United States District Court, E.D. Virginia, Alexandria Division
BRIAN C. DAVISON, Plaintiff,
LOUDOUN COUNTY BOARD OF SUPERVISORS, et al., Defendants.
C. CACHERIS UNITED STATES DISTRICT COURT JUDGE
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.
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).
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
now move to dismiss this case pursuant to Federal Rules of
Civil Procedure 12(b)(1), (b)(6) and (d).
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.
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).
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.
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)).