Spreadbury v. Bitterroot Public Library et al

Filing 60

RESPONSE to Motion re 56 MOTION to Compel filed by Michael E. Spreadbury. (APP, )

Michael E. Spreadbury

RECEIVED

700 S. 4th Street
Hamilton, MT 59840

By_~.-,p--

JUN 2 S 2011

Telephone: [phone]

CLERK, u.s. DISTRICT COURT
DISTRICT OF MONTANA
MISSOULA

[e-mail]
Pro Se Plaintiff

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MONTANA

MISSOULA DIVISION

) Cause No: CV-11-61-DWM-JCL

MICHAEL E. SPREADBURY

)

Plaintiff

v.

)

RESPONSE TO MOTION

BITTERROOT PUBLIC LIBRARY,

)

TO COMPEL, MOTION

CITY OF HAMIL TON,

)

BRIEF IN SUPPORT TO

LEE ENTERPRISES, INC.,

)

DENY

BOONE KARLBERG, PC,

)

---------------------------)

Comes now Spreadbury with motion, brief in support to deny motion to compel
discovery in the aforementioned.
Motion:
Spreadbury respectfully pleads before honorable court that discovery is not proper,
per well established, precedent 42 USC § 1983 cases in the federal courts.
1

, Motion, Brief in support: Dentmpel Discovery Cause 9:2011-CV-11-6&M-JCL June 23,2011

Discovery is not at risk to be destroyed, not urgent to preserve evidence. Pleadings
before this court by both parties preclude the continuance of discovery in the
aforementioned. Dispositive issue: dismissal via Rule 12(b)(6) raised by Defense
counsel has not been addressed by the court and precludes discovery. Spreadbury
pleads for summary judgment; no functional analysis of qualified immunity of
Defendants, nor grant of immunity by this court. Immunity has not been
established by this honorable court as conditional statements in Order do not
qualify as definitive immunity for Defense actors:
A Defendant's eligibility for qualified immunity, !lgranted, affords the defendant
"immunity from suit rather than a mere defense to liability" Mitchell v. Forsyth
472 US 511 (1985). ConsequentlY!l a defendant is eligible for qualified immunity,
then the defendant should not be subjected to the costs oftrial, or burdens of
discovery. "Until this threshold immunitv question is resolved. discovery should

not be allowed. " Harlow at 818 ffrom Honorable J. C. Lynch Order May 25, 2011]
Immunity pending before court precludes discovery, defeats any request to compel.
WHEREFORE, Spreadbury asserts well established court precedent for 42 USC
§1983 immunity, dispositive motions before court, specifics of fraud, RICO pled
before this court in aforementioned without response from Defense, Honorable
court. Discovery is improper as instances of immunity not settled, dispositive

2

, Motion, Brief in support:

Den~ompel Discovery

Cause

9:2011-CV-11-6~M-JCL

June 23, 2011

motions before the court, issue of Defense fraud specifics F.R. Civ. P. 9(a)
defending ineligible defendant pubic library makes discovery request. Spreadbury
th

moves for denial of motion to compel discovery consistent with 9 Circuit, US
Supreme Court precedent in 42 USC § 1983 presented herein.
Brief in Support
Discovery is not proper as dispositive, immunity, fraud issues before court Harlow
v. Fitzgerald 457 US at 818 Anderson v. Creighton 483 US 635 (1987) where the
US Supreme Court said:

Holdingfrom Harlow that qualified immunity ought to be resolved on a
motion for summary judgment before any discovery takes place.
Defendant Boone Karlberg PC is a beneficiary of "Racketeering activity" Sedima

105 S. Ct. at 3285 n. 14. Spreadbury pled with specificity the persons,
corporations benefiting from this RICO activity in 18 USC §1961(1)(B) which
threatens to continue in this case Semegen v. Weidner 780 F. 2d 727 (gth Cir. 1985).
Defendant Boone Karlberg PC uses US Mail, wire service to further this activity

USv. Halbert 640F. 2d 1000 (gth Cir. 1981). ByrepresentingDefendant
Bitterroot Public Library, Defendant Boone Karlberg PC continues a criminal
racket, racketeering injury to Spreadbury, standing as party to this case Schreiber

Distributing v. Serv-Well Furniture Co. 806 F. 2d 1393 (9 th Cir. 1996).
3

,

Motion, Brief in support: De'ompel Discovery Cause 9:2011-CV-11-6IWM-JCL June 23,2011

Spreadbury pled that enterprise has executed fraud, RICO per 18 USC §1961 et.
seq. more than two occasions. Defense counsel criminally benefiting from
ineligible Defendants: the Bitterroot Public Library, Hamilton Montana using
public funds. Defendant City of Hamilton, Defendant Boone Karlberg PC,
conspire to provide fraudulent litigation expenses; Public Library is independent of
the City of Hamilton. To grant a request to compel discovery from a fraudulent,
Racketeer Influenced Corrupt Organization (RICO) is improper for this court.
An automatic discovery stay while summary judgment pending is found in 15

USC §78u-4(b)(3)(B) SG Cowen 189 F.3d at 911-912. Discovery is normally
stayed pending summary jUdgmentSelfv. Hore! WL 4774457 ND. Cal. 10130108,
Defense counsel for City and public library has FAILED to plead functional
analysis for qualified immunity of Defense actors, asserted "entitlement" of
immunity, improper Morley v. Walker 175 F. 3d 756 (gth Cir. 1999). This court in
its May 25, 2011 order uses conditional statements such as "if' and "when"
immunity is granted which establishes the non-grant status of immunity. Court
must resolve qualified immunity before permitting discovery Crawford EI v.

Britton 523 US 574 (1998). Harlow at 815-820. Since immunity has not been
plead by defense, nor granted by court, discovery must be stayed ibid.

4

Motion, Brief in support:

Den~ompel

Discovery Cause 9:2011-CV-11-6!WM-JCL June 23,2011

Discussion on Immunity
Before this court are basic questions for immunity. For example, can a reasonable
law enforcement officer, accusing a citizen oftrespass on public property, violate
peaceful assembly 1st Amendment US Constitution expect to be immune from
liability? Imagine the Missoula Police Department accusing park goers in Caras
Park (a public park) Missoula, MT of criminal trespass?
Second, can a reasonable municipal police chief, who asks a citizen to not enter a
business lacking cause, in violation of the citizen's liberty as protected in the 5th
Amendment US Constitution expect protection from liability? Imagine Missoula
Police Chief Muir telling Mayor Engen or any other citizen to stay out of Fact or
Fiction Bookstore, Missoula, MT for no cause?
Thirdly, can a reasonable police officer who investigates a citizen for reporting a
sighting of a person on a webpage for stalking, in violation ofthe protected right to
speak 1st Amendment US Constitution expect protection from liability? Imagine a
Missoula Police officer publishing a police report for a protected act of free
speech?
Fourth, can a city prosecutor (Lint, Bell) expect immunity from liability as they
compose court paperwork, pleadings which criminalize peaceful assembly
protected in the 1st Amendment US Constitution? Imagine the City Attorney for
5

Motion, Brief in support: Den'!'ompel Discovery Cause 9:2011-CV-11-6!WM-JCL June 23, 2011

Missoula Montana doing administrative tasks to prepare a prosecution for peaceful
assembly for a person sitting in the University of Montana oval (public property)?
The defense has the burden to prove qualified immunity apples to these four (or
more) instances as presented in the aforementioned, failed to perfonn a functional
analysis of the immunity of the Defense actors herein Morley, Buckley v.

Fitzsimmons 509 US 259 (1993), Forrester v. White 484 US 219 (1988), Gomez v.
Toledo 446 US 635 (1980). The immunity issue must be resolved at the earliest
stage of litigation in 42 USC §1983 Saucier 533 US at 200.
This Honorable court has before it motions to dismiss, motions for summary
judgment, questions of immunity, which are dispositive in nature, court may
relieve burden of discovery as these motions pending before court DiMartini v

Ferrin 889 F. 2d 922 (9 th Cir. 1989).
Racketeering Activity
On or around May 9 2011 Spreadbury served notice of Fraud FRCP 9(b) on this
court. A specificity of fraudulent actions pled before this court without reply by
Defense counselor action by the court; Spreadbury pled the particularity of the
fraud in the pleading before this court invoking FRCP 9(b) Leatherman v. Tarrant

Co. Narc. Intel. & Cord. Unit (1993). The activity is an enterprise with MMIA as
funding source to benefit Defendant Boone Karlberg PC and Defendant Public
6

Motion, Brief in support: De'compel Discovery Cause 9:2011-CV-11-6IWM-JCL June 23,2011

Library, set up by Defendant City of Hamilton Schreiber Distributing v. Serv-Well
Furniture Co. 806 F. 2d 1393 (gth Cir. 1986). The instances of the fraud and RICO
pled May 9,2011 contain more than two instances, the threat of continuance in the
aforementioned Sedima 105 S. Ct. at 3285 n. 14. The federal statute for RICO is
found at 18 USC § 1961 (1 )(B). Defendant Boone Karlberg PC uses mail, wire
services to continue the racket US v. Halbert 640 F.2d 1000 (gth Cir. 1981).
Defendant Public Library precluded as ineligible for municipal coverage from
MMIA as in independent entity from the City of Hamilton, Montana, gains
litigation expenses fraudulently; Spreadbury targeted victim in racket.
Spreadbury has pled the specifics of the RICO activity of the Defendants as
organized crime with Boone Karlberg PC corporation as the financial benefactor,
with civil and criminal conspiracy with Defendant Public Library to provide
unlawful litigation expenses more than two instances; Spreadbury as intended
victim. Injury to Spreadbury, standing due to Party to suit, recipient of RICO
activity Semegen v. Weidner 780 F. 2d 727 gth Cir., 1985).
Court is encouraged to ORDER dissolution of Defense counsel due to fraud,
RICO; stay discovery as pled herein with well established 42 USC § 1983
precedent in District Court from 9th Circuit of Appeals and US Supreme Court.

7

Motion, Brief in support: De'compel Discovery Cause 9:2011-CV-ll-t!WM-JCL June 23,2011

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 1331 words excluding title page, this compliance.

Respectfully submitted this

BY:

r!­ of June, 2011
day

Z3;.

--------~~-=~------~~-----------

Michael E. Spreadbury, Sel

8

Certificate of Service
Cause No. CV-11-0064-DWM-JCL
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:

Response to Motion to Compel; Motion, Brief in Support to Deny

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

POBox416

PO Box 9199

Hamilton, MT 59840

Missoula MT 59807

( self-represented)

Jeffrey B Smith
Garlington, Lohn, & Robbinson PLLP
POBox 7909
Missoula MT 59807

Dated _ _ _6/23/11 _ _ __

Michael E. Spreadbury, Pro Se Plaintiff