Plaintiff, v. CABLE NEWS NETWORK, INC./HEADLINE NEWS C/O Turner Broadcasting Inc.; AMERICAN BROADCASTING COMPANY, Plaintiff INC.); KVOA COMMUNICATIONS, INC.; KGUN INC.; KOLD INC.; KNST INC.; “JOHN DOE Defendants,”          Appellees/Defendants. Defendants.	PLAINTIFF’S REPLY IN SUPPORT OF HIS STATEMENT OF FACTS IN SUPPORT OF HIS COMPLAINT

     The Plaintiff hereby submits a Reply in Support of his Statemement of Material Facts.  This will address particular objections of CNN and TBS, KGUN, and KVOA, but of course apply to Defendants ABC, KNST and KOLD as well as the Defendants are inextricably intertwined.

CNN and TBS
     Defendants CNN in their “Reply in Support. . .to Dismiss” combined with its “Response in Opposition to Plaintiff’s Motion to Stay. . .”  displays nothing more than this Defendant’s attempt to confuse the Court of the facts in this case and undermine and obstruct justice.  First of all, CNN’s counsel has witnessed nothing and is in no position to refute facts witnessed by the Plaintiff.  In addition, this counselor is misstating, or outright creating his own facts and opinions to try to confuse the Court of the true facts presented by the Plaintiff.  For example,  CNN’s opening remark claiming Plaintiff’s response was “untimely” begins   the numerous false inferences CNN presents in its defense pleadings.  Plaintiff’s sealed response was  filed with the Clerk of the Court prior to the deadline.  It is this type of language in CNN’s pleadings that would lead one to believe Mr. Bodney was the actual defendant and could therefore try to refute facts he witnessed.  Mr. Bodney is neither a defendant nor a witness and has therefore offered nothing but his baseless opinions to facts in order to dodge the truth.  As a result of this, the Plaintiff will decipher through all this nonsense for the Court.
     CNN purports to confuse and dupe the Court by claiming certain facts presented by the Plaintiff are  “unwarranted inferences” that are unprovable .  Specifically, CNN focuses on  Plaintiff’s fact # 53 or  9(c)  of  Affidavit # 2.  Nothing could be further from the truth.  Archives in this Defendant’s possession (and others) will verify this.  Further, for CNN’s counsel to  try and compare technologically possible surveillance activities with his cite of Kish v. Videtti/Hussen (D.D.C., 1992) in which apparently Plaintiff claimed defendants “conspired to ‘transmit radio waves to her brain in an attempt to torture her and frame her for various actions’” (CNN Reply in Support at p. 4, l. 11) does not compare to Plaintiff’s provable facts and Complaint.  None of Plaintiff’s facts allege any such activity regarding “beamed messages” as alleged in Kish. (supra.)  Perhaps the Court should remind CNN’s counsel of its duty as an attorney, to argue the law and not rephrase or otherwise garble the facts. No matter how hard defense counsel tries to distort the facts, he can not change the truth. Furthermore, the action by Kathleen Kennedy is not entirely unusual in that anchors often make remarks to people they know who are at  home as some sort of communication to “say hello,” (i.e. a husband who is an anchor tells his child “watch TV during the 9:00 p.m. broadcast and I’ll say ‘hi Johnnie;’ or perhaps ‘I’ll give you a wink.’”).  In this case, however, such action only  evidences surveillance upon the Plaintiff as of course the Plaintiff does not know nor was there any agreement between the Plaintiff and the host.  A bizarre act, yes, impossible or unprovable, no.  In addition, Plaintiff stated such an act was “aghastly” realized.  The  discussion in the legal treatise Warrantless Satellite Surveillance:  Will our 4th Amendment Rights Be Lost in Space?  states the obvious: the potential exists for unknown sources to scrutinize another’s activities without his knowledge or consent.”  (John Marshall Journal of Computer and Informational Law Vol. XIII. n. 4, p. 731, 1995, bold added).  Had it not been for the Defendants’ desires to judge Plaintiff and make the remarks they did, obviously Plaintiff would likely never have discovered such surveillance activities, or at least the extent or who was involved.
     Finally, CNN’s premise is failed as it does nothing to support its unsupported claim that Plaintiff has no recognized legal theory other than its suggestion Plaintiff had an “unfortunate delusion.”  (CNN Reply at p. 1)  CNN’s empty apparent name calling only suggests that  CNN’s counsel also believes prestigious law schools such as John Marshall and Stanford devote numerous pages of  well detailed legal treatises in their law journals as delusions based on nothing verifiable .  Obviously the Court can not  accept such a failed defense theory. Thus, CNN’s faulty cite of Hagans v. Lavine in which it attempts to label Plaintiff’s Complaint as “absolutely devoid of merit” (CNN Reply, p. 2 l. 8) is just another example of CNN, through its counsel now, trying to play judge and jury.  The fact CNN is fixated on is both technologically possible and it did in fact happen, therefore the Court must as a matter of law accept it as not just a reasonable inference, but the truth.  CNN has offered nothing to disprove this fact, (or any of the facts) other than to deliberately and mistakenly compare it with Kish. (supra.) Plaintiff is merely stating the truth; perhaps he should have delayed stating this fact now that he knows it has led to a silly defense ploy.  Perhaps it is CNN’s counsel’s own ignorance or unfounded denial of technological capabilities and advances in technology that lead him astray.  CNN’s fixation to this fact offers nothing to refute this fact legally or in substantive opposition to dispute the fact.  Moreover, the fact that CNN’s counsel has bolded this fact within its Reply pleading only displays his own astonishment, thus validating such conduct to be “highly offensive and unreasonable,” to the capability of such an act.  Quite simply, the average person or even well educated and well read persons, are likely unaware of the surveillance capabilities of lasers and space satellites.  Plaintiff’s witnessing the event is sufficient to stand as a fact for jury consideration, just as it would be if this were a sexual harassment case and there was a fact to be considered between the harasser and the harassee, though here obviously other people would have knowledge to this event.
     Continuing along these lines, CNN’s own argument negates itself.  For example, on the one hand, CNN illogically states Plaintiff’s claims, to paraphrase,  “fall into conclusary allegations or legal conclusions masquerading as factual conclusions that would warrant dismissal.”  Plaintiff witnessed what is presented.  Presumably, then, CNN would have the Court believe that had Plaintiff witnessed Mr. Bodney’s house emanating in flames, that it would be improper for Plaintiff to conclude there was a fire and therefore also improper for Plaintiff to call the fire department.
      On the otherhand, CNN  claims non-conclusory factual allegations also warrant dismissal with regards to Plaintiff’s fact regarding the probability  that unknown persons  who may or may not be employees of the Defendants could be implicated with regards to state action and the § 1983 claim.  Bivens v. Six Unknown Federal Narcotic Agents (403 U.S. 388, 1971) affirms such an element of Plaintiff’s claims.  Therefore, CNN’s textbook citation  from Moore’s Federal Practice is a misplaced and irrelevant authority to desperately stray the Court  (CNN Reply, p. 4-5); CNN can not have it both ways  no matter how hard it tries to trick the Court.  Thus, Discovery will yield the extent of the involvement between the Defendants and the two law enforcement agents, along with the other state officials.

    Moreover, the accepted rule is that a complaint is not to be dismissed "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 101-103, 2 L. Ed. 2d 80 (1957); Russell v. Landrieu, 621 F.2d 1037, 1039 (9th Cir. 1980); DeWitt v. Pail, 366 F.2d 682, 685 (9th Cir. 1966).

(quoting from U.S. v. City of Redwood City, 640 F.2d 963, 9th Cir. 1981).

In addition, while the Plaintiff has provided the legal basis for his claims,

 “[he] is not required to state the statutory or constitutional basis for his claim, only the facts underlying it.”  See  Haddock v. Board of Dental Examiners of California, 777 F. 2d 462, 464 (9th Cir. 1985).  (complaint “should not be dismissed if it states a claim under any legal theory, even if the plaintiff erroneously relies on a different legal theory”).

(quoting from  McCalden v. California Library Association, bold added,  955 F. 2d 1214, 9th Cir., 1990).

KGUN
        KGUN has submitted a ". . . Response to Plaintiff's Statement of Facts. . . ."  In this Response, KGUN proposes objections to many of Plaintiff's facts.  This Reply will explain why KGUN's  objections are baseless and inapplicable.  While no other Defendants have yet submitted any similar Response, this Reply should be applied to all Defendants’ pleadings.
 In its Response in paragraph one (1), KGUN objects based on its claim those facts are "not supported by admissible evidence."  Those facts were presented based on the affidavits of Plaintiff's personal knowledge. Opposing counsel do not know what types of knowledge the Plaintiff may or may not have regarding any subject matter. In addition, once discovery is compelled, and other supporting documents are filed, these facts will be substantiated further.  None of Plaintiff's facts are heresay, and any person can obtain the personal knowledge of KGUN's affiliation's and broadcasting activities simply by turning on their TV. For example, fact five (5) can be easily verified by any citizen who was not living in a cave as just recall how many time the public was brainwashed over and over with the “Rodney King videotape beating.” None of Plaintiff's allegations are speculation as he witnessed all that was presented.  KGUN's objections are nothing more than unfounded textbook objections.
     In its Response in paragraph two (2) KGUN objects based on its claim those facts are "irrelevant, immaterial, and unsupported."  To the contrary, each of those facts are relevant, material and supported.  KGUN's objections are based on the faulty affidavit submitted by Karen Lee Rice as Plaintiff has already pointed out.  As for KGUN's claim that Plaintiff has submitted no evidence regarding paragraphs 33-43 or 54, Plaintiff was a witness to those events and by no means can that be considered hearsay.
     In its Response in paragraph three (3)  KGUN objects based on its claim those facts are "immaterial, irrelevant and unsupported."   First, KGUN incorrectly refers to Plaintiff's employment to the year 1994, the year was 1995-1996.  KGUN can not call events Plaintiff witnessed as "speculations and fantasies."  The disputed evidence is (a) KGUN and its employees were aware of a teaching contract that might have been offered to Plaintiff, and (b) KGUN was aware of Plaintiff's profession and attempts to find employment as explained throughout Plaintiff's Statement of Material Facts.
 KGUN's objection to Paragraph 75 of Plaintiff's Statement of Material Facts is unfounded and unsupported.  Plaintiff has submitted facts to support his 42 U.S.C. 1985(1) claim.  KGUN's counsel of course wants to deny this, and all the other facts.

KVOA’S SUPPLEMENTAL AFFIDAVIT OF JON RUBY

     The Affidavit of Jon Ruby dated January 16, 1998 does nothing to rebut specifically paragraph 9(d) of Affidavit #2 of Plaintiff dated January 03, 1998.
The event in question, as stated, occurred within an hour of Plaintiff’s interview, meaning specifically between approximately 8:30 a.m. and 9:30 a.m.  No where did Plaintiff allege that specific act occurred in any of KVOA’s regular shows as the Affidavit of Jon Ruby addresses.

CONCLUSION

     As it has already been pointed out in Plaintiff’s “Memorandum in Support of his Complaint,” the affidavits of Defendant’s KVOA, KOLD, KNST and KGUN do not meet the standard regarding affidavits in  “. . .that any factual assertion in the movant's affidavits will be taken as true by the district court unless the non-movant contradicts the movant with counter-affidavits or other documentary evidence." Timms v. Frank, 953 F.2d 281, 285 (7th Cir.), cert. denied, 504 U.S. 957, 112 S. Ct. 2307, 119 L. Ed. 2d 228 (1992).   (quoting from Rand v. Rowland Blue Book Citation Form: 1997.C09.1163, 9th Cir. 1997)  The Plaintiff has provided such non-movant affidavits that can easily be confirmed with the archives described and held by the Defendants.
     In sum, objections by the Defendants, thus far CNN and KGUN, to Plaintiff's facts amount to a trial by defense counsels opinions supported by nothing other than their subjective opinions.  Furthermore, questions of fact are determinations for a jury.  The events that transpired between 1995 and 1996 are not defense counsels fault.  Opposing counsel should be more concerned with the truth and be appalled as well at the conduct carried out by the Defendants as they too are citizens of Arizona and the United States and they or someone they know could very well become a victim next.

Dated January 31, 1998, Plaintiff

Copies of the foregoing mailed, to the addresses on record,  this    31st day of January 1998, to:

David J. Bodney/CNN & TBS
Diane M. Johnsen & Stephen E. Silverman/ABC
George O. Krauja & Jennifer M. Dubay/KGUN
Janice A. Wezelman/KVOA
Gary F. Urman/KOLD & KNST

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