Attwood v. Clemons

• Decision Date: 17 March 2021
• Docket Number: Case No.: 1:18cv38-MW/MJF
• Parties: Peter Morgan ATTWOOD, Plaintiff, v. Charles W. "Chuck" CLEMONS, Sr., in his official capacity as Florida State Representative and in his individual capacity, Defendant.
• Court: U.S. District Court — Northern District of Florida

526 F.Supp.3d 1152

Peter Morgan ATTWOOD, Plaintiff,

v.Charles W. "Chuck" CLEMONS, Sr., in his official capacity as Florida State Representative and in his individual capacity, Defendant.

Case No.: 1:18cv38-MW/MJF

United States District Court, N.D. Florida, Gainesville Division.

Signed March 17, 2021

Daniel Boaz Tilley, ACLU Foundation of Florida Inc., Miami, FL, Eric Jacob Lindstrom, Egan Lev Lindstrom & Siwica, Gainesville, FL, for Plaintiff.

Jonathan Lentine Williams, Jonathan L. Williams PA, Tallahassee, FL, for Defendant.

ORDER GRANTING IN PART AND DENYING IN PART CROSS-MOTIONS FOR SUMMARY JUDGMENT

Mark E. Walker, Chief United States District Judge

This is a freedom of speech case. Plaintiff Peter Morgan Attwood alleges that Defendant Representative Charles "Chuck" Clemons violated Plaintiff's right to freely speak by blocking Plaintiff on Defendant's social media accounts. ECF No. 4. Specifically, Plaintiff argues that blocking him amounted to unconstitutional viewpoint discrimination in a public forum, violating both the federal and Florida Constitutions. ECF Nos. 4 & 67. Defendant asserts that (1) his social media is private and does not constitute state action, (2) his social media pages are not public forums, and (3) blocking Plaintiff was not unconstitutional viewpoint discrimination. ECF No. 69. Both parties have moved for summary judgment. ECF Nos. 67 & 69. This Court considered the parties’ cross-motions for summary judgment at a hearing on February 18, 2021. ECF No. 77. For the reasons below, Defendant's motion for summary judgment is GRANTED in part and DENIED in part , and Plaintiff's motion for summary judgment is DENIED .

I. Standard of Review

Summary judgment is appropriate when "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). This Court accepts the facts in the light most favorable to the non-movant. See Galvez v. Bruce , 552 F.3d 1238, 1239 (11th Cir. 2008). All reasonable doubts about the facts are resolved in favor of the non-movant. Id. at 1241. The standards governing cross-motions for summary judgment are the same, although this Court must construe the motions independently, viewing the evidence presented by each moving party in the light most favorable to the non-movant. Lozman v. City of Riviera Beach , 39 F. Supp. 3d 1392, 1404 (S.D. Fla. 2014) (citations omitted).

II. Background

The following facts are undisputed. This case arises from Defendant's activity on the social media platforms Facebook and Twitter. ECF No. 4 ¶ 22. In 2016, Defendant's campaign manager created these accounts for Defendant's initial election campaign for District 21 in the Florida House of Representatives. ECF Nos. 66–1 at 27 & 68–2.¹ Defendant won the election for this office in 2016, 2018, and 2020. ECF No. 68–1 ¶ 1. He plans to run again in 2022. Id. Defendant has consistently used both accounts since their creation and intends to use them until his final term ends. ECF No. 66–1 at 117.

Defendant's social media accounts feature posts about campaign announcements, campaign endorsements, and position statements. ECF No 15–1 ¶ 4; see, e.g. , ECF No. 68–6 at 6 (posting about Defendant's positions on environmental issues and linking to his campaign website, which provides a more comprehensive position statement). Additionally, Defendant's accounts feature updates about his work as a legislator and issues affecting his district. See, e.g. , ECF No. 66–7 at 185 (updating the public on new legislation for economic development); id. at 166 (alerting the public of an upcoming tropical storm and providing a link to places where constituents can get more information about resources and weather updates). Defendant's accounts also feature posts about information regarding application for government benefits. See, e.g., id. at 202–03 (providing constituents information about the application process for economic assistance for farmers). Lastly, during the COVID-19 Pandemic, Defendant's accounts featured a virtual townhall meeting and a survey in which constituents were invited to express their needs during the pandemic. Id. at 209–13 (advertising a virtual town hall with "Rep. Clemons"); id. at 219 (posting a link to a survey meant to help understand his constituents’ needs during the pandemic).

Plaintiff maintains personal Twitter and Facebook accounts. ECF No. 68–11. In February 2018, Plaintiff tagged Defendant in a Twitter post asking Defendant to explain his vote against House Bill 219, an assault weapons ban created in the wake of the shooting at Marjory Stoneman Douglas High School. ECF Nos. 68–16 & 68–17. Defendant found the post unnecessarily aggressive. ECF No. 66–1 at 108–09. Defendant then searched Plaintiff's posting history and noticed that Plaintiff had made profane tweets directed at other politicians. Id. at 62–63. Thereafter, Defendant blocked Plaintiff on Twitter. Id. Defendant's stated reason for blocking Plaintiff is Plaintiff's propensity for using profanity. Id. Subsequently, Plaintiff posted a comment on Defendant's Facebook page, criticizing Defendant for blocking Plaintiff on Twitter. ECF No. 6–1 at 10. Defendant then blocked Plaintiff on Facebook. ECF No. 55 ¶ 35. Plaintiff remains blocked from both accounts, and Defendant does not plan to unblock him. ECF Nos. 66–4 ¶ 3 & 66–1 at 88–89.

Plaintiff brings a § 1983 claim against Defendant in his individual and official capacities, alleging that Defendant's actions violated Plaintiff's First and Fourteenth Amendment right to freedom of speech. ECF No. 4 ¶¶ 38–42. Additionally, Plaintiff brings two state constitutional claims, alleging violations of analogous state constitutional rights to freedom of speech and freedom of petition. Id. ¶¶ 43–49. Plaintiff requests (1) a declaratory judgment, (2) an injunction requiring Defendant to unblock Plaintiff on both social media accounts, and (3) reasonable attorneys’ fees and costs. Id. at 11.

III. Discussion

In deciding the parties’ cross-motions for summary judgment, this Court addresses four main questions. First, does Plaintiff state a cognizable official capacity § 1983 claim against Defendant? Second, does either party show that they are entitled to summary judgment regarding Plaintiff's individual capacity § 1983 claim? Third, are Plaintiff's state claims viable? Finally, is Plaintiff entitled to attorneys’ fees and costs?

A. Section 1983 — Official Capacity Claim

Earlier in the litigation, this Court denied Defendant's motion to dismiss on the ground that Defendant was not entitled to sovereign immunity under either the Eleventh Amendment or the legislative immunity doctrine. ECF No. 30. Upon interlocutory appeal, the Eleventh Circuit affirmed this Court's decision. See Attwood v. Clemons , 818 F. App'x 863, 870 (11th Cir. 2020). The concurrence opined that Defendant was not entitled to Eleventh Amendment immunity because Plaintiff failed to state an official capacity claim. Id. (Grant, J., concurring). The majority took no position on the concurrence's view because Defendant had not argued before this Court that Plaintiff failed to state an official capacity claim. Id. at 869.

Defendant now argues that Plaintiff does not state a cognizable official capacity claim. As such, this Court must determine whether Plaintiff's official capacity claim is viable. ECF No. 69 at 33. This Court finds the concurring opinion from the interlocutory appeal persuasive in resolving this issue. As discussed below, Plaintiff has failed to state a viable official capacity claim under § 1983.

An official capacity claim may proceed only if "[t]he real party in interest is the government entity, not the named official." Lewis v. Clarke , ––– U.S. ––––, 137 S. Ct. 1285, 1291, 197 L. Ed. 2d 631 (2017) (citing Edelman v. Jordan , 415 U.S. 651, 663–65, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974) ). In an official capacity claim, "the relief sought is only nominally against the official and in fact is against the official's office." Id. (citing Will v. Mich. Dep't of State Police , 491 U.S. 58, 71, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989) ). As Judge Grant thoughtfully explained, a successful official capacity suit will result in a remedy that attaches to the official's seat rather than to the individual, making the judgment effective even when the original official leaves office. Clemons , 818 F. App'x at 871 (Grant, J., concurring) ("[I]f [an official capacity suit is] successful ... both the current officeholder and any future officeholder will be barred from carrying out whatever policy is at issue."); see also Lewis , 137 S. Ct. at 1291.

Conversely, an individual capacity claim is one where "the real party in interest is the individual, not the sovereign." Lewis , 137 S. Ct. at 1291. Individual capacity suits seek to impose only personal liability upon a government official, meaning the remedy in a successful individual capacity claim does not extend to the official's office. Kentucky v. Graham , 473 U.S. 159, 166–67, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985). This "means an individual capacity suit targets the individual behavior of an official ... as he carries out his state duties." Clemons , 818 F. App'x at 872 (Grant, J., concurring).

"[T]he complaint itself ... controls the identification of the parties and the capacity in which they are sued." Welch v. Laney , 57 F.3d 1004, 1010 (11th Cir. 1995). But this Court "may not simply rely on the characterization of the parties in the complaint, but rather must determine ... whether the remedy sought is truly against the sovereign." Lewis , 137 S. Ct. at 1290 (citing Ex parte N.Y. , 256 U.S. 490, 500–502, 41 S.Ct. 588, 65 L.Ed. 1057 (1921) ). In the amended complaint, Plaintiff characterizes his § 1983 claim as being against Defendant in his official and individual capacities. However, Plaintiff's amended complaint seeks a remedy that does not lend itself to an official capacity claim....