Davison v. Plowman

Filing 42

MEMORANDUM OF DECISION. Signed by District Judge James C. Cacheris on 03/28/2017. (mpha)

IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF VIRGINIA
Alexandria Division
BRIAN DAVISON,
Plaintiff,
v.
JAMES PLOWMAN, in his official
capacity as Attorney for the
Commonwealth for Loudoun
County, Virginia, and
individually,
Defendant.
M E M O R A N D U M

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Case No. 1:16cv180 (JCC/IDD)

O F

D E C I S I O N

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.

2)

Trial Transcript [Dkt. 41] (“Tr.”) 22-23.

Defendant James Plowman is and has at all relevant times
been Loudoun County Commonwealth’s Attorney.

3)

Tr. 93.

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.
4)

Tr. 95-96; 116-18.

Defendant’s office is funded both by Loudoun County and the
Commonwealth, with the former contributing the greater

2

amount and providing employment benefits to Defendant’s
employees.
5)

Tr. 95-97.

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.

6)

Tr. 27-30.

That conflict escalated to the point that Plaintiff was
eventually banned from the premises of his children’s
elementary school.

7)

Tr. 38.

During a court hearing related to that dispute, a school
official offered testimony that Plaintiff believed to
constitute perjury.

8)

Plaintiff urged state and local authorities to investigate
the alleged perjury.

9)

Tr. 30-32.

Tr. 38-40.

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.

3

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.

16)

Tr. 112-13.

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.
4

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.

18)

Tr. 42-43.

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:

5

[cite]

6

21)

Plaintiff left this comment intending to put political
pressure on Defendant to act on Plaintiff’s concerns about
the alleged perjury.

22)

Tr. 47.

Defendant’s employee, Heather Williamson, brought
Plaintiff’s comment to Defendant’s attention, in part
because of its length and in part due to Plaintiff’s
earlier email to Defendant’s office.

23)

Tr. 125.

After reviewing the comment, Defendant deemed the comment
to violate the Loudoun County Social Media Comments Policy.
Specifically, Defendant found the comment to be clearly off
topic.

Tr. 102-04.

The Court specifically finds

Defendant’s testimony on this point credible.
24)

Having found the comment to be off topic, Defendant
directed Ms. Williamson to remove it from the Loudoun
County Commonwealth’s Attorney Facebook page.

25)

Tr. 101.

Plaintiff then proceeded to leave a series of comments on
the Loudoun County Commonwealth’s Attorney Facebook page.
Tr. 105-06.

Neither party adduced evidence regarding the

specific content of these comments.
26)

Defendant likewise deemed these comments to violate the
Loudoun County Social Media Comments Policy as clearly off
topic.

Tr. 105-06; Pl. Exh. 5 at 3.1

1

The Court notes that the parties’ accounts of the
timing of Plaintiff’s posts and Defendant’s decision to delete
them differ significantly. See Tr. 71-72; 105-06; Pl. Exh. 5 at
7

27)

On January 4, 2016, Defendant and Ms. Williamson exchanged
emails regarding Plaintiff’s comments on the Loudoun County
Commonwealth’s Attorney Facebook page.

Ms. Williamson

stated that she had spoken with another Loudoun County
employee with knowledge of the County’s social media
practices.

That employee had informed her that individuals

had been blocked from other County social media websites
for “posting continuously.”

In response, Defendant gave

Ms. Williamson authorization to block Plaintiff from
posting to the Loudoun County Commonwealth’s Attorney
Facebook page, concluding that “while [Plaintiff] has a
[F]irst [A]mendment right to do what he pleases [ ] we have
no obligation to provide him a forum to do such.”

Ms.

Williamson replied “[y]up” and pointed out that Loudoun
County’s Social Media Comments Policy “covers spam, off
topic posts, etc.”
28)

Pl. Exh. 8.

On December 28, 2015, Plaintiff discovered that his
subsequent comments had disappeared from the Loudoun County
Commonwealth’s Attorney Facebook page that he was not able
to post further comments to the that page. Tr. 48-49.

29)

Plaintiff contacted Defendant’s office and asked that his
ability to post comments on the Loudoun County

3. The precise timing of the posts, however, is not material to
the Court’s resolution of the legal issues in this case.
8

Commonwealth’s Attorney Facebook page be restored.
Defendant refused.
30)

Tr. 49-50.

Plaintiff then retained counsel and, on February 22, 2016,
filed the instant lawsuit.

31)

On March 9, 2016, Plaintiff purchased a Facebook Ad in
which he discussed Defendant’s actions.

See Df. Exh. 59.

Plaintiff intended for the Ad to target Facebook users
interested in Defendant’s Facebook page in an effort to
reach the audience he believed he had been denied by
Defendant’s actions.
32)

Tr. 57.

Plaintiff felt that being banned from Defendant’s Facebook
page added to the stigma Plaintiff already faced after
being banned from the premises of his children’s elementary
school.

Tr. 56.

Plaintiff further believed that

Defendant’s actions contributed to the length of his
trespass ban from school premises, see Tr. 56, although he
adduced no evidence to substantiate this belief.
33)

Throughout the period during which he was banned from
Defendant’s office’s Facebook page, Plaintiff made
extensive use of social media to comment publicly on his
various disputes with Defendant and Loudoun County Public
Schools.

Among other things, Plaintiff wrote numerous

Facebook posts, both using his personal account and a
Facebook page he had created called “Virginia SGP.”
9

Df.

Exhs. 6-7, 10-13.

In these posts, Plaintiff “tagged”

individuals, who would then receive notice of the post.
See, e.g., Df. Exhs. 10, 11; Tr. 51-52, 75-76.

Plaintiff

also made use of Twitter, another social media platform, to
make his case to the public. See, e.g., Df. Exh. 7; Tr. 75.
34)

On May 2, 2016, Defendant reversed his earlier decision,
reinstating Plaintiff’s ability to post comments on the
Commonwealth Attorney’s Facebook page.

This had the effect

of restoring Plaintiff’s comments that had previously been
hidden.
35)

Tr. 113-14, 138.

Plaintiff became aware of Defendant’s decision on or before
May 4, 2016.

Df. Exh. 14.

Plaintiff nonetheless proceeded

to pay for a second Facebook Ad related to his dispute with
Defendant.

Between May 4, 2016 and May 30, 2016, Plaintiff

spent $24.00 on this Ad.
36)

Df. Exh. 60.

After his access to the Commonwealth’s Attorney Facebook
page was restored, Plaintiff proceeded to comment
extensively on that page. See, e.g., Df. Exhs. 15-21.

None

of these comments have since been hidden or otherwise
censored.
37)

Tr. 89-90.

On November 22, 2016, Loudoun County adopted a new Social
Media Comments Policy formulated in collaboration with
Defendant’s office.

The new policy is similar in many

respects to the old policy.
10

It provides that “[t]he

purpose of Loudoun County’s official social media platforms
is to provide information of public interest to the
county’s residents, business community, visitors and other
members of the general public.”

The policy further

“encourage[s]” commenters “to engage [their] local
government through social media by submitting . . .
comments and questions regarding the posted topics and by
sharing the county’s information with [their] network.”
Id.

Much like the old policy, the new policy reserves the

County’s right to remove comments that violate certain
enumerated rules.
38)

Df. Exh. 2.

The new policy, however, differs from the old in two
crucial respects.

First, it no longer permits the removal

of comments that are “clearly off topic.”

See Df. Exh. 2.

Second, the authority to remove comments from County social
media websites now resides with the Public Affairs and
Communications Division of the Office of the County
Administrator.
39)

Df. Exh. 2.

Defendant’s office has adopted the new Social Media
Comments Policy.

Tr. 116.

Accordingly, Defendant no

longer exercises control over the removal of comments from
the Loudoun County Commonwealth’s Attorney Facebook page.
40)

Defendant has no intention of abandoning this new policy.
Tr. 116.
11

II. Conclusions of Law
A. Defendant did not violate the First Amendment by
Removing Plaintiff’s Comment from the Loudoun County
Commonwealth’s Attorney Facebook Page.
The Court has already ruled that the Loudoun County
Social Media Comments Policy – both as originally written and as
amended – serves to create a limited public forum as applied to
the Loudoun County Commonwealth’s Attorney Facebook page.
Mem. Op. [Dkt. 35].

See

A limited public forum is one “created for

a limited purpose such as use by certain groups . . . or for the
discussion of certain subjects.”

Perry Educ. Ass’n v. Perry

Local Educators’ Ass’n, 460 U.S. 37, 71 n.7 (1983).

“Once it

has opened a limited forum,” the government “must respect the
lawful boundaries it has itself set.”

Rosenberger v. Rector &

Visitors of Univ. of Virginia, 515 U.S. 819, 829 (1995).
The government, however, may police the boundaries of
a limited public forum it has created.

“When a particular forum

is classified as a designated/limited public forum, ‘[t]wo
levels of First Amendment analysis’ apply: the ‘internal
standard’ and the ‘external standard.’”

Goulart v. Meadows, 345

F.3d 239, 250 (4th Cir. 2003) (quoting Warren v. Fairfax County,
196 F.3d 186, 193-94 (4th Cir.1999)) (alteration in original).
With respect to the “internal standard,” “[i]n limited public
fora, strict scrutiny is accorded only to restrictions on speech
12

that falls within the designated category for which the forum
has been opened.”

Hotel Employees & Rest. Employees Union,

Local 100 of N.Y., N.Y. & Vicinity, AFL CIO v. City of N.Y.
Dep't of Parks & Recreation, 311 F.3d 534, 545 (2d Cir. 2002);
see also Am. Civil Liberties Union v. Mote, 423 F.3d 438, 444
(4th Cir. 2005).

If the speech restricted falls outside the

bounds of the designated forum, the Court need determine only
whether the speech restriction applied is viewpoint neutral and
reasonable in light of the purpose of the forum.

See Mote, 423

F.3d at 444; see also Child Evangelism Fellowship of MD, Inc. v.
Montgomery Cnty. Pub. Sch., 457 F.3d 376, 383 (4th Cir. 2006)
(“In a limited public forum . . . the government may restrict
access to ‘certain groups’ or to ‘discussion of certain topics,’
subject to two limitations: the government restrictions must be
both reasonable and viewpoint neutral.”).

The restriction in

question “‘need only be reasonable; it need not be the most
reasonable or the only reasonable limitation.’”

Id. at 445

(quoting Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473
U.S. 788, 808 (1985)).
At the time Defendant removed Plaintiff’s comment from
his office’s Facebook page, the operative Social Media Comments
Policy stated that “[t]he purpose of” the Facebook page was “to
present matters of public interest in Loudoun County.”
1.

Df. Exh.

The policy included a provision reserving Defendant’s right
13

to remove comments deemed “clearly off topic,” making clear that
it was Defendant’s role to select “matters of public interest”
for public discussion.

Id.; see also Tr. 128.

The amended

policy amplifies and clarifies this purpose by inviting public
comment only with respect to “the posted topics.”

Df. Exh. 2.

The effect of this restriction is and was to limit public
comment on Defendant’s Facebook page to discussion of topics
selected by Defendant’s office.

As this was the policy invoked

to justify the removal of Plaintiff’s comment, the Court must
determine (1) whether Defendant’s comment was, in fact, “clearly
off topic” – i.e. whether it fell outside of the bounds of the
forum – and (2) if so, whether the “clearly off topic”
restriction was viewpoint neutral and reasonable in light of the
purpose of the forum.2
Here, Defendant posted a link to an article he had
written concerning special prosecutors as part of a program
intended to “increase the public’s understanding of the criminal
justice process” generally.

Plaintiff responded by posting a

lengthy comment that did not further any dialogue about the role
of special prosecutors in the criminal justice system.

Rather

than engage with the content or topic of the article,

2

The first step in assessing any First Amendment claim
is to determine whether the speech at issue is constitutionally
protected. See Mote, 423 F.3d at 442. The comment submitted by
Plaintiff is self-evidently constitutionally protected political
speech, and so the Court does not belabor the point.
14

Plaintiff’s comment was intended to pressure Defendant to act on
Plaintiff’s concerns about alleged perjury by a Loudoun County
Public Schools official.
testified as much.

See, e.g., Tr. 43.

Indeed, Plaintiff

Plaintiff was asked by his own counsel at

trial whether his comment was a response to Defendant’s article.
Tr. 45-47.

Plaintiff responded that it was not, but was rather

“political speech aimed at informing the public of [Defendant’s]
actions and to eventually have [Defendant] voted out of office.”
Tr. 47.

Given his testimony, it is not clear that Plaintiff

read the article in question before posting his comment.
While Plaintiff’s comment does reference special
prosecutors, that aspect of the comment is mere window dressing.
The reference to a special prosecutor was simply a hook upon
which Plaintiff attempted to hang his frustration that Defendant
refused to pursue Plaintiff’s claims of perjury.

The comment,

on its face and by Plaintiff’s own admission, did not engage
with the topic of Defendant’s original post, but rather
attempted to hijack the discussion for Plaintiff’s ends.
Plaintiff’s comment therefore fell outside the bounds of the
limited public forum established by the Social Media Comments
Policy.
That being so, the Court next asks whether the
“clearly off topic” restriction was “‘viewpoint neutral and
reasonable in light of the objective purposes served by the
15

forum.’”

Mote, 423 F.3d at 444 (quoting Warren v. Fairfax

Cnty., 196 F.3d 186, 194 (4th Cir. 1999)).

First, a restriction

limiting a forum to discussion of selected topics – a common
restriction among limited public forums, see Perry Educ. Ass’n,
460 U.S. at 71 n.7 – is self-evidently viewpoint neutral.
Furthermore, the restriction on speech deemed “clearly off
topic” in the original Social Media Comments Policy was
reasonably related – indeed, integral – to the forum’s purpose.
As discussed above, the Social Media Comments Policy
contemplated that Defendant would set the agenda, and that
interested parties would participate in moderated discussion
regarding the selected topics.

The “clearly off topic”

restriction served to limit discussion to those matters
presented and to thus preserve the forum for its intended
purpose.

The Court notes that while the “clearly off topic”

restriction no longer appears in the amended Social Media
Comments Policy, the limitation persists in that commenters are
only encouraged to “submit[ ] . . . comments and questions
regarding the posted topics.”

Df. Exh. 2.

In sum, Plaintiff’s comment did not comport with the
purpose of the forum, and the restriction justifying its removal
was both viewpoint neutral and reasonably related to the purpose
of the forum.

Accordingly, Defendant did not violate

Plaintiff’s First Amendment rights by removing the comment.
16

This leaves one loose end.

Plaintiff’s Complaint

contends that the “clearly off topic” limitation is itself
unconstitutionally vague.

Am. Compl. [Dkt. 16] ¶ 17.

Plaintiff

at no point raised or supported this argument in briefing or at
trial.

The Court finds the contention to be without merit.

The

requirement that participants in a limited public forum stick to
a prescribed topic is simply not the sort of ambiguous, sweeping
speech restriction subject to challenge under the overbreadth
doctrine.

See Hardwick ex rel. Hardwick v. Heyward, 711 F.3d

426, 441 (4th Cir. 2013).
Moreover, the Fourth Circuit has observed that
“‘discretionary access is a defining characteristic of the
nonpublic forum,” and that this “suggests that more official
discretion is permissible” where limited public forums are
concerned.

Child Evangelism Fellowship of MD, Inc., 457 F.3d at

387 (quoting Griffin v. Sec’y of Veterans Affairs, 288 F.3d
1309, 1324 (Fed. Cir. 2002)).

The limited public forum at issue

was opened for the purpose of moderated discussion on selected
topics – a purpose which presupposes a degree of discretion.
The Court notes that failure to effectively moderate a public
discussion may be as deleterious to dialogue in such a forum as
censorship.

Cf. Eichenlaub v. Twp. of Indiana, 385 F.3d 274,

281 (3d Cir. 2004) (noting that the First Amendment permits, and
may in some cases even require, a government entity conducting a
17

public meeting to stop a “speaker . . . try[ing] to hijack the
proceedings”).

This may in fact be a problem now facing

Defendant’s Facebook page; since Plaintiff has again begun
posting “quite often” on that page, Plaintiff testified that
“[m]any fewer comments appear” from other people.

Tr. 89-90.

In light of the above, the Court finds and concludes
that Defendant did not violate Plaintiff’s First Amendment
rights by removing his comment from the official Loudoun County
Commonwealth’s Attorney Facebook page.
B. Defendant is entitled to qualified immunity with
respect to his decision to block Plaintiff from
further posting on the Loudoun County Commonwealth’s
Attorney Facebook Page.
Qualified immunity serves to shield government
officials from individual liability for civil damages where
their actions do not violate clearly established law.
v. Callahan, 555 U.S. 223, 231 (2009).

Pearson

In evaluating whether

Defendant is entitled to qualified immunity, the Court must
determine “(1) whether the plaintiff has established the
violation of a constitutional right, and (2) whether that right
was clearly established at the time of the alleged violation.”
Raub v. Campbell, 785 F.3d 876, 881 (4th Cir. 2015), cert.
denied, 136 S. Ct. 503 (2015).

The order in which to decide

these issues is left to the Court’s discretion.
555 U.S. at 236.

18

See Pearson,

“The operation of [the ‘clearly established’] standard
. . . depends substantially upon the level of generality at
which the relevant ‘legal rule’ is to be identified.”
v. Creighton, 483 U.S. 635, 639 (1987).

Anderson

A right is clearly

established if “[t]he contours of the right . . . [are]
sufficiently clear that a reasonable official would understand
that what he is doing violates that right.”

Id. at 640.

While

precedent need not fit the situation exactly, it is not enough
to simply say that the First Amendment as a whole is clearly
established, ergo any violation of the First Amendment violates
clearly established law.
(1999).

See Wilson v. Layne, 526 U.S. 603, 615

Rather, there must be case law sufficiently analogous

to put a reasonable public official on notice.

See Ashcroft v.

al-Kidd, 563 U.S. 731, 741 (2011) (“We do not require a case
directly on point, but existing precedent must have placed the
statutory or constitutional question beyond debate.”).
Qualified immunity thus “provides ample protection to all but
the plainly incompetent or those who knowingly violate the law.”
Malley v. Briggs, 475 U.S. 335, 341 (1986).
The Court has already determined that Defendant did
not violate the First Amendment by removing Plaintiff’s comment
from the Loudoun County Commonwealth’s Attorney Facebook page.
The question now is whether it would nonetheless have been
apparent to a reasonable government official that going one step
19

further and excluding Plaintiff from that limited public forum
altogether, after Plaintiff repeatedly disregarded its rules,
would violate the First Amendment.
Plaintiff has not cited “any cases of controlling
authority in [this] jurisdiction at the time of the incident
which clearly established the rule on which [he] seek[s] to
rely, nor ha[s] [he] identified a consensus of cases of
persuasive authority such that a reasonable officer could not
have believed that his actions were lawful.”
526 U.S. 603, 617 (1999).
find any such authority.

Wilson v. Layne,

The Court has itself been unable to
The most similar cases of which the

Court is aware concern individuals banned from recurring public
meetings for disruptive behavior.

See, e.g., Barna v. Bd. of

Sch. Directors of the Panther Valley Sch. Dist., 143 F. Supp. 3d
205 (M.D. Pa. 2015); Stevens v. Sch. City of Hobart, No. 2:13CV-336-PRC, 2015 WL 4870789, at *14 (N.D. Ind. Aug. 6, 2015);
Cyr v. Addison Rutland Supervisory Union, 60 F. Supp. 3d 536,
548 (D. Vt. 2014); Brown v. City of Jacksonville, Fla., No.
3:06-CV-122-J-20MMH, 2006 WL 385085, at *3–4 (M.D. Fla. Feb. 17,
2006).

In each case, the court expressed misgivings about the

constitutionality of a blanket ban on attendance.

These cases,

however, do not constitute controlling authority in this
jurisdiction, and as the court in Barna observed, no consensus

20

on the issue has arisen among courts sufficient to defeat
qualified immunity.

See Barna, 143 F. Supp. 3d at 225–26.

Moreover, the situation at bar is easily
distinguishable from the above cases.

To the extent the courts

in those cases doubted the constitutionality of a flat ban on an
individual’s participation in public meetings, they reasoned
that such a ban (1) is not sufficiently tailored because it
“entirely forecloses a means of communication,” Cyr, 60 F. Supp.
3d at 548, and (2) fails to leave adequate alternative channels
of communication.

See Barna, 143 F. Supp. 3d at 221.

neither concern is warranted.

Here,

Once banned from Defendant’s

Facebook page, Plaintiff could and did avail himself of Facebook
and other social media platforms to reach his audience.
Plaintiff remained able to read and respond to Defendant’s
Facebook posts, and to “tag” individuals so as to notify them of
his comments.

Plaintiff adduced little evidence at trial

tending to show that those alternative channels of communication
were inadequate as compared to commenting directly on
Defendant’s Facebook page.

While Defendant’s Facebook page was

and remains more popular than Plaintiff’s, there is little
evidence to suggest that Plaintiff’s comments would have
received significantly more exposure if left on that page given
the affirmative steps required to engage with such comments.
See, e.g., Tr. 52.

Moreover, Plaintiff’s testimony at trial
21

strongly suggested that his primary – if not sole – interest in
Defendant’s Facebook page was as a platform to air his
grievances against Defendant and Loudoun County Public Schools.
As discussed above, that is not in keeping with the purpose of
the limited public forum at issue.
In light of the above, the Court must conclude that
any First Amendment right Plaintiff might have had to continue
posting comments on Defendant’s Facebook page, notwithstanding
his repeated violations of the Loudoun County Social Media
Comments Policy, was not clearly established at the time
Defendant blocked him.

Accordingly, Defendant is entitled to

qualified immunity with respect to his decision to do so.
C. Defendant is entitled to Eleventh Amendment immunity
with respect to his decision to block Plaintiff from
further posting on the Loudoun County Commonwealth’s
Attorney Facebook Page.
The Eleventh Amendment bars lawsuits brought against
states.

See Edelman v. Jordan, 415 U.S. 651, 663 (1974).

This

bar extends to suits seeking civil damages against state
officers in their official capacity.

See Pennhurst State Sch. &

Hosp. v. Halderman, 465 U.S. 89, 101 (1984); Gray v. Laws, 51
F.3d 426, 430 (4th Cir. 1995) (“Like the state itself, state
officers acting in their official capacity are also entitled to
Eleventh Amendment protection, because ‘a suit against a state
official in his or her official capacity is not a suit against
the official but rather is a suit against the official’s
22

office,’ and ‘[a]s such, it is no different from a suit against
the State itself.’”) (quoting Will v. Michigan Dep’t of State
Police, 491 U.S. 58, 71 (1989)) (alterations in original).

This

jurisdictional bar, however, does not extend to local and county
authorities.

See Gray, 51 F.3d at 431.

Defendant is a constitutional officer of Virginia.
See Va. Const. art. VII, § 4.

At trial, Plaintiff contended

that, notwithstanding that fact, Defendant is not entitled to
Eleventh Amendment immunity because his office works closely
with Loudoun County, and so Defendant is a de facto county
official.

This Court and others, however, have held that a suit

against a constitutional officer of Virginia is, for Eleventh
Amendment purposes, to be treated as a suit against the
Commonwealth itself.

See, e.g., Smith v. McCarthy, 349 F. App’x

851, 859 n.11 (4th Cir. 2009) (affirming the dismissal of a suit
brought against Virginia constitutional officers in their
official capacities “as they . . . are afforded immunity by the
Eleventh Amendment”); Savage v. Cty. of Stafford, Va., No.
CIV.A.109CV1328, 2010 WL 1873222, at *4 (E.D. Va. May 4, 2010)
(“[T]he Court finds that the Commonwealth Attorney and assistant
commonwealth’s attorneys, like the sheriff and his deputies, are
arms of the state and therefore are entitled to Eleventh
Amendment immunity when sued in their official capacities.”);
Smith v. McCarthy, No. CIV.A.3:08CV00036, 2009 WL 50022, at *15
23

(W.D. Va. Jan. 7, 2009), aff’d, 349 F. App’x 851 (4th Cir. 2009)
(“As a constitutional officer, a Commonwealth’s Attorney is
immune from liability [under the Eleventh Amendment].”);
Blankenship v. Warren Cnty., Va., 918 F. Supp. 970, 974 n.4
(W.D. Va.), on reconsideration, 931 F. Supp. 447 (W.D. Va. 1996)
(“The Virginia Constitution creates five state officers which
are charged with performing quintessential functions of state
government: Commonwealth’s Attorney, Treasurer, Commissioner of
Revenue, Sheriff, and Clerk of the Court. The court believes
that it would be the incredible argument indeed that these
officers are not state actors and are therefore not entitled to
immunity pursuant to the Eleventh Amendment.”); see also Hussein
v. Miller, 232 F. Supp. 2d 653, 659–60 (E.D. Va. 2002).
Moreover, the Court notes that Defendant’s office,
while funded in part by Loudoun County, also receives funding
from Virginia.

Tr. 95-96.

It therefore appears that any

monetary judgement against Plaintiff would be paid, at least in
part, by the Commonwealth.

“[A] determination that the state

treasury will be liable for a particular judgment is largely, if
not wholly, dispositive of entitlement to Eleventh Amendment
immunity[.]”

Gray, 51 F.3d at 433.

Furthermore, while

Defendant’s office cooperates and works closely with the Loudoun
County government, it is legally autonomous and may choose not
to adopt or comply with County policies.
24

See Tr. 117-18.

Defendant’s office performs a “quintessential function[ ] of
state government,” Blankenship, 918 F. Supp. at 974 n.4, and
Defendant’s position is a creature of the highest state law.
See Va. Const. art. VII, § 4.

All of the above counsels in

favor of Eleventh Amendment immunity.

See U.S. ex rel. Oberg v.

Pennsylvania Higher Educ. Assistance Agency, 804 F.3d 646, 650–
51 (4th Cir. 2015), cert. denied, 137 S. Ct. 617 (2017).

The

Court therefore finds and concludes that Defendant is immune
from Plaintiff’s claim for monetary damages in his official
capacity.
D. Plaintiff has failed to establish damages.
The only evidence Plaintiff submitted with respect to
his monetary damages were two receipts reflecting payments for
advertising on Facebook totaling $74.

See Df. Exhs. 59, 60.

Plaintiff claims that advertising was a necessary expense
incurred in an effort to reach the audience for Defendant’s
Facebook page while he was blocked.

See Tr. 57.

It is not clear, however, that this expense was
necessary.

Plaintiff could have disseminated – and in fact did

disseminate – his message in any number of ways without
purchasing advertising.

Moreover, one of the Facebook ads in

question was purchased after Plaintiff’s ability to post
comments to Defendant’s Facebook page had been restored.
Df. Exh. 60.

See

While Plaintiff testified that he was not yet
25

aware that his access had been restored when he began paying for
this advertisement, Tr. 57, a social media post by Plaintiff
dated the same day Plaintiff began paying for the ad shows that
Plaintiff was in fact aware that he had been unblocked.

See Df.

Exh. 14.
“Damages awarded under § 1983 for violations of
constitutional rights are ordinarily governed by common law tort
principles,” including the requirement that any damages awarded
to a plaintiff be proximately caused by the defendant.
Lewis, 604 F. App’x 229, 234 (4th Cir. 2015).

Kane v.

Even if prompted

by the unlawful actions of a government official, any harm
attributable to the superseding cause of a plaintiff’s
subsequent voluntary act is not compensable in a Section 1983
action.

See id. at 235-36.

Here, Plaintiff’s decision to

pursue a Facebook advertising campaign in response to
Defendant’s actions constituted a superseding cause.
Accordingly, the Court finds and concludes that even if
Defendant could be held liable, Plaintiff has established no
monetary damages.
E. Declaratory and injunctive relief would be
inappropriate.
Defendant’s immunity from claims seeking civil damages
does not extend to declaratory and injunctive relief.

See,

e.g., Idaho v. Coeur d’Alene Tribe of Idaho, 521 U.S. 261, 269
(1997); Bragg v. W. Virginia Coal Ass’n, 248 F.3d 275, 292 (4th
26

Cir. 2001).

Neither declaratory nor injunctive relief, however,

would be appropriate in this instance.
The Declaratory Judgement Act provides that federal
courts “may declare the rights and other legal relations of any
interested party.”

28 U.S.C. § 2201.

The Act is intended to

permit an “uncertain party to gain relief from the insecurity
caused by a potential suit waiting in the wings.”

United

Capitol Ins. Co. v. Kapiloff, 155 F.3d 488, 494 (4th Cir. 1998).
“The Fourth Circuit has explained that a declaratory judgment
action is appropriate ‘when the judgment will serve a useful
purpose in clarifying and settling the legal relations in issue,
and . . . when it will terminate and afford relief from the
uncertainty, insecurity, and controversy giving rise to the
proceeding.’” Centennial Life Ins. Co. v. Poston, 88 F.3d 255,
256 (4th Cir. 1996) (quoting Aetna Cas. & Sur. Co. v. Quarles,
92 F.2d 321, 325 (4th Cir. 1937)).

In short, “declaratory

judgments are designed to declare rights so that parties can
conform their conduct to avoid future litigation.”

Hipage Co.

v. Access2Go, Inc., 589 F. Supp. 2d 602, 615 (E.D. Va. 2008)
(citing Volvo Constr. Equip. N. Am., Inc. v. CLM Equip. Co., 386
F.3d 581, 593–94 (4th Cir. 2004)).

Where a declaratory judgment

would not clarify future legal relations between the parties,
the action serves no useful purpose and courts will not
entertain it.

See, e.g., Koon v. Lynch, No. 4:15-CV2107 DCN,
27

2015 WL 4771881, at *3 (D.S.C. Aug. 12, 2015), aff’d, 627 F.
App’x 227 (4th Cir. 2015).
Here, it does not appear that a declaratory judgment
would serve to clarify future legal relations between Plaintiff
and Defendant.
has changed.

The policy governing Defendant’s Facebook page
As a result, the decision as to whether comments

are removed from Defendant’s Facebook page no longer rests with
Defendant.

Rather, such decisions are now made by the Public

Affairs and Communications Division of the Office of the County
Administrator.

See Df. Exh. 2.

Defendant has testified that he

has no plans to abandon the new policy and resume the old, Tr.
116, and the Court has found his testimony on this point
credible.
Accordingly, any declaratory judgment entered here
would necessarily address only the constitutionality of
Defendant’s past acts. “Declaratory relief,” however, “is
reserved for forward looking actions[.]”

Horvath v. Bank of

N.Y., N.A., No. 09CV01129, 2010 WL 538039, at *1 (E.D. Va. Jan.
29, 2010), aff’d, 641 F.3d 617 (4th Cir. 2011).

Moreover, the

mere possibility that Defendant might someday reverse course and
re-adopt the old policy does not present “a substantial
controversy, between parties having adverse legal interests, of
sufficient immediacy and reality to warrant the issuance of a
declaratory judgment.”

MedImmune, Inc. v. Genentech, Inc., 549
28

U.S. 118, 127 (2007) (quoting Maryland Casualty Co. v. Pacific
Coal & Oil Co., 312 U.S. 270, 273, 61 S.Ct. 510, 85 L.Ed. 826
(1941)).

In light of the above, the Court finds and concludes

that Plaintiff is not entitled to declaratory relief.
Finally, Plaintiff seeks injunctive relief requiring
that Defendant “[h]enceforth . . . follow the Loudoun County
Social Media Comments Policy as amended effective November 22,
2016.”

Pl. Proposed Findings of Facts and Conclusions of Law

[Dkt. 38] at 5.

The Court finds that to enter such an

injunction would be similarly inappropriate.
“The purpose of an injunction is to prevent future
violations,” and the party seeking such relief “must satisfy the
court that [prospective] relief is needed.” United States v. W.
T. Grant Co., 345 U.S. 629, 633 (1953).
satisfied.

The Court is not so

Here, the conduct giving rise to Plaintiff’s suit

was Defendant’s removal of Plaintiff’s comment from his office’s
Facebook page and his subsequent banning of Plaintiff from that
page.

As discussed above, Defendant is no longer capable of

taking such action under the new Social Media Comments Policy,
and has no intention of returning to the old policy.
116.

See Tr.

It is not apparent that Defendant – as opposed to his

staff – will play any role in the removal of comments or the
blocking of individuals from his office’s Facebook page in the
future.

It therefore seems that Plaintiff’s request for
29

injunctive relief is now moot.

See Pevia v. Wexford Health

Source, Inc., No. CV ELH-16-1950, 2016 WL 7104814, at *2 (D. Md.
Dec. 5, 2016) (“Section 1983 actions seeking injunctive and/or
declaratory relief have been declared moot when the practices,
procedures, or regulations challenged were no longer in use.”).
Moreover, Plaintiff’s requested injunction requiring
that Defendant “henceforth” adhere to the amended policy now in
effect is defective in several respects.

First, as the Court

noted previously in connection with Plaintiff’s Motion for
Summary Judgment, see Mem. Opp. [Dkt. 35] at 12-13, injunctions
that simply require their subjects to follow the law are
generally overbroad.

See Lineback v. Spurlino Materials, LLC,

546 F.3d 491, 504 (7th Cir. 2008) (quoting Int’l Rectifier Corp.
v. IXYS Corp., 383 F.3d 1312, 1316 (Fed. Cir. 2004)).

An

injunction requiring Defendant to follow his own policy suffers
from this same defect.
Moreover, the requirement that Defendant “henceforth”
maintain the present policy indefinitely is something Plaintiff
has no legal grounds to require of Defendant.

While Defendant

has opened a limited public forum by adopting the Social Media
Comments Policy, he remains free to modify or close that forum
as he sees fit.

See Sons of Confederate Veterans, Virginia Div.

v. City of Lexington, Va., 894 F. Supp. 2d 768, 773 (W.D. Va.
2012), aff’d, 722 F.3d 224 (4th Cir. 2013).
30

To require that

Defendant refrain from amending his policy would not be an
appropriate remedy.

Among other things, it would needlessly

constrain the manner in which Defendant interacts with his
constituents with relatively little corresponding benefit to
Plaintiff.

Plaintiff has therefore failed to demonstrate “that,

considering the balance of hardships between the plaintiff and
defendant, a remedy in equity is warranted.”

eBay Inc. v.

MercExchange, L.L.C., 547 U.S. 388, 391 (2006).

In sum, the

Court finds and concludes that injunctive relief is not
warranted in this case.
III. Conclusion
For the reasons stated above, 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
damages; (5) Neither declaratory nor injunctive relief is
warranted in this case.

Accordingly, the Court will render a

verdict and enter judgment in Defendant’s favor.
An appropriate order will issue.
31

March 28, 2017
Alexandria, Virginia

/s/
James C. Cacheris
UNITED STATES DISTRICT COURT JUDGE

32