Davison v. Loudoun County Board of Supervisors et al

Filing 116

MEMORANDUM OPINION. Signed by District Judge James C. Cacheris on 05/10/2017. (mpha)

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
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.
maintains an official Facebook page.

The Board

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.
disappeared.

That comment quickly

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.
2

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.”
Exh. 15.

Dfs.

Mr. Rogers invited Plaintiff to “re-post the comment.”

Id.
Plaintiff, however, did not believe Mr. Rogers.
id.

See

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.
3

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.
4

On March 13, 2017, the parties stipulated to facts
established by information Facebook disclosed in response to
Plaintiff’s third-party discovery request.
[Dkt. 76].

See Stipulation

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
5

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
6

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.
such thing.

It is now uncontroverted that the Board did no

Accordingly, the Court will grant Defendants’

Motion with respect to Counts I and II of Plaintiff’s Second
Amended Complaint.
Plaintiff argues, however, that he has prevailed on
his claims against the Board for purposes of 42 U.S.C. § 1988,
and so is entitled to attorney’s fees.

He contends that because

this litigation has resulted in (1) Facebook’s reassurance that
it will fix its software, and (2) the County’s amendment of its
Social Media Comments Policy, Plaintiff has “materially altered
the relationship of the parties” in his favor.
at 12.

The Court disagrees.

Opp. [Dkt. 107]

As an initial matter, a “pro se

litigant who is not a lawyer is not entitled to attorney’s
fees.”

Kay v. Ehrler, 499 U.S. 432, 435 (1991) (emphasis

omitted).

Moreover, Plaintiff did not prevail on his claims in

any meaningful sense; he brought claims, discovery proved them
to be meritless, and the parties stipulated as much.

That

distinguishes the case at bar from the case cited by Plaintiff,
Hawaii Defense Foundation v. City of Honolulu, No. 12-00469 JMSRLP (D. Haw. Jun. 19, 2014), in which the parties reached a
settlement before the Court had an opportunity to address the
7

merits of the plaintiff’s claims.

Moreover, Facebook is not a

party to this case against which Plaintiff can claim litigation
success, and the changes to the County’s policy identified by
Plaintiff stem from a different matter involving similar issues.
See Davison v. Plowman, No. 1:16CV180 (JCC/IDD), 2017 WL 1164480
(E.D. Va. Mar. 28, 2017).1

Regardless, Plaintiff has not filed a

motion for fees and costs, and so the issue is not properly
before the Court.
This leaves Plaintiff’s claims against Defendant
Randall.

Plaintiff has recently added additional claims against

Defendant Randall arising under the free speech and due process
provisions of Virginia’s Constitution.

These claims are in

substance identical to Plaintiff’s federal claims.

See Willis

v. City of Virginia Beach, 90 F. Supp. 3d 597, 607 (E.D. Va.
2015) (“The Supreme Court of Virginia has held that ‘Article I,
§ 12 of the Constitution of Virginia is coextensive with the
free speech provisions of the federal First Amendment.’”)
(quoting Elliott v. Commonwealth, 267 Va. 464, 473–74 (2004));
Shivaee v. Com., 270 Va. 112, 119 (2005) (“Because the due
process protections afforded under the Constitution of Virginia

1

The policy changes in question appear to have been
adopted largely at the behest of James Plowman, Commonwealth
Attorney for Loudoun County, after Plaintiff sued Mr. Plowman
for blocking him from the Commonwealth Attorney’s Facebook Page.
See, e.g., Trial Tr. [Dkt. 41] at 13, Davison v. Plowman, No.
1:16CV180 (JCC/IDD) (E.D. Va. Feb. 27, 2017).
8

are co-extensive with those of the federal constitution, the
same analysis will apply to both.”).

Accordingly, Plaintiff’s

state and federal claims require no separate analysis.
This Court has previously held that Loudoun County’s
Social Media Comments Policy creates a limited public forum for
speech where it applies.
13.

See, e.g., Mem. Op. [Dkt. 57] at 12-

“Once it has opened a limited forum,” the government “must

respect the lawful boundaries it has itself set” or violate the
First Amendment.

Rosenberger v. Rector & Visitors of Univ. of

Virginia, 515 U.S. 819, 829 (1995).

Both the Court and

Defendant Randall have understood Plaintiff’s constitutional
claims to rest on the premise that Defendant Randall violated
Loudoun County’s Social Media Comments Policy, and so violated
the First Amendment. See Opp. [Dkt. 107] at 15-18.

As the

evidence before the Court establishes that this policy does not
apply to Defendant Randall’s Facebook page, Plaintiff’s claims
fail to the extent that they rest on this premise.
The Policy in force during the events giving rise to
this suit provided that “[t]he purpose of Loudoun County social
media sites is to present matters of public interest in Loudoun
County.”

Dfs. Exh. 3A.

The Policy “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
9

rules – for example, comments that “contain[ed] vulgar language”
or “spam.”

Id.

The Policy has since been amended to state 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.”

Dfs. Exh. 3B.

It likewise encourages comments

while reserving the County’s right to remove comments for
enumerated reasons.

Id.

It further specifies that the Public

Affairs and Communications Division of the Office of the County
Administrator is charged with removing comments that violate the
Policy.

Id.
In determining whether these policies apply to

Defendant Randall’s Facebook page, the question the Court must
answer is whether that website constitutes a “Loudoun County
social media site” or “official social media platform.”2

While

Defendant Randall is Chair of the Loudoun County Board of
Supervisors, Plaintiff concedes that the mere fact of her office
does not mean the policy applies to any social media website she
maintains.

See Opp. [Dkt. 107] at 17.

Indeed, this reading

would likely render the Policy facially overbroad, infringing
2

Based on the similarities between the two policies,
the Court interprets “Loudoun County social media site” and
“official social media platform” as coextensive. In other
words, it appears that the new policy at most clarifies rather
than modifies the reach of the original policy.
10

the First Amendment rights of County employees by unduly
restricting their social media activity.

See, e.g., Liverman v.

City of Petersburg, 844 F.3d 400, 411 (4th Cir. 2016)
(discussing the First Amendment right of public employees with
respect to social media usage).
Turning to the evidence before the Court, Defendant
Randall has submitted affidavits establishing that she created
the Facebook page in question and personally controls its
content.

Randall Decl. ¶¶ 3-5.

Defendant Randall uses her own

personal electronic devices to manage the page, and has declined
to involve the County’s Public Affairs and Communications Office
in administering it.

Id. at ¶¶ 3-4; Barbour Decl. ¶ 21.

Finally, the head of the Loudoun County Office of Public Affairs
and Communications – which instituted and administers the Policy
– has found that the County’s Social Media Comments Policy “does
not apply” to Defendant Randall’s Facebook page.

Barbour Decl.

¶ 21.
Plaintiff argues that Summary Judgment must be denied
because he disputes a number of the facts discussed above.
That, however, is relevant only insofar as Plaintiff produces
evidence demonstrating that any dispute of fact is both genuine
and material.

See Celotex Corp. v. Catrett, 477 U.S. 317, 323-

24 (1986); Anderson, 477 U.S. at 251-52 (1986).

Although

Plaintiff is proceeding pro se and the Court construes his
11

filings liberally, Plaintiff may “survive the motion for summary
judgment only by adducing specific, non-speculative evidence
supporting” the existence of a factual dispute.

Bouchat v.

Baltimore Ravens Football Club, Inc., 346 F.3d 514, 526 (4th
Cir. 2003).

“[M]ere allegations or denials” without reference

to evidence are not sufficient.

Clark v. Metro. Life Ins. Co.,

369 F. Supp. 2d 770, 774 (E.D. Va. 2005).3
Plaintiff has produced no evidence that would create a
genuine factual dispute with respect to whether Defendant
Randall’s Facebook page is governed by the County’s Social Media
Comments Policy.

Indeed, the exhibits to Plaintiff’s Opposition

confirm that Defendant Randall’s Facebook page is not subject to
that Policy.
In particular, Loudoun County’s Use of Social Media
Administrative Policies and Procedures, Opp. Exh. 1 [Dkt. 1071], is instructive as to what constitutes a “Loudoun County
social media site” or “official social media platform.”

This

policy makes clear that a Loudoun County social media website is
one created through formal processes and adhering to certain

3

Similarly, to the extent Plaintiff incorporates by
reference into his Opposition the “twenty-two (22) facts in his
motion for summary judgment filed on November 21, 2016,” Opp.
[Dkt. 107] at 1, the Court has already explained that such
“facts” – which are supported by no more than the allegations of
Plaintiff’s Amended Complaint – are not properly substantiated
for purposes of a motion for summary judgment. See Mem. Op.
[Dkt. 57] at 6.
12

rules.

For example, a Loudoun County social media website is

created after consultation with, and is partially administered
by, the Public Affairs and Communications Division of the Office
of the County Administrator.
[Dkt. 107-1] at 4.

See Dfs. Exh. 3B; Opp. Exh. 1

It must include certain content, such as the

Loudoun County Social Media Comments Policy.
[Dkt. 107-1] at 5.

See Opp. Exh. 1

Passwords and other information enabling

County access to the website must be made available to both the
County’s Department of Information Technology and the Public
Information Office.

See id. at 4-5.

The County’s Public

Information Office is tasked with coordinating the posts of
Loudoun County social media websites to ensure that “consistent
messages are being conveyed countywide.”

Id. at 4.

Defendant Randall did not create her “Chair Phyllis J.
Randall” Facebook page through the above procedures and has not
observed the above rules in operating her Facebook page.
Nothing in the Policy suggests that a Loudoun County social
media website may be created or maintained outside of these
rules and procedures.4

4

The Court notes that in a related case, the Defendant
conceded that he had independently adopted the Social Media
Comments Policy to govern his office’s Facebook page. See
Davison v. Plowman, No. 1:16CV180 (JCC/IDD), 2017 WL 1164480
(E.D. Va. Mar. 28, 2017). For that reason, the Court was not
required to perform the analysis above.
13

Plaintiff contends that Defendant Randall’s Facebook
page must nonetheless be a Loudoun County social media website
because much of its content relates to Defendant Randall’s work
for the County.

Nothing in the County’s Policies, however,

indicates that one may unintentionally create a Loudoun County
social media website in this manner.

The closest provision

Plaintiff identifies is paragraph K of Loudoun County’s Use of
Social Media Administrative Policies and Procedures, which
states that “[e]mployees participating on non-county sponsored
blogs (or other social media websites) during non-work hours may
not make statements that purport to be on behalf of the county
government.”

Opp. Exh. 1 [Dkt. Dkt. 107-1] at 6.

Even assuming

that Defendant Randall’s posts on her Facebook page “purport to
be on behalf of the county government,” that would mean only
that she has violated Loudoun County’s Policy using a “noncounty sponsored” social media website.

Any such violation

would not transform Defendant Randall’s Facebook page into a
Loudoun County social media website subject to the Social Media
Comments Policy.

To hold otherwise would read much into the

County’s policies that is simply not there.
Plaintiff also submits Loudoun County’s Media
Relations Policy and Procedures, Opp. Exh. 2 [Dkt. Dkt. 107-2],
and notes that elected County officials are considered
“designated spokespersons” by the County.
14

Plaintiff, however,

does not explain how this renders Defendant Randall’s Facebook
page a Loudoun County social media website.

With respect to

social media websites, this latter Policy simply refers the
reader back to the Use of Social Media Policy discussed above.
That Defendant Randall may permissibly answer media inquiries on
behalf of the County does not mean that she has unwittingly
created a Loudoun County social media website under the Policies
discussed above.
In short, the only evidence of record before the Court
demonstrates that Defendant Randall’s Facebook page is not a
“Loudoun County social media site” or “official social media
platform.”

Accordingly, the Loudoun County Social Media

Comments Policy does not apply to Defendant Randall’s Facebook
page and Defendant Randall could not have violated that Policy
by banning Plaintiff from her Facebook page.

To the extent that

Plaintiff’s claims rest on the proposition that Defendant
Randall violated the Policy, they fail.
Plaintiff, however, also maintains that Defendant
Randall’s Facebook page constitutes a limited public forum
separate and apart from the Loudoun County Social Media Comments
Policy.

Defendant Randall rejoins that she did not open any

kind of forum, and that she maintains her Facebook page in her
individual, rather than governmental, capacity.

The Court finds

that material issues of disputed fact preclude summary judgment
15

for Defendant Randall on these points.

A reasonable finder of

fact could determine from the present record that Defendant
Randall intentionally opened a limited public forum outside of
the Social Media Comments Policy.

Moreover, the record is such

that a reasonable finder of fact could determine that Defendant
Randall did so in a governmental, rather than private, capacity.
Case law offers some guidance as to when the
government opens a limited public forum by creating and
maintaining a website.

In Page v. Lexington County School

District One, 531 F.3d 275, 284 (4th Cir. 2008), for example,
the Fourth Circuit found that a school district had not opened a
public forum by maintaining a website including links to thirdparty content.

That holding, however, rested on a finding that

the school district maintained strict control over the content
of its own website, and the Court noted “the issue would, of
course, be different” if the website included “a type of ‘chat
room’ or ‘bulletin board’ in which private viewers could express
opinions or post information.”

Id.

The First Circuit reached a

similar conclusion in Sutliffe v. Epping School District, 584
F.3d 314, 334–35 (1st Cir. 2009), based on similar facts, noting
“there may be cases in which a government entity might open its
website to private speech in such a way that” forum analysis
would be appropriate.

Both Courts found that the websites at

issue constituted platforms for governmental speech rather than
16

forums.

In a similar vein, the Sixth Circuit found in Putnam

Pit, Inc. v. City of Cookeville, Tennessee, 221 F.3d 834, 842
(6th Cir. 2000), that a website maintained by the government
constituted a nonpublic forum where it included links submitted
by third parties which were approved by the government.
In contrast to these cases, Defendant Randall’s
Facebook page enables private individuals to comment freely
without any screening process.

Defendant Randall has permitted

“third parties to . . . comment on posts that she posted on the
page, allowing her to control the subject matter” under
discussion but not the comments’ precise content.
of Mot. for Summ. J. [Dkt. 97] at 10.

Mem. in Supp.

Defendant Randall also

maintains that she generally does not remove comments –
apparently even when those comments contradict the message that
she herself is attempting to express through her website.
Drawing “all reasonable inferences” in the non-moving party’s
favor, Henry, 652 F.3d at 531, this is sufficient to create a
triable issue of fact as to whether Defendant Randall
“intentionally open[ed] a nontraditional forum for public
discourse.”

Cornelius v. NAACP Legal Def. & Educ. Fund, Inc.,

473 U.S. 788, 802 (1985).5

5

Defendant Randall argues that “Facebook makes it
almost impossible to view someone’s Facebook page, such as
Randall’s, without creating a Facebook account and becoming a
Facebook member,” and thus Defendant Randall’s Facebook page is
17

Whether Defendant Randall has maintained her “Chair
Phyllis J. Randall” Facebook page in a governmental capacity is
different – and perhaps closer – question.

As Plaintiff

concedes, the mere fact that Defendant Randall holds public
office does not subject every social media account she controls
to First Amendment scrutiny.

See Opp. [Dkt. 107] at 17.

Moreover, the record before the Court demonstrates that
Defendant Randall created the Facebook page at issue personally,
controls its content, and has made a significant effort to keep
it from entanglement with the County government.
There is, however, also evidence in the record that
suggests Defendant Randall’s Facebook page is not of an entirely
personal nature.

For example, Defendant Randall admits that her

Chief of Staff, Jeanine Arnett, has made posts on the “Chair
Phyllis J. Randall” Facebook page.

See Randall Decl. ¶ 5.

Defendant Randall states that Ms. Arnett has only done so using
Defendant Randall’s cell phone at events after hours.

Id.

But

as Plaintiff points out, Ms. Arnett is listed by Facebook as an
administrator of Defendant Randall’s Facebook page.

See Opp.

“not freely accessible to members of the public.” Mem. in Supp.
of Mot. for Summ. J. [Dkt. 97] at 17. The Court has already
noted, however, that Defendant Randall’s Facebook page is in
fact easily accessible without a Facebook account. Moreover, as
Facebook accounts are readily available to the general public at
no cost, it is difficult to see how the requirement that an
individual create such an account renders Defendant Randall’s
Facebook page “not freely accessible to members of the public.”
18

Exh. 5 [Dkt. 107-5].

This suggests greater involvement by Ms.

Arnett in administering Defendant Randall’s Facebook page than
one might expect from a purely personal page, and raises doubts
about Defendant Randall’s claim that Ms. Arnett only posts to
the “Chair Phyllis J. Randall” Facebook page using Defendant
Randall’s personal cell phone.

Moreover, the record is

ambiguous as to the number of times Ms. Arnett has been asked to
post to Defendant Randall’s Facebook page at events, and whether
those events were governmental in nature.
There is also the matter of the manner in which
Defendant Randall has used her Facebook page.

Plaintiff’s

arguments throughout this litigation have focused on the content
of Defendant Randall’s Facebook page, which often touches on
Defendant Randall’s work as Chair of the Loudoun County Board of
Supervisors.

See Opp. [Dkt. 107] at 17.

The Court does not

accept that Defendant Randall’s discussion of matters related to
her work can, by itself, render an otherwise private Facebook
page governmental for purposes of the First Amendment.

Cf.

Melville v. Town of Adams, 9 F. Supp. 3d 77, 104 n.11 (D. Mass.
2014) (“It cannot be true, simply by virtue of Plaintiff’s
position on the Board, that all of her speech regarding ‘town
business’ necessarily equates to ‘job-related’ speech[.]”).6

6

The Court similarly rejects Plaintiff’s argument that
Defendant Randall’s duties include communicating with the people
19

Regardless, it is true that a number of Defendant Randall’s
Facebook posts – of which there are surprisingly few in the
record – do relate to Defendant Randall’s work as Chair of the
Loudoun County Board of Supervisors.

While some of these appear

only to document Defendant Randall’s activities, others solicit
participation in County initiatives evidently supported by
Defendant Randall.

A reasonable fact finder might infer from

this that Defendant Randall has, in a way, used her Facebook
page as a tool of government.
When a social media website may be considered
“governmental” for purposes of the First Amendment,
notwithstanding that it is controlled privately by a government
official, appears to be a novel legal question.

There is, to

the Court’s knowledge, no existing legal framework that can
readily supply an answer.

One potential test concerns the First

Amendment rights of government employees.

See, e.g., Pickering

v. Board of Ed. of Township High School Dist. 205, Will Cty.,
391 U.S. 563 (1968).

This doctrine recognizes that government

employees sometimes speak on behalf of the government, but
acknowledges that “a citizen who works for the government is

of Loudoun County and, as Defendant Randall uses her Facebook
page for that purpose, she does so pursuant to her official
duties. See Second Am. Compl. [Dkt. 33] ¶ 5. As Plaintiff
concedes, Defendant Randall may make public statements though
social media outside of her governmental capacity, see Opp.
[Dkt. 107] at 17, including to Loudoun County residents.
20

nonetheless a citizen” entitled to speak individually on matters
of public concern.
(2006).

Garcetti v. Ceballos, 547 U.S. 410, 419

Under this framework, the Court would likely construe

Defendant Randall’s Facebook posts as those of a private
citizen, as they were created outside of work and not clearly in
the course of her official duties.

See id. at 421.

As other

courts have observed, however, this legal framework is an
awkward fit where elected officials are concerned, see
Werkheiser v. Pocono Twp., 780 F.3d 172, 178-81 (3d Cir. 2015)
(discussing cases), and the test addresses an issue that is not
precisely the issue before the Court.
There is also the test for “government speech,” which
asks whether speech is attributable to the government due to the
degree of “the government’s ownership and control of the
message.”

Page v. Lexington Cty. Sch. Dist. One, 531 F.3d 275,

281 (4th Cir. 2008).
here.

That test, however, is of little help

The message of Defendant Randall’s Facebook page is

controlled by Defendant Randall.

There is no question as to

whether it is attributable to a government actor.

Rather, the

issue is whether Defendant Randall acts in a governmental
capacity when maintaining her Facebook page.
Another way – perhaps the best way – to put the
question is whether Defendant Randall acts under color of state
law when operating her Facebook page.
21

“The traditional

definition of acting under color of state law requires that the
defendant in a § 1983 action have exercised power ‘possessed by
virtue of state law and made possible only because the wrongdoer
is clothed with the authority of state law.’”

West v. Atkins,

487 U.S. 42, 49 (U.S. 1988) (quoting United States v. Classic,
313 U.S. 299, 326 (1941)).

By this definition, Defendant

Randall does not act under color of law in maintaining her
Facebook page, as she created and maintains her Facebook page in
much the same manner as any private individual.
Courts, however, have found that where a sufficiently
close nexus exists between a defendant’s ostensibly unofficial
conduct and their public office, that conduct arises under color
of state law.
Cir. 2003).

See Rossignol v. Voorhaar, 316 F.3d 516, 523 (4th

What constitutes a sufficient nexus is largely “‘a

matter of normative judgment[.]’”

Id. (quoting Brentwood Acad.

v. Tennessee Secondary Sch. Athletic Ass’n, 531 U.S. 288, 295
(2001)).

In making such a judgment, Courts look to the

“totality of circumstances.”

Id. at 527 n.1.

As discussed above, there are ambiguities in the
record that prevent the Court from assessing the “totality of
the circumstances” here.

Most saliently, it is unclear the

extent to which Defendant Randall has involved her office – and
particularly Ms. Arnett – in the maintenance of her Facebook
page.

There is also the question of what use Defendant Randall
22

has made of her Facebook page.

As these are material

circumstances subject to genuine disputes of fact, the Court is
unable to enter summary judgment for Defendant Randall on the
issue of whether her Facebook page is personal rather than
governmental in nature.
Defendant Randall makes a number of additional
arguments, several of which the Court addressed and rejected in
ruling on Defendant Randall’s earlier Motion to Dismiss, and
none of which would avert the need for a trial.
Court need not address those arguments here.

As such, the

Defendant Randall

argues as well that she is entitled to qualified immunity based
on the Court’s ruling in Davison v. Plowman, No. 1:16CV180
(JCC/IDD), 2017 WL 1164480, at *7 (E.D. Va. Mar. 28, 2017).
“Qualified immunity shields government officials performing
discretionary functions from personal-capacity liability for
civil damages under § 1983[.]”

Ridpath v. Bd. of Governors

Marshall Univ., 447 F.3d 292, 306 (4th Cir. 2006) (quotation
marks omitted).
damages.

Plaintiff, however, does not seek civil

Rather, Plaintiff seeks only injunctive and

declaratory relief against Defendant Randall.

“Claims for

declaratory and injunctive relief are not affected by qualified
immunity.”

Lefemine v. Wideman, 672 F.3d 292, 303 (4th Cir.

2012), rev’d on other grounds, 568 U.S. 1 (2012); see also
Garcia v. Montgomery Cty., Maryland, 145 F. Supp. 3d 492, 512
23

(D. Md. 2015).

Accordingly, whether or not Defendant Randall is

entitled to qualified immunity is irrelevant to these
proceedings.

The Court declines to issue what would in effect

be an advisory opinion on the matter.
In conclusion, the Court notes that the issues left
for trial are narrow.

They concern (1) the purpose for which

Defendant Randall established her “Chair Phyllis J. Randall”
Facebook page and her practices in maintaining it; and (2) the
extent to which Defendant Randall has utilized her office’s
resources in maintaining the “Chair Phyllis J. Randall” Facebook
page.

This will not require wide ranging evidence regarding the

County’s policies, the practices of other government officials
and persons not directly involved in administering Defendant
Randall’s website, or any events other the one specific event at
issue in this case.

It is not clear whether testimony from

persons other than Defendant Randall and Ms. Arnett will aid the
Court in resolving these limited factual issues.

The Court

expects that trial on these issues will take relatively little
time.

The parties are advised to govern themselves accordingly.
B. Plaintiff’s Objection to Magistrate Judge’s Order
Given the purely legal issues under consideration with

respect to Plaintiff’s motion to amend his complaint, the Court
reviews Magistrate Judge Davis’ Order de novo under Federal Rule

24

of Civil Procedure 72.

See White v. Chapman, No. 1:14CV848

JCC/IDD, 2015 WL 4360329, at *2 (E.D. Va. July 14, 2015).
Plaintiff sought and was denied leave to amend his
Complaint to include another claim against the Board.
Plaintiff’s proposed Count VII would raise the question of
whether the County violates the First Amendment by maintaining a
limited public forum on Facebook, given certain technical
aspects of the platform.
The Court finds that Judge Davis was correct to deny
Plaintiff leave to amend.

Plaintiff’s proposed Count VII does

not allege that any County official has improperly restricted
Plaintiff’s speech.

Rather, Plaintiff contends that third

parties have used the Facebook platform in ways that have
limited Plaintiff’s ability to view and engage with their
comments on County social media websites.

In short, several

individuals have “blocked” Plaintiff on Facebook, which
precludes Plaintiff from viewing their Facebook activity.
Plaintiff believes these individuals are utilizing the County’s
social media websites, and that he is deprived of the
opportunity to engage with their comments and any responses.
Plaintiff argues essentially that the County may not maintain a
Facebook page while Plaintiff is unable to view and respond to
every comment posted, and do the same with respect to every
response to the original comment.
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The Court is unaware of any precedent suggesting that
the First Amendment entitles Plaintiff to participate in every
conversation taking place in a limited public forum – even if a
private individual has decided that he or she does not wish to
engage Plaintiff in conversation.

Rather, the First Amendment

guarantees freedom from governmental censorship.

Plaintiff’s

argument that the County has not sufficiently policed the
private conduct of third parties fails to state a claim under
the First Amendment.

See, e.g., Jackson v. City of Joliet, 715

F.2d 1200, 1203 (7th Cir. 1983) (“[T]he Constitution is a
charter of negative rather than positive liberties.”).

The fact

that the Facebook platform permits some participants in the
County’s social media forum to avoid interacting with Plaintiff
is not of constitutional dimension.

It does not curtail

Plaintiff’s own right to speak in a meaningful way, and any
impact on Plaintiff’s speech is not attributable to the
government in anything but the most attenuated sense.

Simply

put, Plaintiff may say whatever he wishes within the bounds of
the forum, but other participants need not listen, nor must they
include him in their discussions.

Permitting Plaintiff to amend

his complaint to include this claim would be futile.
Regardless, even if Plaintiff’s argument had merit, it
comes too late in these proceedings.

It would add a new, novel

legal theory to the case after the close of discovery, after the
26

existing claims against the Loudoun County Board of Supervisors
have been shown to be meritless, after the point at which
Defendants could have addressed the claim in briefing before
trial, and on the eve of trial itself.

The addition of the

claim at this late date would unduly prejudice Defendants and
unnecessarily complicate these proceedings.
well, leave to amend must be denied.

For that reason as

See Deasy v. Hill, 833

F.2d 38, 40–41 (4th Cir. 1987).
As for Plaintiff’s objection to Judge Davis’ Order
insofar as it denied Plaintiff’s Motion to Compel, the Court
finds that Judge Davis properly denied that Motion, and finds
further that the discovery sought does not appear relevant to
any claim remaining in this case in light of the above.
Accordingly, the Court will overrule Plaintiff’s Objection in
its entirety.
C. Plaintiff’s Motion for Reconsideration
Finally, Plaintiff asks that the Court reconsider its
earlier ruling dismissing Plaintiff’s claim under the Virginia
Freedom of Information Act.

While the Court acknowledges that

the Motion appears to have some merit, the Court declines to
reconsider its earlier ruling.

At this point, the claims that

remain in this case are unrelated to Plaintiff’s Virginia
Freedom of Information Act claim.

The Court has disposed of all

related federal claims over which it had original jurisdiction,
27

and most of the Defendants against whom Plaintiff brought his
state law claim are no longer before the Court.

If all federal

claims against a defendant are eliminated before trial, it is
generally appropriate to refuse to entertain any remaining
pendant state law claims.

See United Mine Workers of Am. v.

Gibbs, 383 U.S. 715, 726 (1966).

Declining to exercise pendant

jurisdiction over a claim is particularly appropriate where, as
here, the claim appears peculiarly committed – arguably
exclusively committed, see Va. Code § 2.2-3713 – to state
courts.

See Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350

n.7 (1988).

Moreover, at this late date – after the close of

discovery and on the eve of trial – entertaining an additional
state law claim unrelated to the issues remaining in the case
would cause both Defendants and the Court inconvenience, and
would fail to serve the interests of judicial economy.
Accordingly, the Court will deny Plaintiff’s Motion for
Reconsideration.
IV. Conclusion
For the foregoing reasons, the Court will grant
Defendants’ Motion for Summary Judgment [Dkt. 96] in part, deny
Plaintiff’s Motion for Reconsideration [Dkt. 88], and overrule
Plaintiff’s Objection to Magistrate Judge’s Orders [Dkt. 92].
An appropriate order will issue.

28

May 10, 2017
Alexandria, Virginia

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

29