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Davison v. Loudoun County Board of Supervisors

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

May 10, 2017

BRIAN C. DAVISON, Plaintiff,



         This 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.

         I. Background

         As this 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.

         Defendant 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.

         On July 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 as well.

         Assuming 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.

         Plaintiff, 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.

         Shortly 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.

         Defendant 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. ¶ 21.

         The 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.

         On 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 erased.

         On 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, 2017.

         II. Legal Standard

         “Summary 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 252).

         The 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)).

         III. Analysis

         A. Defendants' Motion for Summary Judgment

         As an 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 ...

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