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Davison v. Plowman
United States District Court, E.D. Virginia, Alexandria Division
March 28, 2017
BRIAN DAVISON, Plaintiff,
JAMES PLOWMAN, in his official capacity as Attorney for the Commonwealth for Loudoun County, Virginia, and individually, Defendant.
MEMORANDUM OF DECISION
C. Cacheris UNITED STATES DISTRICT COURT JUDGE
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.
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.
OF FACT AND CONCLUSIONS OF LAW
Findings of Relevant Fact
1) Plaintiff Brian Davison is a resident of Loudoun County,
Virginia. Trial Transcript [Dkt. 41] (“Tr.”)
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.
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.
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
20) Plaintiff left a lengthy comment on this link, Pl. Exh.
1, reproduced in its entirety below:
21) Plaintiff left this comment intending to put political
pressure on Defendant to act on Plaintiff's concerns
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