IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
CABLE NEWS NETWORK, INC./HEADLINE NEWS C/O Turner Broadcasting Inc.;
AMERICAN BROADCASTING COMPANY, Plaintiff INC.); KVOA COMMUNICATIONS, INC.;
KGUN INC.; KOLD INC.; KNST INC.; “JOHN DOE Defendants,”
|PLAINTIFF’S REPLY IN SUPPORT OF HIS
STATEMENT OF FACTS IN SUPPORT OF HIS COMPLAINT
The Plaintiff hereby submits a Reply in Support
of his Statemement of Material Facts. This will address particular
objections of CNN and TBS, KGUN, and KVOA, but of course apply to Defendants
ABC, KNST and KOLD as well as the Defendants are inextricably intertwined.
CNN and TBS
Defendants CNN in their “Reply in Support.
. .to Dismiss” combined with its “Response in Opposition to Plaintiff’s
Motion to Stay. . .” displays nothing more than this Defendant’s
attempt to confuse the Court of the facts in this case and undermine and
obstruct justice. First of all, CNN’s counsel has witnessed nothing
and is in no position to refute facts witnessed by the Plaintiff.
In addition, this counselor is misstating, or outright creating his own
facts and opinions to try to confuse the Court of the true facts presented
by the Plaintiff. For example, CNN’s opening remark claiming
Plaintiff’s response was “untimely” begins the numerous false
inferences CNN presents in its defense pleadings. Plaintiff’s sealed
response was filed with the Clerk of the Court prior to the deadline.
It is this type of language in CNN’s pleadings that would lead one to believe
Mr. Bodney was the actual defendant and could therefore try to refute facts
he witnessed. Mr. Bodney is neither a defendant nor a witness and
has therefore offered nothing but his baseless opinions to facts in order
to dodge the truth. As a result of this, the Plaintiff will decipher
through all this nonsense for the Court.
CNN purports to confuse and dupe the Court
by claiming certain facts presented by the Plaintiff are “unwarranted
inferences” that are unprovable . Specifically, CNN focuses on
Plaintiff’s fact # 53 or 9(c) of Affidavit # 2.
Nothing could be further from the truth. Archives in this Defendant’s
possession (and others) will verify this. Further, for CNN’s counsel
to try and compare technologically possible surveillance activities
with his cite of Kish v. Videtti/Hussen (D.D.C., 1992) in which
apparently Plaintiff claimed defendants “conspired to ‘transmit radio waves
to her brain in an attempt to torture her and frame her for various actions’”
(CNN Reply in Support at p. 4, l. 11) does not compare to Plaintiff’s provable
facts and Complaint. None of Plaintiff’s facts allege any such activity
regarding “beamed messages” as alleged in Kish. (supra.) Perhaps
the Court should remind CNN’s counsel of its duty as an attorney, to argue
the law and not rephrase or otherwise garble the facts. No matter how hard
defense counsel tries to distort the facts, he can not change the truth.
Furthermore, the action by Kathleen Kennedy is not entirely unusual in
that anchors often make remarks to people they know who are at home
as some sort of communication to “say hello,” (i.e. a husband who is an
anchor tells his child “watch TV during the 9:00 p.m. broadcast and I’ll
say ‘hi Johnnie;’ or perhaps ‘I’ll give you a wink.’”). In this case,
however, such action only evidences surveillance upon the Plaintiff
as of course the Plaintiff does not know nor was there any agreement between
the Plaintiff and the host. A bizarre act, yes, impossible or unprovable,
no. In addition, Plaintiff stated such an act was “aghastly” realized.
The discussion in the legal treatise Warrantless Satellite Surveillance:
Will our 4th Amendment Rights Be Lost in Space? states the obvious:
the potential exists for unknown sources to scrutinize another’s activities
without his knowledge or consent.” (John Marshall Journal of Computer
and Informational Law Vol. XIII. n. 4, p. 731, 1995, bold added).
Had it not been for the Defendants’ desires to judge Plaintiff and make
the remarks they did, obviously Plaintiff would likely never have discovered
such surveillance activities, or at least the extent or who was involved.
Finally, CNN’s premise is failed as it does
nothing to support its unsupported claim that Plaintiff has no recognized
legal theory other than its suggestion Plaintiff had an “unfortunate delusion.”
(CNN Reply at p. 1) CNN’s empty apparent name calling only suggests
that CNN’s counsel also believes prestigious law schools such as
John Marshall and Stanford devote numerous pages of well detailed
legal treatises in their law journals as delusions based on nothing verifiable
. Obviously the Court can not accept such a failed defense
theory. Thus, CNN’s faulty cite of Hagans v. Lavine in which it
attempts to label Plaintiff’s Complaint as “absolutely devoid of merit”
(CNN Reply, p. 2 l. 8) is just another example of CNN, through its counsel
now, trying to play judge and jury. The fact CNN is fixated on is
both technologically possible and it did in fact happen, therefore the
Court must as a matter of law accept it as not just a reasonable inference,
but the truth. CNN has offered nothing to disprove this fact, (or
any of the facts) other than to deliberately and mistakenly compare it
with Kish. (supra.) Plaintiff is merely stating the truth; perhaps
he should have delayed stating this fact now that he knows it has led to
a silly defense ploy. Perhaps it is CNN’s counsel’s own ignorance
or unfounded denial of technological capabilities and advances in technology
that lead him astray. CNN’s fixation to this fact offers nothing
to refute this fact legally or in substantive opposition to dispute the
fact. Moreover, the fact that CNN’s counsel has bolded this fact
within its Reply pleading only displays his own astonishment, thus validating
such conduct to be “highly offensive and unreasonable,” to the capability
of such an act. Quite simply, the average person or even well educated
and well read persons, are likely unaware of the surveillance capabilities
of lasers and space satellites. Plaintiff’s witnessing the event
is sufficient to stand as a fact for jury consideration, just as it would
be if this were a sexual harassment case and there was a fact to be considered
between the harasser and the harassee, though here obviously other people
would have knowledge to this event.
Continuing along these lines, CNN’s own argument
negates itself. For example, on the one hand, CNN illogically states
Plaintiff’s claims, to paraphrase, “fall into conclusary allegations
or legal conclusions masquerading as factual conclusions that would warrant
dismissal.” Plaintiff witnessed what is presented. Presumably,
then, CNN would have the Court believe that had Plaintiff witnessed Mr.
Bodney’s house emanating in flames, that it would be improper for Plaintiff
to conclude there was a fire and therefore also improper for Plaintiff
to call the fire department.
On the otherhand, CNN claims non-conclusory
factual allegations also warrant dismissal with regards to Plaintiff’s
fact regarding the probability that unknown persons who may
or may not be employees of the Defendants could be implicated with regards
to state action and the § 1983 claim. Bivens v. Six Unknown
Federal Narcotic Agents (403 U.S. 388, 1971) affirms such an element
of Plaintiff’s claims. Therefore, CNN’s textbook citation from
Moore’s Federal Practice is a misplaced and irrelevant authority to desperately
stray the Court (CNN Reply, p. 4-5); CNN can not have it both ways
no matter how hard it tries to trick the Court. Thus, Discovery will
yield the extent of the involvement between the Defendants and the two
law enforcement agents, along with the other state officials.
Moreover, the accepted rule is that a complaint is
not to be dismissed "unless it appears beyond doubt that the plaintiff
can prove no set of facts in support of his claim which would entitle him
to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99,
101-103, 2 L. Ed. 2d 80 (1957); Russell v. Landrieu, 621 F.2d 1037,
1039 (9th Cir. 1980); DeWitt v. Pail, 366 F.2d 682, 685 (9th Cir.
(quoting from U.S. v. City of Redwood City, 640 F.2d 963, 9th
In addition, while the Plaintiff has provided the legal basis for his
“[he] is not required to state the statutory or constitutional
basis for his claim, only the facts underlying it.” See Haddock
v. Board of Dental Examiners of California, 777 F. 2d 462, 464 (9th
Cir. 1985). (complaint “should not be dismissed if it states a claim
under any legal theory, even if the plaintiff erroneously relies on a different
(quoting from McCalden v. California Library Association,
bold added, 955 F. 2d 1214, 9th Cir., 1990).
KGUN has submitted a ".
. . Response to Plaintiff's Statement of Facts. . . ." In this Response,
KGUN proposes objections to many of Plaintiff's facts. This Reply
will explain why KGUN's objections are baseless and inapplicable.
While no other Defendants have yet submitted any similar Response, this
Reply should be applied to all Defendants’ pleadings.
In its Response in paragraph one (1), KGUN objects based on its
claim those facts are "not supported by admissible evidence." Those
facts were presented based on the affidavits of Plaintiff's personal knowledge.
Opposing counsel do not know what types of knowledge the Plaintiff may
or may not have regarding any subject matter. In addition, once discovery
is compelled, and other supporting documents are filed, these facts will
be substantiated further. None of Plaintiff's facts are heresay,
and any person can obtain the personal knowledge of KGUN's affiliation's
and broadcasting activities simply by turning on their TV. For example,
fact five (5) can be easily verified by any citizen who was not living
in a cave as just recall how many time the public was brainwashed over
and over with the “Rodney King videotape beating.” None of Plaintiff's
allegations are speculation as he witnessed all that was presented.
KGUN's objections are nothing more than unfounded textbook objections.
In its Response in paragraph two (2) KGUN
objects based on its claim those facts are "irrelevant, immaterial, and
unsupported." To the contrary, each of those facts are relevant,
material and supported. KGUN's objections are based on the faulty
affidavit submitted by Karen Lee Rice as Plaintiff has already pointed
out. As for KGUN's claim that Plaintiff has submitted no evidence
regarding paragraphs 33-43 or 54, Plaintiff was a witness to those events
and by no means can that be considered hearsay.
In its Response in paragraph three (3)
KGUN objects based on its claim those facts are "immaterial, irrelevant
and unsupported." First, KGUN incorrectly refers to Plaintiff's
employment to the year 1994, the year was 1995-1996. KGUN can not
call events Plaintiff witnessed as "speculations and fantasies."
The disputed evidence is (a) KGUN and its employees were aware of a teaching
contract that might have been offered to Plaintiff, and (b) KGUN was aware
of Plaintiff's profession and attempts to find employment as explained
throughout Plaintiff's Statement of Material Facts.
KGUN's objection to Paragraph 75 of Plaintiff's Statement of
Material Facts is unfounded and unsupported. Plaintiff has submitted
facts to support his 42 U.S.C. 1985(1) claim. KGUN's counsel of course
wants to deny this, and all the other facts.
KVOA’S SUPPLEMENTAL AFFIDAVIT OF JON RUBY
The Affidavit of Jon Ruby dated January 16,
1998 does nothing to rebut specifically paragraph 9(d) of Affidavit #2
of Plaintiff dated January 03, 1998.
The event in question, as stated, occurred within an hour of Plaintiff’s
interview, meaning specifically between approximately 8:30 a.m. and 9:30
a.m. No where did Plaintiff allege that specific act occurred in
any of KVOA’s regular shows as the Affidavit of Jon Ruby addresses.
As it has already been pointed out in Plaintiff’s
“Memorandum in Support of his Complaint,” the affidavits of Defendant’s
KVOA, KOLD, KNST and KGUN do not meet the standard regarding affidavits
in “. . .that any factual assertion in the movant's affidavits will
be taken as true by the district court unless the non-movant contradicts
the movant with counter-affidavits or other documentary evidence." Timms
v. Frank, 953 F.2d 281, 285 (7th Cir.), cert. denied, 504 U.S. 957,
112 S. Ct. 2307, 119 L. Ed. 2d 228 (1992). (quoting from Rand
v. Rowland Blue Book Citation Form: 1997.C09.1163, 9th Cir. 1997)
The Plaintiff has provided such non-movant affidavits that can easily be
confirmed with the archives described and held by the Defendants.
In sum, objections by the Defendants, thus
far CNN and KGUN, to Plaintiff's facts amount to a trial by defense counsels
opinions supported by nothing other than their subjective opinions.
Furthermore, questions of fact are determinations for a jury. The
events that transpired between 1995 and 1996 are not defense counsels fault.
Opposing counsel should be more concerned with the truth and be appalled
as well at the conduct carried out by the Defendants as they too are citizens
of Arizona and the United States and they or someone they know could very
well become a victim next.
Dated January 31, 1998, Plaintiff
Copies of the foregoing mailed, to the addresses on record, this
31st day of January 1998, to:
David J. Bodney/CNN & TBS
Diane M. Johnsen & Stephen E. Silverman/ABC
George O. Krauja & Jennifer M. Dubay/KGUN
Janice A. Wezelman/KVOA
Gary F. Urman/KOLD & KNST
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