Davison v. Plowman

• Decision Date: 28 March 2017
• Docket Number: Case No. 1:16cv180 (JCC/IDD)
• Citation: 247 F.Supp.3d 767
• Parties: Brian DAVISON, Plaintiff, v. James PLOWMAN, in his official capacity as Attorney for the Commonwealth for Loudoun County, Virginia, and individually, Defendant.
• Court: U.S. District Court — Eastern District of Virginia

247 F.Supp.3d 767

Brian DAVISON, Plaintiff,

v.James PLOWMAN, in his official capacity as Attorney for the Commonwealth for Loudoun County, Virginia, and individually, Defendant.

Case No. 1:16cv180 (JCC/IDD)

United States District Court, E.D. Virginia, Alexandria Division.

Signed March 28, 2017

Michael Allen Bragg, Bragg Law, Abingdon, VA, for Plaintiff.

James W. Hundley, Briglia Hundley Nuttall & Lopez, P.C., Tysons Corner, VA, for Defendant.

MEMORANDUM OF DECISION

James C. Cacheris, UNITED STATES DISTRICT COURT JUDGE

Plaintiff Brian Davison brings a claim under the First Amendment against Defendant James Plowman, individually and in his official capacity as Loudoun County Commonwealth's Attorney. Plaintiff alleges that Defendant violated his First Amendment rights by deleting a comment Plaintiff left on the official Loudoun County Commonwealth's Attorney Facebook page and by thereafter blocking Plaintiff from leaving further comments on that page for a period of several months. A bench trial was held on January 25, 2017, and the Court took the matter under advisement.

For the reasons that follow, the Court finds and concludes that (1) Defendant did not violate the First Amendment by deleting Plaintiff's Facebook comment; (2) Defendant is entitled to qualified immunity in his individual capacity with respect to his decision to block Plaintiff from further posting on the Loudoun County Commonwealth's Attorney Facebook page; (3) Defendant is entitled to Eleventh Amendment immunity with respect to Plaintiff's claim for damages against him in his official capacity; (4) Plaintiff has failed to establish any monetary damages; and (5) Neither declaratory nor injunctive relief is warranted in this case. Accordingly, the Court renders a verdict for Defendant and finds that judgment should be entered in Defendant's favor.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

I. Findings of Relevant Fact

1) Plaintiff Brian Davison is a resident of Loudoun County, Virginia. Trial Transcript [Dkt. 41] ("Tr.") 22–23.

2) Defendant James Plowman is and has at all relevant times been Loudoun County Commonwealth's Attorney. Tr. 93.

3) Defendant is a constitutional officer of the Commonwealth of Virginia rather than a Loudoun County official. Because he works closely with the Loudoun County government, however, Defendant's office adopts many of the County's policies and operating procedures. Tr. 95–96; 116–18.

4) Defendant's office is funded both by Loudoun County and the Commonwealth, with the former contributing the greater amount and providing employment benefits to Defendant's employees. Tr. 95–97.

5) Beginning in 2014, Plaintiff became embroiled in a dispute with Loudoun County Public Schools regarding its response to document requests he made under the Virginia Freedom of Information Act. Tr. 27–30.

6) That conflict escalated to the point that Plaintiff was eventually banned from the premises of his children's elementary school. Tr. 38.

7) During a court hearing related to that dispute, a school official offered testimony that Plaintiff believed to constitute perjury. Tr. 30–32.

8) Plaintiff urged state and local authorities to investigate the alleged perjury. Tr. 38–40.

9) Plaintiff sent several emails to Defendant's office regarding his dispute with the Loudoun County School Board. Tr. 125.

10) In December of 2015, Plaintiff was informed that an attorney in Defendant's office had reviewed the alleged perjury and declined to prosecute the school official. Tr. 67.

11) Shortly thereafter, Plaintiff visited the official Facebook page of Defendant's office. Tr. 42.

12) Facebook is a social media network that, among other things, permits public figures like Defendant to communicate with constituents. Defendant's office maintains a Facebook page for that purpose. Pl. Exh. 5 at 2; Tr. 102.

13) At the time of the events giving rise to this suit, the Facebook page maintained by Defendant's office was administered by Defendant's employee, Heather Williamson. Pl. Exh. 5 at 2–3; Tr. 97.

14) At that time, Defendant retained decision making authority over the Facebook page's content. Pl. Exh. 5 at 2–3; Tr. 101.

15) Defendant had adopted the version of Loudoun County's Social Media Comments Policy then in force to govern his office's Facebook Page. Tr. 112–13.

16) That policy provided that "[t]he purpose of Loudoun County social media sites is to present matters of public interest in Loudoun County." The policy further "encourage[d]" commenters "to submit ... questions, comments and concerns" through Loudoun County's social media websites, but reserved the County's right to "delete submissions" that violated enumerated rules. As relevant here, the policy permitted the removal of comments that were "clearly off topic." Df. Exh. 1.

17) While viewing the official Loudoun County Commonwealth's Attorney Facebook page, Plaintiff noticed that Defendant's office had recently posted a link to an article about special prosecutors. Tr. 42–43.

18) The article was part of a new initiative by Defendant's office intended to "increase the public's understanding of the criminal justice process by periodically publishing articles on [its] website, Facebook, and Twitter pages about specific topics ... chosen based on questions and comments the office receives from the public[.]" Df. Exh. 5.

19) Plaintiff alleges that Defendant's decision to post the article was motivated by his role in a controversy regarding the appointment of special prosecutors during the prior election season. Tr. 42–43. Plaintiff, however, did not introduce the article into evidence or adduce evidence tending to show that the article was posted with an ulterior motive. The Court finds Plaintiff's testimony regarding Defendant's ulterior motive for posting the article not credible.

20) Plaintiff left a lengthy comment on this link, Pl. Exh. 1, reproduced in its entirety below:

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21) Plaintiff left this comment intending to put political pressure on Defendant to act on Plaintiff's concerns about the alleged perjury. Tr. 47.

22) Defendant's employee, Heather Williamson, brought Plaintiff's comment to Defendant's attention, in part because of its length and in part due to Plaintiff's earlier email to Defendant's office. Tr. 125.

23) After reviewing the comment, Defendant deemed the comment to violate the Loudoun County Social Media Comments Policy. Specifically, Defendant found the comment to be clearly off topic. Tr. 102–04. The Court specifically finds Defendant's testimony on this point credible.

24) Having found the comment to be off topic, Defendant directed Ms. Williamson to remove it from the Loudoun County Commonwealth's Attorney Facebook page. Tr. 101.

25) Plaintiff then proceeded to leave a series of comments on the Loudoun County Commonwealth's Attorney Facebook page. Tr. 105–06. Neither party adduced evidence regarding the specific content of these comments.

26) Defendant likewise deemed these comments to violate the Loudoun County Social Media Comments Policy as clearly off topic. Tr. 105–06; Pl. Exh. 5 at 3.¹

27) On January 4, 2016, Defendant and Ms. Williamson exchanged emails regarding Plaintiff's comments on the Loudoun County Commonwealth's Attorney Facebook page. Ms. Williamson stated that she had spoken with another Loudoun County employee with knowledge of the County's social media practices. That employee had informed her that individuals had been blocked from other County social media websites for "posting continuously." In response, Defendant gave Ms. Williamson authorization to block Plaintiff from posting to the Loudoun County Commonwealth's Attorney Facebook page, concluding that "while [Plaintiff] has a [F]irst [A]mendment right to do what he pleases [ ] we have no obligation to provide him a forum to do such." Ms. Williamson replied "[y]up" and pointed out that Loudoun County's Social Media Comments Policy "covers spam, off topic posts, etc." Pl. Exh. 8.

28) On December 28, 2015, Plaintiff discovered that his subsequent comments had disappeared from the Loudoun County Commonwealth's Attorney Facebook page that he was not able to post further comments to the that page. Tr. 48–49.

29) Plaintiff contacted Defendant's office and asked that his ability to post comments on the Loudoun County Commonwealth's Attorney Facebook page be restored. Defendant refused. Tr. 49–50.

30) Plaintiff then retained counsel and, on February 22, 2016, filed the instant lawsuit.

31) On March 9, 2016, Plaintiff purchased a Facebook Ad in which he discussed Defendant's actions. See Df. Exh. 59. Plaintiff intended for the Ad to target Facebook users interested in Defendant's Facebook page in an effort to reach the audience he believed he had been denied by Defendant's actions. Tr. 57.

32) Plaintiff felt that being banned from Defendant's Facebook page added to the stigma Plaintiff already faced after being banned from the premises of his children's elementary school. Tr. 56. Plaintiff further believed that Defendant's actions contributed to the length of his trespass ban from school premises, see Tr. 56, although he adduced no evidence to substantiate this belief.

33) Throughout the period during which he was banned from Defendant's office's Facebook page, Plaintiff made extensive use of social media to comment publicly on his various disputes with Defendant and Loudoun County Public Schools. Among other things, Plaintiff wrote numerous Facebook posts, both using his personal account and a Facebook page he had created called "Virginia SGP." Df. Exhs. 6–7, 10–13. In these posts, Plaintiff "tagged" individuals, who would then receive notice of the post. See, e.g. , Df. Exhs. 10, 11; Tr. 51–52, 75–76. Plaintiff also made use of Twitter, another social media platform, to make his case to the public. See, e.g. , Df. Exh. 7; Tr. 75.

34) On May 2, 2016, Defendant reversed his earlier decision, reinstating Plaintiff's ability to post comments on the Commonwealth Attorney's Facebook page. This had the effect of restoring Plaintiff's comments that...