Davison v. Rose

• Decision Date: 03 December 2021
• Docket Number: No. 20-1683,20-1683
• Citation: 19 F.4th 626
• Parties: Brian DAVISON, Plaintiff - Appellant, v. Deborah ROSE; Tracy Stephens; Eric Hornberger; Jill Turgeon; Brenda Sheridan; Jeffrey Morse ; William Fox; Kevin Kuesters; Joy Maloney; Eric DeKenipp; Suzanne G. Devlin; Loudoun County School Board, Defendants - Appellees.
• Court: U.S. Court of Appeals — Fourth Circuit

19 F.4th 626

Brian DAVISON, Plaintiff - Appellant,

v.Deborah ROSE; Tracy Stephens; Eric Hornberger; Jill Turgeon; Brenda Sheridan; Jeffrey Morse ; William Fox; Kevin Kuesters; Joy Maloney; Eric DeKenipp; Suzanne G. Devlin; Loudoun County School Board, Defendants - Appellees.

No. 20-1683

United States Court of Appeals, Fourth Circuit.

Argued: September 23, 2021

Decided: December 3, 2021

Michael Allen Bragg, BRAGG LAW, Abingdon, Virginia, for Appellant. Julia Bougie Judkins, BANCROFT, MCGAVIN, HORVATH & JUDKINS P.C., Fairfax, Virginia, for Appellees.

Before GREGORY, Chief Judge, and KING and FLOYD, Circuit Judges.

Affirmed by published opinion. Judge Floyd wrote the opinion, in which Chief Judge Gregory and Judge King joined.

FLOYD, Circuit Judge

Plaintiff Brian C. Davison, the parent of children attending Seldens Elementary School (Seldens) in Loudoun County, Virginia, at times relevant to this litigation, claims that between 2015 and 2016, Defendants engaged in conduct restricting his First and Fourteenth Amendment rights in violation of 42 U.S.C. § 1983.

On May 13, 2016, Davison filed this federal action. He sued the Loudoun County School Board (LCSB), various members of the LCSB, and current and former employees of the Loudoun County Public School System (LCPS), in both their official and individual capacities, for injunctive relief and monetary damages. Defendants Morse, Sheridan, Rose, Hornberger, Fox, Turgeon, Kuesters, and Maloney at material times served on the LCSB. Defendant Stephens was the principal of Seldens between July 2011 and June 2016 and is now the principal of Aldie Elementary School, also in LCPS. Defendant Devlin served as the supervisor of security for LCPS between 2014 and 2019.

The district court granted Defendants' Motion to Dismiss the claims against the LCSB based on res judicata. On May 1, 2020, the district court denied all of Davison's remaining claims, except for one claim for injunctive relief against Defendant Morse concerning Davison's access to Morse's social media pages (Count 1(a)). The parties voluntarily dismissed that claim after Morse unblocked Davison on social media. Davison now appeals the district court's decisions on several claims against several Defendants. We affirm the district court's decisions on all counts.

I.

A.

This case arises in large part from no-trespass letters Defendants issued to Davison in 2015 that prohibited his presence on school property and attendance at any school-sponsored activities unless authorized. However, the antagonism between the parties began in 2014, when Davison sued the Virginia Department of Education (VDOE) in state court to obtain Student Growth Percentiles (SGPs) for Loudoun schools. The LCSB moved to intervene in Davison's lawsuit to prevent him from obtaining SGPs, but VDOE released all Virginia SGPs in February 2015.

Based on this SGP information and other grievances he had with the LCSB and LCPS, Davison began to publicly criticize LCPS policies in January 2015, including allegations that LCPS violated federal law, misled the public regarding budget information, and flouted Virginia's Conflict of Interest Act. Davison frequently chastised LCSB members in many forums and during public comment periods at LCSB meetings. He routinely emailed individual LCSB members and made multiple social media posts about his complaints. Davison also commented on LCSB members' Facebook and other social media platforms. LCSB members eventually voiced personal safety concerns about Davison, prompting a law enforcement officer to attend all meetings after January 20, 2015. At the time of the district court's summary judgment opinion, Davison was banned from accessing board member Morse's Twitter account. Morse has since removed the ban.

In September 2015, Davison appeared at a back-to-school night and a PTA meeting at Seldens where, according to witnesses, his behavior, conduct, tone, and demeanor prompted multiple complaints. On September 30, 2015, Principal Stephens served Davison with a no-trespass letter,¹ which was later amended and supplemented with no-trespass letters issued on behalf of the LCSB on October 8 and October 14, 2015. The no-trespass ban prevented Davison, for the remainder of that school year, from (1) attending any public events inside Seldens that were open to the public, including PTA meetings; (2) using any outdoor public facilities, such as the track or playgrounds; and (3) dropping off or picking up his children at the school without first getting permission from Stephens. Still, Davison could attend LCSB meetings and participate in the public comment periods. The letter informed Davison that he could appeal.

The September 30 and October 8 no-trespass letters cited multiple reasons for their issuance including: (1) Davison's behavior at the back-to-school night where he interrupted both of his children's teachers to raise non-germane questions; and (2) Davison's behavior at the September 22, 2015, PTA meeting, where Davison, with an aggressive tone, accused Stephens of violating the law and students' privacy and, allegedly said to Stephens, "Try me. Try me. You'll end up in Federal Court." JA 3789. In October 2015, Davison involved his children in his efforts. His children, at his direction, distributed flyers on school property during their class time, presenting Stephens's picture and Davison's criticisms of school policies and alleged violations of federal law. This and other behavior concerned school officials about the children's welfare.

The October 14 no-trespass letter restated the restrictions and highlighted Davison's behavior, claiming he violated the conditions of the September 29 letter and that he wrote in the emails that he considered Stephens' prior restrictions "null and void." Additionally, Stephens wrote:

[Y]ou have stated publicly that you are a Navy veteran, publicly made allusions to American Sniper, used the term "SHOTGUN" in reference to a public meeting, referred to "BE PREPARED" regarding a public meeting, referred to a public school as a "target rich environment," used a quote that referred to a "hand grenade," made references to public officials' children, and made a reference to public officials meeting their creator [, which] have all contributed to intense fear among staff, caused disruption and time off tasks, causing great alarm and concern for the safety of Seldens Landing Elementary School. Your tone has been both aggressive and intimidating. Staff has [re]viewed your demeanor and are very concerned about your behaviors.

JA 817. The October 14 letter also provided Davison the opportunity to appeal. It further made accommodations for Davison as a parent, including quarterly telephone conferences with Stephens regarding Davison's children's progress in school.

Also in October 2015, Stephens, who was a mandatory reporter of child abuse under Virginia law, began receiving reports about Davison's children from their teachers, two other teachers, and community members, who raised concerns about the children's well-being. For example, Kathy Gims, a teacher at Seldens, declared that she saw Davison's son handing out flyers as class was starting and the boy told her that Davison told him that he had to hand out flyers. Gims told the boy to go to class and she reported the incident to Stephens. Another teacher, Lori Haskins, reported to Stephens several instances where Davison's daughter was crying or visibly upset. The husband of one of Davison's children's teachers wrote to the school district that, based on Davison's behavior towards his wife, he was very concerned that Davison was mentally unstable and needed intervention: "[i]n my mind, Brian Davison is unstable, irrational, and is creating an unacceptable level of fear, concern, and anxiety at a school of 800+ students." JA 2,262. Stephens then conferred with her supervisors and counsel about her responsibilities according to the Child Protective Services (CPS) guidelines for mandatory reporters. On October 27, 2015, Stephens contacted CPS with concerns regarding Davison and his children. CPS investigated the matter and dismissed all allegations.

Davison appealed the no-trespass letters to Stephens, who denied the appeal. Davison then filed an administrative appeal, which was also denied. On December 1, 2015, Davison provided additional information to the LCSB in an appeal of the ban. That same day, the LCSB denied the appeal.

On December 22, 2015, Davison filed a Petition for Review of the no-trespass letters in the Circuit Court of Loudoun County, Virginia. See Brian C. Davison, Petitioner v. Loudoun Cnty. Sch. Bd. , CL00098468-00 (Va. Cir. Ct. 2015). In the Petition, Davison claimed that the no-trespass letter violated his First and Fourteenth Amendment rights. Davison later filed a Motion for Injunctive Relief, requesting that the state court enjoin the LCSB from enforcing the no-trespass letters.

After the federal lawsuit was filed, the LCSB updated its facility use policy (Policy 6310) in November 2018. Policy 6310, which is still in effect, banned any recipient of a no-trespass letter from a LCPS official from using any outdoor facilities at any time, regardless of the specifics within their individual no-trespass letter.

B.

Davison filed this federal suit on May 13, 2016. At the time, Davison's state court petition was still pending, so the district court stayed the federal case pending resolution of the state court petition. On August 5, 2016, the state court dismissed Davison's petition with prejudice. The district court accordingly lifted its stay on September 9, 2016, to allow Defendants to litigate their previously filed motions to dismiss. On July 28, 2017, the court dismissed Davison's Amended Complaint, holding that res judicata or qualified immunity barred each of the claims.

Davison appealed the district court's dismissal. On March 19, 2018, the Fourth Circuit remanded, concluding that the district court's order was not "final" for...