United States District Court, N.D. West Virginia, Clarksburg
SCOTT A. WINDOM, Plaintiff,
JASON S. HARSHBARGER, Defendant.
MEMORANDUM OPINION AND ORDER DENYING MOTION TO
DISMISS PLAINTIFF'S FIRST AMENDED COMPLAINT [ECF NO.
S. KLEEH, UNITED STATES DISTRICT JUDGE.
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].
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.
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Injunction, which was later withdrawn.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.
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.
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. ¶ 21. Windom also writes
that Harshbarger operates his page as part of his duties as a
delegate. ¶¶ 21, 26.
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.
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
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.
STANDARD OF REVIEW
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).
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).
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