Spreadbury v. Bitterroot Public Library et al, No. 9:2011cv00064 - Document 91 (D. Mont. 2011)

Court Description: OBJECTION to 79 Findings and Recommendations filed by Michael E. Spreadbury. (APP, ) (Entered: 08/11/2011)
Download PDF
Spreadbury v. Bitterroot Public Library et al Doc. 91 Michael E. Spreadbury FILED 700 S. 4th Street AUG 102011 Hamilton, MT 59840 PATRICK E. DUFFY. CLERK ax DIPUTY CLERK. MISSOULA Telephone: (406) 363­3877 mspread@hotmail.com Pro Se Plaintiff IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MONTANA MISSOULA DIVISION ) Cause No: CV­11­64­DWM­JCL MICHAEL E. SPREADBURY ) Plaintiff v. ) OBJECTION TO COURT BITTERROOT PUBLIC LIBRARY, ) FINDINGS; CITY OF HAMILTON, ) PRELIMINARY LEE ENTERPRISES, INC., ) INJUNCTIVE RELIEF BOONE KARLBERG, PC, ) IN RE: ­­­­­­­­­­­­­­­­­­­­­­­­­­­) Comes now Spreadbury with objection to court findings and recommendations with respect to preliminary injunctive relief in the aforementioned. Motion: Spreadbury moves that Honorable court rejects findings and recommendation of US Magistrate Lynch, bias to Spreadbury, precludes injunctive relief denial. 1 Dockets.Justia.com Plaintiff Objection to Court findings, City Cause 9:2011-CV-11-64-DWM-JCl August 9,2011 Brief in Support The Honorable court is made aware of four (4) findings and recommendations in the aforementioned by US Magistrate Lynch TR. # 67, 75, 76, 79; abuse of discretion by District court Rucker v. Davis 237 F. 3d at 1118 (ljh Cir., 2001). Spreadbury prays for injunctive reliefbefore Honorable District Court in 2 nd Amended Complaint (TR. #10) for Defendants, acting in color of law: Count 22 pg. 38 In 649 2nd Amended Complaint ­­Boone Karlberg PC Count 23 pg. 38 In 671 2nd Amended Complaint­Lee Enterprises Inc. Count 24 pg. 41ln 690 2nd Amended Complaint ­­Bitterroot Public Library Count 25 pg. 41 In 707 2nd Amended Complaint ­­City of Hamilton Successful prayers for injunctive relief rely on 1) success on the merits of the case, prospect of irreparable harm and 2) serious questions are raised, balance tips in favor of plaintiff Prudential Real Estate Affiliates Inc. v. PPR Reality Inc. 204 F. 3d 867 864 (ljh Cir., 2000). Irreparable Harm component 2 Plaintiff Objection to Court findings, City August 9, 2011 Cause 9:2011-CV·11-64-0WM-JCL 1. Spreadbury has pled permanent disability in aforementioned, an irreparable harm caused by continuous Defendant unconstitutional, defamatory, negligent, unlawful action as pled in 2nd Amended Complaint. 2. Defendant City of Hamilton deprived Spreadbury's right to speak July 2011, deprivation of free speech with Defendant Bitterroot Library Employee November 4,2009 make irreparable harm to Amendment 1,5, 14 to equal b protection of Spread ury's free speech protected in the US Constitution. 3. Judge Reardon published in opinion for order of rotection that no fmdings p of fact or conclusion of law, procedural due process (no hearing) at Montana District Court, cause DV­10­93 in the 21 st Montana District Court. Defendant Boone Karlberg PC, in color of law, beneficiary ofRacketeering Activity to protect BPL employee deprives Spreadbury liberty, established right in US Constitution Amendment 5, 14 Semegen v. Weidner 780 F. 2d 727 (fih Cir, 1985), Schreiber Distributing v. Servo Well Furniture Co. 806 F. 2d 1393 (fih Cir, 1996). 4. Defendant Bitterroot Public Library denied library privilege to Spreadbury in violation of Montana Code Ann. MCA§ 22­1­311 [Use ofLibraryPrivileges] without cause, Procedural Due Process, liberty deprived, protected in Amendment 5, 14 US Constitution Mathews V. Eldridge 424 US 318 (1976). Stima­Plus test, public function, joint action, Nexus test, State 3 Plaintiff Objection to Court findings, City cause 9:2011-CV-11-64-0WM-JCL August 9,2011 Compulsion test effected by Defendant public library against Spreadbury due to statutory law, constitutional right deprived Paul v. Davis 424 US 693 (1976), Johnson v. Knowles 113 F. 3d at 1118-1120 (gh Cir., 1997). 5. Defendant Detective Murphy engaged in depriving Spreadbury right to speak July 2011 in Hamilton, Montana which is evidence of continued deprivation of Spreadbury's fundamental constitutional right protected Amendment 1 US Constitution since Spreadbury filed complaint before this US District court. 6. Defendant Lee Enterprises showed reckless disregard for Spreadbury's character in publishing known false, defamatory articles imputing Spreadbury with criminal activity that was never charged. One year after constitutionally protected act ofpeaceful assembly on Defendant City public property, Lee generates 4 articles, 2 elevated to AP with false, false light information about Spreadbury. National, international publication, republication of known false information about Spreadbury; request for civil arrest of Defendant Baucus per Montana Code Ann. MCA§ 27­16­102(2) requested before court. Irreparable reputational harm effected by Defendant Lee Enterprises, published approximately 30 defamatory articles in actual malice within 3 years containing known false information. 4 Plaintiff Objection to Court findings, City cause 9:2011-CV-11-64-0WM-JCl August 9,2011 7. Defendant Boone Karlberg PC, since service of summons in the aforementioned has imputed crime of 18 USC § 912 [impersonating federal law enforcement], other pleading with known falsity, in malice which nullifies privilege due to 1) Imputing crime ofprotected activity 2) nullification of privilege due to malice per Montana Code Ann. MCA§ 27­1804 [What communication privileged]. Merits of Case US Magistrate Lynch refuses to uphold Spreadbury's right to peaceful assembly protected in Amendment 1 US Constitution. Property at 306 State Street Hamilton Montana is irrefutably public property, public park (Plaintiff Motion for Summary Judgment City, Public Library TR. # 30) Hague v. CIO 317 US 496 515 (1939). Spreadbury established to this court original Platt Map of City ofHamilton Montana original block #18; Defendant Bitterroot Public Library is public property where Spreadbury peacefully assembled August 20, 2009. Honorable US District Judge Malloy refused to grant or deny immunity to Defendant City of Hamilton actors in the aforementioned, no functional analysis of immunity by Defense counsel, yet court compelled discovery (TR.# 68), Harlow v. Fitzgerald 457 US 800 (1982), Morley v. Walker 175 F. 3d 756 (9 th Cir. 1999). 5 Plaintiff Objection to Court findings, City cause 9:2011-CV-11-64-DWM-JCL August 9, 2011 Implications to Spreadbury District Court in aforementioned precludes Spreadbury free speech, liberty, procedural due process protected in US Constitution. Standard for District court for injunctive relief is repetition of deprivation ofright, irreparable harm A&M Records Inc. v. Napster Inc. 239 F. 3d at 1013 (tjh Cir., 2001). Spreadbury has suffered irreparable harm of employment disability due to intentional, continuous unlawful deprivation of established right by Defendants in color of law, as pled in aforementioned. Spreadbury was arrested outside law, without representation, cruel and unusual punishment by Ravalli County Sheriff Hoffman, main defendant in Spreadbury v. Hoffman 9: 10­cv00049­DVM where injunctive relief r equested against law enforcement, county judiciary. Specifics: County Judge found Contempt outside hearing in violation of Montana Code Ann. MCA§ 3­10­401; Spreadbury unlawfully arrested in violation of 4th Amendment US Constitution. Sentenced to 3 days detention, served outside of general population due to "list" made by Hoffman; a "policy or custom" specifically made for Spreadbury Monell v City of New York Dept. ofSocial Services 436 US 658 (1976). Cruel and unusual b punishment of Spread ury, a disabled person in violation of Americans with Disabilities Act (ADA), 42 U. S. C. § 12102(2)(A), 8th Amendment US 6 Plaintiff Objection to Court findings, City Cause 9:2011-CV-11-64-0WM-JCL August 9, 2011 Constitution Ingraham v. Wright 430 US 651 (1977) citing Greene v. McElroy 360 US 474 (1959) "traditional ideas offair treatment". Charge of Criminal Mischief MCA§ 45­6­101, Disorderly Conduct MCA§ 45­8101 have no probable cause, no equal protection for Spreadbury who wrote with chalk on a public sidewalk, third annual "Daly Days" chalk festival was held day after Spreadbury arraignment for same activity protected in Amendment 1,14 US Constitution. Honorable Court is infonned Defendant City ofHamilton, Defendant Detective Murphy of the Hamilton Montana Police Department participated in the unlawful detention of Spreadbury for writing on public sidewalk with chalk, did not uphold Spreadbury right to free speech, equal protection as protected in Amendment 1, 4, 14 US Constitution. Spreadbury faces threat of repeated injury O'Shea v. Littleton 414 US at 495-496 (1974). Defendants actions against Spreadbury meet the "capable of repetition" clause: Spreadbury subject to illegal activity on the part ofthe Defendants in the aforementioned and entitled to preliminary court injunction, equitable relief Defunis v. Odegarardma US 312 (1974). Spreadbury has afftrmative proof Defendants "capable of repetition yet evading review" from this honorable court as "not entitled" Southern Pacific Terminal Co. v. ICC 299 US 498 515 (1911), Roev. Wade 410 US 113125 (1973). Spreadbury 7 Plaintiff Objection to Court findings, City August 9,2011 cause is in live controversy with city, county: four (4) unlawful arrests since 2007 with documented irreparable injury requires court intervention Los Angeles c. Lyons 461 US at 109 (1983). As court ignores Spreadbury's peaceful assembly on Defendant City of Hamilton public property August 20, 2009 as pled in the aforementioned, initiates application of erroneous legal principles, represents an abuse of discretion by the District CourtRuckerv. Davis 237 F. 3d at 1118 (gth Cir., 2001) citing Does 1­5 v. Chadler 83 F. 3d 1150 1152 (gth Cir., 1996). Spreadbury has properly pled for District Court to properly intervene with equitable, preliminary injunctive relief ofunlawful activity of Defendants deprive Spreadbury protected right in the aforementioned, caused irreparable injury. Certificate of Compliance d From LR 7( )(2)(E) US District Court Rules Montana, I certify that this brief confonns with 14 point font, New Times Roman typeface, is double spaced, contains 1310 words excluding title page, this compliance. Respectfully submitted thi 2011 BY: Michael E. Spreadbury, S IfRepresented Plaintiff 8 Certificate of Service Cause No. 9:2011­cv­l1­0064­DWM­JCL I certify as Plaintiff in this action, a copy ofthe 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: Objection to court Findings & Recommendations: Preliminary Injunctive Relief Russell Smith Federal Courthouse Clerk of Court 201 E. Broadway Missoula, MT 59803 Defendant Counsel: Plaintiff Counsel: William L. Crowley Michael E. Spreadbury Boone Karlberg PC PO Box 416 PO Box 9199 Hamilton, MT 59840 Missoula MT 59807 (self­represented) Jeffrey B Smith Garlington, Lohn, & Robbinson PLLP POBox 7909 Missoula MT 59807 Dated ­ ­ ­8/9/2011 ­ ­ ­ ­ Mich el E. Spreadbury, Pro Se Plaintiff