# Petition for Writ of Certiorari — Wenc v. Cable News Network, Inc. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386014_0328%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1999 - **Citation:** 528 U.S. 1063 ## Text 7 Supreme Court, U.$ CY FILED 29 Z5S NVI OFFICE OF THE CLERK No. : IN THE Supreme Court of the United States ANTHONY S. WENC, Petitioner ¥. CABLE NEWS NETWORK, INC./HEADLINE NEWS C/O Turner Broadcasting Inc.; AMERICAN BROADCASTING COMPANY, INC.(ABC INC.); KVOA COMMUNICATIONS, INC.: KGUN INC.: KOLD INC.: KNST INC:: JOHN DCE Defendants,” On Petition For Writ of Certiorari To The United States Court of Appeals for the Ninth Circuit PETITION POR WRIT GF CERTIORARI Anthony S. Wene Pro Se 249 S. Garden Ave. #1 Sierra Vista, AZ 85635 (S20)458-3693 LP a e. Sa a RE I PE nl. es Re oT, LEGAL QUESTIONS FOR REVIEW 1) Is warrantless satellite surveillance a violation to the 4th Amendment of the Constitution of the United States, Federal Wiretap Statutes (18 U.S.C. § 2510 et. seq.) and Article II § 8 of the Constitution of Arizona for which there can be civil remedy against either private or state perpetrators of satellite surveillance and/or other surreptitious electronic eavesdropping and surveillance? 2) Is peering into the window of a private residence by a law enforcement agent without a warrant a violation to the 4th Amendment’s “search and seizure” clause? 3) Satellite surveillance is conducted remotely and secretly, and in most cases unknown to the subject, inherently making it difficult to obtain evidence to prove being victim to such surveillance. Does a civil complainant have a right to discovery and a right to present evidence to a court in order to be able to prove an allegation of satellite surveillance? 4) Does 42 U.S.C. § 1985(1) provide legal protection for state employed school teachers, who are employed under the requirements to have taken an “oath of office” to uphold the Constitution of the United States; or other state sanctioned persons such as a Precinct Committeeman? 5) Does the intent of the language of 42 U.S.C. § 1985(2) provide that the act of “attending” court include filing a lawsuit; and does eavesdropping on telephone calls to legal counsel constitute obstruction of justice under this statute? 6) Does 42 U.S.C. § 1985(3) provide protection from a conspiracy against a person due to his/her political and religious affiliations when such a conspiracy violates 4th amendment rights due to satellite surveillance and/or other surreptitious electronic eavesdropping and surveillance? Are nublic school teachers a protected class within the meaning of §1985(3)? 7) Are television broadcasters and/or cable operators “common carriers” subject to private liability under 47 U.S.C. § 206 for derived regulations of the United States Code of Federal Regulations as authorized by the Federal Communications Act? 8) Are media broadcasters and its employees “state actors” in violation of 42 U.S.C. § 1983 and/or a Bivens claim if assuming true that an act of satellite surveillance has been perpetrated against a person by a state official (either state or federal) in conjunction with a media broadcaster? 9) Does satellite surveillance constitute torts of common law trespass, laws of unfair competition (right of publicity), and invasion of privacy? ie W TABLE OF CONTENTS CITATION OF OFFICIAL ORDERS. ............. BASIS FOR JURISDICTION ..................... 2 LEGAL PROVISIONS INVOLVED IN THE CASE... 2 SUACmrensss Ge bese CASE... ww. cece eee 3 ARGUMENT FOR RELIANCE ON WRIT... ....... 5 a 5 ei ef De ws bp ba a eae ewe 9 Ie 8 oe De si Ce OS 5 a re 14 ae 16 Federal Communications Act........ ........ 20 sg og sda vb oo ee bee ckevsws 21 a ee a 24 ee ek oy cay Veal wm 4 Za Report And Recommendation ................ ZF TS a a 63 Judgment To Be Reviewed ............. 72 Se SE ieee ca we ee 74 Statutes And Legal Provisions ............... 75 Plaintiff's Statement Of Facts................ 101 gk 115 le Sg ask here kA ase wien oe ws 118 Plaintiff's Motion To Compel................ 122 Defendant Affidavits ...................... 130 Plaintiffs Loyalty of Oath Affidavit .. . TABLE OF AUTHORITIES Adickes v. S. H. Kress & Co., Fee She, BOO 6k ced deaeenneeyes 22 Balisteri v. Pacifica Police Dept. Oe Ts Ss eink a ea ke ann 2s dees 12 Berger v. Hanlon, yaw oT, Ce M.D reer 22 Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, ee Ss FO COT LEs kon techs atee ee ecen awe 21 Dow Chemical v. U.S., PEG Bet CURE. SCRA ea ened ee ee First National Bank Of Arizona v. Cities Service Co. SO Rie Bae CER aa nk ode eee aed ess 10 Haines v. Kerner, tte te tk | et | ee a weer a Ge 12 Warrantless Satellite Surveillance: Will Our 4th Amendment Privacy Rights Be Lost in Space?, John Marshall Journal of Computer & Informational Law. Summer 1995, Vol XIII N. 4 Katz v. United States, Se Ge ee COE cov as bak ae he mane 26 Keating v. Carey, row eee ee lO. | Pere men 16 Kimble v. Duffy, 6468 F.2d 340 (2d Cur, 1981)... 2... een cuss 15 Kush v. Rutledge, GEESE, FADER ob ines eR 15 Poller v. Columbia Broadcasting Company DRG AS WOR hee hh os eS 10 Restatement of Law, (Third), Unfair Competition © OB, Oh Day ER is. bib ink Fe haat cet daca Stanford Journal of International Law (Fall 1988) Newsgathering by Satellites ......... 5 United Brotherhood of ¢ arpenters & Joiners v. Scott, TOS SAAR, SO CEPI ea oss eo cd eee 17 CITATION OF OFFICIAL ORDERS IN THE DISTRICT OF ARIZONA ORDER by Magistrate Judge Nancy Fiora (9/15/1997) Denying Plaintiff's (Wenc) Motion to Seal. MINUTE ORDER: — (11/26/1997) KOLD’s hearing for Motion to Dismiss vacated pending resolution of Plaintiff's request for extension of time and request for special instructions. ORDER by Magistrate Judge Nancy Fiora (12/01/1997) Granting Plaintiffs request for extension of time and granting Plaintiff to file his statement of facts under seal. ORDER by Magistrate Judge Nancy Fiora (3/09/1998) Vacating KGUN’s hearing regarding its Motion to Dismiss. REPORT AND RECOMMENDATION by Magistrate Judge Nancy Fiora (7/17/1998) District Court should: dismiss Plaintiff's Complaint for lack of subject matter jurisdiction; deny Plaintiff's moticn to compel discovery and to join additional defendants; grant all of defendants motions to dismiss and/or motions for summary judgment; and grant defendants’ motion to unseal. ORDER by Magistrate Nancy Fiora (8/11/1998) Clarification that Report and Recommendation should include dismissal of claims against all defendants, including KVOA. ORDER: by Judge William D. Browning (9/25/1998) Granting adoption of Report and Recommendation of 7/17/1998. JUDGMENT: by William D. Browning (9/25/1998) All defendants’ motions to dismiss and/or motions for summary judgment are granted and this case is dismissed with prejudice. ORDER: by Judge William D. Browning (10/27/1998) Denying Plaintiff's Motion to Reconsider and vacate the 9/25/1998 Order. CITATION OF OFFICIAL ORDERS IN THE NINTH CIRCUIT COURT OF APPEALS MEMORANDUM: before Reinhardt, Trott, and Mckeown. Circuit Judges (5/14/1999) Affirmed District Court’s Order of 9/25/1998 which adopted the 7/17/1998 Report and Recommendation. ORDER: Before Reinhardt, Trott, and Mckeown, Circuit Judges (8/02/1999) Denying appellant’s(Wenc) Petition for Rehearing En Banc. BASIS FOR JURISDICTION The United States Supreme Court has appellate jurisdiction from the United States Court of Appeals for the Ninth Circuit from that court’s Memorandum of May 14, 1999, which affirmed the District Court of Arizona’s Order of September 25, 1998 adopting in full the Magistrate’s July 17, 1998 Report and Recommendation. In addition, the Ninth Circuit’s Order of August 2, 1999, denied Petitioner’s Motion for Rehearing. The statutory provision believed to confer jurisdiction for writ of certiorari to this Court is 28 U.S.C § 1254. LEGAL PROVISIONS INVOLVED IN THE CASE (See appendix for text) 4" Amendment to the Constitution of the United States Article II § 8 to the Constitution of the State of Arizona 18 U.S.C. §§ 2510-2520 42 U.S.C. § 1983 42 U.S.C. § 1985(1) 42 U.S.C. § 1985(2) 42 U.S.C. § 1985(3) 42 U.S.C. § 1986 47 U.S.C. § 206 47 U.S.C. § 208 47 U.S.C. § 225(a) 47 U.S.C. § 558 47 C.F.R. §15.9 47 C.F.R. §2.701 A.R.S. 13 § 504(A)(2) A.R.S. 13 § 507 A.R.S. 13 § 3005 A.R.S. 13 § 3008 Restatement (Second) of Torts § 652B, (p.378, 1977) Restatement _of Law (Third), Unfair Competition § 46 (p. 528, 1995) STATEMENT OF THE CASE The basis for federal jurisdiction in the District Court of Arizona is diversity jurisdiction and federal question. The nature of this case is centered on the Petitioner Wenc’s (Plaintiff) allegations of a conspiracy among the Defendant’ broadcasters CNN/TBS, ABC, KOLD, KVOA, KGUN and KNST consisting of high-tech satellite surveillance and/or other technologies including lasers and/or microwaves to surreptutiously surveillance the Petitioner in the privacy of his home both visually and of his oral and telephonic communications. Such surveillance is believed to have begun approximately in April 1995 and ended approximately in June 1996. The Petitioner has alleged that the surveillance was conducted by Cable News Network, Inc. (CNN), ‘Cable News Network, Inc. owned by Turner Broadcasting System, Inc of Georgia (now both owned by Time Warmer, Inc.); American Broadcasting Co., Inc, of New York; KOLD-TV 13 of Elcom of Arizona, Inc. and apparently also known as Raycom Media, Inc.; KVOA -TV 4, of KVOA Communications, Inc., an Arizona Corporation.; KGUN-9 TV, a division of Lee Enterprises, Inc., a Delaware corporation.; and KNST-AM 790, owned by SFX Broadcasting, Inc. of Arizona/Delaware, (now owned by Capstar, Inc.) 3 American Broadcasting Co., Inc. (ABC) and likely at least one third party government agency working in collaboration with one another and then disseminating the interceptions to the smaller local affiliate TV and radio broadcast stations of KGUN, KOLD, KVOA and KNST who broadcast from Tucson, Arizona; of which such broadcasts can be viewed or listened to throughout South East Arizona via normal antennae or in cable programming from various television cable companies in the region. Additional direct government involvment includes the unusual “ploy” visit to Petitioner’s residence by two law enforcement officers, one a deputy from the Pima County Sheriff's Department and the other a Special Agent of the Treasury Department, the latter who also attempted a search by peering through a window of Petitioner’s residence upon approaching the residence. The Petitioner maintains this satellite surveillance was conducted against him due to his Catholic and Republican religious and political beliefs and associations as well as due to his occupation as a public high school teacher. Petitioner Wenc was employed full time by the Sierra Vista Public Schools as a World History teacher from September 1994 through May 1995. Concurrently as a teacher, Wenc was an active member of local Republican political activities as he was both a member of the Cochise County Young Republican Club and an elected Precinct Committeeman beginning in September of 1994 through November of 1996. Consequently, due to Petitioner’s local public status and affiliations, the defendant broadcasters took part in a conspiracy consisting of surreptitious tortious eavesdropping and surveillance to pry into his private and public life, a common practice by media agencies in today’s world of digging and reporting gossip and innuendo as sources for “news” stories. ARGUMENT FOR RELIANCE ON WRIT SATELLITE SURVEILLANCE The crux of the facts alleged by _ the Petitioner(Plaintiff) are premised upon satellite surveillance, a legal issue unprecedented before any courts in the United States. In fact, one of the few legal authorities on the issue states “the courts have not yet had the opportunity to examine this area of surveillance.” Additionally, a highlight of a few of the most important acknowledgments made in Warrantless Satellite Surveillance’ are: 1) “. .. there may be a cost; the potential exists for unknown sources to scrutinize another’s activities without his knowledge or consent.” (p. 731) 2) “Now, a silent, invisible intruder from space possesses the capabilities to peep into our businesses, backyards, and even through physical structures into our homes.” (p. 732) 3) “The potential for the misuse of such increased clandestine viewing capabilities is staggering.” (p. 732) In addition, the only previous reference to the issue by this Court was in 1986 in Dow Chemical v. U.S". 476 U.S. 227. Finally, the Stanford Journal of International Law (Fall > Warrantless Satellite Surveillance: Will Our 4th Amendment Privacy Rights Be Lost in Space?, John Marshall Journal of Computer & Informational Law. Summer 1995, Vol XIII N. 4, p. 739 ‘ The passage is as follows: “[i]t may well be, as the Government concedes, that surveillance of private property by using highly sophisticated surveillance equipment not generally available to the public, such has satellite technology, might be constitutionally proscribed absent a warrant.” 1988) discussess Newsgathering by Satellites, and the potential legal disputes likely to arise from the increased usage of such “newsgathering” tactics. Clearly, the phrase “satellite surveillance” conveys connotations of hi-tech, eavesdropping, spying, secret, clandestine, invisible and any other similar adjectives. Due to this issue being both unprecendented and out of the ordinary, the Petitioner feels the District Court departed from a just judicial proceeding and thus the Court of Appeals for the Ninth Circuit sanctioned such an injustice to an important Fourth Amendment issue. Notwithstanding any judicial proceedings, the unprecedented nature of this case alone makes it ripe for this Court’s judicial discretion so as to not allow the legal system to fall further behind to rapid technological advances that will continue to crush constitutional rights. Just as the legal issue itself is unprecedented, so too then will any facts accociated with satellite surveillance. In this case, some of the Petitioner’s facts alleged may at first glance appear extreme, impossible or perhaps unbelievable. However, the very nature of satellite surveillance is extreme, and at a past time was indeed impossible, though is now becoming increasingly used by government agencies and private entities. For the average citizen, the mere existence, usage and capabilities of such surveillance are probably never even contemplated in ordinary life. This is the critical issue in this case. It would seem reasonable to assume that in many cases of satellite surveillance a person may never be aware of such surveillance and suffer no known harm should no negative external consequences become upon them, with the exception of his/her privacy being invaded, which too would perhaps not be realized by the person since he would be unaware of the monitoring. Thus, it is only when a person suffers external negative harms, realizes or witnesses other external negative factors regarding one’s life, that one could 6 reasonably conclude he was under some sort of surveillance. In this case, the Plaintiff has provided the several negative external consequences as well as witnessing of the “in disguise” remarks to logically conclude he was _ being surveillanced. It is at this point then, that this Court must determine if such is sufficient for a person to witness no matter how bizarre a particular fact may appear with regards to one determining he is under surveillance. Obviously, a person must witness or experience something in his life in order to even have the slightest notion that “something is going on” out of the ordinary. Generally and simply put, if one is to be in a car accident, then some sort of collision with at least one automobile must occur, which a person would obviously notice. To detect surveillance, one traditionally might find an electronic “bug” on the premises or perhaps actually view a person down the street aiming a laser eavesdropping device or a parabolic microphone into his property. In this case, neither a physical “bug” nor a person’ was found conducting surveillance but rather the Plaintiff had to detect and deduce, or “put two and two together,” to conclude a more sophisticated eavesdropping and surveillance device was being used. Here, the Plaintiff's observed the “in disguise” remarks on various Defendants’ broadcasts, and unusual occurrences tn his life, including the questionable visit by law enforcement officers to Plaintiffs residence. Looking back, would the Plaintiff have been better off to not list any instances of surveillance? Perhaps the lower courts may have viewed this issue differently, but the Defendants, however, would have been sure to claim the Plaintiff had no facts to support a claim of surveillance. This indeed occurred in this case as Plaintiff's initial Complaint did not list the underlying details as later found in his PSOF. In fact, without waiting to hear all the facts, KOLD hastily ‘ Excluding the federal agent who peered through one of the Plaintiffs windows 5 / “move[d] for summary judgment because there are no facts that support Plaintiffs claim against KOLD.”. (KOLD Motion to Dismiss p. 1) So, as this Court can see, the Plaintiff was, in a way, in a no win position as it turned out in explaining his Complaint. The truth and reality is, however, completely opposite as the Plaintiff has witnessed probably more than anyone might ever witness if one were the subject of surreptitious satellite surveillance. The Plaintiff was able to easily deduce “something was up” due to the reckless disseminations and what in several instances was almost notification to the Plaintiff that the broadcasters wanted his attention, or at least were comfortable in emitting subtle, almost beckoning, yet revealing remarks and actions. (#47 PSOF See Appendix). While some of the Plaintiff's facts may sound unusual, they can be validated by the Court’s own viewing of the video tapes of the broadcasts the Plaintiff has cited. At a minimum, Your Honors would view the videos and likely think something along the lines “that sure was peculiar for the broadcaster to do or say.” In summary, this Court must determine what a person can witness and present as facts in an allegation that can be perpetrated in virtual, if not entirely, in secrecy. | offer to this Court, that the only way such a claim can be validated is if the Court consider other circumstantial “suspicious” facts that may not be pure examples of “interception and disclosure of oral communications” or “electronic surveillance.” For without this latitude, a party might never be able to defeat a defendant’s summary judgment motion pertaining to surreptitious _ satellite surveillance, as there is no way to see a _ satellite, microwaves, or laser beams. To affirm the lower courts on this claim would crumple the 4th Amendment to the U.S. Constitution and negate the Congress’ deliberate intention in the language of the Federal Wiretap Statutes. Congress intentionally used broad language such as “. . .any electronic, mechanical, or other device . . . for the purpose of the surreptitious interception of wire, oral, or electronic communications. ” when prohibiting eavesdropping devices in 18 U.S.C. § 2512 as they recognized the numerous devices already in existence and the likelihood of new eavesdropping devices being created in this modern technological world. To affirm the lower courts would virtually be saying that there is never an instance in which a person could successfully bring forth a surreptitious satellite surveillance case. Furthermore, to affirm the lower courts would in essence be rubberstamping both the mass media’s and government’s ability to conduct blanket search warrants via satellite surveillance without the issuance of a court approved search warrant (assuming an approved search were constitutional). Thus, the primary issue appears to be the factual basis one can successfully allege a satellite surveillance conspiracy in order to be granted discovery by the Court. The Plaintiff believes he has witnessed sufficient events and has presented those facts. RIGHT TO DISCOVERY It should go without saying that unauthorized eavesdropping on any aural communication whether via a simple hidden tape recorder or a complex space-orbiting satellite 1s a violation to the Federal Wiretap Statutes. Thus, the fundamental issue this Court should delve into extensively is what is a just standard of summary judgment in a case alleging unprecedented legal and factual issues. In the instant case, the District Court of Arizona completely neglected to surmise the scope of satellite surveillance both legally and factually as the opinions of that court were absent of any substantive analysis of this powerful technology. Instead, the District Court merely relied on simple and basic denials made in affidavits submitted by defendants KVOA, KOLD, KGUN and KNST thus making it easy for any 9 defendant to simply deny any violation to surreptitious eavesdropping and surveillance. Additionally, defendants CNN/TBS and ABC offered no affidavits in their defense. The acceptance by the District Court in taking the defendants’ affidavits as true can best be compared to the psychological “line experiment” by Solomon Asch which measured the effects of group pressure and conformity. In this experiment, one person was convinced by eight others to accept as true that the length of one line was comparable in length to one of three other lines presented despite it clearly being unequal. Similarly, the District Court has denied the truth in this case and has accepted the distortions and untruths presented by the defendants and their attorneys. Furthermore, the Supreme Court recognizes the potential injustices of affidavits as it has held that: It is only when the witnesses are present and subject to cross-examination that _ their credibility and the weight to be given their testimony can be appraised. Trial affidavit is no substitute for trial by jury which so long has been the hallmark of "even handed justice." (quoting Poller v. Columbia Broadcasting Company, bold added 368 U.S. 464, 82 S. Ct. 486, 7 L. Ed. 2d 458) 1962. Finally, and most significantly, the Supreme Court has stated: [i]t is probably true that in the ordinary conspiracy case a plaintiff would be entitled to obtain discovery against all the alleged conspirators instead of being obligated to proceed against them seriatim. First National Bank Of ‘ Educational Psychology, p. 495, (1990) Sprinthall and Sprinthall. McGraw Hill citing Asch, S.E. (1952). Social Psychology. Englewood Cliffs. NJ. Prentice-Hall. 10 Arizona v. Cities Service Co. 391 U.S. 253, 88 S. Ct. 1575, 20 L. Ed. 2d (1968). This case is rooted in allegation of conspiracy. The very definition of a conspiracy, and the redress Congress intended under 42 U.S.C. § 1985 and the surreptitious electronic surveillance statutes, inherently suggests that once an allegation of conspiracy is made, discovery is a fundamental right of the aggrieved to prove his case. While unjustly accepting the defendant affidavits as true, the District Court ignored or accepted as “implausible” factual events witnessed by the Petitioner as evidence of surveillance. Clearly, this standard of summary judgment did not allow for all favorable inferences of the facts be taken as true in favor of the Plaintiff. Moreover, the District Court never allowed the Plaintiff a right to present evidence to the court despite repeated pleadings to do so. The clandestine operations of surveillance in this case are unprecedented, and thus require a degree of liberal interpretation to events witnessed by the Plaintiff in order for the Court to advance a fair standard of review and justice. Thus, the District Court’s findings of law were based on what really is an undeveloped record as additional facts, testimony, and_ technological revelations in surreptitious surveillance need yet to be entered in this case. It seems a travesty of justice that the courts in this case could make rulings without viewing any evidence. For example, below are listed five instances of primary pieces of evidence the court has ignored: 1) The Oprah Winfrey Show broadcast regarding the Petitioner. (PSOF #45, 47 See Appendix.) 2) The rebroadcast by defendant KVOA of Petitioner’s employment interview. (PSOF # 55 See Appendix) 3) The broadcast in 1990 by defendant KVOA regarding the Petitioner. (PSOF # 14 See Appendix.) 4) The broadcast of the show Crossfire by defendant CNN on either May 24, or 25, 1995. (PSOF #52, See Appendix.) 5) The broadcast of the show The Legal Hotline by defendant KNST in April 1995 or of the other show aired in February 1996. ( PSOF #51,57 See Appendix.) Even if there were no allegation of electronic eavesdropping, the rebroadcast of Plaintiff's employment interview displays minimally an invasion of privacy that should have been suffient for the lower court to have doubts regarding submitted affidavits and ordered production of such video broadcasts as Petitioner requested in his Motion to Compel. It was clearly unjust for the District Court to prohibit the Plaintiff from presenting evidence before the court in a hearing. Similarly, the Supreme Court has held that Prisoner's pro se complaint seeking to recover damages for claimed physical injuries and deprivation of rights in imposing disciplinary confinement should not have been dismissed without affording him the opportunity to present evidence on his claims. //aines v. Kerner (1972), 404 U.S. 519, 92 S. Ct. 594, 30 L. Ed. 2d 652 ( bold added) Though the Plaintiff is obviously not a prisoner, he is pro se, and pro se or not, he should be afforded a hearing. The Ninth Circuit itself has held that “pro se pleadings are liberally construed, particularly where civil mghts claims are involved.” Balisteri v. Pacifica Police Dept. (901 F.2d 696, 1990). This it the most important aspect in this case, that the Petitioner’s facts be taken as true as it pertains to allegations of satellite surveillance; especially since such an issue 1s unprecedented in the courts. Moreover, 1t would also seem. that the final judge of such facts should be done by a jury as jurors should be able to make the final conclusions as to whether all evidence and expert testimony presented satisfies the allegations. In summary, satellite surveillance poses great threats to 4th Amendment and privacy rights, and is unprecedented before the courts. Thus, this issue alone makes Petitioner’s case ripe for granting certiorari. 42 U.S.C. § 1985(1) The Petitioner’s primary argument to this claim 1s that this Court expand the reach of § 1985(1) to more than the traditionally protected “federal officer.” Plaintiff believes that under the circumstances surrounding the surveillance conspiracy, that his roles as a secondary public school teacher and Precinct Committeeman should be included within the reach of the meaning of “federal officers” under § 1985(1). The Plaintiff's position as a teacher is an office of “trust, or place of confidence under the United States” as he was sworn to “support the Constitution of the United States and Laws of the state of Arizona. . .” as stipulated by his Loyalty Oath of Office required to be signed upon employment with the school district. (See appendix) School districts have now historically and increasingly come under the jurisdiction of federal policy for which teachers have come to inherently enforce. For example, the federal courts have come to impose desegregation programs upon public schools in enforcing the “equal protection clause” of the 14th amendment to the U.S. Constitution. Additionally, public schools receive federal funding, and the school district the Plaintiff was teaching in is no exception. Finally, without listing a plethora of cases, schools are subject to compliance of Titke IX. Likewise, duties related to Plaintiff being a Precinct Committeeman also require the performance of 13 federal duties. Such duties are related to the fundamental right to vote, registering voters, and confidential meetings and phone calls related to the obvious political associations related to being a Precinct Committeeman. 18 U.S.C. §1985(2) The legal issue to be resolved with Plaintiff's 1985(2) claim rests on this Court determination if “attending” court includes the filing of a Complaint in a federal court. The applicable clause of 1985(2) is as follows: If two or more persons in any State or Territory conspire to deter, by force, intimidation, or threat, any party or witness in any court of the United States from attending such Court, The Plaintiff alleges that the Defendants’ tortious eavesdropping conspiracy deterred and intimidated the Plaintiff in filing suit against an additional party, Harpo Productions, Inc., (or others) as it pertains to Plaintiff seeking redress (by Joining such defendants to the current suit) to the broadcast of a show about the Plaintiff as explained in PSOF number 45 and 47. Those libels against the Plaintiff are not ordinary as they concern what has become in society the center of hate, preyudgment and controversy. The Plaintiff offered to the District Court two AP reports describing what can happen to a person when falsely accused of such behavior and then such allegations are made widespread. Regrettably, the Digstrict Court neglected and failed to see the severe harm and intimidation that occurs to a person under such circumstances. Moreover, in the Plaintiff's case, this issue is derived from a time when the Plaintiff was a minor child which makes it that much more complex The Plaintiff argued for the lower courts to adopt the premise that “attending” Court includes the act of filing a lawsuit. Even though the Plaintiff has demonstrated protected class based motive behind the conspiracy as explained fully in §1985(3), a claim under §1985(2) does not require such standing. Kush v. Rutledge, 460 U.S. 719, 103 S.Ct. 1483, 74 L.Ed. 2d 413, (1983). Furthermore, under the circumstances as already explained, the Defendants’ conspiracy activities obstructed Plaintiff's desire and attempt to file suit against other parties as already stated; in addition to other interferences with justice, such as alleged eavesdropping on legal telephone calls to attorneys and to the Clerk of the Court for the District of Arizona’s office. The actual question of whether attending court includes filing a suit in federal court has not been fully adjudicated. Although, the United States Supreme Court has noted that “the Fifth Circuit’s narrow [11-10] en banc majority in Aimble v. Duffy, [648 F.2d 340, (bold added)(1981)] did not include a conspiracy to deter a party from filing a suit in federal court.” The Kimble Court reasoned as follows: Congress enacted the first part of Section 1985(2) in order to protect the sanctity of federal court proceedings and __ prevent miscarriages of justice. The justice provided by our judicial system, however, does not start on the day of trial. The process of obtaining justice in the court system begins long before a case is called to trial it is initiated at the moment a Dy files a complaint. Congress undoubtedly intended to ahve the whole course of justice, not just one segment of the system, the trial apd Thus, or the purposes of Section 1985(2) an individual is deemed to have "attended" a court of the United States from the moment that the person files a complaint. _ aii (quoting /d. n. SO (italics added)) Significantly, that decision in Kimble was actually a reversal of the panel’s previously holding that filing a complaint was indeed “attending.” Congress’ intention to protect “the whole course of justice” in this case includes all those actions in which the Defendants conspiratorial activities violated legal confidentiality actions of Plaintiff. In addition , the High Court went on to offer guidance to this issue and has “note[ed] more generally that the scope of §1985(2) is unsettled and that on remand the district court, in its discretion, may require the plaintiff to amend his complaint to state the grounds of the §1985(2) claims with greater specificity.” We must leave it to the district court to decide what sorts of threatening or coercive acts the plaintiff may prove. .. .” (quoting Keating v. Carey, 706 F. 2d 377 at footnote 13, bold added (1983).) Defendants in this case prevented even filing of the Complaint, or attending court. In the late 20th century, the mob-like threatening and intimidation caused through the undue, and further undue and excessive media exposure, which is common practice by broadcasters, in addition to the actual intimidation eavesdropping imposes on a person, are the facts in this case for the Jjury’s consideration. This excessive publicity, and improper dissemination in this case, is the modern day equivalent to the mob violence for which this Federal Civil Rights law was enacted as supported through the facts and other supporting documentation. Finally, even if the question of “attending” Court was not an issue in this case, other actions related to justice were interrupted-the eavesdropping on legal counsel calls. 42 U.S.C. § 1985(3) 16 It is well established case law that both religious and political memberships are protected classes under § 1985(3). As Republican Senator Edmunds stated in the Senate floor debate, § 1985(3) would apply to conspiracies aimed against a person “‘because he was a Democrat, if you please, or because he was a Catholic, or because he was a Methodist, or because he was a Vermonter,... then this section could reach it.” (quoting United Brotherhood of Carpenters & Joiners v. Scott’, 103 S.Ct. 3352, n. 6, 463 U.S. 825, 77 L. Ed. 1049, (1983)). The Second Circuit has stated “Congress did not seek to protect only Republicans, but to prohibit political discrimination in general.” Keating v. Carey, remanded, 706 F.2d 377 (2d Cir. 1983). The Plaintiff was an above average active member of the Republican Party during the time period the Defendants carried out the tortious eavesdropping conspiracy against him. He was both a Precinct Committeeman and an original member of the then fledgling but now dissolved Cochise County Young Republican Club. A limited number of persons can be a Precinct Committeeman as stipulated by law and thus it is not as if the Plaintiff is just saying because he was a registered Republican he has a claim under § 1985(3). Similarly, a limited number of people go to the extent to become active in an organization officially sponsored and affiliated with the Republican Party. Such political activity and association by the Plaintiff more than satisfies an allegation that the Defendants conspired against him because he was a Republican. One need not be an expert to know that the media prey upon anything that smells of scandal or could otherwise make for a story as it pertains to those involved in the political process. In addition, remarks concerning Plaintiff's religion were also made which inevitably are ° For fear of creating a broad tort law, the courts have adopted the membership in protected classes theory, though the language of §1985(3) distinguishes between “...anyv person or class of persons....” (italics and bold added). reasons for the Defendants’ surveillance conspiracy against the Plaintiff as his religion is a part of him. While never stated explicitly, it appears the District Court is holding that any fundamental rights regarding "unreasonable searches" violating the Fourth Amendment are not protected fundamental rights under § 1985(3). This Court should abandon such a premise as it is clear that since politically based conspiracies are protected, then it is also clear that rights other than those associated with the Thirteenth Amendment are protected. For instance, it would seem reasonable to conclude that a Republican would not be subject to involuntary servitude, but rather other deprived rights. Specifically, in Keating, the court held that "Keating [would] be entitled to a trial on his §1985(3) claim to determine his tenure rights under New York law and the terms and conditions of his employment." (Keating, supra.) As'seen, then, the Second Circuit applied protection to rights other than those the DC cited as limitations, which in Keating were state law rights and not even federal. Moreover, even if it were ultimately held that absolutely no Fourth Amendment rights are protected from private infringement under § 1985(3), there still exist factual allegations of "state action" (42 U.S.C. §1983) which would then satisfy a § 1985(3) allegation sufficient to survive a motion to dismiss. It was simply bad judgment for the District Court to have stated that the "Plaintiff has not pointed to any evidence supporting his contention that Defendants and the state or federal government conspired to deprive him of a fundamental right." (R & R_ p. 21) Quite frankly, if there was no evidence supporting such contentions, it was because the District Court never allowed the Plaintiff any opportunity with discovery and presentation of evidence. This again underscores the notion that the lower courts departed “from the accepted and usual course of judicial proceeding,” especially given the unique circumstances of the case. While public teachers have not yet been listed as a protected class under § 1985(3), this Court should include them as well. Even though the Plaintiff has alleged membership in two already protected groups for which they conspired against him, it is clear that the Plaintiffs occupation as a teacher was, in part, a motive behind the Defendants’ actions as evidenced in particular with fact number 55 concerning the broadcast of the Plaintiff's interview. In Arizona, the legislature saw the need to provide statutory protections to teachers in A.R.S. 15-507’. Perhaps they recognized the historical discriminations teachers have encountered. For example, teachers in the United States were held to discriminatory standards of “accepted moral conduct” and in Ancient Greece teachers were actually part of the slave class. Even if this Court does not hold teachers are a specific class under the statute, the rights the Plaintiff possessed due to that occupation were deprived. As pointed out in PSOF, the Plainuff was performing duties to being a teacher at home while under surveillance, and more generally in the classroom where he was interrupted due to the extreme and unusual discussion of the Plaintiff by colleagues and students caused by the obvious dissemination leaks of the — surveillance. Furthermore, rights of freedom of political association in private were impaired. In simple terms, it is clear that all a person can do is state Why a conspiracy was directed against him and then claim protection under § 1985(3). Even should this Court not include teachers as a protected class, the Plaintiff meets criteria already held protected under the statute. The Plaintiff has done this and thus the factual basis meets the protected classes intent of the section. Just as the Second " A.R.S.15-507: Abuse of teacher or school employee in school; classifcation- A person who knowingly abuses a teacher or other schoo! employee on school grounds or while the teacher is engaged in the performance of his duties ts guilty of a class 3 misdemeanor 19 es eae ———— St ee Circuit . .fheld] that Keating’s allegations that the defendants conspired against him because he was a Republican satisfies the Griffin requirement under § 1985(3) of class-based discriminatory animus|,]” so too has the Plaintiff in this case. (Keating, supra.) FEDERAL COMMUNICATIONS ACT CLAIMS As television broadcasting became mainstream, the question as to whether television broadcasters are “common carriers” has never been answered by the Congress in simple or forthright terminology, thus leaving for the Judiciary to incorporate expanded definitions to the FCA of 1934. Interpreting 47 U.S.C. § 153(h) to include television broadcasters on an equal footing with the specified exclusion of radio stations in the section is a reach of judicial interpretation that should be reversed. Congress intended to only to exempt radio stations from the definition of “common carriers” in §153(h), for if the Congress meant to include television broadcasters it would have made that exemption explicitly in §153(h) as well. Congress could have amended the section to exempt television broadcasters as well, but it did not. In fact, Congress alluded more to the idea that television broadcasters were indeed “common carriers” as explained below. The definition of § 153(a) notes that wire communication “means the transmission of . . . signals, pictures, and sounds... .” Section 225(a) defines “common carriers” under Title 47 as those who engage in § 153(a)’s definition of “wire communication.” This would appear to make it clear that an entity who transmits pictures is indeed a “common carrier,” as_ clearly only television broadcasters could be engaged in the transmission of pictures at the time of passage of § 153(a) and thus were intended to he 20 ——— “common carriers” under the FCA. Additionally, the determination to whether or not Defendants CNN/TBS, ABC, KGUN, KOLD and KVOA are “common carriers” under § 206 may rest on distinct differences or similarities in the nature of broadcasting the particular television broadcaster is engaged in. In other words, does the broadcast programming of a television station fall into the meaning of “cable programming?” Title 47 U.S.C. § 558 offers guidance to this issue as it discusses criminal and civil liability of cable communications: Nothing in this subchapter shall be deemed to affect the criminal or civil liability of cable programmers or cable operators pursuant to Federal, State, or local law of libel, slander, obscenity, incitement, invasions of privacy, false or misleading advertising, or other similar laws. . . .[italics added] Defendant Cable News Network, Inc. by virtue of its own names reveals it is a cable programmer. Clearly, current definitions as to who is a “common carrier” within the scope of § 206 is an area for this Court’s discretion. 42 U.S.C. § 1983 The primary assertion for a “state action” claim in this case 1s based on the suspicious law enforcement visit to the Plaintiff's home that ts linked directly to a completely out of the ordinary “in disguise” remark on CNN’s Crossfire on either May 22 or 23, 1995, including the peering into one of the Plaintiff's windows by a federal law enforcement officer upon approaching the door. Furthermore, as pointed out to the District Court, Defendants CNN and KNST routinely have state officials on their programs as guests which proposes the possibility of their knowledge of surveillance and partaking in the conspiracy and/or their neglect to prevent it. Lastly, the potential for the satellite surveillance equipment to have been conducted by a government agency such as the Central Intelligence Agency or the National Reconnaissance Office can not be ignored. Thus, the Plaintiff's “state action” claim would be based on both § 1983 and a Bivens claim due to the presence of both a state and federal law enforcement officer. The Petitioner maintains it was premature for the District Court to rule on any of his claims until after discovery and an amended complaint. It was particularly premature to rule on this “state action” by applying a standard of review to a normally complex issue, much less doing so in this case without additional fact finding. The standard of review applied by the District Court was as follows: lo determine whether the conduct of private parties amounts to governmental action, the Ninth Circuit applies the following four tests, (1) the governmental nexus test, (2) the public function test, (3) the state compulsion test, and (4) the joint action test. Berger v. Hanlon, 129 F.3d 505, 513 (9th Cir. 1997), [R Nonetheless, in addition to the absence of additional fact finding. it was error to dismiss the § 1983 claim as the allegation of law enforcement officers alone on Plaintiff's property is sufficient to survive a motion to dismiss as the Supreme Court has held in Adickes the [rjespondent did not carry out its burden, as the party moving for summary judgment, of showing the absence of a genuine issue as to any materia! fact, as it did not foreclose the possibility that there was a policeman in the store while the petitioner was awaiting service (from which the jury could infer an understanding between the officer and an employee of respondent that petitioner not be 7? served), and its failure to meet that burden requires reversal. Pp. 153-159. Because respondent failed to meet its initial burden as the party moving for summary judgment, petitioner was not required to come forward with suitable opposing affidavits under Fed. Rule Civ. Proc. 56 (e). Pp. 159- 161. ‘The involvement of a state official in such a conspiracy plainly provides the state action essential to show a direct violation of petitioner's Fourteenth Amendment equal protection rights, whether or not the actions of the police were officially authorized, or lawful; Monroe v. Pape, 365 U.S. 167 (1961); see United States v. Classic, 31 U.S. 299, 326 (1941); Screws v. United States, 325 U.S. 91, 107-111 (1945); Williams v. United States, 341 U.S. 97, 99-100 (1951). Moreover, a private party involved in such a conspiracy, even though not an official of the State, can be liable under §1983. ‘Private persons, a engaged with state officials in the hay ited action, are acting ‘under color’ of aw for purposes of the statute. To act ‘under color’ of law does not require that the accused be an officer of the State. It is enough that he is a willful participant in joint activity with the State or its agents,”” United States v. Price, 383 U.S. 787, 794 (1966) (quoting Adickes v. S. H. Kress & Co, 398 U.S. 144 (at N. 14, 15, 34), 90 S. Ct. 1598, 26 L. Ed. 2d 142, 1970). Now just as the High Court held in Adickes that a jury could infer an understanding by the police officer, so too should this Court hold that the presence and questionable visit by law enforcement on the Plaintiff's property be sufficient to defeat a motion to dismiss and a motion for summary judgment. More recently, this Court held that the media agents (CNN) Were “state actors” when accompanying law enforcement to execute a search warrant. In Berger, the media went so far as 23 ee to make a business contract with the government agents, though did not make that known to the Magistrate when the warrant was sought and issued, which culminated in civil right violations. (Berger, supra.) This Court should allow for greater latitude in applying any of the four “state action” tests as enumerated in Berger, if applying any of them at all at this point due to the unprecedented nature of satellite surveillance and the incomplete record due to denying Petitioner discovery. COMMON LAW TORTS In determing whether satellite suveillance supports tort claims of common law trespass, laws of unfair competition: night to publicity, and invasion of privacy, the Court may need to examine the following. In the present case, it is alleged Defendants utilized a laser or some other device to enter and produce visual and aural surveillance inside Plaintiffs residential structure. While no physical entrance by other persons occurred, the laser beam or whatever means that entered into Plaintiff's residential structure, produced visual images, as well as aural interceptions, thus trespass has occurred as this ts equivalent to a traditional physical search. “The ‘trespass doctrine’ of Olmstead v. United States, 277 U.S. 438, and Goldman v. United States, 316 U.S. 129, is no longer controlling. Pp. 351, 353.” (quoting trom Aatz v. United States 389 U.S. 347 (1967). It appears to be common ground that a private home is [a constitutionally protected] area Weeks v. United States, 232 U.S. 383” [/d. Footnote 8]. Finally, as the Supreme Court alluded, “[iJt may well be, as the Government concedes, that surveillance of private property by using highly sophisticated surveillance equipment not generally available to the public, such as satellite technology, might be constitutionally proscribed absent a warrant.” (quoting Dow supra. from Warrantless Satellite Surveillance, supra.) 24 The tort of “right of publicity” 1s relatively recent (1995) and perhaps such a claim should only be adjudged by a jury evaluating all the facts and circumstances. Nonetheless, the Petitioner offers the following for consideration. Eavesdropping in the vast manner Defendants engaged in obviously encompasses many aspects of a person’s life: 1) current as it happens; 2) past as it might be discussed in conversation; and 3) future aspects as that might occur. In effect, then, eavesdropping amounts to the procuring of a person’s biographical data without consent or compensation, even if it ts not printed in a book or other traditional biography. Defendants, and any others have become privy to Plaintiff's life while under surveillance from dissemination by Defendants’ employees or others present at Defendants’ premises. In other words, Defendants ears have no right to entertain themselves for free of Plaintiff's persona and private life. In theory, if Plaintiff had written an autobiography, or any similar works, Defendants’ employees would not be entitled to a free copy because they were employed by media broadcasters. Compare this to the fact that these Defendants’ business comes precisely in this manner, viewers watching or listening to their broadcast programming: news and entertainment shows; assuming there ts a distinction between the former and the latter. With regards to KNST particularly, non-employees utilize the broadcast premises and equipment and thus an aspect of the public at large became privy to Plaintiff's private life. Further, Plaintiff's ideas are his own and is entitled to compensation from others for listening to his ideas or persona, just as persons are entitled to compensation for speaker fees or other consultation or counsel or intellectual property. Inevitably, Plaintiff's ideas were incorporated into use, Whatever that use may have been. Apparently Defendants were so interested in Plaintiff that they utilized sophisticated technological resources to monitor Plaintiff. 5 oct cio satecraneainallll Mie Gok Finally, “proof of deception or consumer confusion is not required for the imposition of liability under [§ 46]” (Restatement (Third) § 46, p. 530, 1995). In addition, a plaintiff is not required to prove that the defendants intended to identify the plaintiff. [Id. 532]. Defendants possess no right to Plaintiff's private life nor do they possess the right to exposes a person to “media judgment” for their commercial enterprises. Clearly, it goes without saying that satellite surveillance is an invasion of one’s privacy, thus there is no need for a detailed argument. CONCLUSION In summary, Petitioner’s core issue of satellite surveillance is unprecedented. The secretness and ease to conduct such surveillance clearly exhibits the need for basic discovery in order to uncover tangible evidence. Granting Petitioner certiorari or quick remand will bring the legal system one step closer in keeping in step with technologies that threaten precious Fourth Amendment rights. SUBMITTED this day of October 1999. Anthony S. Wenc, Petitioner 26 APPENDIX ORDERS & OPINIONS ey a CaivED COPY {—— ‘ Move _—_—_— | 17 190g ~ | | 1 Scott { CE oh, at COU AT | ey Viste it OF ARIZONA iE DEPUTY | Some RI St ge ae ——— | IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA ANTHONY S. WENC, Plaintiff, VS. CABLE NEWS NETWORK, INC., et al., Defendants. No. CIV 97-528-TUC-NF (WDB) REPORT & RECOMMENDATION 27 APPENDIX Pending before the Court are the following motions filed by Defendants:' (1) KOLD's Motion to Dismiss and Motion for Summary Judgment, (2) KGUN's Motion to Dismiss and Motion for Summary Judgment, (3) Cable News Network's ("CNN") and Turner Broadcasting's ("TBS") Motion to Dismiss and Motion for a More Definite Statement, (4) American Broadcast Corporation's ("ABC") Motion to Dismiss, (5) SFX Broadcasting'’s ("KNST") Motion to Dismiss and Motion for Summary Judgment. Also pending are: Plaintiff's Motion to Compel, Plaintiff's Motion to Stay, KOLD's Motion to Unseal and Plaintiff's Request for Special Instructions. Additionally, all Defendants have joined one another's motions and responses. For the following reasons, the Magistrate Judge recommends that the District Court, after its independent review, grant Defendants’ motions to dismiss and for summary judgment, deny Plaintiffs motions to compel and to stay, grant Defendants’ motion to lift the seal and deny Plainutt’s Request for Special Instructions. FACTUAL AND PROCEDURAL BACKGROUND Plaintiff filed the instant pro se action alleging that Defendants, who are media agencies, “have been eavesdropping on the Plaintiff, and his family, and any acquaintances... .in- the privacy of my residence...this surveillance has also been carried out in such a manner that the media’s actions have also produced ‘visual surveillance eavesdropping” by the means of aural satellite, microwave technology, a laser device, or other prohibited radio ! , . ‘ sia Defendants are Cable News Network, Turner Broadcasting, Inc., American Broadcasting Co., KVOA Communications, Inc., Lee Enteronses, Inc of which KGUN is a division, Elcom of Arizona, Inc., dba KOLD, Inc., ROLD and SEX Broadcasting, Inc., dba KNST, Ine APPENDIX eavesdropping devices. (Complaint, p.2) According to Plaintiff Defendants violated his constitutional rights and also criminally conspired against him in violation of federal and state statutes and regulations. (Id. at p.3) Specifically, Plaintiff alleges that: defendants engaged in conduct in violation of the following sections of the United States Code: 18 U.S.C. 241, 18 U.S.C. 25/1], 18 U.S.C, 2512,42 U.S.C. 1983,42 U.S.C. 1985, 42 U.S.C. 1986; the following sections of the Code of Federal Regulations: 47 CFR /5.9 and 47 CFR 2.701; and the following Arizona Revised Statutes: 13-107, 13-1003, 13-3004, 13-3005 and Article II, section 8 of the Constitution of the State of Arizona thus resulting in a criminal conspiracy against the Plaintiff, consisting primarily of tortious surreptitious eavesdropping and_ electronic surveillance, using this information for their own commercial gain. . .As a result of the aforementioned conspiracy, Plaintiff has suffered severe emotional distress: anxiety, stress, depression; unwanted invasion of privacy, trespass, violation of Plaintiff's civil rights, loss of teacher contract being offered and inability to find suitable employment and undeterminable future earnings loss as a consequence. (Id. at p.3) Read liberally, Plaintiff's Complaint may also advance allegations of state law, including _ trespass, interference with economic damage, common law invasion of privacy, and intentional infliction of emotional distress. WY pa ek — APPENDIX Plaintiff's claims are based upon the allegation that “fu]known persons, who may or may not be employees of the defendants or may be employees of a government entity, operated a highly technological eavesdropping and visual surveillance device, likely a satellite, to servile [sic] Plaintiff Anthony Wenc.’(Plaintiff's Statement of Facts (“PSOF”) { 15) Plaintiff has deduced that. . . Interceptions occur from the source, me, via the eavesdropping device, then are relayed back to the broadcaster’s studio into broadcasting equipment operated by employees who likely are divulged the interceptions, and then they in turn culminate the process by disseminating it to the ‘anchor’ broadcaster into the ‘talking ear’ device worn in a ‘live’ program, who can then report instantly the original eavesdropped interceptions. (Plaintiffs Affidavit #2, §26) Plaintiff states that he "believe [s] the surveillance activities were conducted by CNN and/or ABC. or an unknown party, who then knowingly disseminated the information to knowing and willing recipient affiliates KVOA, KGUN, KOLD, KNST and perhaps other unknown affiliates." (Id. at 44) According to Plaintiff, national and local anchorpersons appearing on Defendants' broadcasts "were recipients [of such transmissions] or have knowledge of eavesdropping interceptions and visual surveillance of [Plaintiff]." (Id. at “4 27-34) In his affidavit and statement of facts in support of his opposition to Defendants' motions, Plaintiff identifies A sampling of the anchorpersons whom Plaintiff lists includes Kathleen Kennedy. Barbara Walters, Sam Donaldson, Cokie Roberts, David Brinkley, Patth Weiss. Guv Atchlev and Alan Kath. (Plainuff's Affidavit #2, 027 30 APPENDIX several instances that he argues support his contentions. For example, Plaintiff states that on May 22, or 23, 1995, while he was watching the show Crossfire that is aired live on CNN a sheriff's deputy and a federal special agent, both undercover, visited his home and after identifying themselves, stayed for approximately 5-/0 minutes to ask Plaintiff questions.’ (Id. at $5, 9b) Soon after the officers left, "Michael Kinsley, said the following out of the ordinary ‘in disguise’ remark: 'he is cooperating with federal agents." (Id. at 9b) Soon thereafter, Plaintiff was watching Newsnight, a live broadcast on CNN, when between stories, host Kathleen Kennedy said "we're going to clear you.' (Clear me of the rumors circulating I presume.) While saying this, she tilted her head towards her shoulder, to me [sic] signal she was referring to me, as this was how my head was positioned while I was relaxing on the couch watching. It is this action that led me to aghastly realize some sort of visual/video surveillance was taking place." (Id. at 4c) Additionally, in late 1995 or early 1996, CNN Capital Gang host Robert Novak "made the out of the ordinary and ‘in disguise’ remark: ‘he wants a trial.' | was watching the show." (Id. at Ye) According to Plaintiff, various broadcasters have also made "in disguise" comments directed at him unrelated to the Officers’ visit to his home. For example, during a live weather report that aired on KOLD in early 1996, the broadcaster "made a subtle ‘in disguise’ remark directed at Plainutt saying ‘you have a lot to live for,' referring to my thoughts of depression and suicide." (Id. at 991) Also in 1996, Chuck Roberts of CNN's Headline News "made the following subtle ‘in disguise’ remark apparently to get my attention: 'He got j a seal ; . = . , Plaintiff does not describe the purpose of the officers’ visit or the subject of their questions. * Plaintiff lists Kinsley as a CNN employee. (Plamutt's Attidavit, #2, 927) APPENDIX up late today.’ This was said in between story segments... had just gotten up a few minutes earlier and put the TV on." (Id. at 9m) Further according to Plaintiff KVOA broadcast portions of his employment evaluation on May 25, 1995. (Id. at 49d) Plaintiff states that various anchorpersons working for all Defendants have made "in disguise" comments directed at him to get his attention. (Id. at 9[9-a-c,e, f, h-m) Moreover, Plaintiff asserts that Defendants maintain archives pertaining to their surveillance of him. (Id. at 413) Between June and September 1995, Plaintiff was shot at by someone with a BB gun while Plaintiff was in his apartment. (Id. at 420) The shot came through his window and came directly to where Plaintiff was sitting. (Id.) According to Plaintiff, "I believe this shooting was promoted due to the excessive surveillance conducted by those named in this Civil Action and dissemination of that information being conducted on me. Furthermore, | believe that if any further dissemination ‘leaks’ regarding any of the libels mentioned in this affidavit, or any excessive publicity could again lead to potential life threatening physical harm. Due to this, | feared filing any type of lawsuit related to this Civil Action until I believed the surveillance being conducted on me ceased for I feared a public 'media circus,’ as Oprah Wintrey is a very famous person which is certainly a story the media would like to 'feed off to enhance ratings, which is in part, their reasons tor surveillance." (Id.) Plaintiff also feared that the publicity would result in "possible physical harm as violent hate crimes often occur against innocent people. There are a lot of ‘nuts,’ for lack of a better term, living in this world." (PSOF, 477) Plainutf states that in July 1990, Oprah Wintrey aired a libelous show regarding him and some of the guests were Plainutfs childhood acquaintances. (Plainutfs Affidavit #2, 412) APPENDIX Also in the Spring of 1995, Plaintiff heard students in his classes remark that the government was using Plaintiff for experiments, that Plaintiff "is the talk of the whole town," and that Plaintiff was gay or a child molester. (Plaintiff's Affidavit #2, 6-8) Plaintiff states that he never committed a sex crime and has never been charged with same. (Id. at 48) During this same time, hosts of The Legal Hotline Show airing live on KNST discussed the statute of limitations in civil cases regarding minors that included civil actions about child molestation cases. (Id. at 49a) Near the end of the discussion, "one of the hosts made the comforting remark ‘OK, Tony.’ Given this comment, ~t would obviously appear these hosts and thus KNST, knew that I was listening to the show." (Id.) According to Plaintiff, broadcasters are not the only people speaking about him but strangers at the Cochise County Young Republican Club, the Elks Lodge, the Tucson Mall, and the University of Arizona Law Library have talked about him or have repeated phrases from conversations Plaintiff had earlier in the privacy of his home. (Id. at 22-25; PSOF, 40-43) For example, at the Elks Lodge, Plaintiff overheard other attendees remark that "He's on unemployment...they are both on unemployment (The ‘they' referring to me and my sister who also ate lunch there that day. She was also on unemployment at that time.) Another remark was ‘satellite’ as he directed towards my table." (Plaintiff's Affidavit #2, 4/25) In June 1995, while attending a dinner meeting for the Cochise County Young Republican Club, Plaintiff overheard someone remark that "he was on CNN' as she directed towards Plaintiff's table." (PSOF, 441) Plaintiffs colleagues have also told him that they know that he isn't gay. (Plaintiff's Affidavit #2, 921) Plaintiff's colleagues have also stated that "he's Roman Catholic’ and that "he's a good Catholic." (Id.) Therefore, Plaintiff contends that "students, colleagues, and supervisory personnel had knowledge or ele APPENDIX awareness that Plaintiff was under some sort of eavesdropping and monitoring surveillance." (PSOF, 439) On April 16, 1996, Plaintiff canceled expanded cable service to eliminate CNN and Headline News. (Plaintiff's Affidavit #2 at 410) However, on June 1, 1996, the local cable company rearranged the channels and placed Headline News on a channel which would allow Plaintiff to view the program despite his earlier cancellation. (Id.) In October 1996, Plaintiff filed a complaint with the Federal Communications Commission ("FCC") related to claims in the instant action. (Id. at 918) The FCC informed him that his complaint did not fall within the FCC's jurisdiction and was instead a criminal matter within the FBI's jurisdiction. (Id.) On March 25, 1997, Plaintiff filed a complaint with the local FBI office in Sierra Vista, Arizona. (Id. at 419) Plaintiff states that Defendants conducted — the eavesdropping and monitoring activities "for newsgathering' [sic] or other purposes due to his occupation as a teacher, membership in the Republican Party, membership as a Roman Catholic, and, in part, due to previous media attention of him in 1990." (PSOF, 429) In his affidavit, Plaintiff avows that he is a member of the Republican Party and that he served as precinct Committeeman for the Sierra Vista Thunderbird precinct between 1994 and 1996. (Plainutfs Affidavit #1, 4/1) Plaintiff was also a member of the now dissolved Cochise County Young Republican Club. (Id.) Plaintiff also avows that he has been a practicing Roman Catholic all of his life. (Id. at 42) In support of their motions, Defendants filed the following affidavits. Defendant KOLD filed an affidavit by Jeff Sales, the vice president and general manager of KOLD. (Sales Affidavit, 41 attached to KOLD's SOF) Therein, Sales States that he is aware of the activities of KOLD employees and to the best of his knowledge KOLD and its employees have not conducted any visual surveillance eavesdropping or 34 APPENDIX any type of eavesdropping of Plaintiff at any time. (Id. at 42) Nor to the best of Sales' knowledge has KOLD and its employees conducted any type of surveillance’ or eavesdropping involving Plaintiff utilizing “aural satellite and/or microwave technology and/or a laser device or other prohibited radio eavesdropping devices." (Id. at 43) Sales also avows that KOLD does not own or possess any satellite surveillance equipment, microwave surveillance equipment or laser surveillance devices, (Id. at 44) Further, to the best of Sale's knowledge, KOLD has not received transmissions, images, data, recordings or any other information from any other media source involving visual or aural surveillance of or eavesdropping on Plaintiff. (Id. at 495) Additionally, KOLD archives do not contain any data, information, images or recordings of Plaintiff that were or could have been acquired through any sort of visual or aural surveillance or eavesdropping (Id. at 46) Debbie Wagner, Vice President and general manager of KNST-FM and SFX Broadcasting filed an affidavit setting forth statements similar to those contained in the Sales affidavit. (Wagner Affidavit attached to KNST's Joinder) Jon Ruby, who is President and general manager of KVOA filed an affidavit with similar statements as those made by Sales (Ruby Affidavit attached to KVOA's Statement of Fact) In a supplemental affidavit, Ruby states that in light of Plaintiff's assertion that KVOA aired his employment evaluation on May25, 1995, Ruby reviewed the scripts for the four news shows airing on that date and that "[t]here is no mention of Mr. Wenc, or any broadcast of the interview referenced in his Affidavit in the Day Break, 5:00 pm. or 10:00 p.m. shows; there is no script for the 6:00 p.m. show since it was a live show which dealt exclusively with the CAP Town Hall." (Ruby Supplemental Affidavit, 43) Karen Rice, the general manager of KGUN also filed an affidavit with statements similar to those made by Sales. (Rice Affidavit attached to KGUN's Statement of Facts) Additionally, Rice avowed that 35 APPENDIX KGUN is not affiliated or associated with any federal or state agency or political subdivision. (Rice Affidavit, 43) DEFENDANTS' MOTIONS TO DISMISS AND FOR SUMMARY JUDGMENT Because resolution of Defendants’ motions requires consideration of matters outside the pleadings, the Court informed the parties that the motions would be treated as motions for summary judgment as required by Federal Rule of Civil Procedure 12(b). (December 1997 Order) Defendants primarily argue that the Court lacks jurisdiction over Plaintiff's federal claims and that Plaintiff fails to state a claim for any of the alleged violations of state law. The arguments advanced by the parties will be discussed below in relation to each claim alleged in Plaintiff's Complaint. Standard for Summarv Judgement Summary judgment is appropriate only when "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.” Fed. R. Civ. P.56(c). The initial burden rests on the moving party to point out the absence of any genuine issue of material fact. Celorea Corp. V. Catrett, 477 U.S. 317,323 (1986). Although reference is made to the movant's "burden," Rule 56 places no evidentiary burden on the moving party beyond that which is required to prevail at trial. Therefore, while the adverse party must offer evidence sufficient to raise a genuine issue of fact on an issue for which that party has the burden of proof, the moving party need provide nothing more than a reference to those materials on file in the case that support the movant's belief that there is an absence of YZ IO APPENDIX any genuine issue of material fact. Musick V Burke, 913 F.2d 1390, 1394 (9th Cir. 1990). Once satisfied, the burden shifts to the opponent to demonstrate through production of probative evidence that an issue of fact remains to be tried. Celotex, 477 U.S. at 324. Indeed, a party opposing summary judgment may not rest on its pleading. Fed. R. Civ. P.56(e). When judging the evidence at the summary judgment stage, a district court is not to make _ credibility determinations or weigh conflicting evidence but the court is required to view all inferences in the light most favorable to the non-moving party. Musick 913 F.2d at 1394. The ultimate question is whether the evidence "presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson V. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986). The mere existence of a scintilla of evidence supporting the non-movant's position will be insufficient; there must be evidence from which the jury could reasonably find for the non-movant. Anderson, 477 U.S. at 252. If the factual context makes the non-movant's claim implausible, that party must come forward with more persuasive evidence to support its claim than would otherwise be necessary. Matsushita Elec. Jndus. Co. V. Zenith Radio Corp., 475 U.S. 574, 587 (1986). Plaintiff's claim pursuant to 18 U.S.C. § 241 Plaintiff alleges that Defendants violated 18 U.S.C. §241. Section 241 provides "for criminal liability against persons who conspire to ‘injure, oppress, threaten, or intimidate’ any citizen in the free exercise of any right secured by the Constitution." Larsen V. Larsen, 671 F.Supp. 718, 719 (D.Utah 1987), aff'd 871 F.2d 1095 (jgth Cir. 1989). The federal courts including the Ninth Circuit have held that 18 U.S.C. §241 which ts a criminal provision does not provide a private right of action for civil liability. A/dahe 37 Ii acca aruaccaaest APPENDIX V. Aldabe, 616 F.2d 1089, 1092 (oth Cir. 1980); Cox v. Cosentino, 876 F.2d 1, 2 (,st Cir. 1989)("Only the United States as prosecutor can bring a complaint under 18 U.S.C. §§241-242"); Del Elmer V. Metzger, 967 F.Supp. 398, 403 (S.D.Cal. 1997); Powers V. Karen, 768 F.Supp. 46, 51 (E.D.N.Y. 1991), aff'd 963 F.2d 1522 (9nd Cir. 1992); Larsen, 671 F.Supp. at 719; Lundt v. Hodges, 627 F.Supp. 373,375 (N.D.lowa /985);Pawelek v. Paramount Studios Corp., 571 F.Supp. 1082, 1083 .D.IIIl. 1983). Indeed, Plaintiff concedes that he cited section 241 in his Complaint merely for the premise that Defendants’ alleged “tortious conduct was indeed criminal." (Plaintiff's Response, p.11) Therefore, Plaintiffs’ claim pursuant to 18 U.S.C. §24] should be dismissed. Plaintiff's claims pursuant to 18 U.S.C. §§ 2511-2512 18 U.S.C. §$§2511-2512 are part of the statutory scheme addressing interception of oral, wire, and electronic communications. See 18 U.S.C. §§2510-2520 ("the Federal Wiretap Statutes").. Generally, section 2511 provides for criminal liability in cases of prohibited interception, use and disclosure of wire, oral or electronic communications except in certain circumstances. 18 U.S.C. §2511. Generally, section 2512 provides for criminal liability in cases of prohibited manufacture, distribution, possession or advertising of wire, oral and electronic communication devices except in certain circumstances. 18 U.S.C. §2512. While sections 2511 and 2512 are criminal statutes which do not provide a private cause of action for civil liability, 1&8 U.S.C. section 2520 authorizes a civil cause of action for any person "Whose wire, oral, or electronic communication is intercepted, disclosed, or intentionally used in violation of,’ the Federal Wiretap Siatutes against any "person or entity which engaged tn that violation." 18 U.S.C. §2520; Boddie V. American Broad. Co APPENDIX 731 F.2d 333, 336 (6th Cir. 1984). Because the provisions of the Federal Wiretap Statutes cited by Plaintiff address only criminal liability, Defendants argue that Plaintiff does not have a private cause of action for civil liability pursuant to the sections cited in the Complaint. Additionally, Defendants argue that Plaintiff would fare no better under section 2520° in light of the affidavit testimony from KGUN, KVOA, KOLD and KNST that they have not intercepted, used or disclosed any wire or oral or electronic communications involving Plaintiff and that they do not possess or advertise wire, oral and electronic communication intercepting devices. (KGUN/Rice§ Affidavit, 994-7; KOLD/Sales Affidavit, 92-5; KVOA/Ruby~ Affidavit, 93-6; KNST/Wagner Affidavit, 942-5) In response, Plaintiff states that he "is not trying to prosecute alleged violation of these federal criminal statutes."’ (Response, p.11, n.16 quoting KOLD's Motion-to Dismiss, p.2). Instead, Plaintiff asserts that the Federal Wiretap Statutes are relevant to the Complaint "as they attribute as a matter of law...that the tortious conduct was indeed criminal." (Id. at p.11) Regardless of whether Plaintiff intended to state a claim pursuant to sections 2511 and 25/2, Defendants are correct that these sections alone do not provide a private cause of action. See Boddie, 731 F.2d at 336. Therefore, to the extent that Plaintiff's Complaint may be construed as alleging criminal lability pursuant to 18 U.S.C. §§251 1 and 2512, the claims should be dismissed. Moreover, it is clear on the record that Plaintiff is unable to establish a claim pursuant to section 2520 which provides for civil liability for violation of the Federal Wiretap Statues. To establish a prima facie case under section 2520, Plaintiff must allege that (1) Defendants Plaintitt does not allege a claim pursuant to 18 U.S.C. §2520 in his Complaint 39 ate Dp eed: a a APPENDIX intercepted, disclosed or used his oral communication, (2) that Plaintiff had an expectation that the communications were not subject to interception, and (3) that Plaintiff's expectation of privacy was justified under the circumstances. Cross V. State of Ala., 49 F.3d 1490, 1508-09 (1 jth Cir. 1995). Plaintiff's affidavits fail to point to specific instances tending to show that Defendant intercepted, disclosed, or used any of Plaintiff's oral communications. Instead Plaintiff describes how media commentators made "in disguise" comments that he inferred were directed at him because of the position of Plaintiff's head while he was watching the program, because Plaintiff had "thoughts of depression," because Plaintiff connected the remarks to his own desires such as the fact that he wanted a trial, or because Plaintiff connected the remarks to events that were transpiring in his life. (PSOF, 9953,61,56) However, Plaintiff has failed to establish a question of material fact that these "In disguise" remarks were linked to any oral communication that he made. Further, Plaintiff's assertions that people made comments about him at work, the Elks Club, the opera, the law library, and other public places does not support his contentions that the comments he overheard resulted from any purported violation of the Federal Wiretap Statutes by the instant Defendants or any other person or entity. If the factual context makes the non-movant's claim implausible, that party must come forward with more persuasive evidence to support his claim than would otherwise be necessary. "The one instance where Plaintiff alleges that his oral assertions may have been intercepted concern his employment evaluation which he contends was broadcast on KVOA. However, KVOA has submitted affidavit testimony that KVOA's records indicate that evaluation was not shown. A Indeed, Plaintiff admits as much when he states that "unknown persons who may or may not be employees of Defendants or may be employees of a government entity" are conducting the surveillance. (Plainuff's Affidavit #2,.6 33) 40 APPENDIX Matsushita Elec. Jndus. Co., 475 U.S. at 587. Here, Plaintiff has provided no factual basis for the assertions in his Complaint or affidavits to support a claim that Defendants are subject to civil liability under 18 U.S.C. $2520. Therefore, even construing Plaintiff's claims pursuant to section 2520 is of no assistance to Plaintiff in establishing a question of material fact as to this Court's jurisdiction over his action and therefore Defendants' motions which the Magistrate Judge has construed as motions for summary judgment should be granted as to Plaintiff's claim pursuant to the Federal Wiretap Statutes and the claim should be dismissed. Plaintiff's claims pursuant to 47 CFR $/5.9 and 47 CER §2.701° Title 47 of the Code of Federal Regulations governs telecommunication matters. The FCC promulgated these regulations under authority of the Federal Communications Act of 1934 ("FAA"). 47 U.S.C. § I51 et. seg. Federal courts, including the United States Supreme Court, have recognized that the purpose of the FAA ts regulation in the ” 47 CFR 15.9 provides: "Prohibition against eavesdropping. Except tor the operations of law enforcement officers conducted under lawful authority, no person shall use, either directly or indirectly, a device operated pursuant to the provisions of this part for the purpose of overhearing or recording the private conversations of others unless such use is authorized by all of the parties engaging in the conversation." 47 CFR 2.701 provides: "Prohibition against use of a radio device for eavesdropping. (a) No person shall use, either directly or indirectly, a device required to be licensed by section 301 of the Communications Act of 1934, as amended, for the purpose of overhearing or recording the private conversations of others unless such use is authorized by all of the parties engaging in the conversation. (b) Paragraph (a) of this section shall not apply to operations of any law enforcement officers conducted under lawful authority. Section 15.11 1s the predecessor to section /5.9. See 54 FR. 17714 (April 25, 1989). 4] 4 Pe a : 3 4 APPENDIX public interest and not the creation of private rights. Scripps vs. Howard Radio Inc., V. Federal Communication Comm., 316 U.S. 4 (1942); Daly V. Columbia Broad. Sys., Jnc., 309 F.2d 83 (7th Cir. 1962); Central NY Right to Life Federation V. Radio Station WIBX., 479 F.Supp. 8 (N.D.N.Y. 1979). Additionally, vindication of the important public interest served by the FCA is vested with the FCC where an aggrieved person may, in the proper circumstances, obtain relief from the FCC. Central N Y,479 F.Supp. at 10. See also Boddie, 731 F.2d at 339 (district court dismissed plaintiff's claim under FCC regulations including §§2.701 and 15.11"° prohibiting eavesdropping because "primary jurisdiction for the enforcement of the regulations was vested in the [FCC]" and the appellate court held that plaintiffs allegations of violation of these regulations was properly excluded from trial on charges filed pursuant to the Federal Wiretap Statutes). Therefore, Defendants argue that the regulations cited by Plaintiff do not create a private right of action. In response, Plaintiff cites to the provision in the FCA governing carriers’ liability for damages which provides that, in certain instances, a "common carrier shall be liable to the person... injured." 47 U.S.C. §206. Plaintiffs reference to section 206 does little to support his position because Plaintiff did not plead a violation of section 206. Moreover, section 206 is inapplicable to the instant action because radio and television broadcasters are not common carriers under the FCA. United “Common carrier or carrier means any person engaged as a common carrier for hire, in interstate or foreign communication by wire or radio or in interstate or foreign radio transmission of energy, except where reference is made to common carriers not subject to this chapter; but a person engaged in radio broadcasting shall not, insofar as such person is engaged, be deemed a common carrier.” 47 USC. $i S3(h). APPENDIX States V. Radio Corporation, 358 U.S. 334, 348-49 (1959). Additionally, Plaintiffs citation to section 206 merely emphasizes that Congress expressly created a private cause of action when such a right was intended under the FCA. Because Plaintiff has failed to establish that a private cause of action is available under 47 C.F.R. $$/5.9 and 2.701, his claims pursuant to these regulations should be dismissed. See Boddie, 731] F.2d at 339. - Plaintiff's claim pursuant to 42 U.S.C. § 1983 The Supreme Court has recognized that "to state a claim under section 1983, a plaintiff must allege the violation of a right secured by the Constitution and the laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law." West v. Catkins, 487 U.S. 42, 48 (1988). Defendants argue that the Court lacks jurisdiction over Plaintiff's section 1983 claim because Plaintiff cannot satisfy' the requirement that Defendants have acted under color of state law in conducting the alleged surveillance. It is unclear from Plaintiff's Complaint and Response whether he is asserting that Defendants are governmental actors under state or federal authority. Section 1983 only applies to state action. Where only federal action is alleged, the claim is to be brought under Bevies V. Six Unknown Named Agents of the Fed. Bur. of Narcotics, 403 U.S. 388(1971), instead of section 1983. Morse V. North Coast Opportunities, Inc., 118 F.3d 1338, 1340 (gth Cir. 1997). However, whether Plaintiff's action is filed pursuant to section 1983 or Bivens need not be resolved at this time because the standard for determining the existence of government action is the same in both cases. /D. at 1340, 1343. Therefore, even though the parties and the Court refer to state action under section 1983, the references 43 ——— aaa 5 ce a 4 * 2 ? F APPENDIX are interchangeable with federal action necessary for a Bivens claim for purposes of this discussion. The Ninth Circuit has stated that "[a] fundamental requi-rement of section 1983 is that the challenged action must have been taken ‘under color of state law" Canlis V. San Joaquin Sheriff's Posse, 641 F.2d 711, 716 (9TH Cir. 1981)(footnote setting out text of section 1983 omitted). Indeed, "[s]tate action is an essential jurisdictional predicate under section 1983, and accordingly, if state action is not alleged and is found lacking, the complaint must be dismissed." Sampson V. Village Discount Outlet, Inc., 832 F.Supp. 1163, 1167 D.Ill. 1993), aff'd. 43 F.3d 1474 (7th Cir. 1994)(citing National Collegiate Athletic Assoc. V. Tarkanian, 488 U.S. 179 (1988); Gomez V. Toledo, 446 U.S. 635 (1980)). To determine whether the conduct of private parties amounts to governmental action, the Ninth Circuit applies the following four tests, (1) the governmental nexus test, (2) the public function test, (3) the state compulsion test, and (4) the joint action test. Berger V. Hanlon, 129 F.3d 505, 514 (gth/Cir. 1997), petition for cert. filed, 66 USLW 3783 (U.S. May 1998)(No. 97-1927). Without stating which test applies, Plaintiff argues that "[m]edia broadcasters, generally are state actors" despite Defendants’ assertion to the contrary. (Response, p.8) Plaintiff further argues that Defendants are state actors in their normal course of business when they work "in direct concert with law enforcement" to notify the community regarding the release of sexual offenders, when they broadcast shows such as Cops, America's Most Wanted, Judge Judy, and The People's Court, when they provide public assistance through the Emergency Broadcast System, and when they broadcast the state lottery results. (Id. and 1997 Letter from Arizona State Lottery attached to PSOF) APPENDIX Other examples of Defendants’ purported governmental action cited by Plaintiff include state Attorney General Grant Woods’ regular radio broadcast on a Phoenix station that is not a party to this suit and the recent showing of the CIA's video reenactment of TWA Flight 800. (1d. at p.9) Plaintiff further stresses that’ state officials were present on Defendants’ premises for interviews or other broadcasts. (Id. at p.10) Additionally, Plaintiff argues that the presence of law enforcement officers on his property and at his work site also suggests that Defendants were acting in concert with state officials. (Id. at pp. 9-10) Plaintiff also cites to Berger where the Ninth Circuit held that CNN was a government actor for purposes of a Bivens action where CNN and federal agents entered into a written contract for CNN reporters to accompany agents during the execution of a search warrant. Berger, 129 F.3d SOS. the Berger plaintitt also alleged that the government shared confidential information with CNN = and that the record suggested that the federal officers "planned and executed the search in a manner designed to enhance its entertainment, rather than its law enforcement value, by cnyaying in, for example, conversations with [the plaintiff] for the purpose of providing interesting sound bites, and to portray themselves as tough, yet caring investigators, rather than to further their investigation.” Jd. at 575. lo defeat summary judgment, Plaintiff must establish a question of fact as to whether Defendants are government actors under one of the four tests discussed above. Under the governmental nexus test, courts must consider whether there is a sufficiently close nexus between the state and the challenged action of the regulated entity so that the action of the latter may be fairly treated as that of the government itself. 7D. at S14. Moreover, "an action taken by a private corporation ts not necessarily or automatically ‘state action’ merely because the corporation is chartered by the state, o1 because the corporation has a state conterred monopoly, ot 45 APPENDIX because the activities of the corporation are strictly regulated by the state, or because the functions performed by the MAPS M OM STVE the pitti convenience and necessity.” Briscoe V. Bock 540 F.2d 392, 395 (8th Cir. 1976)(emphasis added). Indeed, the licensing of an otherwise private entity under the FCA does not, of itself, require a finding of state action. Kuczo V. Western Conn. Broad., 566 F.2d 384 (2d Cir. 1977); Bloum V. Loyola Univ., 506 F.2d 20, 22 (5th Cir. 1975). See also Canlis, 641 F.2d at 716 ("The mere filing of a Charter... without more, does not constitute a ‘sufficient nexus."'). In the instant case, there is nothing to indicate that there is any connection between the alleged surveillance activities and Defendants’ regulation by government entities, the presence of government officials on Defendants’ premises at various times, Defendants’ broadcasts regarding the release of sexual offenders, broadcasts of shows mentioned by Plaintutt such as 7he People's Court, or broadcasts of the state lottery results, Woods' show or the CIA video reenactment. Therefore, Plaintiff has failed to establish that Defendants’ alleged surveillance activities constitute state action under the governmental nexus test. Under the public function test, state action is present when a private entity exercises functions traditionally and exclusively reserved to the state. Berger, 129 F.3d at S14. An entity may be a state actor for some purposes but not for others." George Vo Paczfic-CSC) Work Furlough, 91 k.3d 1227, 1230 (gth Cir. 1996). See also Robison Ve Canterbury Village, Inc., 848 F.2d 424, 429 (3d Cir. 1988)("The logical determinant must be whether the actions challenged as unconstitutional are performed in the exercise of the actor's governmental or public functions, rather than in the actor's private capacity.") Plaintiff provides no allegations to support the conclusion that Defendants are government actors under the public function test. Indeed, radio and television broadcasts are not "traditionally the exclusive Te APPENDIX prerogative of the government" and Plaintiff has pointed to no authority to the contrary. Morse, 118 F.3d at 1343. Accordingly, Plaintiff has failed to demonstrate a genuine issue Of material fact regarding whether Defendants' alleged surveillance constitutes state action under the public function test. The state compulsion test requires a showing that the state is responsible for the decision of the private entity because the state exercised coercive power or provided such significant encouragement, either overt or covert, that the decision must in law be deemed to be that of the state. Berger, 129 F.3d at 514. See also Morse, 118 F.3d at 1342- 43 (collecting Ninth Circuit decisions holding that without governmental encouragement or coercion, actions taken by private corporations pursuant to federal law do not transmute into government action and holding that actions of private entity were not governmental action where no_ state regulation or policy compelled the offensive action.) In the instant case, Plaintiff has neither alleged facts nor pointed to evidence tending to show that the state or federal government somehow compelled, forced or coerced Defendants into conducting the alleged surveillance. Accordingly, Plaintiff fails to defeat Defendants' motions regarding this issue. Under the joint action test, private actors can be considered government actors if they are willful participants in joint action with the government or its agents. Berger, 129 F.3d at 514. Therefore, the Ninth Circuit has recognized that the joint action test requires a_ substantial degree of cooperative action between the government and the private party. Jd. at 515 (citing Collins V. Womancare, 878 F.2d 1145, 1154 (gth Cir. 1989)). Plaintiff misplaces reliance on the Berger case to show that Defendants are governmental actors under the joint action test. In Berger, the plaintiffs defeated summary judgment by presenting evidence tending to show that the media not only arrived with the federal 47 FO acy OE RAI BESET LICE PEE AES Bev Sa 5 ‘ we Pon Et VES, APPENDIX agents who executed the search, but that the government shared confidential information with the media, the government planned and executed the search in a manner designed to enhance its entertainment value, and that the government entered into a written contract with the media station. JCL at 5/5. The court held that "the inextricable’ involvement of the media with both the planning and execution of this search, the government's active involvement with the media's news gathering activities, and the mutually-derived benefits, is more than enough to make the media government actors." /d. In so holding, the Berger court distinguished cases where private parties including the media were not found to be joint government actors because, unlike CNN in Berger, those parties did not collaborate with the government to conduct a search for their own benefit. Jd See e.g. Parker v. Boyer, 93 F.3d 445, 448 (gth Cir. 1996), cert. den., 117 S.Ct. 1081 (1997)(media videotaping police search and seizure did not constitute action under state law because neither the media station "nor the police assisted the other in the performance of their separate and respective tasks.") In the instant case, Plaintiff neither alleges in his Complaint nor does he point to any probative evidence Whatsoever establishing a material question of fact as to Whether Defendants and the state or federal government cooperated or were inextricably involved in conducting the alleged surveillance. Indeed, Plaintiff has identified no specific activities that Defendants conducted in connection with state or federal authority. Instead, Plaintiff points to on- air statements that he interprets to be personally directed at him. Because Plaintiff has failed to establish a genuine issue of material fact regarding whether Defendants are governmental actors under any of the four tests applied in the Ninth Circuit, Plaintiffs section 1983 claim should be dismissed. 48 APPENDIX Plaintiff's claim pursuant to 42 U.S.C. §1985 Section 1985 sets forth three subsections under which an action may be brought. Plaintiff's Complaint does not indicate which subsection applies. However, in his Response, Plaintiff argues that he has a claim under each subsection. Therefore, the viability of Plaintiff's action pursuant to each subsection of section /985 is discussed below. ; Section 1985(1) Section 1985(1) provides: Preventing officer from performing duties. If two or more persons in any State or Territory conspire to prevent, by force, intimidation, or threat, any person from accepting or holding any office, trust, or place of confidence under the United States, or from discharging any duties thereof, or to induce by like means any officer of the United States to leave any State, district, or place, where his duties as an officer are required to be performed, or to injure him in his person or property on account of his lawful discharge of the duties of his office, or while engaged in the lawful discharge thereof, or to injure his property so as to molest, interrupt, hinder, or impede him in the discharge of his official duties. 42 U.S.C. $1985(1). Plaintiff argues that he has a claim under section 1985(1) in light of his "status as an officer of the State of Arizona as both a secondary teacher in a public school and as a Precinct Committeeman." (Response, p.2)(See also Plaintiff's 49 APPENDIX Bachelor of Arts Degree in Education attached to Plaintiff's Affidavit #2; 1994 certificate of election as Precinct Committeeman of the Republican Party for the Sierra Vista Thunderbird Precinct of Cochise County, Arizona attached to PSOF) The Ninth Circuit has stated that the "clear import of [section /985(1)] is that the statute's protections extend exclusively to the benefit of federal officers." Canlis, 641 F.2d at 717, 718 (emphasis added)(dismissing section {985(1) claim for lack of jurisdiction where plaintiff was a county, not federal, official). See also Robison, 848 F.2d at 430, m5 (Section 1985(1) "governs interference with the duties of federal officers only.") Plaintiff's status as a teacher and as a precinct committeeman do not establish his status as a federal officer under section 1985(1). Moreover, Plaintiff has offered no probative evidence suggesting _ that Detendants' alleged conduct interfered with Plaintiff's duties as a teacher or a precinct committeeman. Accordingly, Plaintuit!'s claim pursuant to section /985(/) must fail. Section 1985({2) Section 1985(2) provides: Obstructing justice; intimidating _ party, witness, or juror. If two or more persons in any State or Territory conspire to deter, by force, intimidation, or threat, any party or witness in any court of the United States from attending such court, or from testifying to any matter pending therein, freely, fully, and truthfully, or to injure such party or witness in his person or property on account of his having so attended or testified, or to influence the verdict, presentment, or indictment of any vrand or petit juror in any such court, or to 50 APPENDIX injure such juror in his person or property on account of any verdict, presentment, or indictment lawfully assented to by him, or of his being or having been such juror; or if two or more persons conspire for the purpose of impeding, hindering, obstructing, — or defeating, in any manner, the due course of justice in any State or Territory, with intent to deny to any citizen the equal protection of the laws, or to injure him or his property for lawfully enforcing, or attempting to enforce, the right of any person, or class of persons, to the equal protection of the laws. 42 U.S.C. §1985(2). Section 1985(2) can be divided into two parts. Sampson, 832 F.Supp. at 1168. "[T]he first. part pertains to the administration of justice in the federal judicial system, and the second part relating to conspiracies to obstruct the course of justice in state courts." /d. (omitting internal quotations) To establish a claim for relief under the first clause of section /985(2), Plaintiff must show (1) a conspiracy between two or more persons, (2) to deter a party or witness by force, inumidation or threat from attending federal court or testifving freely in a matter pending tn federal court, Which (3) causes injury to Plaintitl. Aferrera v. Scully, 815 b.Supp. 713, 726 (S.D.N.Y. 1993). See also Sampson, 832 F.Supp. at | 168("plaintiff must allege a nexus between an alleged conspiracy and a federal court proceeding.") The Ninth Circuit has recognized a split among the circuits regarding whether "attending" federal court refers to one's physical presence while attending or testifying, or whether one is deemed to have attended court from the moment that the person files a complaint. Portman vo. County of Santa S| SIRES chet ale Ea see a a Rn a APPENDIX Clara, 995 F.2d 898, 910 (gth Cir. 1993). The Portman court declined to address the issue. /d. In his Response, Plaintiff states that Defendants eavesdropped on his calls to legal counsel and to the Clerk of the Court. However, Plaintiff makes no statements in either of his affidavits to this effect, nor does he offer any evidence tending to show that such eavesdropping occurred. Plaintiff further asserts that "[d]ue to the circumstances and sensitive facts...the fear of outright widespread publicity and any implications associated with that effectively hindered Plaintiff from filing that action. The matter is complicated.. facts pertain to Plaintiff as a minor, coupled with potential physical bodily harm to Plaintiff caused from a 'media circus."' (Response, p.3) In his affidavit, Plaintiff relates that sometime between June and September 1995, prior to commencement of the instant action, he was shot at with a BB gun. (Plainutt's Attidavit #2, 420). According to Plaintitt the incident placed him in fear of filing suit. (Id.) Even taking Plaintiffs statements as true and undisputed, such statements do not establish a cause of action pursuant to the first clause of section 1985(2) under either interpretation discussed in Portman. Plaintiff states that Defendants’ purported conduct kept him from initialls filing suit, not that they interfered with the action once suit was filed. Moreover, Plaintiff does not allege or establish that Defendants conspired to keep him from attending federal court proceedings. Such asseruions fail to state a claim undet section 1985(2). See Herrera, 815 F.Supp. at 726. Indeed, Plaintiff cites no other federal court proceeding than the instant action, and there have been no proceedings requiring Plaintitf's physical attendance in this action nor has Plaintiff alleged or shown that Defendants kept him from pursuing the instant action once it was filed. Additionally, Plaintiff has suiled to allege or to provide facts suggesting the meeting of « the minds necessary to establish his conspiracy claim. See APPENDIX Sampson, 832 F.Supp. at 1168 (plaintiff "is required to show that there was a single plan, the essential nature and general scope of which was known to each person who is to be held responsible for its consequences."(omitting — internal quotations)); Morast V. Lance, 631 F.Supp. 474 ~.D.Ga. 1987). affd. 807 F.2d 926 (,4th Cir. 1986)(conclusory assertions that the defendants conspired to deter the plaintiff as Witness by force, intimidation or threat are insufficient to support a claim). Accordingly, because Plaintiff has failed to establish any genuine issue of material fact regarding whether Defendants conspired to injure Plaintiff or any Witness for having attended or testified in any federal court, this Court does not have jurisdiction over Plaintiff's action pursuant to the first clause of section 1985(2). The second clause of section /985(2) relates to conspiracies to obstruct the course of justice in state court with the intent to deny any citizen the equal protection of the laws. Sampson, 832 F.Supp. at 1168. Thus, the second clause of subsection two "prescribes conspiracies to deny or interfere with equal protection nghts.,' /D. Plaintiff neither alleges nor provides evidence that Defendants conspired for the purpose of obstructing justice in state court with the intent to deny Plainuff or anyone else equal protection of the laws. Additionally, as with his claim under the first clause of /985/(2), Plaintiff has failed to establish any factual basts to support a conspiracy in violauon oof section = /983(2) among — Defendants. Accordingly, the Court does not have jurisdiction under the second clause of section /‘ 5/2) to entertain Plaintiff's claims Section 1985(3) Section 1985(3) provides: Sh Ge APPENDIX Depriving persons of rights or privileges. If {wo or more persons in any State or Territory conspire, or go in disguise on the highway or on the premises of another, for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws; or for the purpose of preventing or hindering the constituted authorities of any State or Territory from giving or securing to all persons within such State or Territory the equal protection of the laws; or if two or more persons conspire to prevent by force, intimidation, or threat, any citizen who is lawfully entitled to vote, from giving his support or advocacy in a legal manner, toward or in favor of the election of any lawfully qualified person as an elector for President or Vice President, or as a Member of Congress of the United States; or to injure any citizen in person or property on account of such support or advocacy; in any case of conspiracy. set forth in this section, if one or More persons engaged therein do, or cause to be done, any act in furtherance of the object of such conspiracy, Whereby another is injured in his person or property, or deprived of having and exercising any right or privilege of a citizen of the United States, the party so injured or deprived may have an action for the recovery of damages, occasioned by such injury or deprivation, against any one or more of the conspirators APPENDIX 42 US.C. $/985(3). To prevail under section 1985(3), Plaintiff must allege and prove (1) a conspiracy, (2) for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges or immunities under the laws, and (3) an act or furtherance of conspiracy, (4) whereby a person is-either injured in his property or person or deprived of any right or privilege of a citizen of the United States. Griffen V. Breckenridge, 403 U.S. 88, 102-103 (1971). To be actionable under section 1985(3), the alleged conspiracy must be motivated by "some racial, or perhaps otherwise class-based, invidiously discriminatory animus." JD. at 102." Additionally, the Supreme Court has recognized that "[a] section 1985(3) private conspiracy ‘for the purpose of depriving... any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws,’ requires an intent to deprive persons of a right guaranteed against private impairment." Bray, Alexandria Women's Health Clinic, 506 U.S. 263, 274 (1993)(quoting 42 U.S.C. §1985(3)). The Bray Court further stated that "[a] conspiracy is not 'for the purpose’ of denying equal protection simply because it has an effect upon a protected right. The right must be ‘aimed at,’...1ts impairment must be a conscious objective of the enterprise.. the defendant [must] do more than merely be aware of a deprivation of right that he causes, and more than merely accept it; he must act at least in part for the very purpose of producing it." /D. at 275-76 (footnote omitted). Plaintiff's Complaint contains no allegations that he is a member of a protected class sufficient to satisfy section 1985(3), nor does he allege facts to support a conspiracy among Defendants. In his Response, Plaintiff argues that his The Griffen Court declined to decide whether a conspiracy motivated by invidiously discriminatory intent other than racial basis would be actionable under section 198S(3). Griffen, 403 U.S. at 102, n.9 55 ee Sa APPENDIX status as a teacher, a Roman Catholic and a Republican satisfies the requirement that he be the target of some class- based animus. Plaintiff cites cases suggesting that section 1985(3) may apply to conspiracies aimed against a person because of his political or religious affiliation. (Response, p.5) However, even if a claim of politically-motivated animus or religiously-motivated animus stated a violation under section 1985(3) it would do so only "when it states an interference with some fundamental right such as the right to vote." California Republican Party V. Mercier, 652 F Supp. 928, 937 (C.D.Cal. 1986). In the instant case, Plaintiff has not to pointed to any evidence supporting his contention that Defendants and the State or federal government conspired to deprive him of any fundamental right. Additionally, Plaintiff has not pointed to any evidence supporting his contention that Defendants formed a private conspiracy among themselves to deprive Plaintiff of a protected right. Indeed, if Plaintiff were alleging a private conspiracy, he would also need to establish that the right Defendants conspired against was a right guaranteed against private impairment. The Supreme Court has recognized that section 1985(3) does not apply to private conspiracies that are aimed at a right that is by definition a right against only state interference. Bray, 506 U.S. at 278. In fact, the Supreme Court has observed that there are few rights protected against private as well as official encroachment. /D.” The Court has thus far only recognized the Thirteenth Amendment right to be free from involuntary servitude and the Thirteenth Amendment right of interstate travel as rights protected against public and_ private encroachment. /D. See also Tilton V. Richardson, 6 F.3d 683, 686 (10 Cir. | 993)(recognizing that the rights secured In dicta, the Bray Court recognized that riehts secured under the Fourth Amendment are not protected against private infringement. 506 U.S. at 278 APPENDIX under the First) Amendment, Fifth Amendment and Fourteenth Amendment are not protected against private encroachment). Although Plaintiff submitted evidence showing that he has a degree in education, that he is a Republican, and that he is a Roman Catholic, this evidence does little to support his claim that Defendants conspired against him for these reasons. None of the statements or actions which Plaintiff attributes to Defendants suggest that Defendants’ alleged conduct was aimed at Plaintiff because he is a teacher, a Republican, or a Catholic. Nor does Plaintiff show facts suggesting a meeting of the minds among Defendants to single Plaintiff out for these reasons in order to deprive him of any right protected from private encroachment. Because Plaintiff has not alleged and cannot show that he was denied equal protection of the laws because of a class to which he belongs, Plaintiff's section 1985(3) should be dismissed. Plaintiff's claim pursuant to 42 U.S.C. $1986 Section 1986 creates a further cause of action for those persons who have brought claims under section 1985. Morast, 631 F.Supp. at 479. Therefore, the law 1s well- settled that "a claim can be stated under section 1986 only if the complaint contains a valid claim under section 1985." McCalden NV. California Library Assoc., 955 F.2d 1214, 1223 (gth Cir. 1992). Because Plaintiff's claim under section 1985 fails, so too must Plaintiff's section 1986 claim. Accordingly, Plaintiffs section 1986 claim should be dismissed. Plaintiff's claims pursuant to state law Because the Court lacks subject matter jurisdiction over Plaintitf’s claims brought pursuant to federal law, the a & d 2 APPENDIX only remaining claims are the state law claims. Whether to retain jurisdiction over the state law claims is a matter within the Court's discretion. 28 U.S.C. 1367(c)(3); Cook, Perkiss and Liehe, Jnc. V. Northern Cal. Collection Serv., Inc., 911 F.2d 242, 247 (9th Cir. 1990). When federal claims are dismissed before trial, the Ninth Circuit has held that "the proper exercise of discretion is to dismiss the pendent state claims as well." Cook 911 F.2d at 247. See also Macro V. King County, 126 F.3d 1125, 1129-30 (gth Cir. 1997), cert den. 118 S.Ct. 1178 (1988), ("a district court may decline to exercise supplemental jurisdiction if it has dismissed all claims over which it had original jurisdiction.") Because the Court lacks subject matter jurisdiction over all of the federal causes of action advanced by Plaintiff the District Court should decline to exercise jurisdiction over the remaining state claims. See Canlis, 641 F.2d at 721 (affirming district court's dismissal of pendant state claims where section 1983 and. section 1985 claims were dismissed); Morse, 118 F.3d at 1340 (same where section 1983 claim was dismissed). PLAINTIFF'S MOTION TO COMPEL AND PLAINTIFE'S MOTION TO STAY Plaintiff moves the Court to compel Defendants to respond to his outstanding discovery requests. Plaintiff argues that he cannot properly respond to Defendants’ dispositive motions without the requested discovery. Additionally, Plaintiff requests the Court to stay ruling on the dispositive motions until after resolution of his requests. Defendants respond that Plaintiff's discovery requests were served prematurely before the conference required by Fed.R.Civ.P. 26. Additionally, Defendants state that Plaintiff's discovery requests were over broad, sought voluminous information unrelated to the allegations, and S8 APPENDIX sought the names and addresses of Defendants’ employees. According to Defendants, none of the requests are relevant or calculated to lead to admissible evidence. Defendants also assert that a stay is unwarranted where the evidence sought is almost certainly nonexistent, or is the object of pure speculation. Defendants further assert Plaintiff has not explained how the discovery sought will prevent summary judgment. The Magistrate Judge construes Plaintiff's Motion to Compel and Motion to Stay as a Motion pursuant to Fed.R.Civ.P. 56(/)."“ Rule 56(f) provides that when a party opposing summary judgment cannot present facts "essential to justify the party's opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just." Fed.R.Civ.P. 56(). Whether to grant or deny a Rule 56(/) motion is within the Court's discretion. Terrell V. Brewer, 935 F.2d 1015, 1017 (oth Cir. 1991); Garrett V. City and County of San Francisco, 818 F.2d 1515, 1518 (gth Cir. 1987). Plaintiff bears the burden of showing that the facts he hopes to discover will raise a material issue of fact and that the evidence sought exists. Terre//, 935 F.2d at 1018. Indeed the Ninth Circuit has held that "[dJenial of a Rule 56(/) application is proper where tt is clear that the evidence sought is almost certainly nonexistent or ts the object of pure speculation." /d. In support of his Motion, Plaintiff cites the Ninth Circuit's decision in Garrett, 818 F.2d at 1518. In Garrett, the Ninth Circuit held that the trial court should have granted a Rule 56(f) motion where the movant made clear the information sought, did not seek broad additional discovery, i4 = ) ; res Indeed, Plaintiff cites case law applying Rule 56(/ in support of his Motion to Stay 59 APPENDIX and indicated the purpose for which the information was sought. /d. at 1518-19. Plaintiff's discovery requests are the antithesis of those submitted by the Garrett plaintiff. Plaintiff seeks broad, voluminous discovery and he has not shown how the evidence sought will raise a genuine issue of material fact. Even if Defendants disclosed the information sought such as, for example, the identity of employees working — for Defendants during April 1, 1995 to April 1, 1996, the identity of all guests appearing on various programs during April 1, 1995 to April 1, 1996, and the description of the technological processes regarding the talking ear device worn during live broadcasts and the altitudinal range of the satellites used, this information will not serve to raise a genuine issue of material fact regarding the existence of federal jurisdiction. Additionally, in light of the affidavits submitted by KGUN, KVOA, KOLD and KNST, the record supports the conclusion that it is speculative that any evidence exists that would enable Plaintiff to establish a genuine issue of material fact necessary to defeat Defendants’ motions. Such a conclusion is further supported by Plaintiff's inability to allege anything but conclusory facts suggesting a link between Defendants’ alleged surveillance and state action because the existence of evidence tending to support such a theory is pure speculation. For these reasons. Plaintiff's Motion to Compel and Motion to Stay should be denied. DEFENDANTS' MOTION TO UNSEAL _ AND PLAINTIFE'S REQUEST FOR FURTHER INSTRUCTIONS With his Complaint, Plaintiff filed a Motion to Seal Court Record. On September 15, 1997, the Magistrate Judge denied Plaintiff's motion because the motion was "devoid of [the] factual support" necessary to justify sealing the record. 60 APPENDIX (September 15, 1997 Order, p.4)} Subsequently, Plaintiff requested permission to submit his response to Defendants' dispositive motions only to the Court. Although the Magistrate Judge denied Plaintiff's request, the Magistrate Judge permitted Plaintiff to file his response and supporting documentation under seal because of Plaintiff's contention that release of the documents would likely result in his physical harm. (December 1, 1997 Order, p.4) Now that the contents of Plaintiffs response are available for review, Defendants request that the Court lift the seal. "At the time the Court entered its Order, it understandably relied on [P]laintiff's assertion that he could suffer physical harm if the materials were made public. A review of the materials leaves no doubt that [Plaintiff's assertion is frivolous." (CNN's & TBS' Motion to Unseal, p.3) In response, Plaintiff stresses that statements contained in his statement of facts in opposition to Defendants’ dispositive motions support the sealing of those papers as well as the sealing of documents filed by Plaintiff in the future. In fact, in his Request for Special Instructions, Plaintiff requests the Court to order that all future filings be made under seal. He contends that his physical safety is a compelling reason to deny Defendants’ motion to lift the seal. The September 15, 1997 Order advised the parties of the strong presumption in favor of the public's right to access judicial records. (September 15, 1997 Order, p.2 citing Hagestad V. Tragesser, 49 F.3d 1430, 1434 (gth Cir. 1995)) The Order also stated that in the Ninth Circuit the presumption in favor of access may be overcome only "on the basis of articulable facts known to the court, not on the basis of unsupported hypothesis or conjecture."' (Id. quoting Hagestad 49 F.3d at 1434). The Order stressed that the decision to seal must be based upon a compelling reason as opposed to hypothesis and conjecture. (Id. at pp.3-4) In light of Plaintiff's responses to Defendants’ dispositive motions 6] 4 4 * % APPENDIX and motion to unseal, it is now clear on the record that Plaintiff is unable to articulate factual support for his assertion that public access to the record will result in his physical harm. Instead, Plaintiff offers hypothesis and conjecture. To permit the seal to remain in the instant case would be contrary to Ninth Circuit precedent cited in the September 15, 1997 Order. Accordingly, Defendants’ motion is well taken and the seal should be lifted. In his Request for Special Instructions, Plaintiff also requests permission to amend the Complaint to state claims based on "tolling theories" against unidentified parties who are not presently named. Although leave to amend under Fed.R.Civ.P. /5(a) should be freely given, "it may be denied if the proposed amendment either lacks merit or would not serve any purpose because to grant it would be futile in saving the plaintiff's suit." Universal Mort. Co. V. Prudential Ins. Co., 799 F.2d 458, 459 (9~ Cir. 1986). Because the viability of Plaintiff's claims eves not rest on whether tolling applies, allowing Plaintiff to «mend his complaint to state claims based on "tolling theories" against additional parties would be futile. Therefore, Plaintiff's Request for Special Instructions as it pertains to amendment should be denied. RECOMMENDATION For the reasons stated above, Defendants are entitled to summary judgment because Plaintiff has failed to establish a genuine issue of material fact regarding the Court's jurisdiction. Because the Court lacks jurisdiction over Plaintiff's federal claims, Plaintiff's pendant state claims are also subject to dismissal. Additionally, Plaintiff's motion to compel and motion to stay fail to satisfy Rule 56(f). Further, Defendants' motion to lift the seal is well taken. Therefore. the District Court, after its independent review, should dismiss Plaintiffs Complaint for lack of subject matter jurisdiction and thereby grant KOLD's Motion to Dismiss 62 APPENDIX and Motion for Summary Judgment (#9), KGUN”S Motion to Dismiss and Motion for Summary Judgment (#22), CNN's and TBS' Motion to Dismiss (#25), ABC's Motion to Dismiss (#27) and KNST's Motion to Disrniss and For Summary Judgment (#29). The District Court should also deny Plaintiff's Motion to Compel (#46), Plaintiff's Motion to Stay (#48) and Plaintiff's Request for Special Instructions (#49). The District Court should grant Defendants’ Motion to Unseal. (#55) Pursuant to 28 U.S.C. §636(B), any party may serve and file written objections within ten days after being served with a copy of this Report and Recommendation. The Clerk is directed to mail a copy of this Report and Recommendation to the parties and/or their counsel. Dated this 17TH day of July 1998. “s/Nancy Fiora” NANCY FIORA UNITED STATES MAGISTRATE JUDGE _V~_rnep RECEIVED LOOGED copy SEP 2 5 698 CLERK U S DISTRICT COURT COUR DISTRICT OF ARIZONA BY DEPUTY IN THE UNITED STATES DISTRICT COURT 63 APPENDIX FOR THE DISTRICT OF ARIZONA ANTHONY S. WENC, Plaintiff, V. CABLE NEWS NETWORK, INC., et al.. Defendants. No. CIV 97-528-TUC-WDB ORDER Pending before the Court are the following motions filed by Defendants:’ (1) KOLD's Motion to Dismiss and Motion for Summary Judgment,’ (2) KGUN's Motion to Dismiss and Motion for Summary Judgment,’ (3) Cable News Neiwork's ("CNN")and Turner Broadcasting's ("TBS") Motion to Dismiss and Motion for a More Definite Statement, (4) American Broadcast Corporation's ("ABC") Motion to Dismiss, (5) SFX Broadcasting's ("KNST") Motion to Dismiss and Motion for Summary Judgment. Als [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386014_0328%3A1. Public record. Not legal advice.