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 for
Summary Judgment [Dkt. 96], Plaintiff's Motion for
Reconsideration [Dkt. 88], and Plaintiff's Objection to
Magistrate Judge's Orders [Dkt. 92]. For the following
reasons, the Court will grant Defendants' Motion for
Summary Judgment in part, deny Plaintiff's Motion for
Reconsideration, and overrule Plaintiff's Objection to
the Magistrate Judge's Order.
Court has written extensively about the background of this
case in two prior memorandum opinions, it recites here only
the facts germane to the Motions now before the Court.
Loudoun County Board of Supervisors (“the Board”)
is Loudoun County, Virginia's local governing body.
Compl. [Dkt. 1] ¶ 2; Board Answer [Dkt. 13] ¶ 3.
The Board maintains an official Facebook page. See
Dfs. Exh. 1. The parties agree that the Board's Facebook
page is governed by Loudoun County's Social Media
Comments Policy, discussed below. See Dfs. Exh. 3A;
Dfs. Exh. 3B.
19, 2016, Plaintiff Brian Davison - a resident of Loudoun
County - left a comment critical of the Board on one of the
Board's Facebook posts. That comment quickly disappeared.
Upon discovering that his initial comment had vanished,
Plaintiff commented again, noting that censorship of his
prior comment implicated his First Amendment and Due Process
rights. See Compl. Exh. 3 [Dkt. 1-3].
Plaintiff's second comment also disappeared within
minutes. This prompted a third comment in which Plaintiff
again invoked his constitutional rights, referenced a lawsuit
he had filed based upon similar circumstances, 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. Exh. 8 [Dkt. 1-8]. Within hours,
Plaintiff discovered that his fourth comment had been removed
that his comments had been removed by the Board or its
employees, Plaintiff emailed the Board to report what had
happened and ask that his comments be restored. See
Compl. Exhs. 14-18 [Dkts. 1-14, 1-15, 1-16, 1-17]. The
following day, Leo Rogers, County Attorney for Loudoun
County, responded that “no County employee deleted the
comments.” Dfs. Exh. 15. Mr. Rogers invited Plaintiff
to “re-post the comment.” Id.
however, did not believe Mr. Rogers. See id. When
his comments were not restored, Plaintiff filed suit against
the Board, its individual members, and Mr. Rogers. Plaintiff
brought a variety of claims, most of which the Court
dismissed on Defendants' Motion. See Mem. Op.
[Dkt. 11]. The Court permitted Plaintiff to proceed against
the Board alone on the theory that the Board ratified the
decision of a subordinate to remove Plaintiff's comments,
and that this violated Plaintiff's First Amendment and
Due Process rights. See id. Plaintiff would
eventually file a Motion for Reconsideration [Dkt. 88],
urging the Court to reverse its dismissal of his claim under
the Virginia Freedom of Information Act.
after the Court ruled on Defendants' first Motion to
Dismiss, Plaintiff filed an Amended Complaint naming Phyllis
Randall, Chair of the Loudoun County Board of Supervisors.
See Am. Compl. [Dkt. 33]. Defendant Randall
maintains a Facebook page titled “Chair Phyllis J.
Randall.” See Pl. Exh. 7. She created this
Facebook page herself and personally controls its content.
Randall Decl. ¶¶ 3-5.
Randall uses her own personal electronic devices to manage
the page, and - unlike the Board - has declined to involve
the County's Public Affairs and Communications Office in
administering the page. Id. ¶¶ 3-4;
Barbour Decl. ¶ 21. The content of Defendant
Randall's Facebook page is primarily related to her work
as Chair of the Loudoun County Board of Supervisors, although
it touches on other matters of interest to residents of
Loudoun County. See Pl. Exh. 7. The Loudoun County
Office of Public Affairs and Communications has found that
the County's Social Media Comments Policy “does not
apply to Board members or their staff.” Barbour Decl.
incident giving rise to Plaintiff's Amended Complaint was
similar to that prompting Plaintiff's original Complaint.
In short, on February 3, 2017, Plaintiff left a comment
critical of the Loudoun County School Board on one of
Defendant Randall's Facebook posts. That evening,
Defendant Randall, worried the comment would negatively
impact the experience of other persons visiting her Facebook
page, deleted her original post and banned Plaintiff from her
Facebook page. Randall Decl. ¶ 9. Defendant Randall
reconsidered her decision the following morning and restored
Plaintiff's full access to her Facebook page.
Id. Plaintiff's First Amended Complaint claims
that Defendant Randall's actions violated his First
Amendment and Due Process rights.
March 13, 2017, the parties stipulated to facts established
by information Facebook disclosed in response to
Plaintiff's third-party discovery request. See
Stipulation [Dkt. 76]. Facebook confirmed that the Board was
not responsible for removing Plaintiff's comments as
alleged in Plaintiff's Complaint. Rather, a software
error on Facebook's part caused the comments to be
March 24, 2017, U.S. Magistrate Judge Davis issued an Order
granting in part and denying in part Plaintiff's request
to file a Third Amended Complaint. See Order [Dkt. 87]. Judge
Davis granted Plaintiff's request insofar as Plaintiff
was permitted to add claims arising under the Virginia
Constitution against Defendant Randall. Judge Davis, however,
denied Plaintiff's request to add a claim alleging that
Loudoun County violates the First Amendment by maintaining a
Facebook page given certain technical aspects of the Facebook
platform. Judge Davis' Order further denied
Plaintiff's Motion to Compel [Dkt. 72] interrogatory
responses from various individuals. Plaintiff filed an
Objection to Judge Davis' Order [Dkt. 92] on March 28,
judgment is appropriate only if taking the evidence and all
reasonable inferences drawn therefrom in the light most
favorable to the nonmoving party, ‘no material facts
are disputed and the moving party is entitled to judgment as
a matter of law.'” Henry v. Purnell, 652
F.3d 524, 531 (4th Cir. 2011) (quoting Ausherman v. Bank
of Am. Corp., 352 F.3d 896, 899 (4th Cir.2003)). An
unresolved issue of fact precludes summary judgment only if
it is both “genuine” and “material.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
247-48 (1986). A factual dispute is genuine “if the
evidence is such that a reasonable jury could return a
verdict for the nonmoving party” on that issue.
Id. at 248. It is material if it “might affect
the outcome of the suit under the governing law.”
Id. “In the end, the question posed by a
summary judgment motion is whether the evidence ‘is so
one-sided that one party must prevail as a matter of
law.'” Lee v. Bevington, 647 F. App'x
275 (4th Cir. 2016) (quoting Anderson, 477 U.S. at
Court is mindful that Plaintiff is proceeding in this matter
pro se. A “document filed pro se is
‘to be liberally construed, '” and
“‘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)).
Defendants' Motion for Summary Judgment
initial matter, Plaintiff concedes that summary judgment is
appropriate with respect to Plaintiff's original claims
against the Board. The Court permitted Plaintiff to proceed
on the theory that the Board ratified a subordinate's
decision to remove Plaintiff's comments from the
Board's Facebook page. It is now uncontroverted that the
Board did no such thing. Accordingly, the Court ...