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Davison v. Plowman

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

June 6, 2016




         Plaintiff Brian Davison ("Davison") alleges that the Commonwealth’s Attorney for Loudoun County, Virginia violated his First Amendment rights by deleting his comment from a local government Facebook page and blocking him from posting additional comments. Davison seeks injunctive relief undeleting his comment, restoring his ability to post new comments, and enjoining Defendant from banning Davison in the future. Defendant moves to dismiss this case as moot because he has voluntarily provided the relief Davison seeks. For the following reasons, the Court will deny the motion to dismiss.

         I. Background

         Defendant James Plowman ("Plowman") is the Commonwealth’s Attorney for Loudoun County, Virginia. (Compl. ¶ 3.) Part of Plowman’s job is to supervise public relations regarding the Commonwealth’s Attorney Office (the "CA"), including overseeing a profile page about the CA on the social networking website Facebook.[1] (Compl. ¶¶ 3-4.) The CA’s Facebook page falls under the umbrella of Loudoun County government websites intended to "present matters of public interest in Loudoun County." (Compl. ¶ 4; Social Media Policy [Dkt. 1-1].) Loudoun County’s Social Media Policy encourages public participation on government websites, but imposes some rules on the scope of that participation. (Social Media Policy.) The Policy notes that online comments are moderated and permits Loudoun officials to delete comments that are "clearly off topic, " "contain vulgar language, personal attacks of any kind, or offensive comments that target or disparage any ethnic, racial or religious group, " and other prohibited comments.[2]

         On December 2, 2015, the CA began a media initiative on its Facebook page called "Understanding the Law." (Compl. ¶¶ 5, 8; December 2 Post [Dkt. 1-2] at 1.) The goal of the initiative was to "increase the public’s understanding of the criminal justice process" by posting published articles online, beginning with an article about special prosecutors. (December 2 Post.) About two weeks later, Davison posted a comment on the CA’s Facebook page describing a legal altercation he had with members of Loudoun County Public Schools ("LCPS"). (Compl. ¶ 9.) Davison wrote that LCPS failed to respond to his Freedom of Information Act request and then LCPS "committed perjury by claiming under oath" that it did respond. (December 2 Post.) Davison wrote that there was "documented proof that perjury occurred" and asked why Plowman had not assigned a special prosecutor to investigate. (Id.) Davison criticized Plowman’s decision not to assign a special prosecutor by writing, "I guess that’s the benefit of being elected. You really don’t have to answer to anyone between elections, now do you." (Id.) Davison also included this parting shot:

But hey, I’ve got an idea for you CA. Why don’t you delete/censor this post, and then we can all go before a federal judge in a 42 USC 1983 claim about free speech. What do you say? I’m sure the Virginia Coalition for Open Government, ACLU of Virginia, FOIA Resource Center and Virginia Bar might be interested in this issue too.

(Id. at 2.)

         On December 28, 2015-ten days after Davison posted this comment-the CA did just that; it deleted Davison’s comment and notified Davison he was "banned or blocked from posting any further comments on the Social Media Page." (Compl. ¶¶ 10-11.)

         Davison contacted the CA on multiple occasions in an effort to restore his deleted comment and his ability to post new comments. (Compl. ¶¶ 12-13.) Davison’s attorney similarly attempted to convince Plowman to cease censoring Davison. (Attorney Letter [Dkt. 9-1].) Despite those efforts, Plowman continued to block Davison’s ability to post and refused to restore the deleted comment. (Compl. ¶ 14.)

         On February 22, 2016-almost two months after Plowman deleted the comment-Davison filed the present Complaint, alleging that blocking his access and deleting his comment from a government website violated his First Amendment right to free speech. (Compl. ¶ 16.) The Complaint named Plowman in his individual capacity and in his official capacity as Commonwealth’s Attorney for Loudoun County, Virginia. Davison alleges that Plowman either personally made the decision to take the above actions against him or "when made aware of those acts as head of the office, personally adopted and ratified those acts by refusing to remediate the constitutional violation." (Compl. ¶ 16.) The Complaint seeks injunctive relief and attorney’s fees, but does not seek damages or declaratory relief.[3]

         About ten weeks after Davison filed this lawsuit-and about eighteen weeks after the comment was deleted-Plowman voluntarily restored Davison’s ability to comment on the CA’s Facebook page and undeleted the December 18, 2015 comment. (Def.’s Mem. in Supp. [Dkt. 6] at 2.) Davison has since liberally exercised his restored access by posting at least eleven new comments between May 3 and May 25, 2016. (See Ex. 1 [Dkt. 12].) Many of Davison’s comments are critical of Plowman and reference this lawsuit.[4] Plowman has not deleted any of Davison’s May comments.

         On May 10, 2016, Plowman moved to dismiss this case as moot. That motion was fully briefed and argued orally, and is now ripe for disposition. As described below, the Court will deny the motion.

         II. Legal Standard

         Federal Rule of Civil Procedure 12(b)(1) permits a party to move to dismiss a complaint for lack of subject matter jurisdiction. Fed.R.Civ.P. 12(b)(1). "[I]n passing on a motion to dismiss, whether on the ground of lack of jurisdiction over the subject matter or for failure to state a cause of action, the allegations of the complaint should be construed favorably to the pleader." Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), abrogated on other grounds by Harlow v. Fitzgerald, 457 U.S. 800 (1982). Article III of the United States Constitution limits federal courts’ jurisdiction to "Cases" or "Controversies." U.S. Const., art. III. A "case becomes moot- and therefore no longer a ‘Case’ or ‘Controversy’ for purposes of Article III-when the issues presented are no longer ...

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