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Davison v. Plowman

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

March 28, 2017

BRIAN DAVISON, Plaintiff,
v.
JAMES PLOWMAN, in his official capacity as Attorney for the Commonwealth for Loudoun County, Virginia, and individually, 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:
(Image Omitted)
21) Plaintiff left this comment intending to put political pressure on Defendant to act on Plaintiff's concerns ...

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