Moulton v. Gjerde

Background

Brandy Moulton alleged that, in February 2020, Dan Gjerde banned her from speaking on a Facebook page set up for constituents to interact with him and each other about his actions as a local government official. She alleged that the ban occurred shortly after she posted concerns about Gjerde’s job performance. Gjerde was identified as a county supervisor, and Moulton sued him only in his official capacity as a supervisor for the County of Mendocino.

Moulton asserted three claims under 42 U.S.C. § 1983: First Amendment viewpoint discrimination and retaliation, Fourteenth Amendment due process, and Fourteenth Amendment equal protection. She sought declaratory and injunctive relief. Gjerde moved to dismiss the complaint.

Standing

The court treated Gjerde’s challenge to Moulton’s standing as a jurisdictional challenge under Federal Rule of Civil Procedure 12(b)(1). Because Moulton sought only declaratory and injunctive relief, she needed to allege facts showing a very significant possibility of future harm, not merely a past injury.

The complaint did not say whether Moulton still lacked full or partial access to Gjerde’s Facebook page when she filed it on April 8, 2020. The court rejected Moulton’s argument that it should assume the blocking continued simply because the complaint did not allege that it had stopped. The court also noted that she did not allege facts showing a real or immediate threat that Gjerde would ban her again. The court therefore concluded that the complaint was subject to dismissal for lack of standing.

Municipal liability

The court also addressed whether Moulton had alleged a basis for holding the County of Mendocino responsible under § 1983. An official-capacity suit is treated as a suit against the governmental entity, rather than against the official personally. A plaintiff suing a municipality under § 1983 must show that a municipal policy or custom caused the alleged injury.

Moulton argued that Gjerde had final policymaking authority over his Facebook page and that his decisions about the page therefore constituted official county policy. The court rejected that theory based on Ninth Circuit authority holding that, under California law, a single county supervisor does not have final authority to establish the county’s official policy. The court stated that county policy can be established only by a majority of the supervisors. Moulton had not alleged that the majority had adopted any policy concerning access to a supervisor’s Facebook page or any policy implicated by Gjerde’s alleged conduct.

Disposition

The court granted Gjerde’s motion to dismiss and dismissed the complaint for lack of standing and for failure to state facts supporting municipal liability. The court granted Moulton leave to file an amended complaint addressing those deficiencies by July 2, 2020. It vacated the scheduled June 19 hearing and continued the case-management conference from July 10 to September 25, 2020.