THOMAS E. JOHNSTON, CHIEF JUDGE
Before this Court is Defendant Richard Ojedas (Defendant) Motion to Dismiss. (ECF No. 6.) For the reasons explained more fully herein, Defendants motion is DENIED.
I. BACKGROUND
Plaintiff David Woolsey (Plaintiff) brought this action pursuant to 42 U.S.C. § 1983, alleging that Defendant violated Plaintiffs First Amendment rights by taking actions that led to the termination of Plaintiffs employment. (See ECF No. 1.) Plaintiff alleges that on April 20, 2018, while riding in the passenger seat of a vehicle owned by his employer, he filmed a video that criticized Defendants driving and posted it on his own personal Facebook profile. (Id. at 2-6.) Defendant, who was a sitting state senator and a candidate for United States Congress at the time, posted a response video later that night to his official OjedaForCongress Facebook page. (Id. at 6-10.) In the video, Defendant berated Plaintiff for supporting an opposing candidate in a previous race and called on Plaintiffs employer to fire Plaintiff for driving recklessly in a company vehicle. (Id. at 6-7.) Plaintiff further alleges that on April 21, 2018, Defendant called Plaintiffs employer and spoke with the owner. (Id. at 10.) The following Monday morning, April 23, 2018, the owner fired Plaintiff and stated that Plaintiff shouldnt have posted the video because he was interfering in a federal election. (Id. )
Plaintiff filed this action shortly thereafter. On June 4, 2018, Defendant filed his motion to dismiss. (ECF No. 6.) Plaintiff filed a timely response on June 14, 2018. (ECF No. 7.) Defendant filed a timely reply on June 21, 2018. (ECF No. 8.) As such, this matter is fully briefed and ripe for adjudication.
II. LEGAL STANDARD
In general, a pleading must include a short and plain statement of the claim showing that the pleader is entitled to relief. Fed. R. Civ. P. 8(a)(2) ; see McCleary-Evans v. Md. Dept of Transp., State Highway Admin. , 780 F.3d 582, 585 (4th Cir. 2015) (stating that this requirement exists to give the defendant fair notice of what the ... claim is and the grounds upon which it rests (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ) ). However, to withstand a motion to dismiss made pursuant to Federal Rule of Civil Procedure 12(b)(6), a complaint must plead enough facts to state a claim to relief that is plausible on its face. Wikimedia Found. v. Natl Sec. Agency , 857 F.3d 193, 208 (4th Cir. 2017) (quoting Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) ). A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. Iqbal , 556 U.S. at 678, 129 S.Ct. 1937. Stated another way, the factual allegations in the complaint must be sufficient to raise a right to relief above the speculative level. Woods v. City of Greensboro , 855 F.3d 639, 647 (4th Cir. 2017) (quoting Twombly , 550 U.S. at 555, 127 S.Ct. 1955 ). A complaint that alleges enough facts to satisfy the elements of a cause of action created by [the relevant] statute will survive a motion to dismiss. Id. at 648 (quoting McCleary-Evans , 780 F.3d at 585 ).
In evaluating the sufficiency of a complaint, this Court first identif[ies] pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth. Iqbal , 556 U.S. at 679, 129 S.Ct. 1937. This Court then assume[s] the[ ] veracity of the complaints well-pleaded factual allegations and determine[s] whether they plausibly give rise to an entitlement to relief. Id. Review of the complaint is a context-specific task that requires [this Court] to draw on its judicial experience and common sense. Id. [T]o satisfy the plausibility standard, a plaintiff is not required to plead factual allegations in great detail, but the allegations must contain sufficient factual heft to allow a court, drawing on judicial experience and common sense, to infer more than the mere possibility of that which is alleged. Nanni v. Aberdeen Marketplace, Inc. , 878 F.3d 447, 452 (4th Cir. 2017) (internal quotation marks omitted).
III. DISCUSSION
A. Acting Under Color of State Law
Defendant argues that Plaintiff fails to state a claim under 42 U.S.C. § 1983 because Defendant acted in his personal capacity, not in his capacity as a state senator, when posting the video to his Facebook page. (ECF No. 6 at 15-17.) To state a claim under § 1983, the complaint must plead specific facts demonstrating a violation of the plaintiffs constitutional rights that was committed by an individual acting under color of state law. Crosby v. City of Gastonia , 635 F.3d 634, 639 (4th Cir. 2011) (A federal civil rights claim based upon § 1983 has two essential elements: [A] plaintiff must allege the violation of a right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law. (quoting West v. Atkins , 487 U.S. 42, 48, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988) ) ). The defendant acts under color of state law if he is a state actor or ha[s] a sufficiently close relationship with state actors such that ... [he] is engaged in the states actions. Cox v. Duke Energy Inc. , 876 F.3d 625, 632 (4th Cir. 2017) (quoting DeBauche v. Trani , 191 F.3d 499, 506 (4th Cir. 1999) ). Put simply, the defendant acts under color of state law when he exercise[s] power possessed by virtue of state law and made possible only because [he] is clothed with the authority of state law. Davison v. Randall , 912 F.3d 666, 679 (4th Cir. 2019) (internal quotation marks omitted).
Of particular relevance to this case, § 1983includes within its scope apparently private actions which have a sufficiently close nexus with the State to be fairly treated as that of the State itself. Rossignol v. Voorhaar , 316 F.3d 516, 523 (4th Cir. 2003) (quoting Jackson v. Metro. Edison Co. , 419 U.S. 345, 351, 95 S.Ct. 449, 42 L.Ed.2d 477 (1974) ). In determining whether [a private partys] allegedly unconstitutional conduct is fairly attributable to the State, this Court first identif[ies] the specific conduct of which the plaintiff complains. Mentavlos v. Anderson , 249 F.3d 301, 311 (4th Cir. 2001) (quoting Am. Mfrs. Mut. Ins. Co. v. Sullivan , 526 U.S. 40, 50, 51, 119 S.Ct. 977, 143 L.Ed.2d 130 (1999) ). This Court then evaluates whether that conduct may reasonably be treated as that of the State itself. Rossignol , 316 F.3d at 523 ; Mentavlos , 249 F.3d at 311. [T]here is no specific formula for defining state action under this standard. Rossignol , 316 F.3d at 523 (internal quotation marks omitted). Rather, this Court evaluates the totality of the circumstances. Holly v. Scott , 434 F.3d 287, 292 (4th Cir. 2006) (internal quotation marks omitted); Rossignol , 316 F.3d at 523 n.1 (In the course of its state action inquiries, the Supreme Court has not opted for an objective or subjective test, but simply for a look at the totality of circumstances that might bear on the question of the nexus between the challenged action and the state.). If a defendants purportedly private actions are linked to events which rose out of his official status, the nexus between the two can play a role in establishing that he acted under color of state law. Rossignol , 316 F.3d at 524. In addition, [w]here the sole intention of a public official is to suppress speech critical of his conduct of official duties or fitness for public office, his actions are more fairly attributable to the state. Id.
The Fourth Circuits recent decision in Davison is instructive here. The defendant in Davison was a county politician who communicated with her constituents through an official Facebook page bearing her name. 912 F.3d at 673. She encouraged her constituents to use the Facebook page or her county government email address to converse with her about issues facing the county. Id. The plaintiff in Davison , an outspoken resident who was active in county politics, posted negative comments to the page. Id. at 675. The defendant deleted the comments and blocked plaintiffs account from the page for twelve hours. Id. at 675-76. Plaintiff sued, arguing a violation of his First Amendment rights. Id. at 676.
The Fourth Circuit held that the defendant acted under color of state law in administering her Facebook page and in banning the plaintiff from it. See id. at 681. The court explained that the defendant used the page to further her duties as a municipal official to provide[ ] information to the public about her ... official activities and solicit[ ] input from the public on policy issues. Id. at 680. The court further emphasized that the page was categorized as that of a government official, identified the defendant according to her official title, and provided an official email address in the contact information. Id. at 680-81. The court concluded, A private citizen could not have created and used the Chairs Facebook Page in such a manner. Id. at 681. The court also noted that the specific actions giving rise to [the plaintiffs] claim ... are linked to events which arose out of h[er] official status. Id. (internal quotation marks omitted).
In this case, Plaintiff alleges that Defendant posted the response video on his OjedaForCongress Facebook page, over which he exerts plenary control and which he uses as his official Facebook account, both as a member of the West Virginia Senate[ ] and as a candidate for [United States Congress]. (ECF No. 1 at 13.) Plaintiff further alleges that Defendant, like the defendant in Davison , uses his official Facebook page to share information with his constituents, as well as for campaign purposes. (Id. ) Defendant discusses political issues ... and invites discussion from members of the public, as well as promot[ing] and invit[ing] attendance at events related to [Defendants] work as a senator. (Id. ) He signs posts with WV Sen. Richard Ojeda and posts videos from the floor of the legislature. (Id. ) These allegations suggest that the OjedaForCongress Facebook page, like the page at issue in Davison , is an official Facebook page maintained by a government actor.
Plaintiff alleges that in the response video, Defendant accused Plaintiff of driving erratically in the company vehicle and stated that Plaintiff was mad at me because I beat his person in the last political race. (Id. at 6-7.) Defendant also mentioned Plaintiffs employer, stating that he hope[s] the people that are running [the company employing Plaintiff] ... sees [sic] this video and claiming that he is gonna go to [the company] and Im gonna let them know point blank ... that [Plaintiffs driving] is unacceptable. (Id. at 7.) Defendant posted this video not to his personal Facebook account, but to his official Facebook page with more than 50,000 followers. (Id. at 6, 14.) Many of these followers are Defendants constituents, with whom he communicates regularly via the page. (See id. at 13.) In fact, Plaintiffs employer has been in business in [Defendants] district for 70 years[ ] and did not want to suffer retaliation and economic harm due to Plaintiffs political expression. (Id. at 15.) Plaintiff further alleges that the day after the incident, Defendant spoke with the owner of the store that employed Plaintiff, and that Plaintiff was fired on the following business day. (Id. at 10.) When Plaintiff was fired, his employer told him that he was interfering in a federal election. (Id. ) These facts, which this Court must accept as true in ruling on Defendants motion to dismiss, support an inference that Defendant used his position as a state senator to pressure Plaintiffs employer to fire Plaintiff. See Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc. , 591 F.3d 250, 253 (4th Cir. 2009) (explaining that in ruling on a motion to dismiss, this Court must assume all [well-pled facts] to be true and draw all reasonable inferences in favor of the plaintiff).
In sum, under the facts pled in Plaintiffs complaint, the totality of the circumstances points to a conclusion that Defendant acted under color of state law in both posting the response video to his official Facebook page and making a phone call to Plaintiffs employer in an effort to have Plaintiff fired. Defendants motion to dismiss the complaint on this basis is therefore DENIED.
B. First Amendment Violation
Defendant also contends that Plaintiff fails to plead a First Amendment retaliation claim because the complaint does not allege threats or coercion by the government or describe the conversation between Defendant and Plaintiffs employer. To make out a § 1983 First Amendment retaliation claim, a plaintiff must allege that (1) he engaged in protected First Amendment activity, (2) the defendant took some action that adversely affected his First Amendment rights, and (3) there was a causal relationship between his protected activity and the defendants conduct. Martin v. Duffy , 858 F.3d 239, 249 (4th Cir. 2017) (alterations and internal quotation marks omitted). Defendants challenge to the complaint goes to the second and third elements. (See ECF No. 6 at 11-14; ECF No. 8.)
With respect to the second element, Plaintiff has adequately pled an adverse effect on his First Amendment rights. Determining whether a plaintiffs First Amendment rights were adversely affected by retaliatory conduct is a fact intensive inquiry that focuses on the status of the speaker, the status of the retaliator, the relationship between the speaker and the retaliator, and the nature of the retaliatory acts. Suarez Corp. Indus. v. McGraw , 202 F.3d 676, 686 (4th Cir. 2000). Generally, a plaintiff suffers adverse action if the defendants allegedly retaliatory conduct would likely deter a person of ordinary firmness from the exercise of First Amendment rights. Martin , 858 F.3d at 249. However, where, as here, a public officials alleged retaliation is in the nature of speech, in the absence of a threat, coercion, or intimidation intimating that punishment, sanction, or adverse regulatory action will imminently follow, such speech does not adversely affect a citizens First Amendment rights, even if defamatory. Suarez Corp. , 202 F.3d at 687. Such coercion is present in the facts of this case.
Defendants statements about Plaintiffs employer can reasonably be interpreted as intimating that [Defendant] would punish, sanction, or take an adverse action against Plaintiff or utilize [his] government power to silence Plaintiff. Id. at 689. Plaintiff alleges that Defendant threatened in the response video to go to [Plaintiffs employer] and ... let them know point blank ... that [Plaintiffs driving] is unacceptable. (ECF No. 1 at 7.) Plaintiff further alleges that Defendant did indeed contact Plaintiffs employer and that Plaintiff was fired when he arrived at work the next business day after the phone call. (Id. at 10.) When firing Plaintiff, the owner told Plaintiff that Plaintiff shouldnt have posted the video because he was interfering in a federal election. (Id. ) This alleged stated reason for firing Plaintiff implies that Defendant did not allow Plaintiffs employer to determine its own course of action, Suarez Corp. , 202 F.3d at 689, because Plaintiffs employer has been in business in [Defendants] district for 70 years[ ] and did not want to suffer retaliation and economic harm due to Plaintiffs political expression, (ECF No. 1 at 15). Taken together, these facts are sufficient to establish an adverse effect on Plaintiffs First Amendment rights at the motion to dismiss stage.
Plaintiff has also adequately pled a causal relationship between the response video, Defendants telephone call to Plaintiffs employer, and Plaintiffs termination. Defendant argues that Plaintiffs failure to plead any facts about the content of the phone call between Defendant and Plaintiffs employer is fatal to Plaintiffs claim. (ECF No. 6 at 14; ECF No. 8 at 4-5.) However, Plaintiff alleges that Defendant threatened to contact Plaintiffs employer in the response video posted to Defendants official Facebook page, that Defendant did in fact contact Plaintiffs employer the following day, and that Plaintiff was fired on the first business day after the phone call. (ECF No. 1 at 7, 10.) Given this alleged course of events, this Court need not speculate about the conversation between Defendant and Plaintiffs employer to understand what Plaintiff alleges Defendant said during the call.
Plaintiff further alleges that his employer has been in business in [Defendants] district for 70 years[ ] and did not want to suffer retaliation and economic harm due to Plaintiffs political expression, (id. at 15), and that Plaintiffs employer mentioned the video Plaintiff posted and the federal election in which Defendant was a candidate when firing Plaintiff, (id. at 10). Accepting these facts as true and construing all reasonable inferences in Plaintiffs favor, as this Court must do in ruling on the motion to dismiss, see Nemet Chevrolet , 591 F.3d at 253, Plaintiff has demonstrated that in response to the video Plaintiff posted, Defendant contacted Plaintiffs employer in order to pressure the owner to fire Plaintiff. Accordingly, Plaintiff has adequately pled a First Amendment violation, and Defendants motion to dismiss the complaint on this basis is DENIED.
IV. CONCLUSION
For the foregoing reasons, Defendants motion to dismiss, (ECF No. 6), is DENIED.
IT IS SO ORDERED.
The Court DIRECTS the Clerk to send a copy of this Order to counsel of record and any unrepresented party.
Plaintiff argues that he is not required to plead a threat, coercion, or intimidation, Suarez Corp. , 202 F.3d at 687, because Defendants response video and phone call concerned private information about Plaintiff. (See ECF No. 7 at 17-19.) However, the private information exception applies when the resulting injury caused by the disclosure of the information in retaliation for engaging in protected conduct is ... embarrassing, humiliating, or emotionally distressful. Suarez Corp. , 202 F.3d at 688. Complaints about an individuals driving do not reach that threshold.