City of Savannah's Motion To Dismiss

Case 4:20-cv-00165-WTM-CLR Document 20 Filed 09/20/21 Page 1 of 41
IN THE UNITED STATES DISTRICT COURT FOR

THE SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION
JESSICA SZILAGYI,
Plaintiff,
V. CASE NO. CV420-165
MAYOR VAN JOHNSON, in his

individual and official
capacities; and THE CITY OF
SAVANNAH;
Defendants.
ORDER
Before the Court is Defendant Mayor Van Johnson {^^Mayor
Johnson") and Defendant the City of Savannah's (the ''City")
Motion to Dismiss Plaintiff's Complaint. (Doc. 7.) For the
following reasons. Defendants' motion to dismiss is GRANTED IN
PART and DENIED IN PART.
BACKGROUND^
This case involves a relatively new issue in the realm of
First Amendment law, namely, the extent to which a government
official can limit a private individual's speech on a social
media website. In May 2011, Mayor Johnson created an official
page on the social media platform Facebook. (Doc. 1 at 5 17;
^ For the purposes of this order, the Court will accept all
factual allegations in the Complaint as true and construe all
allegations in the light most favorable to Plaintiff. Timson v.
Sampson, 518 F.3d 870, 872 (11th Cir. 2008).
Doc. 4, Attach. 1 at 3.) At the time. Mayor Johnson's title on
the Facebook page reflected his status as an alderman for the
City. (Doc. 4, Attach. 1 at 3.) Subsequently, Mayor Johnson
changed the title of the page to reflect his position as the
Mayor of the City.^ (Doc. 1 at SI 18; Doc. 4, Attach. 1 at 3.)
The "About" section of the page lists contact information for
Mayor Johnson and identifies him as the "67th Mayor of the City
of Savannah, GA." (Doc. 4, Attach. 1 at 4.) Mayor Johnson's page
also displays a blue badge, which means that Mayor Johnson has
verified his ownership of the page as a public figure. (Doc. 1
at SI 23; Doc. 4, Attach. 1 at 5.) At the time Plaintiff filed
her complaint, approximately 21,000 Facebook users "liked" and
27,000 Facebook users "followed" Mayor Johnson's Facebook page.
(Doc. 1 at SI 19.)
Mayor Johnson frequently posts on the page to document his
public activities as Mayor and to make announcements about City
policy. (Doc. 1 at SISI 24-26.) Facebook users can leave public
comments on Mayor Johnson's posts, and Mayor Johnson will
occasionally respond to the comments. (Id. at SI 27; Doc. 4,
Attach. 1 at 6-11.) As the owner of the Facebook page. Mayor
Johnson can delete comments or posts that a Facebook user makes
on his page. (Doc. 1 at SI 29.) Mayor Johnson can also block
2 The title of the Facebook page is 0MayorJohnsonSAV. (Doc. 4,

Attach. 1 at 1.)
Facebook users from interacting with his page entirely. (Doc. 1
at SI 30.) By blocking a user. Mayor Johnson prevents that user
from commenting on his posts or ''liking" or "disliking" his
posts. (Id.)
Plaintiff writes for the website A110nGeorgia.com on
matters of politics and local news. (Id. at SI 9.) Plaintiff is
active on social media, including Facebook, where she voices her
opinions and engages with elected officials. (Id. at SI 10.) In
September 2019, Plaintiff made a post on her personal Facebook
page criticizing Mayor Johnson and the City for a recent
resolution that supported stronger gun control. (Id. at SI 36;
Doc. 4, Attach. 1 at 12.) Using his official Facebook page. Mayor
Johnson commented on Plaintiff s post and defended his stance on
the Second Amendment. (Doc. 4, Attach. 1 at 12.) Mayor Johnson
then banned Plaintiff from interacting with his Facebook page.
(Doc. 1 at SI 39.) Because she was banned. Plaintiff was blocked
from posting, liking and commenting on Mayor Johnson's page.^
(Id. at 43.)
3 During the pendency of this action. Defendants unblocked

Plaintiff's access to Mayor Johnson's Facebook page. (Doc. 13 at
2.) The Court, with the parties' consent, has since granted
Plaintiff a preliminary injunction which prohibits Defendants
from taking any action to interfere with Plaintiff's ability to
interact with Mayor Johnson's page to the extent these
interactions may be construed to constitute First Amendment
protected speech. (Doc. 17.)
After being blocked. Plaintiff and another individual
submitted a joint Open Records Act request to the City seeking
information about Mayor Johnson's Facebook page and the number
of other individuals who had been blocked from the page. (Id. at
f 45.) The City's response shows that, as of April 28, 2020,
Mayor Johnson had blocked over two hundred Facebook users from
interacting with his official page. (Id. at SI 46; Doc. 4, Attach.
1 at 17-41.) Plaintiff alleges Mayor Johnson blocked these users
solely because they criticized his political viewpoint. (Id. at
SI 47.)
On July 24, 2020, Plaintiff brought this action for damages
and equitable relief under 42 U.S.C. § 1983 and 28 U.S.C. § 2201
alleging that Defendants violated her rights under the First and
Fourteenth Amendments when Mayor Johnson restricted her access
to the Mayor's official Facebook page.^ (Doc. 1 at 1.) Plaintiff
seeks relief in the form of (1) a declaration that Defendants'
viewpoint-based censorship of Plaintiff is unconstitutional, (2)
injunctive relief restoring Plaintiff's access to the Facebook
page and barring Defendants from blocking Plaintiff and other
Facebook users' access to the page, and (3) an award of general
and special compensatory damages. (Id. at 13-14.) Now,
^ Plaintiff sues Mayor Johnson in his individual capacity for

small actual and nominal damages and in his official capacity
for equitable relief. (Doc. 1 at 2.)
Defendants move to dismiss Plaintiff's claims on several
different grounds. (Doc. 7.) For the following reasons.
Defendants' motion to dismiss is GRANTED IN PART and DENIED IN
PART.
ANALYSIS
I. PLAINTIFF LACKS STANDING TO REQUEST INJUNCTIVE RELIEF FOR
THIRD PARTIES
Although not addressed by the parties, the Court must first
determine, as a threshold matter, whether Plaintiff has standing
to assert her claims against Defendants. Frulla v. CRA Holdings,
Inc., 543 F.Sd 1247, 1250 (11th Cir. 2008) (^^We are obligated to
address jurisdictional questions sua sponte."). """Article III of
the United States Constitution limits the jurisdiction of
federal courts to "Cases' and "Controversies', U.S. Const. Art.
Ill, § 2, and "the core component of standing is an essential
and unchanging part of the case-or-controversy requirement of
Article III.' " Hollywood Mobile Ests. Ltd. V. Seminole Tribe of
Fla., 641 F.Sd 1259, 1264-65 (11th Cir. 2011) (quoting Lujan v.
Defenders of Wildlife, 504 U.S. 555, 560, 112 S. Ct. 2130, 2136,
119 L. Ed. 2d 351 (1992)). ""In the absence of standing, a court
is not free to opine in an advisory capacity about the merits of
a plaintiff's claims, and the court is powerless to continue."
CAMP Legal Def. Fund, Inc. v. City of Atlanta, 451 F.Sd 1257,
1269 (11th Cir. 2006) (citations and internal quotation marks
omitted).
When analyzing whether a plaintiff has standing, ''a court
must take into account both constitutional limitations on
federal-court jurisdiction and prudential limitations on its
exercise." Elend v. Basham, 471 F.3d 1199, 1206 (11th Cir. 2006)
(quotations omitted). The prudential limitations are ''self-
imposed constraints [that] are intended to ensure the proper
role of the courts in our tripartite system of government by
avoiding judicial resolution of abstract questions that would be
more appropriately addressed by other governmental
institutions." Harris v. Evans, 20 F.3d 1118, 1121 (11th Cir.
1994) (citing Warth v. Seldin, 422 U.S. 490, 500, 95 S. Ct. 2197,
2205-06, 45 L. Ed. 2d 343 (1975)). Under these prudential
limitations, "a plaintiff cannot raise the claims of third
parties; cannot claim standing based on a generalized grievance;
and must raise a claim within the zone of interest covered by a
statutory conferral of standing." Elend, 471 F.3d at 1206. In
the instant action, the Court is concerned with the limitation
on third-party standing.
The third-party standing doctrine is meant to ensure that
courts hear only concrete disputes between parties incentivized
to frame the issues properly. Harris, 20 F.3d at 1121 (citing
Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208,

220-21, 94 S. Ct. 2925, 2932, 41 L. Ed. 2d 706 (1974)). As a
rule, litigants do not have standing to bring claims on behalf
of third parties unless they satisfy three important criteria.
[T]he litigant must have suffered an ^'injury-in-fact,"

thus giving him or her a ''sufficiently concrete
interest" in the outcome of the issue in dispute; the
litigant must have a close relation to the third party;
and there must exist some hindrance to the third
party's ability to protect his or her own interests.
Young Apts., Inc. v. Town of Jupiter, Fla., 529 F.Sd 1027, 1042
(11th Cir. 2008) (quoting Harris, 20 F.Sd at 1122).
In her complaint. Plaintiff asks for various forms of
injunctive relief against Defendants. (Doc. 1 at 13-14.) In
addition to requesting injunctive relief for herself. Plaintiff
requests that the Court enjoin Defendants from "deleting
platform activity and banning users" from Mayor Johnson's
Facebook page "due to their content or viewpoint." (Id. at 14.)
However, Plaintiff has not alleged that she has a close
relationship with any other Facebook users that Defendants have
blocked or could block in the future. Plaintiff has also not
explained why these third parties are unable to assert their own
rights through separate litigation. Accordingly, the Court finds
Plaintiff lacks standing to request injunctive relief on behalf
of these third parties. See Weissenbach v. Tuscaloosa Cnty. Sch.
Sys., No. 7:17-cv-001642-LSC, 2018 WL 5848047, at *4 (N.D. Ala.
Nov. 8, 2018) ("Here, [the plaintiff] has made no showing that

she maintains a close relationship with current students within
the Tuscaloosa County School System. Moreover, . . . there is
nothing that suggests that there would be a hindrance to those
students pursuing an action in their own name."); Rhiner v.
Jones, No. 15-14319-Civ-ROSENBERG, 2016 WL 8716723, at *7, {S.D.
Fla. June 24, 2016) (finding that plaintiff bringing Eighth
Amendment claims against prison lacked standing to seek
permanent injunction on behalf of other unrelated prisoners).
Consequently, the Court DISMISSES Plaintiff's request for a
broad injunction restricting Defendants' ability to block or
censor third parties on Mayor Johnson's Facebook page.
II. DEFENDANTS' MOTION TO DISMISS
Having addressed the issue of standing, the Court will now
consider Defendants' motion to dismiss. In their motion.
Defendants raise several distinct grounds for dismissal. First,
Defendants move to dismiss Plaintiff s claims against Mayor
Johnson in his official capacity, arguing that the claims are
duplicative of Plaintiff's claims against the City. (Doc. 7,
Attach. 1 at 5.) Second, Defendants move to dismiss Plaintiff's
claims for injunctive relief on the ground that those claims
were rendered moot when Defendants unblocked her access to Mayor
Johnson's Facebook page. (Id. at 9.) Third, Defendants move to
dismiss Plaintiff s claims for damages against Mayor Johnson in
his official capacity as barred by qualified immunity (Id. at
8
5.) Finally, Defendants move to dismiss Plaintiff's claims for
damages against the City, arguing that Plaintiff failed to
establish that a City custom or policy caused the alleged
constitutional violations. (Id. at 8-9.) The Court will address
each of these arguments in turn.
A. Standard of Review
Federal Rule of Civil Procedure 8(a)(2) requires a
complaint to contain ^'a short and plain statement of the claim
showing that the pleader is entitled to relief." ^'[T]he pleading
standard Rule 8 announces does not require Metailed factual
allegations,' but it demands more than an unadorned, the-
defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal,
556 U.S. 662, 678, 129 S. Ct. 1937, 1949, 173 L. Ed. 2d 868
(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555,
127 S. Ct. 1955, 1964, 167 L. Ed. 2d 929 (2007)). ''A pleading
that offers ^labels and conclusions' or a ^formulaic recitation
of the elements of a cause of action will not do.' " Id. (quoting
Twombly, 550 U.S. at 555, 127 S. Ct. at 1965). '^^Nor does a
complaint suffice if it tenders ^naked assertion[s]

' devoid of
^further factual enhancement.' " Id. (quoting Twombly, 550 U.S.
at 557, 127 S. Ct. at 1966) (alteration in original).
^^To survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to ^state a claim
to relief that is plausible on its face.' " Id. (quoting Twombly,

550 U.S. at 570, 127 S. Ct. at 1974). For a claim to have facial
plausibility, the plaintiff must plead factual content that
^'allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged." Sinaltrainal v.
Coca-Cola Co., 578 F.3d 1252, 1261 (11th Cir. 2009) (quotations
omitted). Plausibility does not require probability, ^'but it
asks for more than a sheer possibility that a defendant has acted
unlawfully." Iqbal, 556 U.S. at 678, 129 S. Ct. at 1949. ^'Where
a complaint pleads facts that are ^merely consistent with' a
defendant's liability, it ^stops short of the line between
possibility and plausibility of entitlement to relief.' " Id.
(quoting Twombly, 550 U.S. at 557, 127 S. Ct. at 1966).
Additionally, a complaint is sufficient only if it gives ^'fair
notice of what the . . . claim is and the grounds upon which it
rests." Sinaltrainal, 578 F.3d at 1268 (quotations omitted).
When the Court considers a motion to dismiss, it accepts
the well-pleaded facts in the complaint as true. Id. at 1260.
However, this Court is ^'not bound to accept as true a legal
conclusion couched as a factual allegation." Iqbal, 556 U.S. at
678, 129 S. Ct. at 1950. Moreover, "unwarranted deductions of
fact in a complaint are not admitted as true for the purpose of
testing the sufficiency of [plaintiff's] allegations."
Sinaltrainal, 578 F.3d at 1268 (citing Aldana v. Del Monte Fresh
Produce, N.A., Inc., 416 F.3d 1242, 1248 (11th Cir. 2005)). That
10
is, ^^[t]he rule Moes not impose a probability requirement at
the pleading stage,' but instead simply calls for enough facts
to raise a reasonable expectation that discovery will reveal
evidence of the necessary element." Watts v. Fla. Int'l Univ.,
495 F.3d 1289, 1295-96 (11th Cir. 2007) (quoting Twombly, 550
U.S. at 545, 127 S. Ct. at 1959).
B. Plaintiff's Official Capacity Claims Against Mayor
Johnson Are Redundant
The Court will first consider Defendants' argument that
Plaintiff's claims against Mayor Johnson in his official
capacity should be dismissed as superfluous. When a plaintiff
brings a § 1983 action against a local government official in
his or her official capacity, "the suit is simply another way of
pleading an action against an entity of which an officer is an
agent." Busby v. City of Orlando, 931 F.2d 764, 776 (11th Cir.
1991) (citing Kentucky v. Graham, 473 U.S. 159, 165, 105 S. Ct.
3099, 3105, 87 L. Ed. 2d 114 (1985)) (internal quotation marks
omitted). "Because suits against a municipal officer sued in his
official capacity and direct suits against municipalities are
functionally equivalent, there no longer exists a need to bring
official-capacity actions against local government officials,
because local government units can be sued directly . . . ."
Busby, 931 F.2d at 776 (citations omitted). When a plaintiff
sues both a municipal officer in his official capacity and the
11
employing municipality, ''it is appropriate for the court to
dismiss the defendant[] named in their official capacit[y] as
'redundant and possibly confusing to the jury.' " SP Frederica,
LLC V. Glynn Cnty., 173 F. Supp. 3d 1362, 1375 (S.D. Ga. Mar.
25, 2016) (quoting Busby, 931 F.2d at 776).
Defendants move to dismiss Plaintiff's official capacity
claims against Mayor Johnson on the ground that the claims are
duplicative of claims that Plaintiff brings against the City.
(Doc. If Attach. 1 at 5.) In response. Plaintiff argues that her
official capacity claims against Mayor Johnson "are only for
equitable relief and thus appropriate." (Doc. 13 at 4 n.2.)
However, the Court finds no exception to the Busby rule for
litigants requesting equitable relief from both a government
official and their employing entity.^ Because Plaintiff asserts
^ Because Plaintiff makes no substantive argument on the issue,

the Court can only guess that Plaintiff may be confused by the
doctrine of Ex parte Young, 209 U.S. 123, 28 S. Ct. 441, 52 L.
Ed. 714 (1908). Ex parte Young created an exception to Eleventh
Amendment immunity for official capacity suits that seek
prospective equitable relief against state officials. Higdon v.
Tusan, 765 F. App'x 805, 810 (11th Cir. 2018) (citing Summit
Med. Assocs., P.C. v. Pryor, 180 F.3d 1326, 1336 (11th Cir.
1999)). Ex parte Young did not preclude dismissal of an official
capacity claim on the ground that the claim is redundant. See
Daniel v. Huntsville City Bd. of Educ., No. 5:16-cv-1919-CLS,
2017 WL 1282319, at *3 (N.D. Ala. Apr. 6, 2017) ("Moreover, even
if the Eleventh Amendment were applicable . . . , plaintiff has
cited no authority to support the proposition that the Ex parte
Young doctrine should constitute an exception to the well-
established principle that official-capacity claims against
government officials are duplicative of claims against the
entity employing the officials.").
12
identical claims for equitable relief against the City,
Plaintiff's claims against Mayor Johnson in his official
capacity are redundant. See Stephens v. City of Tarrant, NO.
2:16-CV-274-KOB, 2017 WL 2797080, at *9-10 (N.D. Ala. June 28,
2017) (finding no exception to Busby in cases seeking equitable
relief); Riles v. Augusta-Richmond Cnty. Comm'n, NO. CV 116-214,
2017 WL 3597488, at *3 (S.D. Ga. Aug. 21, 2017) ('MT]here is no
rule that a court make a distinction between the types of damages
sought in assessing whether a claim for relief is duplicative
under Busby."). Accordingly, Defendants' motion to dismiss
Plaintiff's official capacity claims against Mayor Johnson is
GRANTED.
C. Plaintiff's Remaining Claims for Injunctive Relief
Against the City Are Not Moot
Defendants move to dismiss Plaintiff s remaining claims for
injunctive relief against the City on mootness grounds. (Doc. 7,
Attach. 1 at 9.) Defendants contend that Plaintiff's request for
injunctive relief became moot when Defendants restored
Plaintiff's access to Mayor Johnson's Facebook page. (Id. at
10.) Defendants further contend that Plaintiff has failed to
allege that there is a reasonable chance that Defendants will
re-block Plaintiff upon the termination of this suit. (Id.)
Plaintiff avers that '"Defendants' conduct to-date does not show
that it is 'absolutely clear' that they will not block Plaintiff"
13
in the future. (Doc. 12 at 2.) Specifically, Plaintiff contends
that Defendants unblocked her only after she moved for a
preliminary injunction, that Defendants have blocked over two-
hundred other Facebook users, and that Defendants have not
adopted a policy nor made a declaration that indicates they will
not block Plaintiff in the future. (Id. at 2-3.)
As discussed previously, the Constitution confines the
jurisdiction of federal courts "to the consideration of ^Cases'
and ^Controversies.' " A1 Najjar v. Ashcroft, 273 F.3d 1330,
1335 (llth Cir. 2001) (citing U.S. Const. Art. Ill, § 2). "The
doctrine of mootness derives directly from the case-or-
controversy limitation because ân action that is moot cannot be
characterized as an active case or controversy.' " Id. at 1336
(citing Adler v. Duval Cnty. Sch. Bd., 112 F.3d 1475, 1477 (llth
Cir. 1997)). Accordingly, a claim is considered moot "when it no
longer presents a live controversy with respect to which the
court can give meaningful relief." Troiano v. Supervisor of
Elections in Palm Beach Cnty., 382 F.3d 1276, 1282 (llth Cir.
2004) (quoting Al Najjar, 273 F.3d at 1335-36). If a claim is
found to be moot, it must be dismissed because mootness is
jurisdictional. Al Najjar, 273 F.3d at 1336 (citing Fla. Ass'n
of Rehab. Facilities, Inc. v. Fla. Dep't of Health and Rehab.
Servs., 225 F.3d 1208, 1216-17 (llth Cir. 2000)).
14
An exception to the doctrine of mootness has been carved
out in cases where a defendant voluntarily ceases the challenged
conduct. United States v. Concentrated Phosphate Exp. Ass'n, 393
U.S. 199, 203, 89 S. Ct. 361, 364, 21 L. Ed. 2d 344 (1968). Under
this exception, voluntary cessation of challenged conduct, by
itself, will not make a case moot. Id.; see also Sec^ y of Lab.,
U.S. Dep^t of Lab, v. Burger King Corp., 955 F.2d 681, 684 {11th
Cir. 1992). Otherwise, defendants could avoid injunctive relief
by temporarily halting offensive conduct, only to resume the
same conduct at the termination of litigation. See City of
Mesquite v. Aladdin^s Castle, Inc., 455 U.S. 283, 289 n.lO, 102
S. Ct. 1070, 1074 n.lO, 71 L. Ed. 2d 152 (1985) (citing United
States V. W.T. Grant Co., 345 U.S. 629, 632, 73 S. Ct. 894, 897,
97 L. Ed. 1303 (1953)). Instead, a defendant normally ""bears a
"heavy burden' of demonstrating that his cessation of the
challenged conduct renders the controversy moot." Harrell v. The
Fla. Bar, 608 F.3d 1241, 1265 (11th Cir. 2010) (internal
citations omitted).
However, an additional layer is added to the analysis in
cases where the Government is the party claiming voluntary
cessation. In these cases, ""governmental entities and officials
have been given considerably more leeway than private parties in
the presumption that they are unlikely to resume illegal
activities." Coral Springs St. Sys., Inc. v. City of Sunrise,
15
371 F.3d 1320, 1328-29 (llth Cir. 2004). The stated reason for
this exception to the exception ^'is that Government actors are
more likely than private defendants ^to honor a professed
commitment to changed ways.' " Keohane v. Fla. Dep^t of Corrs.
Sec^ y, 952 F.3d 1257, 1267-68 (llth Cir. 2020) (quoting Troiano,
382 F.3d at 1283). Based on this reasoning, the Eleventh Circuit
"has consistently held that a challenge to a government policy
that has been unambiguously terminated will be moot in the
absence of some reasonable basis to believe that the policy will
be reinstated if the suit is terminated." Troiano, 382 F.3d at
1285.
The Eleventh Circuit has identified three broad factors to
which courts should look for guidance in these types of cases.
First, we ask whether the change in conduct resulted

from substantial deliberation or is merely an attempt
to manipulate our jurisdiction. Thus we will examine
the timing of the repeal, the procedures used in
enacting it, and any explanations independent of this
litigation which may have motivated it. Second, we ask
whether the government's decision to terminate the
challenged conduct was "unambiguous." This requires us
to consider whether the actions that have been taken
to allegedly moot the case reflect a rejection of the
challenged conduct that is both permanent and
complete. Third, we ask whether the government has
consistently maintained its commitment to the new
policy or legislative scheme.
Flanigan^ s Enter., Inc. of Ga. v. City of Sandy Springs, Ga.,
868 F.3d 1248, 1257 (en banc) (llth Cir. 2017) (citing Nat'1
Ass'n of Bds. of Pharmacy v. Bd. of Regents of the Univ. Sys. of
16
Ga., 633 F.3d 1297, 1310 (11th Cir. 2011)). ^MT]hese factors
should not be viewed as exclusive nor should any single factor
be viewed as dispositive . . . Keohane, 952 F.3d at 1268
(quoting Flanigan^ s, 868 F.3d at 1257). Instead, ""a mootness
finding should follow when the totality of the circumstances
persuades the court that there is no reasonable expectation that
the government entity will resume the challenged conduct."
Flaniqan^ s, 868 F.3d at 1257.
Applying these factors to the facts of this case, the Court
finds that there is a reasonable basis to believe that Defendants
will resume the challenged conduct of blocking Plaintiff in the
future. Considering the first factor—the Court has concerns
about both the timing and basis of Defendants' voluntary
cessation. In this case. Defendants only unblocked Plaintiff
after this action was filed. (Doc. 7, Attach. 1 at 10.) While
the timing of a government defendant's decision to halt
challenged conduct is certainly not dispositive, Keohane, 952
F.3d at 1269, ^'[cjourts tend to look askance at defendants who
claim to have changed their ways but only brought their conduct
to an end after suit was filed." Martin v. Houston, 226 F. Supp.
3d 1283, 1291 (collecting cases). Accordingly, the timing of
Defendants' cessation weighs against a finding of mootness.
Harrell, 608 F.3d at 1266 (''[C]essation that occurs late in the
17
game will make a court more skeptical of voluntary changes that
have been made.") (internal quotations omitted).
Defendants also provide no basis for their decision to
unblock Plaintiff. See Harrell, 608 F.3d at 1266 (explaining
courts ''look for a well-reasoned justification for the cessation
as evidence that the ceasing party intends to hold steady in its
revised (and presumably unobjectionable) course") (citing
Troiano, 382 F.3d at 1285). Instead, Defendants still dispute
whether Mayor Johnson's Facebook page is a public forum and,
therefore, whether blocking Plaintiff violates the First
Amendment. (Doc. 7, Attach. 1 at 7 n.l.) Consequently, the Court
is hard pressed to find a reason for Defendants' cessation other
than "simply to deprive the [C]ourt of jurisdiction," which
weighs against a finding of mootness.® Harrell, 608 F.3d 1241,
® The Court acknowledges that the Eleventh Circuit in recent

opinions has found that a government defendant's failure to admit
the illegality of challenged conduct is not dispositive in the
voluntary-cessation analysis. Keohane, 952 F.3d at 1269 (finding
defendant's continued dispute about constitutionality of
challenged practice "has little, if anything, to do with the
substantial-deliberation factor") (quotation and citation
omitted); Flanigan's 868 F.3d at 1262 ("Whether the City defended
the Ordinance and/or continues to believe it was constitutional
provides only weak evidence, if any, that its repeal was
ambiguous . . . ."). Yet, neither Keohane nor Flanigan's goes so
far as to say that a continued dispute over the legality of
challenged conduct is irrelevant. Rather, in both cases, the
Eleventh Circuit found the fact insignificant in light of
substantial evidence that the government defendant had
unambiguously terminated the challenged policy. Keohane, 952
F.3d at 1269 ("[E]ven if we were to give [the plaintiff] the
substantial-deliberation factor, it is but one among several,
18
at 1267 (quoting Nat^l Advert. Co. v. City of Miami, 402 F.3d
1329, 1333 (11th Cir. 2005)); see also ACLU v. The Fla. Bar, 999
F.2d 1486, 1495 (11th Cir. 1993) (finding ''the continued
assertion by the BAR and the JQC that [the challenged canon] is
constitutional" created a reasonable expectation that the cannon
would be enforced in the future). Moreover, Defendants have not
provided any description of the procedures that were followed in
making their decision to unblock Plaintiff. As a result, the
Court is unable to determine whether Defendants' decision was
the result of substantial deliberation, "and therefore likely to
endure." Harrell, 608 F.3d at 1268 (finding case was not mooted
by voluntary cessation, in part, because "the Board acted in
secrecy, meeting behind closed doors and, notably, failing to
disclose any basis for its decision" to cease the challenged
conduct); see also Nat'1 Ass'n of Bds. of Pharmacy, 633 F.3d at
1312 ("Nor does the cessation appear to be the result of any
'substantial deliberation' that would indicate a sincere change
in position rather than an attempt to avoid the issuance of an
injunction.").
and here the remaining considerations tip the scale decisively

in the other direction."); Flanigan's, 868 F.3d at 1262 (finding
government took clear steps to unambiguously terminate the
challenged ordinance, despite failing to admit its illegality).
Accordingly, the Court finds Defendants' continued dispute about
the legality of their conduct to be relevant to its mootness
analysis.
19
Moving to the second factor, the Court cannot conclude that
Defendants' termination of the challenged conduct was
"unambiguous." As Plaintiff highlights, the Defendants have not
adopted any official policy that would prevent Defendants from
blocking Plaintiff in the future. {Doc. 13 at 3.) Nor have
Defendants made affirmative declarations to the Court that
Defendants will not resume the challenged conduct in the future."^
Cf. Flanigan's, 868 F.3d at 1262 (finding unambiguous
termination where the defendant municipality expressly disavowed
any intent to reenact the challenged ordinance in court filings
and passed a resolution that expressly disavowed the challenged
ordinance or any similar regulation). In fact, the record is
devoid of any actions Defendants have taken which would convince
the Court that their cessation is unambiguous and, therefore,
likely to persist in the future. See Nat'1 Ass'n of Bds. of
Pharmacy, 633 F.3d at 1312 (finding that cancelling a class where
challenged conduct occurred was not unambiguous termination as
nothing prevented the defendants from teaching the class in the
future); cf., Keohane, 952 F.3d at 1269 (finding cessation was
In their motion. Defendants merely state that they have

unblocked Plaintiff and that Plaintiff has failed to
sufficiently allege that there is a reasonable chance Mayor
Johnson will block her in the future. (Doc. 7, Attach. 1 at 10.)
This statement is not an affirmative representation by the
Government that the challenged conduct has been permanently
terminated.
20
unambiguous due to defendant's replacement of the challenged
policy with a new protocol that would be difficult to rescind
and defendant's repeated representations to the court that the
old policy would not be reenacted).
Plaintiff has also presented evidence that Defendants have
blocked over two hundred other Facebook users, allegedly for
expressing a viewpoint critical of Mayor Johnson. (Doc. 4,
Attach. 1 at 17-41.) It is not clear whether Defendants have
unblocked these users or plan to unblock these users in the
future. This evidence suggests Defendants have not unambiguously
ceased the practice of blocking users based on their viewpoint
but, rather, have ^^merely decided not to enforce the [challenged
conduct] against [Plaintiff] in this case." Harrell, 608 F.3d
1268 (quotations omitted); cf. Graham v. Butterworth, 5 F.3d
496, 500 (11th Cir. 1993) (holding controversy was moot, in part,
because ^âppellees cannot enforce this statute against the
appellants or other judicial candidates engaging in the same
conduct"). Thus, the second factor also weighs against a finding
of mootness.
Finally, looking to the third factor, the Court is unable
to conclude that Defendants are committed to their decision to
cease the challenged conduct. Given the fact that Defendants
unblocked Plaintiff only recently, the Court is not in a position
to accurately predict whether Defendants will remain consistent
21
with this decision in the future. See Flaniqan^ s, 868 F.3d at
1262 (finding court was unable to adequately judge the
defendant's commitment to their new conduct due to the new
policy's recent adoption). Considering the three factors taken
together, the Court finds that it is reasonable to expect
Defendants will resume the challenged conduct of blocking
Plaintiff based on her viewpoint in the future. See also Rich v.
Sec., Fla. Dep't of Corrs., 716 F.3d 525, 532 (11th Cir. 2013)
(finding that prisoner's claims that government defendant
deprived him of kosher meals was not moot because the defendant
(1) did not change its policy until after litigation, (2)
continued to argue that the non-kosher meal plan was
constitutional, and (3) failed to promise that it would not
resume the practice following litigation). Accordingly, the
Court finds that Plaintiff's claims for injunctive relief are
not moot. As a result. Defendants' motion to dismiss is DENIED
to the extent Defendants seek to dismiss Plaintiff's remaining
claims for injunctive relief against the City as moot.
To be clear, the Court does not foreclose the possibility
that subsequent developments during this proceeding could render
Plaintiff's claims moot. Because a finding of mootness deprives
this Court of jurisdiction, in the event the City takes further
actions that it believes moot Plaintiff's equitable claim, the
City is DIRECTED to file a motion informing the Court of such
22
actions and seeking dismissal of the claim. See A1 Najjar, 273
F.3d at 1336 (citation omitted).
D. Plaintiff^s Claims Against Mayor Johnson in His
Individual Capacity Are Barred by Qualified Immunity
The Court will now consider Defendants' argument that Mayor
Johnson is entitled to qualified immunity from Plaintiff's
§ 1983 claims for damages. (Doc. 1, Attach. 1 at 5-6.) Qualified
immunity ^^gives government officials breathing room to make
reasonable but mistaken judgments about open legal questions."
Ashcroft V. al-Kidd, 563 U.S. 731, 743, 131 S. Ct. 2074, 2085,
179 L. Ed. 2d 1149 (2011). ""^When properly applied, it protects
all but the plainly incompetent or those who knowingly violate
the law." Id. (quotations omitted). If a government official is
sued in his individual capacity for performing a discretionary
function, qualified immunity protects the official from civil
liability unless his actions violated clearly established law.
Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 2738,
73 L. Ed. 2d 396 (1982).
Because it is undisputed that Mayor Johnson acted within
his discretionary authority,® Plaintiff ^^bear[s] the burden ^to
establish that [Mayor Johnson] violated [her] constitutional
® In their motion to dismiss. Defendants fail to argue that Mayor

Johnson acted within his discretionary authority; however.
Plaintiff concedes ^^that the Miscretionary' element for
qualified immunity is met" in this case. (Doc. 13 at 4 n.3.)
23
rights[] . . . and that the right involved was ^clearly
established' at the time of the time of the putative
misconduct.' " Leslie v. Hancock Cnty. Bd. of Educ., 720 F.3d
1338, 1345 (11th Cir. 2013) (quoting Terrell v. Smith, 668 F.3d
1244, 1250 (11th Cir. 2012)). In their motion. Defendants argue
that Mayor Johnson is entitled to qualified immunity because the
right to comment on a government official's social media page
was not clearly established at the time Mayor Johnson blocked
Plaintiff. (Doc. 7, Attach. 1 at 7.) Thus, the Court must
determine whether Plaintiff s complaint sufficiently alleges
violations of rights which were clearly established at the time
the violations occurred.^
"'The inquiry whether a constitutional violation is clearly
established is undertaken in light of the specific context of
9 For two reasons, the Court need not address the first prong of
the qualified immunity analysis—whether Plaintiff has
established that Mayor Johnson violated her constitutional
rights. First, Defendants, for the purposes of their motion to
dismiss, do not contest whether Plaintiff's complaint states a
plausible claim that Mayor Johnson violated Plaintiff's rights.
(Doc. 7, Attach. 1 at 7 n.l.) Second, because the Court finds
that Plaintiff's rights were not clearly established at the time
of the alleged misconduct, the Court is not required, at this
stage, to decide whether Mayor Johnson's conduct infringed upon
Plaintiff's constitutional rights. Pearson v. Callahan, 555 U.S.
223, 236, 129 S. Ct. 808, 818, 172 L. Ed. 2d 565 (2009) (^^The
judges of the district courts and the courts of appeals should
be permitted to exercise their sound discretion in deciding which
of the two prongs of the qualified immunity analysis should be
addressed first in light of the circumstances in the particular
case at hand.").
24
the case, not as a broad general proposition." Leslie, 720 F.3d
at 1345 (quotations omitted); see also Doe v. Braddy, 673 F.3d
1313, 1319 (11th Cir. 2012) ("'[Q] ualifled immunity's ^clearly
established' test does not operate at a high level of
generality."). ""^The relevant, dispositive inquiry in determining
whether a right is clearly established is whether it would be
clear to a reasonable [government official] that his conduct was
unlawful in the situation he confronted." Leslie, 720 F.3d at
1345 (quoting Loftus v. Clark-Moore, 690 F.3d 1200, 1204 (11th
Cir. 2012)). ''It is particularly difficult to overcome the
qualified immunity defense in the First Amendment context."
Gaines v. Wardynski, 871 F.3d 1203, 1210 (11th Cir. 2017)
(collecting cases); see, e.g., Hansen v. Soldenwagner, 19 F.3d
573, 576 (11th Cir. 1994) (observing that decisions in the First
Amendment context "tilt strongly in favor of immunity" and only
in the rarest of cases will it be found that a reasonable
official should have known that he violated clearly established
law); Dartland v. Metro. Dade Cnty., 866 F.2d 1321, 1323 (11th
Cir. 1989) (noting that only "the extraordinary case" will
survive qualified immunity in the First Amendment context).
The Eleventh Circuit employs two methods to determine
whether a reasonable government official would understand that
his conduct violated clearly established law. Carollo v. Boria,
833 F.3d 1322, 1333 (11th Cir. 2016) (citing Moore v. Pederson,
25
806 F.3d 1036, 1047 (11th Cir. 2015)). First, the Court must
examine whether ^^binding opinions from the United States Supreme
Court, the Eleventh Circuit Court of Appeals, and the highest
court in the state where the action is filed . . . gave [the
defendant] fair warning that his [action] was unconstitutional."
Id. at 1333 (quoting Merricks v. Adkisson, 785 F.3d 553, 559
(11th Cir. 2015)). Second, the Court will conduct the so-called
^ôbvious clarity" inquiry, which asks whether the defendant's
^^conduct lies so obviously at the very core of what [federal
law] prohibits that the unlawfulness of the conduct was readily
apparent to [the public official], notwithstanding the lack of
fact-specific case law on point." Id. (quotations omitted); see
also United States v. Cochran, 682 F. App'x 828, 839 (11th Cir.
2017). Under either method, the Court finds that Plaintiff has
failed to demonstrate her rights were clearly established at the
time she was blocked from Mayor Johnson's Facebook page.
i. Whether Binding Case Law Existed that Clearly Established
Plaintiff's Constitutional Rights
Applying the first method, the Court must determine whether
precedent existed in September 2019 that gave Mayor Johnson fair
warning and notice that blocking Plaintiff from his Facebook
page was unconstitutional. Carollo, 833 F.3d at 1333. ""^This
method does not require exact factual identity with a previously
decided case but rather demands that the unlawfulness of the
26
conduct must be apparent from the pre-existing law." Moore, 806
F.3d at 1047 (quoting Coffin v. Brandau, 642 F.3d 999, 1013 (11th
Cir. 2011)). Notably, the Court may not ^^consider just any case
law to decide if a right was clearly established." Merricks, 785
F.3d at 559. Only binding opinions from the United States Supreme
Court, the Eleventh Circuit Court of Appeals, and the Supreme
Court of Georgia can serve as precedent for this analysis. Id.
(citing McClish v. Nugent, 483 F.3d 1231, 1237 (11th Cir.2007)).
Plaintiff does not point to any Supreme Court, Eleventh
Circuit, or Georgia Supreme Court case in existence at the time
she was allegedly censored that addresses an individual's right
to comment or interact with a government run social media
account. Instead, Plaintiff relies on recent decisions from
other circuits in which courts have found government run social
media accounts to be public forums and subject to First Amendment
protections. (Doc. 13 at 9-12.) These cases, although
illustrative of the law's ongoing development in this area, are
irrelevant to the Court's analysis. See Jackson v. McCurry, 762
F. App'x 919, 928 (11th Cir. 2019) ("As we have repeatedly
explained, a district court case cannot clearly establish the
law for qualified immunity purposes. Nor can a decision from one
of our sister circuits do so.") (citations and quotations
omitted); Moore, 806 F.3d at 1048 n.l2 (holding that cases from
other jurisdictions "cannot clearly establish the law in this
27
Circuit") (citing McClish, 483 F.Sd at 1237)). As Defendants
highlight, this issue has been presented to the Eleventh Circuit
in only one instance, after the alleged misconduct occurred in
this case, and the Court of Appeals expressly declined to reach
the merits of the case. See Attwood v. demons, 818 F. App'x
863, 867 (11th Cir. 2020).
Perhaps recognizing the lack of binding precedent on point.
Plaintiff presents several Supreme Court and Eleventh Circuit
cases which disapprove of Government restrictions on speech in
various contexts. (Doc. 13 at 5-8.) However, these cases state
broad or unrelated legal principles which lack clear application
to the facts of this case. (Id. at 5); see, e.g.. Turner Broad.
Sys., Inc. V. FCC, 512 U.S. 622, 642, 114 S. Ct. 2445, 2459, 129
L. Ed. 2d 497 (1994) (explaining that content-based
discrimination is subject to strict scrutiny); Ashcroft v. Free
Speech Coal., 535 U.S. 234, 245-46, 122 S. Ct. 1389, 1399-1400,
152 L. Ed. 2d 403 (2002) (finding child pornography statute to
be overbroad content discrimination). To hold that these cases
clearly establish that Mayor Johnson's conduct on Facebook
violated the First Amendment would ignore the Supreme Court's
clear directive that courts are not to define clearly established
law ''at a high level of generality." al-Kidd, 563 U.S. at 742,
131 S. Ct. at 2085 ("The general proposition, for example, that
an unreasonable search or seizure violates the Fourth Amendment
28
is of little help in determining whether the violative nature of
particular conduct is clearly established.") (citations
omitted).
Plaintiff comes closest to providing factually similar
precedent with Packingham v. North Carolina, 137 S. Ct. 1730,
198 L. Ed. 2d 273 (2017). (Doc. 13 at 9.) In Packingham, the
Supreme Court held that a blanket prohibition against sex
offenders accessing social media websites violated the First
Amendment. Packingham, 137 S. Ct. at 1738. In its opinion, the
Supreme Court compared social media websites to more traditional
public forums of the past. Id. at 1735. However, Packingham
explicitly left open the possibility that more specific bars to
social media access could be constitutional. Id. at 1737. Most
importantly, Packingham does not address whether a government
official creates a public forum when he operates an account or
page on a social media website. In the absence of factually
similar precedent, the Court finds that Plaintiff's right to
interact with Mayor Johnson's social media page was not clearly
established by existing law at the time Plaintiff was allegedly
censored.
ii. Whether Mayor Johnson's Constitutional Violation Was
Clearly Obvious
Turning to the second method, the Court must consider
whether Mayor Johnson's conduct was so egregious that its
29
violation of the First Amendment was clearly obvious. In the
absence of the binding precedent, a broad principle of law will
clearly establish a constitutional violation as to a specific
set of facts only when ''êvery objectively reasonable government
official facing the circumstances would know that the official's
conduct did violate federal law when the official acted." Vinyard
V. Wilson, 311 F.3d 1340, 1351 (11th Cir. 2002). The Eleventh
Circuit has explained that ''obvious clarity" cases will be rare.
See, e.g.. Coffin, 642 F.3d at 1015 ("Our case law has made clear
that 'obvious clarity' cases will be rare.") (collecting cases);
see also Santamorena v. Ga. Mil. Coll., 147 F.3d 1337, 1340 n.6
(11th Cir. 1998) (explaining that "these exceptional cases
rarely arise").
Plaintiff argues this case falls under the "obvious
clarity" category because Mayor Johnson's conduct violated "long
established, core free speech principles." (Doc. 13 at 4.) In
support of this argument. Plaintiff points to the broad
constitutional prohibitions against viewpoint discrimination,
retaliation based on speech and grants of unbridled discretion.
(Id. at 6-8.) The Court agrees that these principles may
represent clearly established law in certain contexts. Rosenberg
V. Rector and Visitors of Univ. of Va., 515 U.S. 819, 829, 115
S. Ct. 2510, 2517, 132 L. Ed. 2d. 700 (1995) ("It is axiomatic
that the government may not regulate speech based on its
30
substantive content or the message it conveys.") (citation
omitted); Bennett v. Hendrix, 423 F.3d 1247, 1255-1256 (11th
Cir. 2005) (finding that the prohibition against First Amendment
retaliation is ^^settled law"). However, the Court disagrees with
the proposition that these broad principles, by themselves, made
the illegality of Mayor Johnson's conduct clearly obvious to any
reasonable government official.
The prohibitions against viewpoint discrimination. First
Amendment retaliation, and grants of unbridled discretion apply
only to government action. See Members of the City Council v.
Taxpayers for Vincent, 466 U.S. 789, 804, 104 S. Ct. 2118, 2128,
80 L. Ed. 2d 772 (1984) (''[T]he First Amendment forbids the
government to regulate speech in ways that favor some viewpoints
or ideas at the expense of others.") (emphasis added); Hendrix,
423 F.3d at 1255 (^'[T]he government may not retaliate against
citizens for the exercise of First Amendment rights . . . .")
(emphasis added); Forsyth Cnty., Ga. v. Nationalist Movement,
505 U.S. 123, 133, 112 S. Ct. 2395, 2403, 120 L. Ed. 2d 101
(1992) (''The First Amendment prohibits the vesting of such
unbridled discretion in a government official.") (emphasis
added). Yet, the novel question presented in social media
censorship cases is whether a government official is acting on
behalf of the government when they operate a social media
account. See, e.g.. Knight First Amend. Inst. at Columbia Univ.
31
V. Trump, 928 F.Sd 226, 234-235 (2nd. Cir. 2019) (analyzing
whether former President Trump acted as a private individual or
in a governmental capacity when he blocked users from his
official twitter account) cert, granted, judgment vacated as
moot sub nom. Biden v. Knight First Amend. Inst. at Columbia
Univ., 141 S. Ct. 1220 (2021); Davison v. Loudoun Cnty. Bd. of
Supervisors, No. I:16cv923, 2017 WL 1929406, at *8 (E.D. Va. May
10, 2017) ("When a social media website may be considered
^governmental' for purposes of the First Amendment,
notwithstanding that it is controlled privately by a
governmental official, appears to be a novel legal question.").
As the Second Circuit recently recognized, this question will
not always be answered affirmatively and will depend on a fact-
specific inquiry. Knight, 928 F.3d at 236 ("Of course, not every
social media account operated by a public official is a
government account. Whether First Amendment concerns are
triggered when a public official uses his account . . . will in
most instances be a fact-specific inquiry."). The Court finds
that the broad constitutional principles Plaintiff provided did
not clearly establish whether Mayor Johnson was acting on behalf
of the government when he blocked Plaintiff. Thus, the illegality
of Mayor Johnson's conduct would not have been clearly obvious
to a reasonable official.
32
Because there exists no binding precedent on point and
general constitutional principles do not govern this situation
with obvious clarity, the Court cannot conclude that Mayor
Johnson had fair warning that blocking Plaintiff from his
Facebook account was government action and, therefore,
unconstitutional. See Attwood v. demons. No.: 1:18cv38-MW/MJF,
2021 WL 1020449, at *14 (N.D. Fla. Mar. 17, 2021) (finding state
senator was entitled to qualified immunity in social media
censorship case because ^'neither the Supreme Court nor the
Eleventh Circuit . . . have ruled on a factually similar case"
and ""the line between private and state action is too blurred to
say that the Defendant's conduct violates Plaintiff's clearly
established right to speak on Defendant's social media
accounts"); see also Denno v. Sch. Bd. Of Volusia, Cnty., Fla.,
218 F.3d 1267, 1274 (11th Cir. 2000) r[I]t would be
inappropriate to hold government officials to a higher level of
knowledge and understanding of the legal landscape than [that]
displayed by judges whose everyday business it is to decipher
the meaning of judicial opinions.") (citation omitted).
Accordingly, Mayor Johnson is entitled to qualified immunity and
Defendants' motion to dismiss is GRANTED to the extent it
requests dismissal of Plaintiff's individual capacity claims
against Mayor Johnson.
33
E. Plaintiff Fails to Allege a Plausible Claim of Monell
Liability Against the City
Lastly, Defendants argue that the City cannot be held liable
for Plaintiff's § 1983 claims because City did not adopt an
official policy that authorized Mayor Johnson to block
Plaintiff's access to his Facebook page. (Doc. 7, Attach. 1 at
8-9.) In response. Plaintiff contends that the City has a custom
of permitting unconstitutional censorship on Mayor Johnson's
Facebook page and that Mayor Johnson acted as final policy maker
for the City when blocked Plaintiff, (Doc 13 at 15-16.)
Defendants are correct that a local government cannot be
held liable under § 1983 on a respondeat superior theory. Monell
V. Dep't of Soc. Servs., 436 U.S. 658, 691, 98 S. Ct. 2018, 2036,
56 L. Ed. 2d 611 (1978); see also Scala v. City of Winter Park,
116 F.3d 1396 (11th Cir. 1997). Instead, ''[t]o state a Monell
claim, a plaintiff must allege facts showing: Ml) that [her]
constitutional rights were violated; (2) that the municipality
had a custom or policy that constituted deliberate indifference
to that constitutional right; and (3) that the policy or custom
caused the violation.' " Marantes v. Miami-Dade Cnty., 649 F.
App'x 665, 672 (11th Cir. 2016) (quoting McDowell v. Brown, 392
F.3d 1283, 1289 (11th Cir. 2004)). As stated previously.
^0 The Court notes that Defendants do not address either of these

potential bases for Monell liability in their motion to dismiss.
34
Defendants do not contest whether Plaintiff has stated a
plausible claim that she suffered a violation of her
constitutional rights. (Doc. 7, Attach. 1 at 7 n.l.) Accordingly,
the issue is whether Plaintiff has established that her rights
were violated as a result of a City policy or custom.
To establish a custom, a plaintiff must establish that the
municipality engaged in ^â widespread practice that, although
not authorized by written law or express municipal policy, is so
permanent and well settled as to constitute a custom or usage
with the force of law." Brown v. City of Fort Lauderdale, 923
F.2d 1474, 1481 (11th Cir. 1991) (internal quotations omitted);
see also Sewell v. Town of Lake Hamilton, 117 F.Sd 488, 489 (11th
Cir. 1997). Accordingly, [d]emonstrating a single, isolated
constitutional violation does not suffice to demonstrate a
custom or practice." Torres-Bonilla v. City of Sweetwater, 805
F. App'x 839, 840 (11th Cir. 2020) (citing Okla. City v. Tuttle,
471 U.S. 808, 823-24, 105 S. Ct. 2427, 2436, 85 L. Ed. 2d 791
(1985)).
Even accepting Plaintiff's allegations as true, the Court
finds that the City did not have a custom of permitting Mayor
Johnson's unconstitutional censorship. To establish the
existence of a custom. Plaintiff alleges that Mayor Johnson
blocked over two hundred Facebook users in addition to Plaintiff.
(Doc. 13 at 17-18.) Consequently, Plaintiff argues, the City
35
permitted a widespread practice of censorship, rather than an
isolated incident. (Id. at 18.) Despite the quantity of users
that Mayor Johnson blocked, there is no evidence that the City
was aware or should have been aware of the Mayor's online
activity prior to the date that Plaintiff was blocked.
Accordingly, the Court cannot find that the City had a custom of
permitting a practice of which it had neither actual nor
constructive knowledge. See N.R. by Raqan v. Sch. Bd. of Okaloosa
Cnty., Fla., 418 F. Supp. 3d 957, 991 {N.D. Fla. 2019)
(^'Importantly, the municipality must have actual or constructive
knowledge of the widespread unconstitutional practice to form a
custom of indifference . . . .") (citing Depew v. City of St.
Marys, Ga., 787 F.2d 1496, 1499 (11th Cir. 1986); see also City
of Fort Lauderdale, 923 F.2d at 1481 (explaining that a practice
is deemed authorized by policy making officials when "they must
have known about it but failed to stop it").
Additionally, the Court finds that Plaintiff has not
alleged facts that, when accepted as true, establish Mayor
Johnson acted as a final policy maker for the City with respect
to censoring users on his official Facebook page. In the absence
of a custom or written policy, a plaintiff may still establish
municipal liability by demonstrating that the alleged
constitutional violation occurred as the result of actions taken
by a municipal decisionmaker who "possesses final authority to
36
establish municipal policy with respect to the action ordered."
Pembaur v. City of Cincinnati, 475 U.S. 469, 481, 106 3. Ct.
1292, 1299, 89 L. Ed. 2d 452 (1986). Final policy making
authority over a particular subject area ^^may vest in an official
whose decisions in an area are not subject to meaningful
administrative review." Willingham v. City of Valparaiso Fla.,
638 F. App'x 903, 907 (11th Cir. 2016) (citation omitted).
Whether an official is a final policymaker is a question of state
law that is resolvable at the motion-to-dismiss stage. Vandiver
V. Meriwether Cnty., Ga., 325 F. Supp. 3d 1321, 1329 (N.D. Ga.
2018) (quoting Owens v. Fulton Cnty., 877 F.2d 947, 950 (11th
Cir. 1989)); see also Mandel v. Doe, 888 F.2d 783, 793 (11th
Cir. 1989) (^'[T]he court should examine not only the relevant
positive law, including ordinances, rules and regulations, but
also the relevant customs and practices having the force of
law.").
As an initial matter. Plaintiff has identified no state or
local law that specifically vests Mayor Johnson with final
authority over the City's social media activities. Plaintiff
appears to allege that this authority is implied because Mayor
Johnson is recognized by Savannah's municipal code as the
^'official head of the city." (Doc. 13 at 19 (citing Savannah,
Ga., Mun. Code Div. I, Art. 2, § 2-201).) However, Savannah's
municipal code explicitly vests ^'all corporate rights, powers
37
and privileges and all duties, obligations and liabilities of
said City . . . in the Mayor and Aldermen . . . ." Savannah,
Ga., Mun. Code Div. I, Art. 2, § 2-101. Thus, to the extent the
City's municipal code grants final policymaking authority over
social media activities. Mayor Johnson does not possess this
authority by himself; but the authority rests collectively with
Mayor Johnson and Aldermen of the City. See Matthews v. Columbia
Cnty., 294 F.3d 1294, 1297 (11th Cir. 2002) (explaining Monell
liability will not attach based solely on the actions of one
commissioner when local law vested policy making authority in
the board of commissioners as whole).
Because policymaking authority rests with the Mayor and
Aldermen collectively, the City can be subject to liability only
if the Mayor and Aldermen acted with unconstitutional motive
respecting Plaintiff's censorship. Id. (^'An unconstitutional
motive on the part of one member of a three-member majority is
insufficient to impute an unconstitutional motive to the
commission as a whole.") (citing Mason v. Village of El Portal,
240 F.3d 1337, 1339 (11th Cir. 2001)). In this case. Plaintiff
has not alleged that any Alderman or City official of any type
participated in or was aware of Mayor Johnson's social media
activities. Accordingly, the Court does not find that Mayor
Johnson's individual decision to block plaintiff imposes Monell
liability on the City.
38
Plaintiff argues that Mayor Johnson's should be treated as
a final policy maker because the City municipal code provides no
mechanism for City officials to review Mayor Johnson's actions.
(Doc. 13 at 19.) However, the municipal code provides two
distinct avenues by which Mayor Johnson's actions could be
reviewed or overridden. First, the municipal code allows
citizens to file complaints against the Mayor for violations of
the City's Code of Ethics, which includes a duty that elected
officials ^^be independent, impartial, and responsible to the
people." Savannah, Ga., Mun. Code Div. I, Art. 2, §§ 2-106-1, 2-
106-12. These complaints are then investigated by the Board of
Ethics, comprised of three residents of the City, and violations
can result in reprimand or censure by majority vote of the Mayor
and Aldermen. Id. §§ 2-106-11, 2-106-16. Second, the municipal
code gives the City's Aldermen the ability to pass any ordinance
or resolution over the veto of Mayor Johnson by a two-thirds
vote. Id. § 2-202. Accordingly, the Court does not agree with
Plaintiff that Mayor Johnson's actions are entirely insulated
from meaningful review.
Lastly, Plaintiff argues that City officials effectively
rubberstamped Mayor Johnson's action by failing to exercise
meaningful review despite ^'over 200 instances of unlawful
censorship . . . ." (Doc. 13 at 20.) This argument fails because,
as discussed previously. Plaintiff has not alleged facts that
39
show City officials were aware of Mayor Johnson's actions.
Because there is no allegation that City officials knew of Mayor
Johnson's social media censorship at the time it occurred, it
follows that City officials could not have ratified or adopted
the censorship and the unconstitutional basis for it. See
Matthews, 294 F.3d at 1297 (^'County liability on the basis of
ratification exists when a subordinate public official makes an
unconstitutional decision and when that decision is then adopted
by someone who does have final policymaking authority. The final
policymaker, however, must ratify not only the decision itself,
but also the unconstitutional basis for it." (citations
omitted)). Accordingly, the Court finds Plaintiff has not stated
a plausible claim for Monell liability against the City, and
Defendants' motion to dismiss is GRANTED to the extent it
requests dismissal of Plaintiff's § 1983 claims against the City.
CONCLUSION
For the foregoing reasons. Defendants' Motion to Dismiss
(Doc. 7) is GRANTED IN PART and DENIED IN PART. As a result.
Plaintiff's claim requesting injunctive relief for third parties
is DISMISSED. Plaintiff's claims against Mayor Johnson in his
official and individual capacities are also DISMISSED.
Accordingly, Mayor Johnson is DISMISSED as a party in this case.
Additionally, Plaintiff's § 1983 claim against the City is
DISMISSED. However, except to the extent Plaintiff requests
40
injunctive relief for third parties. Plaintiff's equitable claim
against the City remains. If the City takes further actions to
moot Plaintiff's equitable claim, the City is DIRECTED to inform
the Court of such actions and seek dismissal of the claim.
SO ORDERED this î^'^day of September 2021.
WILLIAM T. MOORE, JR<

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
41

City of Savannah's Motion To Dismiss

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Case 4:20-cv-00165-WTM-CLR Document 20 Filed 09/20/21 Page 1 of 41

IN THE UNITED STATES DISTRICT COURT FOR

V. CASE NO. CV420-165

MAYOR VAN JOHNSON, in his

Before the Court is Defendant Mayor Van Johnson {^^Mayor

Johnson") and Defendant the City of Savannah's (the ''City")

Motion to Dismiss Plaintiff's Complaint. (Doc. 7.) For the

following reasons. Defendants' motion to dismiss is GRANTED IN

PART and DENIED IN PART.

This case involves a relatively new issue in the realm of

First Amendment law, namely, the extent to which a government

official can limit a private individual's speech on a social

media website. In May 2011, Mayor Johnson created an official

page on the social media platform Facebook. (Doc. 1 at 5 17;

Doc. 4, Attach. 1 at 3.) At the time. Mayor Johnson's title on

the Facebook page reflected his status as an alderman for the

City. (Doc. 4, Attach. 1 at 3.) Subsequently, Mayor Johnson

changed the title of the page to reflect his position as the

Mayor of the City.^ (Doc. 1 at SI 18; Doc. 4, Attach. 1 at 3.)

The "About" section of the page lists contact information for

of Savannah, GA." (Doc. 4, Attach. 1 at 4.) Mayor Johnson's page

verified his ownership of the page as a public figure. (Doc. 1

at SI 23; Doc. 4, Attach. 1 at 5.) At the time Plaintiff filed

her complaint, approximately 21,000 Facebook users "liked" and

27,000 Facebook users "followed" Mayor Johnson's Facebook page.

Mayor Johnson frequently posts on the page to document his

public activities as Mayor and to make announcements about City

policy. (Doc. 1 at SISI 24-26.) Facebook users can leave public

comments on Mayor Johnson's posts, and Mayor Johnson will

occasionally respond to the comments. (Id. at SI 27; Doc. 4,

Attach. 1 at 6-11.) As the owner of the Facebook page. Mayor

Johnson can delete comments or posts that a Facebook user makes

on his page. (Doc. 1 at SI 29.) Mayor Johnson can also block

2 The title of the Facebook page is 0MayorJohnsonSAV. (Doc. 4,

Facebook users from interacting with his page entirely. (Doc. 1

at SI 30.) By blocking a user. Mayor Johnson prevents that user

from commenting on his posts or ''liking" or "disliking" his

Plaintiff writes for the website A110nGeorgia.com on

matters of politics and local news. (Id. at SI 9.) Plaintiff is

active on social media, including Facebook, where she voices her

opinions and engages with elected officials. (Id. at SI 10.) In

September 2019, Plaintiff made a post on her personal Facebook

page criticizing Mayor Johnson and the City for a recent

resolution that supported stronger gun control. (Id. at SI 36;

Doc. 4, Attach. 1 at 12.) Using his official Facebook page. Mayor

Johnson commented on Plaintiff s post and defended his stance on

the Second Amendment. (Doc. 4, Attach. 1 at 12.) Mayor Johnson

then banned Plaintiff from interacting with his Facebook page.

(Doc. 1 at SI 39.) Because she was banned. Plaintiff was blocked

from posting, liking and commenting on Mayor Johnson's page.^

3 During the pendency of this action. Defendants unblocked

After being blocked. Plaintiff and another individual

submitted a joint Open Records Act request to the City seeking

information about Mayor Johnson's Facebook page and the number

f 45.) The City's response shows that, as of April 28, 2020,

interacting with his official page. (Id. at SI 46; Doc. 4, Attach.

1 at 17-41.) Plaintiff alleges Mayor Johnson blocked these users

solely because they criticized his political viewpoint. (Id. at

On July 24, 2020, Plaintiff brought this action for damages

and equitable relief under 42 U.S.C. § 1983 and 28 U.S.C. § 2201

Fourteenth Amendments when Mayor Johnson restricted her access

to the Mayor's official Facebook page.^ (Doc. 1 at 1.) Plaintiff

seeks relief in the form of (1) a declaration that Defendants'