Spreadbury v. Bitterroot Public Library et al

Filing 96

Reply to Objection to Findings and Recommendations re 75 FINDINGS AND RECOMMENDATIONS re 5 MOTION to Dismiss Defendant Lee Enterprises, Inc.'s Motion to Dismiss All Counts Against Lee Enterprises filed by Lee Enterprises Incorporated, 51 MOTION for Partial Summary Judgment filed by Michael E.FINDINGS AND RECOMMENDATIONS re 5 MOTION to Dismiss Defendant Lee Enterprises, Inc.'s Motion to Dismiss All Counts Against Lee Enterprises filed by Lee Enterprises Incorporated, 51 MOTION for Partial Summary Judgment filed by Michael E. DEF LEE ENTERPRISES' RESPONSE TO PL'S OBJECTIONS TO FINDINGS AND RECOMMENDATIONS OF US MAGISTRATE JUDGE RE LEE ENTERPRISES' MOTION TO DISMISS filed by Lee Enterprises Incorporated. (Smith, Jeffrey)

Jeffrey B. Smith

GARLINGTON, LOHN & ROBINSON, PLLP
350 Ryman Street . P. O. Box 7909
Missoula. MT 59807-7909
Telephone [phone]
Telefax (406\ 523-2595
j bsmith@garlington. com
Attomeys for Defendant, Lee Enterprises, Inc.

IN TIIE I.]NITED STATES DISTRICT COT]RT
FOR THE DISTRICT OF MONTANA
MISSOULA DIVISION
Cause No. CV- I 1 -064-M-DWM

MICHAEL E. SPREADBURY,
Plaintiff,

BITTERROOT PUBLIC LIBRARY.
CITY OF HAMILTON, LEE
ENTERPRISES. INC.. and BOONE
KARLBERG P.C..

DEFENDANT LEE ENTERPRISES,
INC.'S RESPONSE TO PLAINTIFF'S
OBJECTIONS TO FINDINGS AND
RECOMMENDATIONS OF U.S.
MAGISTRATE JUDGE RE LEE
ENTERPRISES'MOTION TO
DISMISS

Defendants.

COMES NOW Co-Defendant, Lee Enterprises, Inc. ("Lee Enterprises"),
through its counsel, Garlington, Lohn & Robinson, PLLP, and hereby respectfully

files its Response to Plaintiff s Objections to Court Findings; In Re: Defendant Lee
Enterprises,

Inc. (Dkt. 87.)
INTRODUCTION

On July 28,2011, the U.S. Magistrate Judge entered Findings and

104105 |

Recommendations (Dkt. 75) regarding Lee Enterprises' Federal Rule of Civil

Procedure l2(bX6) motion to dismiss Plaintifl Michael Spreadbury's

("Spreadbury") Amended Complaint (Dkt 1-l) for failure to state a claim upon
which relief can be granted, and Findings and Recommendations regarding
Spreadbury's Motion for Partial Summary Judgment against Lee Enterprises.
The U.S. Magistrate recommended Lee Enterprises' Motion to Dismiss be
granted in part, and denied in all other respects. Specifically, the Court
recommended dismissal of Spreadbury's defamation claim with respect to the

arlicles published by Lee Enterprises, dismissal of Spreadbury's defamation per

se

claim, dismissal of Spreadbury's 42 U.S.C. $ 1983 claim, and dismissal of
Spreadbury's claim of negligence per se. (Dkt. 75.) The U.S. Magistrate also
recommended Spreadbury's Motion for Partial Summary Judgment be denied.
Spreadbury objected to the Court's Findings and Recommendations. (Dkt.

87.) However, Spreadbury's objections are without merit and it would be an abuse
of discretion for the Court to reject or modif, the U.S. Magistrate Judge's
recommendations.

ARGUMENT

I.

The U.S. Magistrate's Findings and Recommendations Regarding Lee
Enterprises' Motion to Dismiss.
'oA cause of action may be dismissed under Rule I 2(bX6) either when

asserts a legal theory that is not cognizable as a matter of law, or

l04l05

t

it

if it fails to allege

sufficient facts to support an otherwise cognizable legal claim." (Dkt. 75:5.) Since
Spreadbury's Complaint failed to set forth sufficient facts to support his claims of:
defamation (as to the articles published by Lee Enterprises), defamation per se, 42
U.S.C. {i 1983., and negligence per se, the U.S. Magistrate correctly recommended
dismissing these claims.

A.

The U.S. Magistrate Correctly Recommended Dismissal of
Spreadbury's Defamation Claim. As It Pertains to the Articles
Published By Lee Enterprises. and Spreadbury's Claim of
Defamation Per Se.

As articulated in the U.S. Magistrate's Findings and Recommendations,
Spreadbury's claim of defamation regarding the article published by the Ravalli
Republic and Spreadbury's claim of defamation per se should be dismissed
because the articles were privileged.

Section 27-1-804(4) "makes a fair and true report without malice of

a

judicial

proceeding a privileged publication." Cox v. Lee Enters., Inc.,222Mont. 527,

529 7 23 P.2d 238, 239 -240 ( I 986). Spreadbury' s Amended Complaint basically
claims Lee Enterprises defamed Spreadbury by publishing articles about or
pertaining to the criminal trespass charges brought against him, which were
subsequently dropped by the

City. (Dkt. l-l

at ll'lf 181-189.) However,

Spreadbury's allegations establish that these matters occurred in the judicial
proceedings. Therefore, Lee Enterprises' reports ofthejudicial proceedings were

privileged and Spreadbury's claim of defamation (as it pertains to the articles

|

041051

published by Lee Enterprises) and Spreadbury's claim of defamation per se should
be dismissed.

Likewise, Spreadbury's Complaint fails to set forth sufficient facts to show
Lee Enterprises published the articles with malice. The U.S. Magistrate conectly

pointed out Spreadbury's allegations of malice were purely conclusory and,

accordingly, should be dismissed.
Spreadbury's objections to the U.S. Magistrate's recommendation are without

merit. Spreadbury

argues he was on public property when charged with trespass

and Lee Enterprises should have known he could not be charged with criminal
trespass on peaceful assembly. (Dkt. 87:7-8.) However, Spreadbury fails to

recognize Lee Enterprises simply published articles based on the judicial
proceedings brought against

him. As such, the articles are privileged

and

Spreadbury's claim of defamation as to the articles published by Lee Enterprises
and his claim of defamation per se should be dismissed.

B.

The U.S. Magistrate Conectly Recommended Dismissal of
Spreadbury's 42 U.S.C. Q 1983 Claims Against Lee Entemrises.

Spreadbury's 42 U.S.C. $ 1983 claims against Lee Enterprises should be
dismissed because Spreadbury's Complaint fails to set forth sufficient facts to
establish Lee Enterprises conspired and/or acted

jointly with the govemment to

deprive him ofany rights.
In order to recover under $ 1983 for conduct by the defendant, a

l04t05l

plaintiff must show that the conduct allegedly causing the
deprivation ofa federal right be fairly attributable to the State. The
state-action element in $ 1983 excludes from its reach merely
private conduct, no matter how discriminatory or wrongful.

il

though only if, there is such a close
[s]tate action may be found
nexus between the State and the challenged action that seemingly
private behavior may be fairly treated as that ofthe State itself.
Caviness v. Horizon Community Learning Ctr., lnc.,590 F.3d 806, 812 (9th Cir.

2010) (intemal quotations and citations omitted). The Ninth Circuit Court

of

Appeals recognizes four tests to determine whether private action qualifies as state

action: "(1) public function; (2) joint action; (3) govemmental compulsion or
coercion; and (4) govemmental nexus." Kirtley v. Rainey, 326

F

.3d I 088, 1092

(9th Cir. 2003) (intemal quotations and citations omitted).
Spreadbury argues Lee Enterprises acted in concert with, or conspired with

other Defendants to deprive him of his constitutional rights. However, his

Complaint fails to set forth sufficient factual allegations to support his claim.
Specifically, Spreadbury fails to show Lee Enterprises had any sort ofagreement
and/or plan with the govemment.
Spreadbury objects to the U.S. Magistrate's recommendations, arguing Lee
Enterprises came to an agreement with Defendant City of Hamilton to ask
Spreadbury to not enter Lee Enterprises' store front. (Dkt. 87:8.) However, as

correctly pointed out by the U.S. Magistrate, "[a] private party's conduct in

t

04

r05l

summoning police to address an individual perceived as threatening does not anse
to the level ofjoint action or a conspiracy." Dkt. 75: 16. (citing Dietrich v. John
Ascuaga's Nugget,548 F.3d 892, 899-900 (9th Cir. 2008)).
Spreadbury also asserts the events surrounding his ban from Lee Enterprises'
store front "speak to civil conspiracy." Dkt. 87:6. However, like his claim

ofjoint

action, his Complaint fails to set forth sufficient factual allegations for a conspiracy

claim and, accordingly, should be dismissed.

Similarly, Spreadbury's claim that Lee Enterprises conspired against him by
publishing various newspaper articles is made without any support. As described
in greater detail herein, ar"ticles published by Lee Enterprises were based on official

Ravalli County Court documents. They, accordingly, are privileged. Spreadbury
essentially claims Lee Enterprises' act of publishing articles about Spreadbury's
charge of criminal trespass and subsequent conviction amount to a conspiracy
against him because the trespass charges were later dropped by the City, and Lee
Enterprises should have known "peaceful assembly" on public property is a
protected property

right. Spreadbury's description ofthe

charges brought against

him is inaccurate. Plus, Spreadbury offers no factual support ofa conspiracy or
otherwise agreement to deprive him of his rights, and he offers no support that the
articles published by Lee Enterprises' newspapers were false or otherwise not

privileged.

t

04l05l

Finally, Spreadbury argues Lee Enterprises conspired to interfere in his
election and assisted in depriving his library privileges. However, like his other
claims, Spreadbury offers no supporting factual allegations, and the U.S.
Magistrate correctly noted that "[b]are allegations ofjoint action are insufficient to
overcome a motion to dismiss." Dkt. 75: 1 6.
Since Spreadbury has offered no factual support for his allegations that Lee
Enterprises actedjointly and/or conspired with the other Defendants to deprive him

of his rights, the U.S. Magistrate correctly recommended dismissing Spreadbury's
$ 1983 claims.

C.

The U.S. Magistrate Correctly Recommended Dismissal
Spreadbury's Claim of Negligence Per Se.

of

Spreadbury's Complaint fails to set forth any factual support for his claim

of

negligence per se.

In order to establish negligence per se, a plaintiff must prove that:

l)

defendant violated the particular statute; (2) the statute
was enacted to protect a specific class ofpersons; (3) the
plaintiff is a member of that class; (4) the plaintiff s injury
is of the sort the statute was enacted to prevent; and (5) the
statute was intended to resulate members of defendant's
class.

Prindel v. Ravalli County,2006 MT 62,127,331 Mont. 338, 133 P.3d 165
(intemal quotation and citation omitted).
In his objection to the U.S. Magistrate's recommendations, Spreadbury again

I04105 |

fails to support his claim of negligence per se with any factual allegations. Most

significantly, Spreadbury has yet to cite a particular statute allegedly violated by
Lee Enterprises in support of his claim for negligence per se.
Since Spreadbury's Complaint fails to assert any facts in support of any of the
elements of negligence per se, the U.S. Magistrate correctly recommended

dismissal of Spreadbury's claim of negligence per se.

II.

Spreadbury's Motion for Partial Summary Judsment Asainst Lee
Enterprises.
Federal Rule of Civil Procedure 56 govems the standard for awarding

summary judgment.

Under Rule 56(c), summary judgment is proper if the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving party is entitled to
a judgment as a matter of law.
Celotex Corp. v. Catrett,477 U.5.317,322 (1986) (internal quotations omitted).
The moving parly bears the burden of showing an absence of material issues

of

fact and entitlement to judgment as a matter of law. Celotex Corp., 477 U.S. at

323. Since Spreadbury, the moving party, failed to establish an absence of
material issues of fact and an entitlement to judgment as a matter of law, the U.S.
Magistrate correctly recommended Spreadbury's Motion for Summary Judgment
be denied.

It does not appear that Spreadbury has filed objections to the U.S.

t04

t

05l

Magistrate's recommendation of dismissing his Motion for Partial Summary
Judgment against Lee Enterprises, as his objections regarding Lee Enterprises

(Dkt. 87) do not address the U.S. Magistrate's recommendations in this regard.
However, any objections would be without merit and the U.S. Magistrate correctly
concluded Spreadbury is not entitled to such relief.
First, as articulated above, Spreadbury cannot be entitled to summary

judgment on his claims of defamation (as to the articles published by Lee
Enterprises), defamation per

se,,

42 U.S.C. $ 1983, and negligence per se because

these claims fail to state a claim upon which relief can be granted.

Further, Spreadbury is not entitled to summary judgment as to his remaining
claims since he has not identified any facts to support his motion for summary

judgment and failed to establish an absence of genuine issues of material fact to
these claims. As such, the U.S. Magistrate's Recommendations are conect and

should be affirmed.

CONCLUSION
The U.S. Magistrate's Findings and Recommendations regarding Lee
Enterprises' Motion to Dismiss and Spreadbury's Motion for Summary Judgment
are correct and should be affirmed. Like Spreadbury's Complaint, his objections

to the U.S. Magistrate's Recommendations regarding Lee Enterprises' Motion to
Dismiss fail to set forth sufficient factual allegations and, therefore, should be

l04t

051

rejected by the Court.

Likewise, although Spreadbury's objections did not address the U.S.
Magistrate's Recommendations regarding Spreadbury's Motion for Partial
Summary Judgment against Lee Enterprises, any objection would be without merit
since Spreadbury failed to set forth any facts to support his Motion for Partial

Summary Judgment and failed to establish an absence of genuine issue of fact.
The U.S. Magistrate's Recommendations are correct and should be affirmed.

DATED this 17th day of August, 201

1.

lsl

Jeffrey B. Smith
Attomeys for Defendant, Lee Enterprises, Inc.

l0
|

04

t05l

CERTIFICATE OF COMPLIANCE
Pursuant to L.R. 7. 1(d)(2XE), I certiSr that this De.fendant Lee Enterprises,

Inc.'s Response to Plaintiff's Objections to Findings and Recommendations of tJ.S.
Magistrate Judge Re Lee Enterprises' Motion to Dismiss is printed with

proportionately spaced Times New Roman text typeface of 14 points; is doublespaced; and the word count, calculated by Microsoft Office Word 2007,is 1874

words long, excluding Caption, Certificate of Service, and Certificate

of

Compliance.

lsl

Jeffrey B. Smith
Attornevs for Defendant. Lee Entemrises. Inc.

II
t04l05l

CERTIFICATE OF SERVICE

I hereby certift that on the 17th day of August ,2Q11, a copy of the foregoing
document was served on the following persons by the following means:

1.3
2

CM/ECF
Hand Delivery

Mail
Ovemight Delivery Service
Fax

E-Mail

l.

Clerk, U.S. District Court

2

Michael E. Spreadbury
P.O. Box 416
Hamilton. MT 59840
Pro Se Plaintiff

3.

William L. Crowley
Natasha Prinzing Jones
Thomas J. Leonard
[e-mail]
npjones@boonekarlberg. com
tleonard@boonekarlberg. com
Attomeys for Defendants Bitterroot Public Library, City of Hamilton, and
Boone Karlbere P.C.

lsl

Jeffrey B. Smith
Attomevs for Defendant. Lee Enterprises. Inc.

t2
t04l05l