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Woolsey v. Ojeda

United States District Court, S.D. West Virginia, Charleston Division

January 30, 2019



          Thomas E. Johnston, Judge

         Before this Court is Defendant Richard Ojeda's (“Defendant”) Motion to Dismiss. (ECF No. 6.) For the reasons explained more fully herein, Defendant's motion is DENIED.

         I. BACKGROUND

         Plaintiff David Woolsey (“Plaintiff”) brought this action pursuant to 42 U.S.C. § 1983, alleging that Defendant violated Plaintiff's First Amendment rights by taking actions that led to the termination of Plaintiff's employment. (See ECF No. 1.) Plaintiff alleges that on April 20, 2018, while riding in the passenger seat of a vehicle owned by his employer, he filmed a video that criticized Defendant's driving and posted it on his own personal Facebook profile. (Id. at 2-6.) Defendant, who was a sitting state senator and a candidate for United States Congress at the time, posted a response video later that night to his official “OjedaForCongress” Facebook page. (Id. at 6-10.) In the video, Defendant berated Plaintiff for supporting an opposing candidate in a previous race and called on Plaintiff's employer to fire Plaintiff for driving recklessly in a company vehicle. (Id. at 6-7.) Plaintiff further alleges that on April 21, 2018, Defendant called Plaintiff's employer and spoke with the owner. (Id. at 10.) The following Monday morning, April 23, 2018, the owner fired Plaintiff and stated that Plaintiff “shouldn't have posted the video” because he was “interfering in a federal election.” (Id.)

         Plaintiff filed this action shortly thereafter. On June 4, 2018, Defendant filed his motion to dismiss. (ECF No. 6.) Plaintiff filed a timely response on June 14, 2018. (ECF No. 7.) Defendant filed a timely reply on June 21, 2018. (ECF No. 8.) As such, this matter is fully briefed and ripe for adjudication.


         In general, a pleading must include “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2); see McCleary-Evans v. Md. Dep't of Transp., State Highway Admin., 780 F.3d 582, 585 (4th Cir. 2015) (stating that this requirement exists “to give the defendant fair notice of what the . . . claim is and the grounds upon which it rests” (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007))). However, to withstand a motion to dismiss made pursuant to Federal Rule of Civil Procedure 12(b)(6), a complaint must plead enough facts “to state a claim to relief that is plausible on its face.” Wikimedia Found. v. Nat'l Sec. Agency, 857 F.3d 193, 208 (4th Cir. 2017) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. Stated another way, the factual allegations in the complaint “must be sufficient ‘to raise a right to relief above the speculative level.'” Woods v. City of Greensboro, 855 F.3d 639, 647 (4th Cir. 2017) (quoting Twombly, 550 U.S. at 555). A complaint that alleges enough facts “to satisfy the elements of a cause of action created by [the relevant] statute” will survive a motion to dismiss. Id. at 648 (quoting McCleary-Evans, 780 F.3d at 585).

         In evaluating the sufficiency of a complaint, this Court first “identif[ies] pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth.” Iqbal, 556 U.S. at 679. This Court then “assume[s] the[] veracity” of the complaint's “well-pleaded factual allegations” and “determine[s] whether they plausibly give rise to an entitlement to relief.” Id. Review of the complaint is “a context-specific task that requires [this Court] to draw on its judicial experience and common sense.” Id. “[T]o satisfy the plausibility standard, a plaintiff is not required to plead factual allegations in great detail, but the allegations must contain sufficient factual heft to allow a court, drawing on judicial experience and common sense, to infer more than the mere possibility of that which is alleged.” Nanni v. Aberdeen Marketplace, Inc., 878 F.3d 447, 452 (4th Cir. 2017) (internal quotation marks omitted).


         A. “Acting Under Color of State Law” Defendant argues that Plaintiff fails to state a claim under 42 U.S.C. § 1983 because Defendant acted in his personal capacity, not in his capacity as a state senator, when posting the video to his Facebook page. (ECF No. 6 at 15-17.) To state a claim under § 1983, the complaint must plead specific facts demonstrating a violation of the plaintiff's constitutional rights that was committed by an individual “acting under color of state law.” Crosby v. City of Gastonia, 635 F.3d 634, 639 (4th Cir. 2011) (“A federal civil rights claim based upon § 1983 has two essential elements: ‘[A] plaintiff must allege the violation of a right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law.'” (quoting West v. Atkins, 487 U.S. 42, 48 (1988))). The defendant acts under color of state law if he is “a state actor or ha[s] a sufficiently close relationship with state actors such that . . . [he] is engaged in the state's actions.” Cox v. Duke Energy Inc., 876 F.3d 625, 632 (4th Cir. 2017) (quoting DeBauche v. Trani, 191 F.3d 499, 506 (4th Cir. 1999)). Put simply, the defendant acts under color of state law when he “exercise[s] power possessed by virtue of state law and made possible only because [he] is clothed with the authority of state law.” Davison v. Randall, 912 F.3d 666, 679 (4th Cir. 2019) (internal quotation marks omitted).

         Of particular relevance to this case, § 1983 “includes within its scope apparently private actions which have a ‘sufficiently close nexus' with the State to be ‘fairly treated as that of the State itself.'” Rossignol v. Voorhaar, 316 F.3d 516, 523 (4th Cir. 2003) (quoting Jackson v. Metro. Edison Co., 419 U.S. 345, 351 (1974)). In determining “whether [a private party's] allegedly unconstitutional conduct is fairly attributable to the State, ” this Court first “identif[ies] the specific conduct of which the plaintiff complains.” Mentavlos v. Anderson, 249 F.3d 301, 311 (4th Cir. 2001) (quoting Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50, 51 (1999)). This Court then evaluates whether that conduct may reasonably “be treated as that of the State itself.” Rossignol, 316 F.3d at 523; Mentavlos, 249 F.3d at 311. “[T]here is no specific formula for defining state action under this standard.” Rossignol, 316 F.3d at 523 (internal quotation marks omitted). Rather, this Court evaluates “the totality of the circumstances.” Holly v. Scott, 434 F.3d 287, 292 (4th Cir. 2006) (internal quotation marks omitted); Rossignol, 316 F.3d at 523 n.1 (“In the course of its state action inquiries, the Supreme Court has not opted for an objective or subjective test, but simply for a look at the totality of circumstances that might bear on the question of the nexus between the challenged action and the state.”). “If a defendant's purportedly private actions are linked to events which rose out of his official status, the nexus between the two can play a role in establishing that he acted under color of state law.” Rossignol, 316 F.3d at 524. In addition, “[w]here the sole intention of a public official is to suppress speech critical of his conduct of official duties or fitness for public office, his actions are more fairly attributable to the state.” Id.

         The Fourth Circuit's recent decision in Davison is instructive here. The defendant in Davison was a county politician who communicated with her constituents through an official Facebook page bearing her name. 912 F.3d at 673. She encouraged her constituents to use the Facebook page or her county government email address to converse with her about issues facing the county. Id. The plaintiff in Davison, “an outspoken resident” who was active in county politics, posted negative comments to the page. Id. at 675. The defendant deleted the comments and blocked plaintiff's account from the page for twelve hours. Id. at 675-76. Plaintiff sued, arguing a violation of his First Amendment rights. Id. at 676.

         The Fourth Circuit held that the defendant acted under color of state law in administering her Facebook page and in banning the plaintiff from it. See Id. at 681. The court explained that the defendant used the page “to further her duties as a municipal official” to “provide[] information to the public about her . . . official activities and solicit[] input from the public on policy issues.” Id. at 680. The court further emphasized that the page was “categorized as that of a government official, ” identified the defendant according to her official title, and provided an official email address in the contact information. Id. at 680-81. The court concluded, “A private citizen could not have created and used the Chair's Facebook Page in such a manner.” Id. at 681. The court also noted that “the specific actions giving rise to [the plaintiff's] claim . . . are linked to events which arose out of h[er] official status.” Id. (internal quotation marks omitted).

         In this case, Plaintiff alleges that Defendant posted the response video on his “OjedaForCongress” Facebook page, “over which he exerts plenary control” and which he uses “as his official Facebook account, both as a member of the West Virginia Senate[] and as a candidate for [United States Congress].” (ECF No. 1 at 13.) Plaintiff further alleges that Defendant, like the defendant in Davison, uses his official Facebook page “to share information with his constituents, as well as for campaign purposes.” (Id.) Defendant “discusses political issues . . . and invites discussion from members of the public, ” as well as “promot[ing] and invit[ing] attendance at events related to [Defendant's] work as a senator.” (Id.) He signs posts with “WV Sen. Richard Ojeda” and posts videos ...

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