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Moderator didn’t violate First Amendment rights

Virginia Lawyers Weekly//August 15, 2022

Moderator didn’t violate First Amendment rights

Virginia Lawyers Weekly//August 15, 2022//

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Where a professor moderating a microaggression panel allowed a student to speak for several minutes before moving on to another attendee’s question, her refusal to let him continue asking questions was not First Amendment retaliation.


This memorandum opinion provides the court’s reasoning on four motions argued at a hearing on June 15, 2022—two appeals of the magistrate judge’s decisions on plaintiff’s motions alleging that defendants spoliated evidence; one motion to dismiss under Rule 12(b)(6) filed by Sara K. Rasmussen and one motion for judgment on the pleadings filed by the UVA defendants under Rule 12(c).


Plaintiff alleges defendants failed to preserve electronically stored information, or ESI, from prior to the time plaintiff filed his pro se complaint. Defendants concede that they deleted the evidence in question pursuant to UVA’s policies but argue that they had no duty to preserve the evidence because they could not have reasonably anticipated this litigation until plaintiff filed his pro se complaint on Sept. 16, 2019.

In his motion before the magistrate judge, plaintiff alleged that there were seven “incidents and communications” between Nov. 19, 2018, and Dec. 4, 2018, where plaintiff purportedly made “implicit and explicit threats of litigation” sufficient to trigger defendants’ duty to preserve ESI. He has since expanded that number to 12 in his appeal.

Judge Hoppe held that none of these events triggered defendants’ duty to preserve evidence. His opinion was neither clearly erroneous nor contrary to law. Indeed, the duty to preserve evidence only arises when there have been “direct, specific threats of litigation.” There were no such direct, specific threats of litigation here, much less reasonable ones, given that plaintiff widely and vaguely threatened to sue many individuals during the period in question.

Plaintiff also alleges that defendants failed to preserve ESI after he filed his pro se

complaint. Judge Hoppe found that plaintiff failed to make a threshold showing that defendants failed to preserve ESI, because the ESI was not “lost.” The gist of the opinion was that it was unclear in the record whether defendants had deleted certain email accounts as part of UVA’s routine retention policy for departing employees, but even if they had (1) the emails in question were still retrievable from other email accounts and (2) it was not clear whether any other emails unretrievable from other email accounts even existed.

Judge Hoppe granted plaintiff a limited remedy by permitting plaintiff to question certain fact witnesses about the alleged spoliation in their depositions. But he declined to allow plaintiff to depose extra fact witnesses, holding that the request would exceed the bounds of permissible discovery under Rule 26(b). There is no clear error in that decision.


A plaintiff claiming First Amendment retaliation must demonstrate that: “(1) he engaged in protected First Amendment activity, (2) the defendants 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.”

First, Rasmussen’s alleged actions during the microaggression panel itself could not form the basis of a First Amendment retaliation claim. The microaggression panel was a limited public forum. An official overseeing a limited public forum “is justified in limiting its meeting to discussion of specified agenda items and in imposing reasonable restrictions to preserve civility and decorum necessary to further the forum’s purpose of conducting public business.” Rasmussen’s alleged actions easily satisfy that standard.

Further, the second amended complaint alleges no identifiable “retaliation” at the microaggression panel. Rasmussen allowing Bhattacharya to speak for several minutes before moving on to another attendee’s question could not possibly constitute retaliatory action under that standard. Nor can he make out a retaliation claim against Rasmussen for any events that occurred after the microaggression panel. The second amended complaint fails to allege any non-speculative facts suggesting that Rasmussen had any role in the proceedings that led to Bhattacharya’s dismissal from UVA.

UVA defendants

The UVA defendants argue that plaintiff improperly seeks money damages from state officials and that any such claims are barred by the Eleventh Amendment. Second, they argue that the plaintiff has failed to make any allegations relating to Timothy Longo. Third, they argue that the second amended complaint fails to plead that Nora Kern engaged in an adverse action against plaintiff in her individual capacity. The court agrees with all three arguments.

Plaintiff’s appeals of discovery orders denied. Rasmussen’s motion to dismiss granted. UVA defendants’ motion for judgment on the pleadings granted.

Bhattacharya v. Murray, Case No. 3:19-cv-54, July 21, 2022. WDVA at Charlottesville (Moon). VLW 022-3-304. 12 pp.

VLW 022-3-304

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