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Davison v. Loudoun County Board of Supervisors

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

September 14, 2016

BRIAN C. DAVISON, Plaintiff,
v.
LOUDOUN COUNTY BOARD OF SUPERVISORS, et al., Defendants.

          MEMORANDUM OPINION

          JAMES C. CACHERIS UNITED STATES DISTRICT COURT JUDGE

         This matter is before the Court on Defendants' Motion to Dismiss [Dkt. 3]. For the reasons that follow, the Court will deny Defendants' Motion with respect to Plaintiff's First Amendment and Due Process claims against Defendant Board of Supervisors of Loudoun County, and will grant the Motion in all other respects.

         I. Background

         The following allegations of fact set forth in Plaintiff's Complaint are taken as true for purposes of the present Motion. See E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc., 637 F.3d 435, 440 (4th Cir. 2011).

         Defendant Loudoun County Board of Supervisors (“the Board”) is Loudoun County, Virginia's local governing body. Compl. [Dkt. 1] ¶ 2. On July 15, 2016, the Board's standing Transportation and Land Use Committee held a public meeting. Id. ¶ 8. Present at that meeting were Defendants Phyllis Randall, Ron Meyer, and Geary Higgins - each a “supervisor in the Defendant Loudoun County [Board of Supervisors].” Id. ¶¶ 4, 6-8. Defendant Tony Buffington, also a supervisor elected to the Board, see id. ¶ 5, did not attend the meeting. See id. ¶ 8.[1]

         Notwithstanding his absence, Defendant Buffington began sending text messages to Defendants Randall, Meyer, and Higgins during the meeting. See id. ¶¶ 9-10. These messages urged the Board members present to vote against a specific land use application under discussion. See id.

         Approximately 40 minutes after Defendant Buffington began sending text messages to his colleagues, counsel for the land use applicant inquired whether Defendant Buffington was participating in the meeting via text message. Id. ¶ 11. The applicant's counsel argued that this would violate Virginia's Freedom of Information Act, Va. Code § 2.2-3700, et seq. Compl. [Dkt. 1] ¶ 11. Defendants Randall, Meyer, and Higgins admitted to receiving text messages from Defendant Buffington and read the messages into the record. Id. ¶ 12.

         On July 19, 2016, a post appeared on the official Facebook page of the Loudoun County Government. Id. ¶ 13. The post read: “#Loudoun County Attorney Leo Rogers has determined that text messages sent and receive [sic] during a Board of Supervisors committee meeting did not violate the Virginia Freedom of Information Act.” Id.; see also Compl. Exh. 3 [Dkt. 1-3]. The post included a link to a press release stating as much hosted “on the Loudoun County government's website.” Compl. [Dkt. 1] ¶ 13.

         Plaintiff Brian C. Davison is a resident of Loudoun County, Virginia, who takes “an interest in rules of ethics for public officials.” Id. ¶ 1. Shortly after the post appeared, Plaintiff commented on it using the screen name “Virginia SGP.” Id. ¶ 14. Plaintiff's comment “related to the alleged FOIA violation.” Id. It appears that Plaintiff's comment was critical of the Board, although the comment is not part of the record now before the Court.

         Plaintiff's comment was “quickly hidden” by someone operating the Board's Facebook page. Id. ¶ 15. One attempting to view the comment would therefore be able to see that someone had commented on the original post, but would not be able to read the comment itself. See id.

         Upon discovering that his initial comment had disappeared, Plaintiff commented again noting that the censorship of his previous comment implicated his First Amendment and Due Process rights. See id. ¶ 16; see also Compl. Exh. 3 [Dkt. 1-3]. Plaintiff's second comment was also “hidden and/or deleted” within minutes. Compl. [Dkt. 1] ¶ 17.

         This prompted a third comment in which Plaintiff again invoked his constitutional rights, referenced a lawsuit he had filed based upon similar circumstances, see Davison v. Plowman, __ F.Supp.3d. __, No. 1:16-CV-0180, 2016 WL 3167394 (E.D. Va. June 6, 2016), and levied allegations of corruption at the Board. See Compl. Exh. 7 [Dkt. 1-7]. Plaintiff then captured an image of this third comment and posted it along with a fourth comment referencing the possibility of legal action against the Board. See Compl. [Dkt. 1] ¶ 19; Compl. Exh. 8 [Dkt. 1-8]. Within hours, Plaintiff discovered that his fourth comment had been “deleted and/or hidden” as well. See Compl. [Dkt. 1] ¶ 19.

         Plaintiff emailed the Board - including each individual Defendant supervisor - to report what had happened and ask that his comments be restored. See id. ¶ 19; Compl. Exhs. 14-18 [Dkt. 1-14, 1-15, 1-16, 1-17, 1-18]. Plaintiff received no substantive response. See Compl. [Dkt. 1] ¶¶ 24-26.

         On July 20, 2016, Plaintiff filed suit pro se against the Board and individual Board members Randall, Buffington, Meyer, and Higgins. Plaintiff also named as a defendant Leo Rogers, county attorney to the Board, who Plaintiff alleges is “responsible for . . . providing opinions and/or policy on Loudoun County's social media policy.” Id. ¶ 3. Plaintiff alleges that Defendants violated his First and Fourteenth Amendment rights to free speech, due process, and equal protection, as well as the Virginia Freedom of Information Act.

         Defendants now move to dismiss this case pursuant to Federal Rules of Civil Procedure 12(b)(1), (b)(6) and (d).

         II. Legal Standard

         As an initial matter, the Court notes that Defendants' pleadings fail to distinguish between Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). Indeed, Defendants go so far as to reference “Fed. R. Civ. P. 12(b)(1)(6)” in the titles and introductory paragraphs of their pleadings. Defendants cite the rules interchangeably throughout their Motion and supporting Memorandum. It therefore falls to the Court to determine the proper standard under which to evaluate Defendants' Motion.

         Defendants challenge the legal sufficiency of Plaintiff's claims, not the Court's power to hear them. Such arguments are only properly evaluated under Rule 12(b)(1) when a movant contends that the plaintiff's claims are (1) brought solely for the purpose of obtaining federal jurisdiction over state law claims or (2) wholly insubstantial. See Holloway v. Pagan River Dockside Seafood, Inc., 669 F.3d 448, 452-53 (4th Cir. 2012). Defendants do not clearly advance either position. Defendants' Motion is therefore properly addressed under Rule 12(b)(6).[2]

         In reviewing a motion to dismiss for failure to state a claim under Rule 12(b)(6), the Court “must accept as true all of the factual allegations contained in the complaint, ” drawing “all reasonable inferences” in the plaintiff's favor. E.I. du Pont de Nemours & Co., 637 F.3d at 440 (citations omitted). Generally, the Court may not look beyond the four corners of the complaint in evaluating a Rule 12(b)(6) motion. See Goldfarb v. Mayor & City Council of Baltimore, 791 F.3d 500, 508 (4th Cir. 2015). “A court has wide discretion to exclude matters outside of the pleadings” in evaluating such a motion. Norfolk Fed'n of Bus. Districts v. Dep't of Hous. & Urban Dev., 932 F.Supp. 730, 736 (E.D. Va.), aff'd sub nom. Norfolk Fed'n of Bus. Districts v. City of Norfolk, 103 F.3d 119 (4th Cir. 1996). If, however, a defendant proffers evidence beyond the complaint, the Court may treat the filing as a motion for summary judgment under Federal Rules of Civil Procedure (12)(d) and 56. See Goldfarb, 791 F.3d at 508.

         In evaluating Defendants' Motion, the Court is mindful that Plaintiff is proceeding in this matter pro se. A “document filed pro se is ‘to be liberally construed, ' and ‘a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.'” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)).

         III. Analysis

         A. Defendants' ...


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