Case 1:16-cv-00540-AJT-MSN Document 37 Filed 07/28/17 Page 18 of 20 PageID# 3274
C.
Counts I-VII Against Individual Defendants in Their Personal Capacities
For the reasons set forth above, none of the claims Plaintiff alleges against Individual
Defendants in their personal capacities are barred by res judicata or sovereign immunity.
Nevertheless, Individual Defendants claim that they are immune from suit in their personal
capacities under Section 1983 under the doctrine of qualified immunity. “As the qualified
immunity defense has evolved, it provides ample protection to all but the plainly incompetent or
those who knowingly violate the law.” Malley v. Briggs, 475 U.S. 335, 341 (1986).
Specifically, “[q]ualified immunity shields government officials performing discretionary
functions from personal-capacity liability for civil damages under § 1983, ‘insofar as their
conduct does not violate clearly established statutory or constitutional rights of which a
reasonable person would have known.’” Ridpath v. Bd. of Governors Marshall Univ., 447 F.3d
292, 306 (4th Cir. 2006) (citation omitted). In that regard, the Court must consider (1) whether
the allegations underlying Plaintiff’s claims, if true, would constitute violations of federal
statutory or constitutional rights and (2) whether those violations were of “clearly established”
rights, “of which a reasonable person would have known.” Id. at 307.
Here, the law is less than settled as to whether the Plaintiff had a right to post on a
Facebook page maintained by a public official and that this right was violated when those
postings were removed or when Plaintiff was prevented from posting his comments. Plaintiff
contends that Facebook is a public forum. See Plaintiff’s Memorandum of Law in Opposition to
Defendants’ Motion [Doc. No. 26] (“Pl.’s Mem. Opp’n”) 12. Traditional public forums include
streets, sidewalks, and parks which “have immemorially been held in trust for the use of the
public, and, time out of mind, have been used for purposes of assembly, communicating thoughts
between citizens, and discussing public questions.” Perry Educ. Ass’n v. Perry Local Educators’
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