## F I L E D United States Court of Appeals Tenth Circuit 

### DEC 9 2004 

### PATRICK FISHER Clerk PUBLISH
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

THOMAS P. LAMB,

Plaintiff-Appellant,

v. TONY RIZZO,

Defendant-Appellee. No. 03-3179

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF KANSAS (D.C. No. 02-CV-1282-JTM) (242 F. Supp. 2d 1032)

Submitted on the briefs: Thomas P. Lamb, pro se. Michael J. Abrams of Lathrop & Gage L.C., Kansas Ci ty, Missouri, for Defendant-Appellee.

Before LUCERO , McKAY , and TYMKOVICH , Circuit Judges.

McKAY , Circuit Judge.

The state of Kansas incarcerated Thomas P. Lamb, pr o se plaintiff in this libel action, over thirty years ago. He is serving three consecutive life sentences-2-

for two counts of first degree kidnapping and one c ount of first degree murder. In July 2001, defendant, newspaper reporter Tony Rizzo , wrote two articles about Mr. Lamb’s convictions and upcoming parole hearing. When Mr. Lamb’s request for parole was subsequently denied, he sued Mr. Riz zo in Kansas state court asserting, among other things, that Mr. Rizzo’s art icles contained “lies and false information” which caused Mr. Lamb to be denied par ole. R. Vol. I, Doc. 1, Ex.
A at 1. Mr. Rizzo removed the case to federal district court based upon diversity of citizenship. He also filed a motion to dismiss forfailure to state a claim, attaching to it numerous newspaper articles chronic ling Mr. Lamb’s criminal history. In the motion, Mr. Rizzo contended that M r. Lamb was libel-proof as a matter of law; in other words, his public reputatio n at the time the articles were published was so diminished with respect to a speci fic subject (his kidnapping and murder convictions), that he could not be furth er injured by allegedly false statements on that subject. Because damage to one’ s reputation is the heart of a defamation action in Kansas, argued Mr. Rizzo, Mr. Lamb’s claims must be dismissed. Mr. Lamb countered that, by the time the articles were published, his reputation had been rehabilitated and that he was n o longer libel-proof. To1 We liberally construe Mr. Lamb’s pro se pleadings. Haines v. Kerner , 404

U.S. 519, 520-21 (1972) (per curiam). -3- substantiate this contention, Mr. Lamb attached many exhibits to his response, including letters from various individuals who had recommended he be paroled. On January 31, 2003, the district court dismissed Mr. Lamb’s complaintfor failure to state a claim upon which relief could be granted. While acknowledging that Mr. Rizzo did not cite any Kansas case law ado pting the libel-proof plaintiff doctrine, the district court predicted that the Kan sas Supreme Court, if presented with the issue, would adopt the doctrine. Lamb v. Rizzo, 242 F. Supp. 2d 1032, 1037 (D. Kan. 2003) . It also predicted that, based on the factual na rrative of Mr. Lamb’s crimes in the Kansas Supreme Court’s dec ision affirming his convictions, that court would hold the doctrine app licable to Mr. Lamb and conclude that Mr. Rizzo’s articles were not actionable as a matter of law. Id. at 1037-38. After the district court entered judgment , Mr. Lamb filed a Fed. R. Civ. P. 59(e) motion to alter or amend the judgment, whi ch the district court denied. This appeal followed. 1 Our jurisdiction arises under 28 U.S.C. § 1291. Be cause we agree with the district court’s prediction that the Kansas Supreme Court would adopt the libelproof plaintiff doctrine and hold that it is a bar to Mr. Lamb’s claims, and2 After examining the briefs and appellate record, th is panel has determined

unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument. -4- because the district court did not abuse its discre tion in denying Mr. Lamb’s motion to alter or amend the judgment, we affirm. 2 I. Background Although the district court included a detailed fac tual summary, our disposition requires only an abbreviated descriptio n of the facts pertinent to this appeal. The following facts are largely undisputed

.

In December, 1969, Lamb kidnapped and murdered Kare n Sue Kemmerly, who was then 24 years old. Kemmerly’s nu de body was found . . . on December 7, 1969. In January, 1970, he kidnapped Patricia Ann Childs, who was then 18 years old. Lamb demanded ransom from Childs’ parents, which they agreed to p ay. Law enforcement officers staked out the scene of the ra nsom payment, and were able to apprehend him after a high speed c ar chase. Lamb , 242 F. Supp. 2d at 1033. Several days later, whi le being held without bond, [Mr. Lamb] obtained a 38 caliber pistol. He and [ajail] trustee then took three dispatchers and a jailer captive and esc aped from the jail after locking the four sheriff’s officers in a jail cell. [Mr. Lamb] and [the trustee] then proceeded across the street fromthe courthouse to a small cafe where they took a patron, Loyd Midyett, hostage. The pair then commandeered Midyett’s car . . . with Midyett in their custody . . . . [and] they were eventually apprehended at aroadblock . . . .-5-

Id. at 1037 (quoting State v. Lamb , 497 P.2d 275, 282 (Kan. 1972), overruled on other grounds by State v. Jacques , 587 P.2d 861 (Kan. 1978)). Mr. Lamb has now been imprisoned for more than a qu arter of a century. But “even that isolation has not prevented him fromperiodically attempting his violent reentry into society at large.” Id. at 1038. In 1979, Mr. Lamb escaped from the Kansas State Penitentiary, “stole a car an d led officers on another high speed chase.” Id. And, in 1987, he escaped “from the Larned State H ospital, during which he threatened a farmer at knife point, stole his car, and led officers on yet another car chase.” Id. ; but see Aplt. Br. at 7 (characterizing his 1987 escape as “walk[ing] away from minimum security”). As set forth above, Mr. Lamb was denied parole in 2 001 and shortly thereafter sued Mr. Rizzo. Mr. Lamb asserted that Mr. Rizzo’s articles were defamatory (and that publishing them constituted a negligent tort, R. Vol. I, Doc. 1, Ex. A at 2, 4) because he inaccurately reported that Mr. Lamb: (1) was convicted of raping both Ms. Kemmerly and Ms. Child s; (2) was arrested “after a chase and shootout that left one police officer ser iously injured;” (3) “fooled prison officials in 1969, when he was serving time for burglary” into recommending him for parole; and (4) pursued his vi ctims by “prowl[ing] area shopping centers, dressed as a woman.” Id. at 2-3. Mr. Lamb argued that these statements were defamatory because, he alleged,3 The district court did not give notice of its inten t to convert Mr. Rizzo’s (continued...) -6- (1) he was never charged with rape as to either of his victims and that his second victim told several different stori es; (2) while an officer may have been shot [as] officers were pursu ing him, the shot came from another officer and was in any event not life threatening; (3) there is no indication that he fooled anyone in to recommending him for parole; and (4) while Lamb did abduct Ms[.] Childes [sic] from a shopping center, [he] was fully dressed as amale at that time. Lamb , 242 F. Supp. 2d at 1033 (citations and quotations omitted).
II. Discussion A. Dismissal of Plaintiff’s Complaint Based Upon the Libel-Proof Plaintiff Doctrine In concluding that the libel-proof plaintiff doctri ne barred Mr. Lamb’s claims, the district court resolved Mr. Rizzo’s mot ion to dismiss under Fed. R. Civ. P. 12(b)(6). Notwithstanding, the court clear ly relied upon and incorporated into its order granting the motion material derivedfrom documents outside the four corners of Mr. Lamb’s complaint. In so doing, “the court converted the motion to dismiss into a motion for summary judgment.” Nichols v. United
States , 796 F.2d 361, 364 (10th Cir. 1986). We must ther efore “review the record under summary judgment standards,” and affirm the d istrict court’s ruling “if it is clear from the record on appeal that there are no g enuine issues of fact to be tried and the movant is entitled to judgment as a matter of law.” Id. ; Fed. R. Civ. P.
56. 33 (...continued)

Rule 12(b)(6) motion, but Mr. Lamb does not and can not claim that the absence of notice prejudiced him. See Nichols , 796 F.2d at 364. Mr. Lamb not only failed to object to the exhibits attached to Mr. Rizzo’s m otion to dismiss, but Mr. Lamb also filed his own exhibits in response. See id.

4 Guccione v. Hustler Magazine , Inc. , 800 F.2d 298, 303-04 (2d Cir. 1986); Cardillo v. Doubleday & Co. , 518 F.2d 638, 639-40 (2d Cir. 1975); Cerasani v. Sony Corp. , 991 F. Supp. 343, 346, 352-55 (S.D.N.Y. 1998); Wynberg v. Nat’l (continued...) -7- On appeal, Mr. Lamb argues that the district court “knew that Kansas did not have a libel-proof plaintiff doctrine” and know ingly violated his rights by applying “that federal doctrine to his case.” Aplt . Br. at 6. In the alternative, he apparently argues that even if the libel-proof plai ntiff doctrine is applicable, it cannot be used to bar his claims thirty-one years a fter “the only crime that could have labeled [him] . . . libel-proof.” Id. at 7. Mr. Lamb’s arguments, however, are misplaced. As a preliminary matter, although Mr. Lamb concedes that the substantive law of the forum state applies, see Erie R.R. v. Tompkins , 304 U.S. 64, 78 (1938), he fails to recognize that “[i]n the absence of aut horitative precedent from the Kansas Supreme Court . . . , our job is to predict how that court would rule,” Carl v. City of Overland Park , 65 F.3d 866, 872 (10th Cir. 1995). Additionally, and contrary to Mr. Lamb’s contention, the libel-pr oof plaintiff doctrine is not an exclusively federal doctrine. It is a judicially c reated doctrine that has been applied in a number of jurisdictions for more than two decades. 4It recognizes4 (...continued)

Enquirer, Inc. , 564 F. Supp. 924, 927-28 (C.D. Cal. 1982); Ray v. United States Dep’t of Justice , 508 F. Supp. 724, 726 (E.D. Mo.), aff’d, 658 F.2d 608 (8th Cir. 1981); Logan v. Dist. of Columbia , 447 F. Supp. 1328, 1332, 1336 (D. D.C. 1978); Ray v. Time, Inc. , 452 F. Supp. 618, 622 (W.D. Tenn. 1976), aff’d , 582 F.2d 1280 (6th Cir. 1978) ; Cofield v. Advertiser Co., 486 So. 2d 434, 435 (Ala. 1986); Jackson v. Longcope , 476 N.E.2d 617, 618-21 (Mass. 1985); Davis v. Tennessean , 83 S.W.3d 125, 128-31 (Tenn. Ct. App. 2001); Kevorkian v. Am. Med. Ass’n , 602 N.W.2d 233, 239 (Mich. App. 1999); Finklea v. Jacksonville Daily Progress , 742 S.W.2d 512, 515-18 (Tex. Ct. App. 1987). -8- that damage to one’s reputation is the core of a de famation action, and essentially holds that when a plaintiff’s reputation is so diminishedat the time of publication of the allegedly defamatory material th at only nominal damages at most could be awarded because the person ’s reputation was not capable of sustaining further harm, the pla intiff is deemed to be libel-proof as a matter of law and is not permitted to burden a defendant with a trial. Eliot J. Katz, Annotation, Defamation: Who is “Libel-Proof,” 50 A.L.R.4th 1257 (2004); accord 1 Robert D. Sack, Sack on Defamation § 2.4.18 (3d ed. 2004); see generally Note, The Libel-Proof Plaintiff Doctrine , 98 Harv. L. Rev. 1909 (1985). Stated another way: When . . . an individual engages in conspicuously anti-social or even criminal behavior, which is widely reported to the public, his reputation diminishes proportionately. Depending upon the nature of the conduct, the number of offenses, and the degree and range of publicity received, there comes a time when the ind ividual’s reputation for specific conduct, or his general rep utation for honesty and fair dealing is sufficiently low in the public’ s estimation that he can recover only nominal damages for subsequent def amatory statements.-9- First Amendment considerations of free press and sp eech, promoting society’s interest in uninhibited, robust , and wide-open discussion, must prevail over an individual’s inter est in his reputation in such cases. An individual who engage s in certain anti-social or criminal behavior and suffers a dimi nished reputation may be “libel proof” as a matter of law, as it relates to that specific behavior. Wynberg , 564 F. Supp. at 928

. The libel-proof plaintiff doctrine was first enunciated in Cardillo v. Doubleday & Co. , where a prisoner, Cardillo, brought a libel suit asserting that the authors and publishers of My Life in the Mafia incorrectly reported that he had participated in certain specific crimes. 518 F.2d at 639-40. After recounting Cardillo’s “record and relationships,” the Second C ircuit concluded that it could not “envisage any jury awarding, or any court susta ining, an award under any circumstances for more than a few cents’ damages,” id. at 640, and held Cardillo “libel-proof, i.e. , so unlikely by virtue of his life as a habitual c riminal to be able to recover anything other than nominal damages.” Id. at 639. Having set forth a description of the libel-proof p laintiff doctrine and where it first took hold, we now turn to the distri ct court’s prediction that the Kansas Supreme Court would, on these facts, adopt the doctrine and hold that it is a bar to Mr. Lamb’s claims. [A] federal court’s prediction of state law looks t o (1) lower state court decisions and state Supreme Court dicta; . . . (3) the general rule on the issue; (4) the rule in other states loo ked to by [Kansas] courts when they formulate their own substantive law, and (5) other5 We decided Menne before the Supreme Court’s decision in Salve Regina

Coll. v. Russell , 499 U.S. 225 (1991), in which the Court held thatan appellate court shall not defer to the district court’s determination of state law. Id. at 231, 238-39. We therefore omit Menne’s second factor, that a “federal court’s prediction of state law look[] to . . . the lower c ourt ruling in the case,” 861 F.2d at 1464-65 n.15. See Clark v. State Farm Mut. Auto. Ins. Co. , 319 F.3d 1234, 1240 (10th Cir. 2003) (observing that “this court a ffords no deference to a district court’s interpretation of state law”); Commerce Bank, N.A. v. Chrysler Realty Corp. , 244 F.3d 777, 780 (10th Cir. 2001) (“We review th e district court’s interpretation of Kansas state law de novo.”). -10- available legal sources, such as treatises and law review commentaries. DP-Tek, Inc. v. AT & T Global Info. Solutions Co. , 100 F.3d 828, 831 (10th Cir. 1996) (alterations in original) (quoting Menne v. Celotex Corp. , 861 F.2d 1453, 1464-65 n.15 (10th Cir. 1988)). 5 See also Carl , 65 F.3d at 872 (“Kansas Supreme Court dicta, which represents that court’s own comm ent on the development of Kansas law, is an appropriate source from which [a] prediction may be made.”). Libel is governed by state law. In Kansas, damage to one’s reputation is the essence and gravamen of an action for defamation. Unless injury to reputation is sho wn, plaintiff has not established a valid claim for defamation, by ei ther libel or slander . . . . It is reputation which is defamed, reputation which is injured, reputation which is protected by the laws of libel and slander. Gobin v. Globe Pub. Co. , 649 P.2d 1239, 1243 (Kan. 1982); see also Monitor Patriot Co. v. Roy , 401 U.S. 265, 275 (1971) (“[D]amage to reputationis, of course, the essence of libel.”). The libel-proof p laintiff doctrine has not been-11-

adopted by the Kansas Supreme Court, but, in Ruebke v. Globe Communications Corp. , the court recognized the doctrine’s existence. 7 38 P.2d 1246, 1249-50, 1252 (Kan. 1987). Although the court did not find the doctrine applicable given the facts of that case, in recognizing the existenc e of the doctrine, the Kansas court observed in dicta that the libel-proof plaint iff doctrine applied in cases where “the plaintiff had already suffered from a lo wered reputation in the community because of the plaintiff’s prior convictions for the crime alleged in the publication or for a similar crime.” Id. at 1249. In Ruebke , however, the allegedly defamatory article was published before M r. Ruebke was convicted of the crimes he was accused of committing. Therefore , said the Kansas Supreme Court, the alleged defamer could not rely on Mr. Ruebke’s subsequent criminal convictions to render him libel proof. Id. at 1249-50. By contrast, the facts surrounding Mr. Lamb’s case fit within the Kansas S upreme Court’s description of when the doctrine might apply. Mr. Lamb, unlike Mr. Ruebke, was convicted long before Mr. Rizzo’s allegedly defamatory articl es were published. Thus, Mr. Lamb had “already suffered from a lowered reput ation in the community [due to his] prior convictions for the crime alleged in the publicati on or for a similar crime.” Id. at 1249. Since the libel-proof plaintiff doctrine’s inceptio n, it has been said that “[t]he cases that most compellingly invite [the doc trine’s] application are those-12-

cases, like Cardillo , in which criminal convictions for behavior similar to that alleged in the challenged communication are urged a s a bar to the claim.” Finklea, 742 S.W.2d at 515 (citing Wynberg , 564 F. Supp. 924; Logan , 447 F. Supp. 1328; and Jackson , 476 N.E.2d 617). This is just such a case. The communication Mr. Lamb challenged related specifica lly to his past criminal conduct, and it matters not that thirty-one years h ad passed since what he characterizes as “the only crime that could have la beled [him] libel-proof.” Aplt.
Br. at 7. “This is not a case,” resolved the district court, in which the substance of the plaintiff’s reputatio n-destroying actions are in any doubt. Given the utter heinousness of the offenses which led to the plaintiff’s three consecutive sentences of life imprisonment, the uncontroverted nature of those of fenses, and the widespread notoriety attached to the convictions of the plaintiff as well as his periodic escapes from custody, the plai ntiff has not and cannot present an actionable case of libel based up on the purported misstatements contained in Rizzo’s articles. Lamb, 242 F. Supp. 2d at 1038; see also State v. Lamb , 497 P.2d at 285 (acknowledging that Mr. Lamb’s crimes against Ms. K emmerly and Ms. Childs were “widely covered and reported by the news media ”). In considering whether the Kansas Supreme Court wou ld adopt this doctrine, we have looked to the required sources: Kansas Supreme Court dicta, the general rule on the issue, treatises, and law review commentaries. DP-Tek,
Inc. , 100 F.3d at 831. We affirm the district court’s holding that the Kansas-13-

Supreme Court would adopt the libel-proof plaintiff doctrine. And, reviewing the record under summary judgment standards, we also af firm the district court’s determination that the Kansas Supreme Court would h old it applicable to Mr. Lamb. This case presents us with one of those narrow “instances where . . . allegedly libelous statement[s] cannot realisticall y cause impairment of reputation . . . [and] the [plaintiff’s] claim[s] should be dismissed.” Guccione , 800 F.2d at 303; see also Buckley v. Littell , 539 F.2d 882, 889 (2d Cir. 1976) (warning that the libel-proof plaintiff doctrine is “a limited, n arrow [principle]”). It is clear that there are no genuine issues of fact and that M r. Rizzo is entitled to judgment as a matter of law. We therefore affirm the distri ct court’s determination and conclude that the allegedly libelous articles writt en by Mr. Rizzo are not actionable as a matter of law. B. Denial of Plaintiff’s Post-Judgment Motion to Alte r or Amend Mr. Lamb also challenges the district court’s denia l of his Fed. R. Civ. P. 59(e) motion to alter or amend the judgment, arguin g that the court erred by holding his negligence claim subsumed by his libel claim, and denying him his “right to discovery,” Aplt. Br. at 10. Having revi ewed the district court’s ruling for an abuse of discretion and concluded that the c ourt did not make “a clear error of judgment or exceed[] the bounds of permissible c hoice in the circumstances,” we leave the district court’s ruling undisturbed. Phelps v. Hamilton , 122 F.3d-14-

1309, 1324 (10th Cir. 1997). “A Rule 59(e) motion to alter or amend the judgment should be granted only to correct manifesterrors of law or to present newly discovered evidence.” Id. Neither circumstance applies here. The judgment of the district court and its order de nying Mr. Lamb’s motion to alter or amend are AFFIRMED.