Davison v. Loudoun County Board of Supervisors et al
Filing
11
MEMORANDUM OPINION re: Defts' Motion to Dismiss [Dkt. 3]. Signed by District Judge James C. Cacheris on 09/14/16. (pmil, )
IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF VIRGINIA
Alexandria Division
BRIAN C. DAVISON,
Plaintiff,
v.
LOUDOUN COUNTY BOARD OF
SUPERVISORS, et al.,
Defendants.
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M E M O R A N D U M
1:16cv932 (JCC/IDD)
O P I N I O N
This matter is before the Court on Defendants’ Motion
to Dismiss [Dkt. 3].
For the reasons that follow, the Court
will deny Defendants’ Motion with respect to Plaintiff’s First
Amendment and Due Process claims against Defendant Board of
Supervisors of Loudoun County, and will grant the Motion in all
other respects.
I. Background
The following allegations of fact set forth in
Plaintiff’s Complaint are taken as true for purposes of the
present Motion.
See E.I. du Pont de Nemours & Co. v. Kolon
Indus., Inc., 637 F.3d 435, 440 (4th Cir. 2011).
Defendant Loudoun County Board of Supervisors (“the
Board”) is Loudoun County, Virginia’s local governing body.
Compl. [Dkt. 1] ¶ 2.
On July 15, 2016, the Board’s standing
Transportation and Land Use Committee held a public meeting.
Id. ¶ 8.
Present at that meeting were Defendants Phyllis
Randall, Ron Meyer, and Geary Higgins — each a “supervisor in
the Defendant Loudoun County [Board of Supervisors].”
¶¶ 4,6-8.
Id.
Defendant Tony Buffington, also a supervisor elected
to the Board, see id. ¶ 5, did not attend the meeting.
See id.
¶ 8.1
Notwithstanding his absence, Defendant Buffington
began sending text messages to Defendants Randall, Meyer, and
Higgins during the meeting.
See id. ¶¶ 9-10.
These messages
urged the Board members present to vote against a specific land
use application under discussion.
See id.
Approximately 40 minutes after Defendant Buffington
began sending text messages to his colleagues, counsel for the
land use applicant inquired whether Defendant Buffington was
participating in the meeting via text message.
Id. ¶ 11.
The
applicant’s counsel argued that this would violate Virginia’s
Freedom of Information Act, Va. Code § 2.2-3700, et seq.
[Dkt. 1] ¶ 11.
Compl.
Defendants Randall, Meyer, and Higgins admitted
to receiving text messages from Defendant Buffington and read
the messages into the record.
Id. ¶ 12.
1
Two other members of the Board — supervisors Suzanne
Volpe and Kristen Umstattd — were present at the meeting but
have not been named in this suit. See id. ¶ 8.
2
On July 19, 2016, a post appeared on the official
Facebook page of the Loudoun County Government.
Id. ¶ 13.
The
post read: “#Loudoun County Attorney Leo Rogers has determined
that text messages sent and receive [sic] during a Board of
Supervisors committee meeting did not violate the Virginia
Freedom of Information Act.”
1-3].
Id.; see also Compl. Exh. 3 [Dkt.
The post included a link to a press release stating as
much hosted “on the Loudoun County government’s website.”
Compl. [Dkt. 1] ¶ 13.
Plaintiff Brian C. Davison is a resident of Loudoun
County, Virginia, who takes “an interest in rules of ethics for
public officials.”
Id. ¶ 1.
Shortly after the post appeared,
Plaintiff commented on it using the screen name “Virginia SGP.”
Id. ¶ 14.
Plaintiff’s comment “related to the alleged FOIA
violation.”
Id.
It appears that Plaintiff’s comment was
critical of the Board, although the comment is not part of the
record now before the Court.
Plaintiff’s comment was “quickly hidden” by someone
operating the Board’s Facebook page.
Id. ¶ 15.
One attempting
to view the comment would therefore be able to see that someone
had commented on the original post, but would not be able to
read the comment itself.
See id.
Upon discovering that his initial comment had
disappeared, Plaintiff commented again noting that the
3
censorship of his previous comment implicated his First
Amendment and Due Process rights.
Exh. 3 [Dkt. 1-3].
See id. ¶ 16; see also Compl.
Plaintiff’s second comment was also “hidden
and/or deleted” within minutes.
Compl. [Dkt. 1] ¶ 17.
This prompted a third comment in which Plaintiff again
invoked his constitutional rights, referenced a lawsuit he had
filed based upon similar circumstances, see Davison v. Plowman,
__ F. Supp. 3d. __, No. 1:16-CV-0180, 2016 WL 3167394 (E.D. Va.
June 6, 2016), 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. [Dkt. 1] ¶ 19; Compl. Exh. 8 [Dkt. 1-8].
Within hours, Plaintiff discovered that his fourth comment had
been “deleted and/or hidden” as well. See Compl. [Dkt. 1] ¶ 19.
Plaintiff emailed the Board — including each
individual Defendant supervisor — to report what had happened
and ask that his comments be restored.
See id. ¶ 19; Compl.
Exhs. 14-18 [Dkt. 1-14, 1-15, 1-16, 1-17, 1-18].
received no substantive response.
Plaintiff
See Compl. [Dkt. 1] ¶¶ 24-26.
On July 20, 2016, Plaintiff filed suit pro se against
the Board and individual Board members Randall, Buffington,
Meyer, and Higgins.
Plaintiff also named as a defendant Leo
Rogers, county attorney to the Board, who Plaintiff alleges is
4
“responsible for . . . providing opinions and/or policy on
Loudoun County’s social media policy.”
Id. ¶ 3.
Plaintiff
alleges that Defendants violated his First and Fourteenth
Amendment rights to free speech, due process, and equal
protection, as well as the Virginia Freedom of Information Act.
Defendants now move to dismiss this case pursuant to
Federal Rules of Civil Procedure 12(b)(1), (b)(6) and (d).
II. Legal Standard
As an initial matter, the Court notes that Defendants’
pleadings fail to distinguish between Federal Rules of Civil
Procedure 12(b)(1) and 12(b)(6).
Indeed, Defendants go so far
as to reference “Fed. R. Civ. P. 12(b)(1)(6)” in the titles and
introductory paragraphs of their pleadings. Defendants cite the
rules interchangeably throughout their Motion and supporting
Memorandum. It therefore falls to the Court to determine the
proper standard under which to evaluate Defendants’ Motion.
Defendants challenge the legal sufficiency of
Plaintiff’s claims, not the Court’s power to hear them.
Such
arguments are only properly evaluated under Rule 12(b)(1) when a
movant contends that the plaintiff’s claims are (1) brought
solely for the purpose of obtaining federal jurisdiction over
state law claims or (2) wholly insubstantial.
See Holloway v.
Pagan River Dockside Seafood, Inc., 669 F.3d 448, 452-53 (4th
Cir. 2012).
Defendants do not clearly advance either position.
5
Defendants’ Motion is therefore properly addressed under Rule
12(b)(6).2
In reviewing a motion to dismiss for failure to state
a claim under Rule 12(b)(6), the Court “must accept as true all
of the factual allegations contained in the complaint,” drawing
“all reasonable inferences” in the plaintiff’s favor.
E.I. du
Pont de Nemours & Co., 637 F.3d at 440 (citations omitted).
Generally, the Court may not look beyond the four corners of the
complaint in evaluating a Rule 12(b)(6) motion.
See Goldfarb v.
Mayor & City Council of Baltimore, 791 F.3d 500, 508 (4th Cir.
2015).
“A court has wide discretion to exclude matters outside
of the pleadings” in evaluating such a motion.
Norfolk Fed’n of
Bus. Districts v. Dep’t of Hous. & Urban Dev., 932 F. Supp. 730,
736 (E.D. Va.), aff’d sub nom. Norfolk Fed’n of Bus. Districts
v. City of Norfolk, 103 F.3d 119 (4th Cir. 1996).
If, however,
a defendant proffers evidence beyond the complaint, the Court
may treat the filing as a motion for summary judgment under
2
To the extent Defendants ask that the Court address
their Motion under Rule 12(b)(1) so as to look beyond the
Complaint to “jurisdictional” facts, see Mem. in Supp. of Mot.
to Dismiss [Dkt. 4] at 8, the Court finds that it would not be
appropriate to do so at this stage of the proceedings. See 24th
Senatorial Dist. Republican Comm. v. Alcorn, 820 F.3d 624, 629
(4th Cir. 2016) (“If . . . the jurisdictional facts are
intertwined with the facts central to the merits of the
complaint, ‘a presumption of truthfulness should attach to the
plaintiff's allegations’ . . . [a]nd ‘the court should resolve
the relevant factual disputes only after appropriate
discovery.’”) (quoting Rich v. United States, 811 F.3d 140, 145
(4th Cir.2015)).
6
Federal Rules of Civil Procedure (12)(d) and 56.
See Goldfarb,
791 F.3d at 508.
In evaluating Defendants’ Motion, the Court is mindful
that Plaintiff is proceeding in this matter pro se.
A “document
filed pro se is ‘to be liberally construed,’ and ‘a pro se
complaint, however inartfully pleaded, must be 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’ Affidavits and Exhibits
Before reaching the merits of Defendants’ Motion, the
Court must first determine what evidence it may properly
consider.
Defendants’ Motion is accompanied by six affidavits
from Loudoun County employees who purport to be the
administrators of the County’s Facebook page.
Defendants have
also submitted ten exhibits in connection with their motion.
Some of these are duplicative of exhibits attached to
Plaintiff’s Complaint.
Others, however, are materials —
communications and images of the County’s Facebook page — that
were clearly not available to Plaintiff when he filed suit,
either because Plaintiff had no prior opportunity to view them,
or because they postdate the filing of Plaintiff’s Complaint.
7
As stated above, courts generally may not look beyond
the well-plead allegations of fact set forth in the complaint
when evaluating a Rule 12(b)(6) motion.
at 508.
See Goldfarb, 791 F.3d
Defendants contend that two exceptions to this rule
permit the Court to consider the extraneous materials submitted
with their Motion.
First, Defendants argue that the Court may consider
the exhibits and affidavits submitted with their Motion to the
extent that these materials are referenced in Plaintiff’s
Complaint.
See Mem. in Supp. of Mot. to Dismiss [Dkt. 4] at 9.
But while it is true that courts evaluating a Rule 12(b)(6)
motion may consider documents explicitly or necessarily
incorporated by reference into a plaintiff’s complaint, see,
e.g., Norfolk Fed’n of Bus. Districts, 932 F. Supp. at 736, that
is of little help to Defendants in this instance.
Many of the
documents submitted with Defendants’ Motion — for example, the
affidavits from County employees and Defendants’ communications
with third parties — are plainly not referenced in Plaintiff’s
complaint at all.
Moreover, Defendants’ exhibits depicting portions of
the County’s Facebook page beyond those expressly relied upon by
Plaintiff are not incorporated by reference into Plaintiff’s
Complaint.
The Fourth Circuit has admonished that the
circumstances under which “a court may rely on extrinsic
8
materials to determine a motion to dismiss” are “narrow.”
Goldfarb, 791 F.3d at 508.
Courts generally may not consider
extraneous materials, even when explicitly referenced or quoted
in a complaint, unless the plaintiff’s claims “turn on” or are
“otherwise based on” them. Goines v. Valley Cmty. Servs. Bd.,
822 F.3d 159, 166 (4th Cir. 2016).
To hold that Plaintiff’s
Complaint incorporates portions of the County’s Facebook page
beyond those upon which his claims are based would overstep the
bounds of this narrow exception.
Indeed, many of Defendants’ exhibits depict portions
of the County’s Facebook page that would not have been available
to Plaintiff when he filed suit, either because they were not
publicly available, or because they were posted after Plaintiff
filed suit.
Far from relying upon those portions of the website
when filing suit, Plaintiff could not have been aware of them.
This “lack of notice to the plaintiff” undermines the “rationale
underlying th[e] exception” Defendants invoke. Am. Chiropractic
Ass’n v. Trigon Healthcare, Inc., 367 F.3d 212, 234 (4th Cir.
2004) (quoting In re Burlington Coat Factory Securities
Litigation, 114 F.3d 1410, 1426 (3d Cir.1997).
To the extent that the materials submitted with
Defendants’ Motion are in fact referenced in Plaintiff’s
Complaint, they are duplicative of exhibits already appended to
the Complaint.
As such, they are of little aid to the Court.
9
In light of the above, the Court declines to consider
Defendants’ exhibits and affidavits as incorporated by reference
into Plaintiff’s Complaint.
Defendants argue further that the Court may consider
the content of their exhibits and affidavits as “‘capable of
accurate and ready determination by resort to sources whose
accuracy cannot reasonably be questioned, and thus properly
subject to judicial notice under Fed. R. Evid. 201.’”
Mem. in
Supp. of Mot. to Dismiss [Dkt. 4] at 9 (quoting Katyle v. Penn
Nat. Gaming, Inc., 637 F.3d 462, 466 (4th Cir. 2011)).
It does
not appear, however, that Defendants’ submissions are proper
subjects of judicial notice.
Courts may take judicial notice of “matters of public
record.”
Philips v. Pitt Cty. Mem’l Hosp., 572 F.3d 176, 180
(4th Cir. 2009); see also Goldfarb, 791 F.3d at 508.
Defendants’ affidavits, emails, and screenshots of the County’s
Facebook page are not matters of public record.
Among
Defendants’ submissions, only Loudoun County’s Social Media
Comments Policy arguably merits judicial notice.
Supp. of Mot. to Dismiss Exh. 3 [Dkt. 4-9].
an exhibit appended to Plaintiff’s Complaint.
11 [Dkt. 1-11].
See Mem. in
But this is already
See Compl. Exh.
Accordingly, the Court declines to take
judicial notice of the affidavits and exhibits appended to
Defendants’ Motion.
Cf. Waugh Chapel S., LLC v. United Food &
10
Commercial Workers Union Local 27, 728 F.3d 354, 360 (4th Cir.
2013) (“judicial notice” should not “be used as an expedient for
courts to consider matters beyond the pleadings and thereby
upset the procedural rights of litigants to present evidence on
disputed matters”).
Finally, Defendants argue that if the Court is unable
to consider their affidavits and exhibits under Rule 12(b)(6),
the Court should convert their filing to a motion for summary
judgment pursuant to Rule 12(d).
The Fourth Circuit, however,
has admonished that “[s]uch conversion is not appropriate where
the parties have not had an opportunity for reasonable
discovery.”
E.I. du Pont de Nemours & Co., 637 F.3d at 448.
Discovery in this matter has not yet commenced, and Plaintiff
rightly notes in his Opposition that he has not had an
opportunity to test the claims Defendants support by reference
to their affidavits and exhibits.
As such, the Court must
decline to consider Defendants’ Motion under Rule 12(d).3
3
The Court notes that even were it to convert
Defendants’ Motion pursuant to Rule 12(d), the Court would still
find that there exist material issues of fact precluding the
entry of summary judgment in Defendants’ favor. Relying on
their affidavits and exhibits, Defendants claim that County
employees who have access to the Loudoun County Facebook page
did not delete or hide Plaintiff’s comments, and that a
technical issue may be at fault. See Affs. [Dkts. 4-1, 4-2, 43, 4-4, 4-5, 4-6]. This resolves neither what actually happened
to the comments, nor what role, if any, Defendants played.
11
B. Defendants’ Arguments
Having determined that the Court may not properly
consider the affidavits and exhibits submitted with Defendants’
Motion, the Court now turns to the portions of the Motion that
do not rely upon extrinsic evidence.
The Court notes, however,
that two issues raised in Defendants’ original Motion no longer
require the Court’s attention.
First, Plaintiff represents in his Opposition that he
has “decided to abandon Rogers as a Defendant and simply not
serve him.”
Opp. [Dkt. 6] at 8.
In light of Plaintiff’s stated
intent to abandon his claims against Defendant Rogers, the Court
will grant Defendants’ Motion with respect to all claims
asserted against that Defendant.
Second, Defendants’ Reply Brief suggests that they no
longer intend to press their qualified immunity defense.
Whether or not they intend to do so, however, that defense is
clearly inapplicable.
official capacities.
Plaintiff has sued Defendants in their
The defense of qualified immunity “is not
available in an official-capacity suit brought against a
government entity or a government officer as that entity’s
agent.”
Ridpath v. Bd. of Governors Marshall Univ., 447 F.3d
292, 306 (4th Cir. 2006).
12
1. Municipal Liability
As to the issues that remain, Defendants’ most
substantial argument is that neither the Board, nor its
individual members, are proper defendants to this action.
In
particular, Defendants argue that Plaintiff is attempting to
hold Defendants liable under a theory of respondeat superior — a
form of liability that the Supreme Court has rejected in the
context of section 1983 litigation.
Monell v. Dep’t of Soc.
Servs. of City of New York, 436 U.S. 658, 691 (1978).
Plaintiff alleges that Defendants “either personally
made the decision to undertake the acts against [Plaintiff] or,
when made aware of those acts as head of the office, personally
adopted and ratified those acts by refusing to remediate the
constitutional violation.”
Id. ¶ 35.
Plaintiff has since
clarified that he does not “allege[ ] that any individual board
member deleted [his] comments,” but rather that the Board as a
whole is responsible for the actions of whoever did.
Opp. [Dkt.
6] at 9.
Based on Plaintiff’s representations, the Court agrees
that the individual Board members are not appropriate defendants
to this action.
Only those with final decision making authority
can be liable under a theory of municipal liability.
See Ashby
v. Isle of Wight Cty. Sch. Bd., 354 F. Supp. 2d 616, 625 (E.D.
Va. 2004).
Plaintiff alleges that the Board ratified the
13
decision of a subordinate.
It does not appear that individual
Board members are authorized to take such action on behalf of
the Board as a whole.
See Va. Code § 15.2-400, et seq.
Accordingly, the Court will dismiss Plaintiff’s claims against
Defendants Randall, Buffington, Meyer, and Higgins.
Whether the Board itself is a proper defendant is a
close question.
The issues to be resolved, however, are issues
of fact rather than of law, and so are properly addressed after
some discovery has taken place.
Defendants acknowledge that the Board is municipal
body subject to suit under section 1983.
See Mem. in Supp. of
Mot. to Dismiss [Dkt. 4] at 16; Monell, 436 U.S. at 690.
Moreover, the Board is the ultimate decision making authority
with respect to County policy, to which County employees are
generally answerable.
See Va. Code §§ 15.2-403(A); 15.2-404(A).
A municipal body such as the Board may be responsible
for the actions of a subordinate if it ratifies them.
See City
of St. Louis v. Praprotnik, 485 U.S. 112, 127 (1988) (“If the
authorized policymakers approve a subordinate’s decision and the
basis for it, their ratification would be chargeable to the
municipality because their decision is final.”); see also Hall
v. Marion Sch. Dist. No. 2, 31 F.3d 183, 196 (4th Cir. 1994);
Ashby, 354 F. Supp. 2d at 627.
To show ratification, Plaintiff
must demonstrate that the Board was aware of its subordinate’s
14
action and affirmatively approved both the act and its
rationale.
See Ashby, 354 F. Supp. 2d at 627.
Whether
ratification has taken place is an issue of fact.
See, e.g.,
Christie v. Iopa, 176 F.3d 1231, 1238–39 (9th Cir. 1999)
(“Ordinarily, ratification is a question for the jury.”).
Viewing the allegations of the Complaint in the light
most favorable to Plaintiff, and taking into account the relaxed
pleading standard for pro se litigants, See Estelle, 429 U.S. at
106, Plaintiff has plausibly alleged that the Board ratified the
actions of its subordinate.
Plaintiff asserts that his comments
were deleted by a County employee with access to the County’s
Facebook page.
See Compl. [Dkt. 1] ¶¶ 15, 31, 35.
Plaintiff
further alleges that the Board knew of the actions of its
subordinate as a result of Plaintiff’s emails to the board.
Compl. [Dkt. 1] ¶¶ 22-26.
See
Moreover, Plaintiff alleges that his
comments were removed specifically because they were critical of
the Board, and that at least one member of the Board has
previously dealt with critical comments in a similar manner.
See id. ¶¶ 14, 31, 33.4
While it remains to be seen whether
Plaintiff can prove that the Board did indeed ratify a
4
The Court notes that mere acquiescence is not
sufficient to demonstrate ratification. See Ashby, 354 F. Supp.
2d at 627. Accordingly, reading Plaintiff’s Complaint in the
light most favorable to Plaintiff, the Court construes
Plaintiff’s allegation that the Board “refus[ed] to remediate
the constitutional violation,” see Compl. [Dkt. 1] ¶ 35, as
involving some affirmative act of approval.
15
subordinate’s decision to remove his comments, it would be
improper to deprive Plaintiff of the opportunity to make that
showing at this stage in the proceedings.
2. Plaintiff’s First Amendment Claim
Moving on to Plaintiff’s claim under the First
Amendment, the Court finds that the claim should be permitted to
proceed against the Board.
Defendants concede that in adopting a Social Media
Comments Policy, see Compl. Exh. 11 [Dkt. 1-11], the County
designated its Facebook page a limited public forum.
See Mem.
in Supp. of Mot. to Dismiss [Dkt. 4] at 13-14; see also
Rosenberger v. Rector & Visitors of Univ. of Virginia, 515 U.S.
819, 830 (1995) (a state policy facilitating speech creates a
“metaphysical” forum).
Once opened, the public may utilize a
limited public forum to the extent consistent with the
restrictions placed upon it by the state.
See id. at 829; see
also Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S.
37, 71 n.7 (1983) (a limited public forum is “created for a
limited purpose such as use by certain groups . . . or for the
discussion of certain subjects.”).
Plaintiff’s right to comment
on the County’s Facebook page was therefore bounded by the terms
of the County’s Social Media Comments Policy.
The Policy states that “the purpose of Loudoun County
social media sites is to present matters of public interest in
16
Loudoun County,” and provides that visitors are “encourage[d] to
submit questions, comments and concerns.”
[Dkt. 1-11].
See Compl. Exh. 11
The Policy states further that “the county
reserves the right to delete submissions” that violate
enumerated rules, such as comments that include “vulgar
language” or “spam.”
Id.
Defendants do not allege that Plaintiff’s comments
violated any particular rule.
Rather, Defendants appear to
argue that because the County reserved the right to moderate
comments, the removal of Plaintiff’s comments did not implicate
the First Amendment.
See Mem. in Supp. of Mot. to Dismiss [Dkt.
4] at 14, 16.
That is not so. “Once it has opened a limited forum
. . . the State must respect the lawful boundaries it has itself
set.”
Rosenberger, 515 U.S. at 829.
This rule applies as much
to Defendants’ Facebook page as to any other limited public
forum.
See Bland v. Roberts, 730 F.3d 368, 386 (4th Cir. 2013),
as amended (Sept. 23, 2013) (noting that speech on Facebook is
subject to the same First Amendment protections as speech in any
other context).
Defendants’ Policy “encourage[s]” visitors to the
County’s Facebook page “to submit questions, comments and
concerns” regarding “matters of public interest in Loudoun
County,” and provides that only comments violating certain
17
enumerated rules will be removed.
Compl. Exh. 11 [Dkt. 1-11].
Therefore, unless Plaintiff’s comments pertained to other than
“matters of public interest in Loudoun County” or violated an
enumerated rule, Plaintiff was entitled to post them on the
County’s Facebook page.
Plaintiff alleges that notwithstanding
this policy, a County employee deleted his comments because they
were critical of the Board, and alleges further that the Board
ratified that act.
See Compl. [Dkt. 1] ¶ 31.
The County’s
Social Media Comments Policy does not permit the removal of
comments on that basis. See Compl. Exh. 11 [Dkt. 1-11].
Defendants therefore fail to square their alleged
actions with “the lawful boundaries [the County] has itself set”
with respect to its Facebook page.
829.
Rosenberger, 515 U.S. at
Having adopted the Social Media Comments Policy, the
County government is bound to abide by its terms.
Plaintiff has
plausibly alleged that the Board failed to do so.
The Court
will therefore permit Plaintiff’s First Amendment claim to
proceed against the Board.5
5
Defendants also argue at considerable length that
Defendant Randall did not violate Plaintiff’s First Amendment
rights by deleting comments Plaintiff made on her own Facebook
page. See Mem. in Supp. of Mot. to Dismiss [Dkt. 4] at 14-16.
But that incident, while mentioned in passing in Plaintiff’s
Complaint, is neither the subject of this suit, nor particularly
relevant to the instant Motion.
18
3. Plaintiff’s Due Process Claim
The Court likewise finds that Plaintiff’s Due Process
claim should be permitted to proceed against the Board.
Plaintiff alleges that Defendants violated the Due
Process clause of the Fourteenth Amendment by abridging
Plaintiff’s freedom of speech without notice or a chance to be
heard.
See Compl. [Dkt. 1] ¶¶ 43-45.
Defendants move to
dismiss this claim, arguing — in a brief and conclusory
paragraph — that no such right exists under the Due Process
clause.
See Mem. in Supp. of Mot. to Dismiss [Dkt. 4] at 14
(Plaintiff does not have “a separate, independent due process
claim based on anyone’s failure to give him notice and an
opportunity to be heard before his free speech rights were
allegedly violated.”)(emphasis in original).
The Due Process clause does, however, embrace such a
right.
“When a State would directly impinge upon interests in
free speech or free press, [the Supreme] Court has on occasion
held that opportunity for a fair adversary hearing must precede
the action, whether or not the speech or press interest is
clearly protected under substantive First Amendment standards.”
Bd. of Regents of State Colleges v. Roth, 408 U.S. 564, 590 n.14
(1972); see also Roth v. Farmingdale Pub. Sch. Dist., No. 14-CV6668, 2016 WL 767986, at *11 (E.D.N.Y. Feb. 26, 2016) (“[T]o the
extent that plaintiff alleges that the defendant denied him of
19
[sic] due process by depriving him of his First Amendment rights
without sufficient process . . . such a claim can survive the
defendant’s motion to dismiss.”); Cyr v. Addison Rutland
Supervisory Union, 955 F. Supp. 2d 290, 295-96 (D. Vt. 2013)
(declining to dismiss a procedural due process claim
“assert[ing] the [defendant], by issuing [a] notice against
trespass, deprived [the plaintiff] of First Amendment rights
without sufficient process”); Rubin v. Ikenberry, 933 F. Supp.
1425, 1437 (C.D. Ill. 1996) (“liberty interests [in free speech]
require a fair adversary hearing”).
While Defendants may argue that the particular
circumstances of this case did not warrant additional process,
Defendants have not made such an argument.
to supply it for them.
The Court declines
Because the argument Defendants have put
forward is contrary to law, the Court will deny Defendants’
Motion with respect to Plaintiff’s Due Process claim.
4. Plaintiff’s Equal Protection Claim
The Court agrees with Defendants, however, that
Plaintiff has failed to state a claim under the Fourteenth
Amendment’s Equal Protection clause.
In support of this claim,
Plaintiff alleges only that Defendants deleted his comments — at
least some of which complied with the County’s Social Media
Comments Policy — while permitting certain noncompliant comments
20
to remain on the County’s Facebook page.
See Compl. [Dkt. 1]
¶¶ 43-45.
As an initial matter, the Court notes that Plaintiff’s
claim is plead in the conditional.
Plaintiff takes the position
that Defendants will violate the Equal Protection clause only
“[i]f Defendants claim [Plaintiff’s] comments were removed
because” some included links.
[Dkt. 6] at 14.
See Compl. [Dkt. 1] ¶ 45; Opp
Plaintiff’s equal protection claim is less a
claim for relief than a counterargument.
Regardless, “[t]o succeed on an equal protection
claim, a plaintiff must first demonstrate that he has been
treated differently from others with whom he is similarly
situated.”
2001).
Morrison v. Garraghty, 239 F.3d 648, 654 (4th Cir.
As Defendants note, Plaintiff’s allegations do not tend
to show that he and other commenters were “in all relevant
respects alike.”
Nordlinger v. Hahn, 505 U.S. 1, 10 (1992).
Indeed, Plaintiff highlights only differences between himself
and the other commenters.
Plaintiff’s allegations are therefore
legally insufficient to state an equal protection claim.
In
light of the above, the Court will dismiss Plaintiff’s claim
under the Fourteenth Amendment’s Equal Protection clause.
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5. Plaintiff’s Virginia Freedom of Information
Act Claim
Finally, Defendants contend that Plaintiff’s claim
under the Virginia Freedom of Information Act must be dismissed
because the Act provides for enforcement only through an action
brought in “[Virginia] general district court or circuit court.”
Va. Code § 2.2-3713.
The Court notes that another federal court
in Virginia has embraced this construction of the statute.
See
Elder v. City of Danville, VA, No. 4:13-CV-00047, 2013 WL
6524651, at *4 (W.D. Va. Dec. 12, 2013); Rutledge v. Town of
Chatham, No. 4:10-cv-00035, 2010 WL 3835662, at *3 (W.D. Va.
Sept. 30, 2010), aff’d sub nom. Rutledge v. Roach, 414 F. App’x
568 (4th Cir. 2011).
Be that as it may, the Court is not convinced that
this provision confers exclusive jurisdiction on Virginia
courts.
Federal courts in Virginia regularly entertain pendant
state law claims under at least one other statute that employs
virtually identical language.
See Va. Code § 2.2-3903 (Virginia
Human Rights Act (VHRA) permits aggrieved employees to “bring an
action in a general district or circuit court”); Rose-Stanley v.
Virginia, No. 2:15-cv-00007, 2015 WL 6756910, at *4 (W.D. Va.
Nov. 5, 2015) (entertaining a VHRA claim); Morgan v. Rowe
Materials, LLC, No. CIV.A. 3:08CV576, 2009 WL 1321514, at *4
(E.D. Va. May 11, 2009) (same).
Indeed, it would be unusual for
22
a state statute to explicitly confer jurisdiction on federal
courts.
No such grant of jurisdiction is generally required for
a federal court to entertain a pendant state law claim.
The Court need not reach the issue, however, because
it is clear that Plaintiff’s claim must be dismissed on
sovereign immunity grounds.
Eleventh Amendment sovereign
immunity is jurisdictional in nature.
Pennhurst State Sch. &
Hosp. v. Halderman, 465 U.S. 89, 100 (1984).
The Fourth Circuit
has held that “because of its jurisdictional nature, a court
ought to consider the issue of Eleventh Amendment immunity at
any time, even sua sponte.” McCray v. Maryland Dep’t of Transp.,
Maryland Transit Admin., 741 F.3d 480, 483 (4th Cir. 2014)
(quoting Suarez Corp. Indus. v. McGraw, 125 F.3d 222, 227 (4th
Cir.1997)).
Although Defendants do not raise the issue, the
Court finds it appropriate to do so of its own accord.
Sovereign immunity bars federal courts from
entertaining claims arising under state law and brought against
state officials.
See Pennhurst, 465 U.S. at 106.
That bar
extends to claims brought under the Virginia Freedom of
Information Act.
See Parkridge 6, LLC v. U.S. Dep’t of Transp.,
420 F. App’x 265, 268 (4th Cir. 2011).
As such, the Court must
dismiss Plaintiff’s Virginia Freedom of Information Act claim.
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IV. Conclusion
For the foregoing reasons, the Court will grant
Defendants’ Motion in part.
Counts III and IV of Plaintiff’s
Complaint will be dismissed with prejudice.
Counts I and II
will be dismissed as to Defendants Rogers, Randall, Buffington,
Meyer, and Higgins.
The Motion is denied to the extent that
Plaintiff may continue to pursue Counts I and II against
Defendant Board of Supervisors of Loudoun County.
An appropriate order shall issue.
September 14, 2016
Alexandria, Virginia
/s/
James C. Cacheris
UNITED STATES DISTRICT COURT JUDGE
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