Biedermann v. Ehrhart

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF GEORGIA

ATLANTA DIVISION

THOMAS BIEDERMANN,

Plaintiff,

v. CIVIL ACTION NO.

1:20-CV-01388-JPB

REPRESENTATIVE GINNY

EHRHART, in her individual and

official capacities,

Defendant.

ORDER

This matter comes before the Court on Representative Ginny Ehrhart’s

(“Defendant”) Renewed Motion to Dismiss Thomas Biedermann’s (“Plaintiff”)

Complaint [Doc. 29]. This Court finds as follows:

BACKGROUND

Plaintiff is a resident of Fulton County, Georgia, who is politically active in

his community. [Doc. 1, p. 2]. He engages in public debate on social media

platforms, including Facebook. Id. Defendant is a Representative in the Georgia

State House of Representatives. Id. at 3–4. Defendant maintains an official

Facebook page, “@GinnyEhrhartForGA,” which she created in December 2017.

Id. at 3. The Facebook page identifies Defendant as a State Representative, lists

her affiliation with the Republican Party and her status as a “Political Candidate,”

describes her political views and provides contact information for Defendant’s

position as a State Representative. Id. at 4. Defendant documents her legislative

and public activities on the Facebook page by posting about legislation at the

Georgia State House of Representatives, promoting political issues relevant to her

constituency and updating citizens about her official activities. Id. The Facebook

page also includes posts by other Facebook users “engaging in public debate on

matters of public concern,” particularly Defendant’s legislative proposals and

political opinions. Id. at 5. Defendant maintains the Facebook page and

encourages citizens to post comments on public issues and to use the platform to

communicate directly with her office. Id. at 4–5.

On October 30, 2019, Defendant posted a press release to the Facebook page

about her proposed bill to criminalize certain surgeries performed on transgender

children. Id. at 6. Plaintiff wrote a disapproving comment on that post, and his

comment was deleted. Id. at 7. Plaintiff posted multiple comments on the

Facebook page in the following days, but all of those comments were deleted, too.

Id. Plaintiff alleges that because Defendant disagreed with Plaintiff’s political

views, Defendant blocked him from posting on her official Facebook page or from

engaging through other means, such as commenting on posts or using Facebook’s

reaction feature. Id. at 6.

In a December 3, 2019 news segment, Defendant addressed Plaintiff’s

complaint about being blocked from the Facebook page by suggesting that Plaintiff

made threatening posts in the past. Id. at 8. On December 5, 2019, Plaintiff

emailed Defendant to express his concerns about being blocked from the Facebook

page and to request that his access be restored. Id. Plaintiff did not receive a

response then or when he followed up two months later. Id.

Defendant claims that comments are deleted for containing “profanity,

dishonesty, personal character attacks, or cyber stalking” and that posts are deleted

when they violate her written policy regarding social media usage. Id. at 8–9. The

Facebook page does not provide any written policy about the public’s engagement

with the page or about participation in discussions on Defendant’s official social

media platforms. Id. at 9. Nevertheless, Plaintiff alleges that he never made

threatening posts and never posted comments of a defamatory, pornographic,

obscene or violent nature. Id. Plaintiff continues to be blocked from posting,

commenting on or liking content or otherwise engaging on the Facebook page. Id.

Plaintiff filed this action on March 30, 2020.1 In the Complaint, Plaintiff

brought two counts under 42 U.S.C. § 1983: (1) retaliation for exercise of free

1 Plaintiff simultaneously filed a Motion for Preliminary Injunction but did not request an

immediate hearing on that motion. [Doc. 2, p. 2].

expression under the First Amendment to the United States Constitution, against

Defendant in her individual capacity (“Count One”), and (2) violation of Plaintiff’s

right to free speech under the First and Fourteenth Amendments, against Defendant

in her individual and official capacities (“Count Two”). Plaintiff also seeks

declaratory and injunctive relief against Defendant in her official capacity under 28

U.S.C. § 2201 (“Count Three”).

Defendant filed a Motion to Dismiss on June 22, 2020. [Doc. 10]. The

Court denied that motion on March 19, 2021, granting Defendant leave to renew

the motion after complying with the applicable page limits. [Doc. 28, p. 3].

Defendant filed the instant Renewed Motion to Dismiss on April 1, 2021, seeking

to dismiss the Complaint under Federal Rules of Civil Procedure 12(b)(1) and

12(b)(6). [Doc. 29]. Specifically, Defendant argues that Plaintiff failed to plead

facts showing an injury in fact sufficient for Article III standing or to allege a

plausible claim to relief.

ANALYSIS

A. Legal Standard

“At the motion to dismiss stage, all well-pleaded facts are accepted as true,

and the reasonable inferences therefrom are construed in the light most favorable

to the plaintiff.” Bryant v. Avado Brands, Inc., 187 F.3d 1271, 1273 n.1 (11th Cir.

1999). In determining whether this action should be dismissed for failure to state a

claim, Federal Rule of Civil Procedure 8(a)(2) provides that a pleading must

contain “a short and plain statement of the claim showing that the pleader is

entitled to relief.” Although detailed factual allegations are not necessarily

required, the pleading must contain more than “‘labels and conclusions’ or ‘a

formulaic recitation of the elements of a cause of action.’” Ashcroft v. Iqbal, 556

U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555

(2007)). Importantly, “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).

Challenges to subject matter jurisdiction under Rule 12(b)(1) of the Federal

Rules of Civil Procedure take two forms. A facial attack questions subject matter

jurisdiction based on the allegations in the complaint alone.2 Morrison v. Amway

Corp., 323 F.3d 920, 924 n.5 (11th Cir. 2003). “On a facial attack, a plaintiff is

afforded safeguards similar to those provided in opposing a Rule 12(b)(6)

motion—the court must consider the allegations of the complaint to be true.”

Lawrence v. Dunbar, 919 F.2d 1525, 1529 (11th Cir. 1990). This is not the case

for a factual attack, which contests jurisdiction “in fact, irrespective of the

2 Defendant brings a facial attack to the Court’s jurisdiction. [Doc. 29, p. 2].

pleadings. In resolving a factual attack, the district court may consider extrinsic

evidence such as testimony and affidavits.” Morrison, 323 F.3d at 925 (citation

omitted). Finally, “[t]he burden of proof on a motion to dismiss for lack of

subject-matter jurisdiction is on the party asserting jurisdiction.” Murphy v. Sec’y,

U.S. Dep’t of Army, 769 F. App’x 779, 782 (11th Cir. 2019).

B. Standing

Defendant’s first argument for the dismissal of Plaintiff’s claims is that he

failed to show an injury in fact and therefore lacks standing before this Court. To

satisfy standing requirements under Article III of the Constitution, a plaintiff must

show that he (1) suffered an injury in fact (2) that is fairly traceable to the

defendant’s challenged conduct and (3) that is likely to be redressed by a favorable

judicial decision. Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992). At the

pleading stage, the court must accept as true all material allegations and construe

them in favor of the complaining party. Corbett v. Transp. Sec. Admin., 930 F.3d

1225, 1228 (11th Cir. 2019). “[A] plaintiff must demonstrate standing for each

claim he seeks to press and for each form of relief that is sought.” LaCroix v. Lee

Cnty., 819 F. App’x 839, 841 (11th Cir. 2020) (alteration in original) (quoting

Davis v. Fed. Election Comm’n, 554 U.S. 724, 734 (2008)).

The injury-in-fact requirement of the standing doctrine “helps to ensure that

the plaintiff has a ‘personal stake in the outcome of the controversy.’” Susan B.

Anthony List v. Driehaus, 573 U.S. 149, 158 (2014) (quoting Warth v. Seldin, 422

U.S. 490, 498 (1975)). A plaintiff must show that the injury is “concrete and

particularized” and “actual or imminent, not ‘conjectural’ or ‘hypothetical.’” Id.

(quoting Lujan, 504 U.S. at 560). When seeking injunctive relief, a plaintiff must

“allege facts from which it appears there is a substantial likelihood that he will

suffer injury in the future.” LaCroix, 819 F. App’x at 841 (quoting Malowney v.

Fed. Collection Deposit Grp., 193 F.3d 1342, 1346 (11th Cir. 1999)). Finally,

courts apply the injury-in-fact requirement “most loosely where First Amendment

rights are involved, lest free speech be chilled even before the law or regulation is

enforced.” Harrell v. The Fla. Bar, 608 F.3d 1241, 1254 (11th Cir. 2010).

Plaintiff alleges that Defendant “censored” and “silenced” his speech by

“denying him the right to speak publicly on Defendant’s official State

Representative Ginny Ehrhart Facebook Page.” [Doc. 1, p. 11]. Specifically,

Plaintiff claims that because Defendant disagreed with the content of his speech,

Defendant deleted his comments, blocked him from engaging with the Facebook

page and prevented him from expressing opinions via Facebook’s reaction feature.

Finally, Plaintiff alleges that he suffered and continues to suffer loss of First

Amendment rights as a result of Defendant’s actions.

Defendant argues that Plaintiff’s allegations are insufficient to confer

standing. First, Defendant claims that Plaintiff is not “‘silenced’ or ‘censored’

from commenting on the Facebook page in a concrete or particularized sense” and

that Plaintiff set forth only an “abstract harm.” [Doc. 29-1, pp. 9, 10]. A

“particularized” injury must “affect the plaintiff in a personal and individual way.”

Gardner v. Mutz, 962 F.3d 1329, 1342 (11th Cir. 2020) (quoting Lujan, 504 U.S. at

560 n.1). Plaintiff alleges that he is personally blocked from engaging with the

Facebook page because of Defendant’s disagreement with his political views.

Accordingly, Plaintiff’s allegations show a particularized injury that affects him

personally and individually.

To be “concrete,” an injury “must be ‘de facto’; that is, it must actually

exist.” Spokeo, Inc. v. Robins, 578 U.S. 330, 340 (2016). However, “concrete” is

not “necessarily synonymous with ‘tangible.’ Although tangible injuries are

perhaps easier to recognize, [the United States Supreme Court has] confirmed in

many of [its] previous cases that intangible injuries can nevertheless be concrete.”

Id. Plaintiff’s inability to interact with the Facebook page may be “intangible,” but

it is a concrete harm nonetheless; according to the Complaint, Plaintiff cannot

comment on or react to content relating to issues of public concern on Defendant’s

official Facebook page. Plaintiff’s alleged injury is sufficiently concrete for

standing purposes.

Second, Defendant claims that banning a particular account from her

Facebook page “amounts at most to a trivial inconvenience on Plaintiff, which the

Constitution does not guard against.” [Doc. 29-1, p. 9]. According to Plaintiff,

Defendant infringed his First Amendment freedoms through “targeted censorship”

of his speech. [Doc. 1, p. 5]. Because Plaintiff alleges that Defendant violated his

First Amendment rights, the Court cannot agree with Defendant that Plaintiff

suffered only a “trivial inconvenience.” See Elrod v. Burns, 427 U.S. 347, 373

(1976) (“The loss of First Amendment freedoms, for even minimal periods of time,

unquestionably constitutes irreparable injury.”). Furthermore, because the Court

may “loosely” conduct the injury-in-fact inquiry in this context to avoid chilling

free speech, Harrell, 608 F.3d at 1254, even a “trivial inconvenience” would likely

be sufficient to confer standing.

Defendant next contends that Plaintiff’s allegations are a “fundamental

mischaracterization of the consequences of ‘banning’ a user profile on Facebook.”3

3 For example, Defendant claims that “nothing about [Defendant’s] banning a user

account controlled by Plaintiff inhibits him from sharing [Defendant’s] posts to his own

page or user profile, and voicing his opinion there in any manner he sees fit.” [Doc. 29-

1, p. 9]. However, Plaintiff’s alleged injury concerns his inability to engage with

Defendant’s Facebook page, and the Court must frame its analysis accordingly.

[Doc. 29-1, p. 9]. Defendant appears to ask this Court to interpret or characterize

the facts in the Complaint in a manner other than how they are presented. This, the

Court cannot do. Because Defendant brings a facial attack to jurisdiction, the

Court views the facts in the Complaint as true for the purposes of assessing

whether Plaintiff has standing. See Lawrence, 919 F.2d at 1529.

Finally, Defendant does not distinguish between Plaintiff’s standing to seek

damages and Plaintiff’s standing to seek equitable relief. Plaintiff alleges that he

continues to suffer the claimed harms because he remains blocked from the

Facebook page. As a “concerned” and “politically active” citizen who uses

Facebook to participate in public debate, Plaintiff will likely continue to seek the

opportunity to engage in discussion on Defendant’s official Facebook page. [Doc.

1, p. 2]. His allegations thus show “a sufficient likelihood that he will be affected

by the allegedly unlawful conduct in the future.” Wooden v. Bd. of Regents of

Univ. Sys. of Ga., 247 F.3d 1262, 1283 (11th Cir. 2001). Consequently, the Court

finds that Plaintiff alleged a sufficient injury in fact for Article III standing to seek

both damages and equitable relief. Defendant’s Renewed Motion to Dismiss the

Complaint for lack of standing is DENIED.

C. § 1983 Claims

Defendant’s second argument for dismissal is that she is entitled to qualified

immunity as to Plaintiff’s § 1983 claims (i.e., Counts One and Two).4 Plaintiff

brought Count One against Defendant in her individual capacity and Count Two

against Defendant in both her individual and official capacities. The Court will

address the claims brought against Defendant in her individual capacity before

turning to the official capacity claim.

1. Individual Capacity Claims

The defense of qualified immunity is ordinarily addressed at the summary

judgment stage of a case. Chesser v. Sparks, 248 F.3d 1117, 1121 (11th Cir.

2001). Nevertheless, the Eleventh Circuit Court of Appeals held that it may be

raised and considered on a motion to dismiss. St. George v. Pinellas Cnty., 285

F.3d 1334, 1337 (11th Cir. 2002). Because qualified immunity is a “‘defense not

only from liability, but also from suit, it is important for a court to ascertain the

4 Defendant “does not concede” that her actions meet the necessary elements for a § 1983

claim but instead assumes arguendo that they do. [Doc. 29-1, p. 11 n.2]. Although

Defendant argues in her Reply that she did not act under color of state law, see [Doc. 30,

pp. 4–6], she did not address this contention in the Renewed Motion to Dismiss. Because

“[i]t is well settled that a party cannot argue an issue in its reply brief that was not

preserved in its initial brief,” the Court considers this argument to be waived with respect

to the instant Motion. Tallahassee Mem’l Reg’l Med. Ctr. v. Bowen, 815 F.2d 1435,

1446 n.16 (11th Cir. 1987).

validity of a qualified immunity defense as early in the lawsuit as possible.’” Paez

v. Mulvey, 915 F.3d 1276, 1284 (11th Cir. 2019) (quoting Lee v. Ferraro, 284 F.3d

1188, 1194 (11th Cir. 2002)). But even though “‘qualified immunity questions

should be resolved at the earliest possible stage of litigation,’” the Supreme Court

“has not suggested that the procedural rules applicable to a motion to dismiss

should be abrogated.” Byrd v. City of Atlanta, 683 F. Supp. 804, 812 (N.D. Ga.

1988) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). When

considering the qualified immunity defense on a motion to dismiss, a court must

determine whether the “complaint fails to allege the violation of a clearly

established constitutional right.” Corbitt v. Vickers, 929 F.3d 1304, 1311 (11th

Cir. 2019) (quoting St. George, 285 F.3d at 1337).

Under the doctrine of qualified immunity, government officials are shielded

from liability when acting within the scope of their discretionary authority unless

they violated a plaintiff’s clearly established statutory or constitutional rights. Post

v. City of Fort Lauderdale, 7 F.3d 1552, 1556 (11th Cir. 1993), modified, 14 F.3d

583 (11th Cir. 1994). Once a defendant shows that his actions were within his

discretionary authority, “the burden shifts to the plaintiff to show that qualified

immunity is not appropriate.”5 Paez, 915 F.3d at 1284. A defendant is entitled to

qualified immunity unless the plaintiff shows that: (1) the defendant violated a

federal statutory or constitutional right and (2) the right was clearly established

when the violation occurred. Id. Importantly, “[b]oth elements of this test must be

present for an official to lose qualified immunity, and this two-pronged analysis

may be done in whatever order is deemed most appropriate for the case.” Rivera v.

Carvajal, 777 F. App’x 434, 437 (11th Cir. 2019) (quoting Brown v. City of

Huntsville, 608 F.3d 724, 734 (11th Cir. 2010)).

As to the first element, the Court must determine “whether [the] plaintiff’s

allegations, if true, establish a constitutional violation.” Keating v. City of Miami,

598 F.3d 753, 762 (11th Cir. 2010) (alteration in original) (quoting Hope v. Pelzer,

536 U.S. 730, 736 (2002)). The Court construes the facts alleged “‘in the light

most favorable to the party asserting the injury.’” Lee, 284 F.3d at 1194 (quoting

Saucier v. Katz, 533 U.S. 194, 201 (2001)).

For the second element, a plaintiff must show that the defendant violated a

statutory or constitutional right that was clearly established when the violation

occurred. The Eleventh Circuit uses multiple methods to determine whether a right

5 Plaintiff does not contest that Defendant acted within the scope of her discretionary

authority; therefore, the Court will not further discuss this component of the qualified

immunity analysis.

was clearly established. First, a plaintiff “can show that a materially similar case

has already been decided, giving notice to the [official].” Mercado v. City of

Orlando, 407 F.3d 1152, 1159 (11th Cir. 2005). A second method requires the

plaintiff to demonstrate that “a broad statement of principle within the

Constitution, statute, or case law . . . clearly establishes a constitutional right.”

Lewis v. City of W. Palm Beach, 561 F.3d 1288, 1292 (11th Cir. 2009); see also

Mercado, 407 F.3d at 1159. Finally, a narrow exception exists for “conduct so

egregious that a constitutional right was clearly violated, even in the total absence

of case law.” Lewis, 561 F.3d at 1292. Ultimately, “fair and clear notice to

government officials is the cornerstone of qualified immunity.” Bashir v.

Rockdale Cnty., 445 F.3d 1323, 1331 (11th Cir. 2006) (quoting Vinyard v. Wilson,

311 F.3d 1340, 1350 (11th Cir. 2002)).

Because Plaintiff does not contest that Defendant’s actions were within her

discretionary authority, the burden shifts to Plaintiff to show that Defendant

violated a clearly established right. Defendant argues that Plaintiff failed to do so.

The Court will conduct the qualified immunity inquiry in reverse order and begin

by considering whether the relevant law was clearly established when the offensive

conduct occurred.

Defendant argues that Plaintiff cannot show that the First Amendment

rights6 at issue were clearly established under any of the methods used by the

Eleventh Circuit. Plaintiff claims that his rights were clearly established by virtue

of “long established, core free speech principles.” [Doc. 16, p. 10]. The Court will

focus its analysis under this method by considering whether a broad principle of

law clearly established the First Amendment rights that Plaintiff alleges were

violated in this case.

In the absence of materially similar case law, “general statements of the law

are not inherently incapable of giving fair and clear warning” to a government

official that her actions are unconstitutional. United States v. Lanier, 520 U.S. 259,

271 (1997). For example, “a general constitutional rule already identified in the

decisional law may apply with obvious clarity to the specific conduct in question,”

even though that conduct has not previously been held unlawful. Id. In this case,

the “salient question” is “whether the state of the law in [2019] gave [Defendant]

fair warning” that her actions were unlawful. Hope, 536 U.S. at 741. Plaintiff

alleges that he held a clearly established constitutional right “to speak freely on

6 Plaintiff alleges that Defendant violated his right against retaliation for exercise of free

expression (Count One) and his right to free speech (Count Two), both under the First

Amendment. The Court refers to these rights collectively as the “First Amendment

rights” in this case.

topics relevant to the government in a government-established forum, and

particularly in an online social-media-based forum – of which all reasonable

government officials should have known.” [Doc. 1, p. 13]. The Court cannot

agree with this proposition.

Plaintiff points to several cases that he alleges show the clearly established

status of the First Amendment rights that Defendant purportedly violated. See

[Doc. 16, pp. 11–14]. While those cases involve the First Amendment rights at

issue here, they address those rights in too general a manner to have placed

Defendant on notice that her actions were unlawful. For example, none of the

cases involves the use of social media or a comparable platform by a government

official. Yet “[the clearly established] inquiry ‘must be undertaken in light of the

specific context of the case, not as a broad general proposition.’” Brosseau v.

Haugen, 543 U.S. 194, 198 (2004) (quoting Saucier, 533 U.S. at 201); see also

D’Aguanno v. Gallagher, 50 F.3d 877, 880 (11th Cir. 1995) (“To overcome the

qualified immunity defense, citing precedent which establishes a general right will

not do.”). “The contours of the right must be sufficiently clear that a reasonable

official would understand that what [s]he is doing violates that right,” Anderson v.

Creighton, 483 U.S. 635, 640 (1987), even when showing that a right is clearly

established by virtue of a “broad principle.” That is, “in the light of pre-existing

law,” the unconstitutionality of Defendant’s conduct “must be apparent.” Id.

The Court does not consider the unlawfulness of Defendant’s actions to be

“apparent” in this case. It is true that “officials can still be on notice that their

conduct violates established law even in novel factual circumstances.” Hope, 536

U.S. at 741. However, the law in this area—the intersection of First Amendment

rights and engagement with government officials’ social media pages—is unsettled

and continues to evolve. Because of this uncertainty, courts in this district and

others have upheld qualified immunity on the grounds that the rights at issue were

not clearly established. See Attwood v. Clemons, 526 F. Supp. 3d 1152, 1176

(N.D. Fla. 2021) (finding that the defendant was entitled to qualified immunity in

the absence of clearly established law regarding the plaintiff’s “right to speak on

[d]efendant’s social media accounts”); McKercher v. Morrison, No. 18CV1054,

2019 WL 1098935, at *4 (S.D. Cal. Mar. 8, 2019) (“The court concludes that the

issue of a public official’s private use of social media platforms like Facebook to

communicate with, among others, constituents is not well-settled, to say nothing of

‘clearly established.’”); Novak v. City of Parma, 932 F.3d 421, 434 (6th Cir. 2019)

(“No doubt, any right [the plaintiff] or the commenters may have to post or receive

comments [on Facebook] was not ‘beyond debate’ at the time the officers deleted

the comments.” (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011))).

Consequently, the Court does not believe that in 2019, the law was sufficiently

clear on the constitutionality of blocking a citizen from a government official’s

social media page to provide Defendant with notice that her conduct was unlawful.

Having concluded that the First Amendment rights at issue were not clearly

established, the Court need not address whether Plaintiff suffered a constitutional

violation. Rivera, 777 F. App’x at 437. The Renewed Motion to Dismiss Count

One in its entirety and Count Two against Defendant in her individual capacity is

GRANTED.

2. Official Capacity Claim

In Count Two, Plaintiff brought a § 1983 claim against Defendant in her

individual and official capacities for violating Plaintiff’s First Amendment right to

free speech. Government officials may invoke the qualified immunity defense

only if they are sued in their individual capacity. Young Apartments, Inc. v. Town

of Jupiter, 529 F.3d 1027, 1047 (11th Cir. 2008). Other than the defense of

qualified immunity, which does not apply in this instance, Defendant did not make

any arguments for the dismissal of Count Two against her in her official capacity.

As such, the Renewed Motion to Dismiss Count Two against Defendant in her

official capacity is DENIED.

D. Claim for Declaratory and Injunctive Relief

In Count Three, Plaintiff requests a declaration that Defendant’s censorship

of posts on the Facebook page that are critical of her and her policies is

unconstitutional and violates Plaintiff’s rights to freedom of speech under the First

and Fourteenth Amendments. Plaintiff also seeks injunctive relief requiring

Defendant to (1) cease censoring Plaintiff’s comments on the Facebook page, (2)

stop the practice of deleting comments and blocking posters without sufficient

standards and (3) restore Plaintiff’s posting privileges to the Facebook page.

Defendant moves to dismiss “all of Plaintiff’s claims against [her]” on the

grounds that she is entitled to qualified immunity. [Doc. 29-1, p. 25]. However, a

government official may assert the defense of qualified immunity only when she

faces liability for damages in her individual capacity. Ratliff v. DeKalb Cnty., 62

F.3d 338, 340 n.4 (11th Cir. 1995). “[Q]ualified immunity may not be effectively

asserted as a defense to a claim for declaratory or injunctive relief.” Id. As such,

Defendant may not assert qualified immunity as a defense to Plaintiff’s claims for

declaratory and injunctive relief. Because Defendant provided no other basis for

the dismissal of those claims, the Renewed Motion to Dismiss is DENIED with

respect to Count Three.

CONCLUSION

Defendant’s Renewed Motion to Dismiss [Doc. 29] is DENIED IN PART

and GRANTED IN PART. Count One of the Complaint is DISMISSED. Count

Two of the Complaint against Defendant in her individual capacity is

DISMISSED. Count Two against Defendant in her official capacity and Count

Three shall proceed.

SO ORDERED this 14th day of March, 2022.

OO? A

J.\P: BOULEE

United States District Judge

20