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Windom v. Harshbarger

United States District Court, N.D. West Virginia, Clarksburg

June 6, 2019

SCOTT A. WINDOM, Plaintiff,



         Pending before the Court is a Motion to Dismiss Plaintiff's First Amended Complaint, filed by Defendant Jason Harshbarger. It has been fully briefed and is ripe for review. On April 24, 2019, the Court held a hearing on the Motion. For the reasons discussed below, the Court DENIES the Motion [ECF No. 13].


         The Plaintiff, Scott A. Windom (“Windom”), filed this action in the Circuit Court of Ritchie County, West Virginia, on or about January 24, 2019, alleging that the Defendant, Jason S. Harshbarger (“Harshbarger”), violated his rights under the First Amendment of the United States Constitution and Article III, Section 7, of the West Virginia Constitution. The matter was removed to this Court on February 15, 2019. ECF No. 1.

         On February 15, 2019, Windom filed a Motion for Preliminary Injunction, which was later withdrawn. ECF Nos. 2, 8, 9. Harshbarger moved to dismiss the complaint. ECF No. 5. On March 14, 2019, Windom filed a First Amended Complaint. ECF Nos. 11, 12. On March 28, 2019, Harshbarger filed a Motion to Dismiss the First Amended Complaint. ECF No. 13. This Motion is now ripe for review and is the subject of this order.


         The facts as stated here appear as they do in the First Amended Complaint. ECF No. 11. For purposes of the pending motion, they are regarded as true. See Erickson v. Pardus, 551 U.S. 89, 94 (2007). Harshbarger represents the 7th District (Ritchie and Pleasants Counties) in the West Virginia House of Delegates. Am. Compl. at ¶ 7. He has a Facebook page entitled “Delegate Jason S. Harshbarger.” 8. A “significant amount of speech” posted on Harshbarger's page is by, to, or about the government. ¶ 9. Harshbarger's page was created in 2016, and he uses it to engage with his constituents about legislation, public policy, his campaign and endorsements, and other topics. ¶ 18. Windom states that the page is an “important source of news and information about State government” for its followers. Id.

         Windom writes that Harshbarger presents his account as one that operates in his “official, ” not “personal, ” capacity. 19. It is accessible to the public. 20. Harshbarger has the exclusive power to operate the page because he is a member of the House of Delegates.[1] 21. Windom also writes that Harshbarger operates his page as part of his duties as a delegate. ¶¶ 21, 26.

         During the 2018 legislative session, Windom commented on the Jason S. Harshbarger page and was subsequently blocked from accessing the page. 22. Windom's comments relayed his opposition to a “co-tenancy” bill that Harshbarger supported. Id. Harshbarger also deleted the comments. Id. Windom avers that by encouraging, soliciting, and allowing public comments/discussion on his page, Harshbarger created a limited public forum. ¶¶ 29-30. Thereafter, by blocking Windom and deleting Windom's comments, Harshbarger imposed a viewpoint-based restriction of speech in violation of the First Amendment. ¶ 31. Windom alleges that Harshbarger did this without notice and without providing an opportunity for appeal, in violation of Windom's rights under the Fourteenth Amendment's Due Process Clause. ¶¶ 40, 44.

         Windom alleges the following causes of action: (1) Violation of the First Amendment of the United States Constitution and Article III, § 7, of the Constitution of West Virginia; (2) Violation of the Fourteenth Amendment of the United States Constitution and Article III, § 10, of the Constitution of West Virginia; (3) Declaratory Relief (U.S.C. § 2201); and (4) Preliminary and Permanent Injunctive Relief.[2]

         Windom clarified during the April 24, 2019, hearing that he brings this action under 42 U.S.C. § 1983. Windom seeks the following relief: a declaratory judgment confirming (1) Windom's rights under the First Amendment to participate in Facebook discussions on Harshbarger's “Delegate Jason S. Harshbarger” Facebook page, and (2) that Harshbarger's blocking Windom from the page deprived Windom of his rights; a declaration that the viewpoint-based exclusion of Windom violates the First and Fourteenth Amendments to the U.S. Constitution; an order directing Harshbarger to restore Windom's access to comment on the page; injunctive relief to coercively protect Windom's Constitutional rights from Harshbarger's interference; costs, including reasonable attorney's fees; and other and further relief that the Court finds just and proper.


         Rule 12(b)(6) of the Federal Rules of Civil Procedure allows a defendant to move for dismissal upon the ground that a complaint does not “state a claim upon which relief can be granted.” In ruling on a motion to dismiss, a court “must accept as true all of the factual allegations contained in the complaint.” Anderson v. Sara Lee Corp., 508 F.3d 181, 188 (4th Cir. 2007) (quoting Erickson, 551 U.S. at 94). A court is “not bound to accept as true a legal conclusion couched as a factual allegation.” Papasan v. Allain, 478 U.S. 265, 286 (1986). All reasonable inferences that can be drawn from the pleading are taken in favor of the plaintiff. Lukosus v. First Tenn. Bank Nat'l Ass'n, No. 03-1993, 2004 WL 500977, at *1 (4th Cir. 2004).

         A court should dismiss a complaint if it does not contain “enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). Plausibility exists “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A motion to dismiss “does not resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses.” Republican Party of N.C. v. Martin, 980 F.2d 942, 952 (4th Cir. 1992).


         A. Public Forums & Viewpoint ...

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