You are on page 1of 3

Appeal: 17-1970 Doc: 22 Filed: 10/27/2017 Pg: 1 of 3

UNITED STATES COURT OF APPEALS


FOR THE FOURTH CIRCUIT

BRETT KIMBERLIN,
No. 17-1970

Appellant,
vs.

PATRICK FREY,

Appellee.

DEFENDANT PATRICK FREYS INFORMAL RESPONSE BRIEF

Appellant Brett Kimberlin is a convicted bomber and perjurer who became upset at Appel-

lee Patrick Frey when Mr. Frey wrote about Kimberlins criminal history on a blog. Kimberlin is

a serial pro se litigant, who has said of his critics, Its going to be endless lawsuits for the rest of

their lives.1 In fact, Kimberlin has boasted of filing over a hundred lawsuits, one of which was

against judges of this Court. (See Kimberlin v. Judges of the Fourth Circuit Court of Appeals, 188

F.3d 502 (4th Cir. 1999).) In this case, the court below correctly rejected Kimberlin's claim against

Mr. Frey.

Appellee Frey, like many critics of Kimberlin, was the victim of a SWATting, a danger-

ous form of harassment by which a bogus emergency call to police resulted in heavily-armed police

officers descending on Mr. Freys home, where there was no emergency at all. With respect to the

order appealed from, the district court ruled that Mr. Frey told law enforcement his suspicions

1
The Weirdest Story About a Conservative Obsession, a Convicted Bomber, and Taylor Swift You Have Ever
Read, https://www.thedailybeast.com/the-weirdest-story-about-a-conservative-obsession-a-convicted-bomber-and-
taylor-swift-you-have-ever-read, last accessed October 23, 2017.
Appeal: 17-1970 Doc: 22 Filed: 10/27/2017 Pg: 2 of 3

about Kimberlins involvement because Frey wanted the SWATting solved. [T]he record demon-

strates, the district court held, that Frey's efforts to have Kimberlin investigated for swatting

were overwhelmingly motivated by his genuine belief that Kimberlin was responsible for, or at

least involved with, the swatting incident. Appellee Freys actions were therefore not motivated

by protected conduct but by concern that Kimberlin had committed a crime against him that had

not been investigated. (District Courts Memorandum Opinion at p. 21.)

A court appropriately rules against a retaliation claim when the claim of retaliation is not

plausible. (See Raub v. Campbell, 785 F.3d 876, 885 (4th Cir. 2015) ([E]ven if Raub's protected

speech contributed to Campbell's decision to recommend his detention, it was not dispositive).

Similarly, here the court held that appellant failed to submit evidence, rather than his own strongly

held convictions, that Frey's actions were motivated by an improper retaliatory purpose, rather

than his desire to spur law enforcement to investigate a crime of which he was the victim. Sum-

mary judgment under Fed. R. Civ. P. 56 was, therefore, mandated by the law, appropriate and just.

WHEREFORE Appellee respectfully requests that this Court affirm the judgment below

without the need for further briefing or argument.

ARCHER & GREINER


A Professional Corporation
Court Plaza South
21 Main Street, Suite 353
Hackensack, NJ 07601
rcoleman@archerlaw.com
(201) 342-6000
Attorneys for Appellee Patrick Frey

By:______________________________
Ronald D. Coleman
Dated: October __, 2017

2
Appeal: 17-1970 Doc: 22 Filed: 10/27/2017 Pg: 3 of 3

CERTIFICATE OF ELECTRONIC FILING AND REGARDING WAIVER OF MAIL-


INGS

I, Ronald D. Coleman, hereby certify that I have filed a copy of this document with the
United States Court of Appeals for the Fourth Circuit and by so doing have provided compliant
notice to those parties who are registered with ECF through counsel as of this filing consistently
with the Rules of this Court on October __, 2017. All parties, including pro se parties, have
agreed to accept service by electronic mail only and an electronic copy has been distributed to all
parties.

/s/
_________________________________
Ronald D. Coleman