of office.” (SGI 18.) Finally, Spreadbury claims
“Defendant Boone Karlberg PC acting in civil conspiracy with client Bell when
defaming Spreadbury in published pleadings to courts in State of Montana.” (SGI
Defendants have denied all allegations of conspiracy, and Spreadbury
presents no proof, beyond his own conclusory allegations, that Boone Karlberg
conspired to deprive Spreadbury of a federal constitutional right. Not only does
Spreadbury’s claim of conspiracy fail under Rule 56, but as set forth in Boone
Karlberg’s Motion To Dismiss, incorporated herein by reference, it does not even
satisfy the liberal pleading requirements to state a claim under Rule 12(b)(6).
Because Spreadbury has failed to prove Boone Karlberg was a state actor under
either the public function or joint action tests, his §1983 claim fails as a matter of
Spreadbury Has Not Established an Underlying Violation of
His Constitutional Rights.
Even assuming that Boone Karlberg was acting “under color of state law,”
Spreadbury must still establish a violation of his federal constitutional rights. See
Menotti v. City of Seattle, 409 F.3d 1113, 1147 (9th Cir. 2005). In his latest brief,
he asserts violations of the First and Fourteenth Amendments.1
Spreadbury contends his First Amendment rights were violated when he was
prosecuted for a “peaceful assembly” on public property. However, the record
In previous filings, Spreadbury alleged a Fifth Amendment violation. However, Fifth
Amendment due process only applies to federal actors. E.g., American Bankers Mortg. v.
Federal Home Loan Mortg., 75 F.3d 1401, 1406 (9th Cir. 1996).
demonstrates Spreadbury was prosecuted for trespass because he continued to
come to the library after being told not to, and continued to harass library staff and
disrupt operations. Also, as set forth above, Boone Karlberg did not prosecute
Spreadbury for trespass.
Even assuming Spreadbury was engaged in constitutionally-protected
conduct, it is well settled that the First Amendment’s right to assembly does not
mean 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). In other words, Spreadbury must
demonstrate his prosecution 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 admissions of the City and
Library Defendants merely establish Spreadbury was prosecuted for misdemeanor
criminal trespass – a crime of which he was found guilty beyond a reasonable
doubt. This does not prove a First Amendment violation.
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
Setting aside the fact there is no evidence Boone Karlberg exercised state
power, 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
(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.
Spreadbury’s Claims Against Boone Karlberg Fail Because They
Are Based Upon Privileged Statements.
Under Montana law, statements made in a judicial proceeding are privileged.
See 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.”) Because Spreadbury’s claims against Boone Karlberg are based entirely on
statements made in judicial proceedings, they fail as a matter of law.
The Montana Supreme Court has consistently held Section 27-1-804,
applicable to parties’ pleadings. “It has long been held that statements made in a
judicial proceeding are absolutely immune and a cause of action for defamation
cannot be predicated thereon.” Montana Bank of Circle, N.A. v. Ralph Meyers &
Son, Inc., 769 P.2d 1208, 1213 (Mont. 1989); see also Hauptman v. Edwards, Inc.,
553 P.2d 975, 979 (Mont. 1976) (“[P]laintiff's publication of a lis pendens was
privileged and not subject to a slander of title action.”)
Spreadbury, citing Mont. Code Ann. § 27-1-804(4), argues that court
pleadings made with malice are not privileged. (Spreadbury’s Brief, p. 4.)
However, the subsection Spreadbury relies upon has no application to pleadings, or
to any publications made as part of a judicial proceeding. Rather, subsection (4)
applies to a “fair and true report without malice of a judicial, legislative, or other
public official proceeding.” Mont. Code Ann. § 27-1-804(4) (emphasis added). In
other words, this subsection would apply to a report on a judicial proceeding –
such as a newspaper article about an ongoing trial, for instance – as long as the
publication was “fair,” “true,” and made “without malice.” See id.
Here, Boone Karlberg’s statements were made as part of the judicial
proceedings themselves and fall under subsection (2) of the statute. This
subsection applies to any publication made “in any legislative or judicial
proceeding. . . .” Mont. Code Ann. § 27-1-804(2). Montana law is clear that this is
an absolute privilege. E.g., Montana Bank of Circle, N.A. v. Ralph Meyers & Son,
Inc., 769 P.2d 1208, 1213 (Mont. 1989) (“It has long been held that statements
made in a judicial proceeding are absolutely immune and a cause of action for
defamation cannot be predicated thereon.”); Bollinger v. Jarrett, 406 P.2d 834
(Mont. 1965) (“[T]here is no libel because any publication made in a judicial
proceeding is privileged”).
Spreadbury’s specific allegations against Boone Karlberg refer exclusively
to publications made in judicial proceedings. Those statements are privileged
under Montana law. Consequently, even if every fact alleged by Spreadbury were
true, there is no possibility of recovery against Boone Karlberg.
Spreadbury’s Negligence Claim Against Boone Karlberg Fails as
a Matter of Law.
To prove 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 Boone Karlberg establishes or suggests the breach of a legal duty to
The limited question of whether a legal duty exists at all, however, is a
question of law. Stratemeyer v. Lincoln County, 915 P.2d 175, 182 (Mont. 1996).
Spreadbury fails to identify evidence suggesting Boone Karlberg owed him an
actionable duty in tort. Boone Karlberg did not have a professional relationship
with Spreadbury and did not communicate information to Spreadbury for the
purpose of guiding him. See, e.g., Durbin v. Ross, 916 P.2d 758, 763-64 (Mont.
1996). Thus, absent a legal duty, any negligence-based claim against Boone
Karlberg should be dismissed.
Spreadbury’s Infliction of Emotional Distress Claims Fail As a
Matter of Law.
Spreadbury alleges Defendants conspired to charge him with a crime and
defamed him, thereby causing emotional distress. However, as set forth above,
Boone Karlberg’s statements in pleadings are privileged and cannot form the basis
of either a negligent or intentional infliction of emotional distress claim. In
addition, there is no factual support for a conspiracy claim against Boone Karlberg.
Moreover, Spreadbury has not “introduced sufficient evidence to support a
prima facie case for intentional infliction of emotional distress”, Sacco v. High
Country Independent Press, Inc., 896 P.2d 411, 427 (Mont. 1995), nor has
Spreadbury alleged emotional distress of actionable severity. Renville v.
Fredrickson, 101 P.3d 773, ¶ 15 (Mont. 2004). 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, 896 P.2d at 425. 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, ¶¶ 14-16. The admissions of the City and Library Defendants do not
establish negligent or wrongful conduct, let alone the requisite degree of emotional
injury, for Spreadbury to prevail.
For the reasons stated, Spreadbury’s Motion for Partial Summary Judgment
Against Defendant Boone Karlberg, P.C. should be denied.
DATED this 9th day of June, 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.
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 3,673 words, excluding the parts of the brief
exempted by L.R. 7(d)(2)(E).
DATED this 9th day of June, 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.
CERTIFICATE OF SERVICE
I hereby certify that, on the 9th day of June, 2011, a copy of the foregoing
document was served on the following persons by the following means:
Overnight Delivery Service
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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