Spreadbury v. Bitterroot Public Library et al

Filing 87

OBJECTION to 75 Findings and Recommendations filed by Michael E. Spreadbury. (APP, ) (Additional attachment(s) added on 8/10/2011: # 1 Attachment) (APP, ). Modified on 8/10/2011 to reflect NEF regenerated after attachment added (APP, ).

Michael E. Spreadbury
700 S. 4th Street

FILED

Hamilton, MT 59840

AUG .. 9 2011

Telephone: [phone]

PATRICKE
8y_
. OUFFY. CLERK

DEPUTY CLERK, M'SSouLA-

Pro Se Plaintiff

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MONTANA

MISSOULA DIVISION

) Cause No: CV-11-64-DWM-JCL

MICHAEL E. SPREADBURY
Plaintiff

)

v.

)

OBJECTION TO COURT

BITTERROOT PUBLIC LIBRARY,

)

FINDINGS;

CITY OF HAMILTON,

)

DEFENDANT LEE

LEE ENTERPRISES, INC.,

)

ENTERPRISES INC.

BOONE KARLBERG, PC,

)

IN RE:

--------------------------)
Comes now Spreadbury with objection to court findings and recommendations
with respect to Defendant Lee Enterprises Inc. in the aforementioned.
Motion:
Spreadbury moves that Honorable court rejects [mdings and recommendation of
Honorable Magistrate Lynch, prior bias to Plaintiff, evident in findings.
1

Plaintiff Objection to Court findings. LEE

Cause 9:2011-CV-11-64-0WM-JCL

August 5, 2011

Brief in Support
The Only Irrefutable Fact
In the aforementioned, the only fact that cannot be refuted is the presence ofpublic
property at the site of Spreadbury's peaceful assembly August 20,2009 site is
within block #18 ofthe original City of Hamilton Platt Map pled in this case
Shuttlesworth v. Birmingham 394 US 147 (1969). A public library accepts public
funds as does Defendant City of Hamilton; a municipality accepts tax revenue for
its function. A lease ofproperty from a municipality to a Public Library does not
alter property status from public to private property. While the site is adjacent to
the Bitterroot Public Library structure, the site will always remain public propertyl.
Spreadbury's right to peaceful assembly within a public park on public property is
inviolate Hague v. CIO 307 US 496515 (1939). This Honorable court referred to
the property as "Library premises" which manifests bias towards Spreadbury in the
aforementioned. The argument for the Plaintiff in the aforementioned hinges on
the right to peaceful assembly on public property protected in Amendment 1 US
Constitution District court jurists refuse to uphold right for Spreadbury.
A print media company, Defendant Lee Enterprises is liable for defamation, false
light, negligence, NIED when it prints that peaceful assembly is criminal trespass
Spreadbury has pled property containing Bitterroot Public library at NE Cor. State and S. 4th Streets in Hamilton
MT is in original block #18 public property by certified Platt map from Ravalli County Clerk and Recorder.

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2

Plaintiff Objection to Court findings, LEE

Cause 9:2011-CV-11-64-0WM-JCL

August 5, 2011

in the aforementioned. The Due Process Clause establishes Spreadbury's right to
have peaceful assembly upheld; state action in color of law cannot interfere with
Spreadbury's peaceful assembly Zablonld v. Redhail434 US 374383-386 (1978)

Amendment 14 US Constitution. Spreadbury pled joint action test (TR. # 51) with
respect to Defendant Lee and City of Hamilton, [e.g. see July 9, 2009 section].
Due Process Clause vs. Montana Law
The Honorable US Magistrate Lynch imputes protection for Defendant Lee for
journalistic articles arising from a court proceeding as Montana Code Ann. MCA§
27-1-804. The Due Process clause Amendment 14 US Constitution in part:

.. .no state shall make or eriforce any law which shall abridge the privileges
or immunities ofcitizens ofthe United States; nor shall any state deprive any
person oflife, liberty, or property without due process of law; nor deny to
any person within its jurisdiction the equal protection ofthe laws.
As Spreadbury peacefully assembles on public property on the NE cor. State St &
S. 4th St. Hamilton, MT 59840 USA on August 20,2009 a court proceeding for
criminal trespass abridged Spreadbury's fundamental constitutional right in
Amendment 1 US Constitution. Defendants, including Defendant Lee, in color of
law deprived Spreadbury right to peaceful assembly; reason for aforementioned 42

USC s. 1983.
3

Plaintiff Objection to Court findings, LEE

Cause 9:2011-CV-11-64-0WM-JCL

August 5, 2011

July 9 2009 at 232 W. Main Hamilton Montana 59840
Defendant Lee engaged in civil conspiracy with Defendant City of Hamilton July
9,2009 due to acting in color of law, deprived Spreadbury established right 42
USC s. 1983, Adickes v. SH Kress and Co. 398 US at 150 (1970). Lee Enterprises
came to agreement with Defendant City to ask Spreadbury not to enter storefront at
232 W. Main although no threat (slander, defamation as dispatch called) existed,
no cause. Defendant City of Hamilton made "Policy or Custom" to restrict liberty
interest of Spreadbury, equal protection protected in Amendment 5, 14 US
Constitution, Monell v. NY City Dept. a/Social Services 436 US 658 (1978).
The sequence of events July 9 2009 created a substantial enough possibility of a
conspiracy to allow the case to proceed to trial Adickes at 157. The Hamilton
Police came to an understanding of granting Defendant Lee's request to deprive
Spreadbury's liberty interest ibid. The Adickes court denied summary judgment
for the municipality and found SH Kress in conspiracy with the police department.
Common law conspiracy occurs in Montana when a combination of two or
more persons intend to accomplish some unlawful objective for the purpose
of harming another which results in damage Jones v. Mont. University
System ~44155 P.3d 1247 Mont. Supra (2007) citing Schumacker v.

4

Plaintiff Objection to Court findings, LEE

Cause 9:2011-CV-1l-64-DWM-JCL

August 5, 2011

Meridian Oil Co. 288 Mont. 217 (1998), Viex v. E. Bay Regional Park Dist.
906 F. 2d 1330 (fjh Cir. 1990).
Defendant Lee on July 9, 2009 meets joint action test Johnson v. Knowles 113 F

3d at 1118-1120 (fjh Cir., 1997). Defendant Lee acting in color of law with
Defendant Hamilton Police, depriving Spreadbury established right meets criteria
th

in 9 Circuit for civil conspiracy under 42 USC s. 1983 WMX Tecnologies Inc. v.

Miller 80 F. 3d 1315 (fjh Cir., 1996) citing Gibson v. US 781 F. 2d 1334 (9th Cir.,

1984).
This District Court has inserted bias against Spreadbury implying threats were
made in Findings and Recommendations served July28, 2011. The reception area
for Defendant Lee at 232 W. Main is approximately 50 square feet, with a few
chairs, and a counter. On July 9, 2009 Spreadbury asked to see publisher Kristen
Bounds to ask that Defendant Lee not defame SpreadbWY. Not available,
Spreabury elected to write a hand written note to Defendant Bounds. Business was
transacted as Spreadbury composed note in 50 square foot reception area. Threats
of any kind would preclude business activity at Defendant Lee storefront at 232 W.
Main Hamilton Montana. Fonner Lee employee John Kramer exited the storefront
on the sidewalk with Defendant Chief Oster exclaimed Spreadbury's "behavior"
not "threats" was the reason for the loss of Spreadbury liberty. Composing a hand
written note, and allowing business to be conducted in close quarters at 232 W.
5

Plaintiff Objection to Court findings, LEE

Cause 9:2011-CV-11-64-0WM-JCL

August 5, 2011

Main July 9,2009 all speak to civil conspiracy, policy or custom for Defendant
City Cape v. Crossroads Correctional Center 99 P. 3d 171 Mont. (2004).
Spreadbury had no idea US Magistrate Lynch attended the event July 9,2009 to
confer a true account of the situation; surely federal jurist saw Spreadbury make
the plea to stop the defamation (see Appendix A) defamation later to be put on AP
wires by Defendant Lee in actual malice to Spreadbury.
Defamation per Se
Defamation per se, negligence per se Pled by Spreadbury against Defendant Lee
due to imputing crime of Disturbing Peace, never charged, charge of criminal
trespass on public property, and comments about psychological health in 1f50 ~51
2nd Amended Complaint (TR.#10) Milkovich v. Lorain Journal Co. 497 US 1

(1990). Magistrate Judge Lynch was not aware of August 9, 2010 front page
article imputing crime Spreadbury in headline never charged; US Magistrate
Lynch aware of peaceful assembly on public property protected Amendment 1 US
Constitution and precludes protection for Spreadbury.
It is reckless on the part of this District court to dismiss a Defendant for failure to

state a claim which properly claims Federal Civil rights, defamation, defamation
per se, Intentional Infliction of Emotional Distress, Malicious Prosecution,
Tortious Interference, Policy or Custom depriving right, negligence. Dismissal for
6

Plaintiff Objection to Court findings, LEE

Cause 9:2011-CV-11-64-DWM-JCL

August 5, 2011

failure to state a claim Rule 12(b)(6) rare and must show glaring problems with
basic argument on its face; a pro-se litigant in an civil rights case must have the
ability to amend the complaint prior to dismissal Noll v. Carlson et. al. 809 F. 2d
1446 (9 th Cir., 1987). The only way Lee should be granted partial dismissal from
a case is when no set of facts, including color of law tests pled before this
honorable court ariseMishlerv. Clift 191 F. 3d 998 (gth Cir., 1999).
The Defamatory comments listed as ~50, 51 2nd Amended complaint (TR. # 10) are
imputing psychological illness and are defamation per se, negligence. Article of
August 9, 2010 ~89 2nd Amended Complaint (TR. #10) Defendant Lee imputes
false conviction of crime never charged against Spreadbury, whose publication is
Defamation per se Shook v. Ravalli County 9:08-cv-00172-DVM ~96 line 11.
Peaceful Assembly, Procedural Due Process
This court misinterprets peaceful assembly on public property as "returning to the
library". Peaceful assembly on public property must be supported by this court,
regardless of the circumstances Amendment 1 US Constitution. The procedural
due process violations of the Bitterroot Public Library, by denying Spreadbury
remedy to deprivation of library privileges trigger Stigma Plus Test, Procedural
Due Process 14th Amendment US Constitution Mathews v. Eldridge 424 US 319

(1976). Lee knew or should have known property at a public library leased from a

7

Plaintiff Objection to Court findings, LEE

cause 9:2011-CV-11-64-0WM-JCL

August 5, 2011

municipality is public property, and therefore not criminal trespass for peaceful
assembly. Lee created 4 articles on or around August 20,2010 one year beyond
Spreadbury's peaceful assembly and created two AP stories ample time for
research and accuracy, shows malice, reckless disregard towards Spreadbury as
Journalism trained reporters at Lee republished false light, imputing crime Curtis
Publishing Co. v. Butts 388 US 130 (J 967). August 20 2010 events by Lee are 1)
highly offensive to reasonable person, and 2) knowledge of falsity clear by Lee
employees © Perry Z. Binder Georgia State University Law: "Binder on Torts" .
Statements made in actual malice nullifies privilege under Montana Code Ann.
MCA§ 27-1-804, as does the violation of peaceful assembly abridged by Lee,
Defendants Amendment 1 US Constitution.
Known false statements about constitutionally protected activity such as peaceful
assembly cannot be abridged by any Montana law, in findings before this court
due process clause 14 Amendment US Constitution. Defendant Lee has imputed
crime of Spreadbury, republished false light of repeatedly returning to library when
one appointment made with Library, Spreadbury exhausted remedy including
"reconsideration request form" submitted to Bitterroot Public Library July 8, 2009,
recommended meeting with Director per BPL employee. Dismissal is improper
per well pled case and controversy before this court per Article III US Constitution.

8

Plaintiff Objection to Court findings, LEE

Cause 9:2011-CV-11-64-0WM-JCL

August 5, 2011

Defendant Lee meets Joint Function, Public Function test (interfere with election;
~26 2

nd

Amended Complaint TR. #10) proving color of law with other defendants

in this case Johnson v. Knowles 113 F. 3d at 1118-1120 (cjh Cir., 1997); Partial
Summary Judgment (TR.#51). Defendant Lee imputes Spreadbury of Disturbing
Peace crime ; criminal trespass on public property meets the standard for
emotional distress set under both Sacco v. HMIP Inc. 271 Mont. 209 (1995) actual
lIED prima facie standard in Montana: Johnson v. Supersave 211 Mont. 156
(1984). A prima facie case in Montana for lIED or NIED needs only have this
element without physical or psychological injury Johnson Mont. Supra:
whether tortuous conduct results in a substantial invasion of a legally
protected interest and causes a significant impact upon the Plaintiff.
In the aforementioned, Lee imputed criminal activity as none were perfected by
Spreadbury in engaging in peaceful activity on public property; Defamation,
negligence per se Milkovich, Kernan v. American Dredging Co. 355 US426 (1958).
Significant impact includes pUblication in a national newspaper with 1.8 Million
readers daily, and radio, internet, and television coverage of criminal act of
trespassing on public property, Protected in the 1st Amendment US Constitution, as
is asking for help from a librarian in public, unless said activity occurs in the 48
ranked state ofMontana. Judicial relief and equal protection do not mean
allowance of deprivation of rights. Due to bias from Federal Jurists Lynch,
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th

Plaintiff Objection to Court findings, LEE

Cause 9:2011-CV-11-64-0WM-JCL

August 5, 2011

Malloy, within Spreadbury v. Hoffman 9:10-cv-00049-DWM allowing a law
student, clinic attendee within this District to practice law without a license against
Spreadbury, this court has shown poor judgment, in the aforementioned without
proper recusal18 USC§455 et. seq.
Spreadbury must state a claim that he is entitled to relief to overcome Rule
12(b)(6) failure to state claim met in aforementioned Bell Atlantic Corp. v.

Twombly 167 L. Ed 2d 929 (2007). Partial Dismissal is improper for Defendant
Lee. US Magistrate Lynch in findings and recommendations protecting Montana
actors, not upholding US Constitution; bias evident against Spreadbury in
aforementioned.
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 1957 words excluding title page, this compliance.

Respectfully submitted

BY:

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