Scarborough v. Frederick Cnty. Sch. Bd.
580
517 F. Supp. 3d 569 (W.D. Va. 2021)
operations. But given the relative novelty of this
Twitter claim, and attendant constitutional
considerations, the court concludes that it is better
resolved after factual development, not at the
motion *580 to dismiss stage. The court will
therefore deny Defendants' motion to dismiss the
Twitter First Amendment claim as to Sovine and
Angelo.
plaintiff failed to allege that she was treated
differently from anyone else within the
jurisdictional reach of the policy). For purposes of
this analysis, "persons who are in all relevant
respects alike are ‘similarly situated.’ " Frye v.
Brunswick Cnty. Bd. of Educ. , 612 F. Supp. 2d
694, 706 (E.D.N.C. 2009) (quoting Nordlinger v.
Hahn , 505 U.S. 1, 10, 112 S.Ct. 2326, 120
L.Ed.2d 1 (1992) ).
c. Equal Protection Violation
Scarborough has failed to meet this threshold
requirement for an equal protection claim. Across
three iterations of her complaint, she has never
alleged any facts about other individuals engaging
in First Amendment activity on the social-media
platforms at issue, let alone that Defendants
treated any similarly situated social-media posters
differently. Scarborough argues in her opposition
that she has been treated differently from other
parents because they were not blocked on
Facebook. (See ECF No. 40 at 4.) But
Scarborough would have needed to allege that she
was treated differently from other parents who had
also posted critical comments on the FCPS
Facebook page. Scarborough never alleged
anything about any other parents in her Second
Amended Complaint. Without those allegations,
Scarborough's generalized and conclusory
assertion that Defendants' actions violated her
equal protection rights is simply not enough to
satisfy her burden of setting forth plausible,
particularized facts demonstrating unequal
treatment. Because Scarborough has failed to
plead plausible facts despite multiple opportunities
to bring this claim, the court will dismiss
Scarborough's equal protection claim with
prejudice.
As the final aspect of her first cause of action,
Scarborough alleges that Defendants collectively
violated the equal protection clause of the
Fourteenth Amendment "by blocking [her] and her
comments" from FCPS's Facebook page. (2d Am.
Compl. ¶ 26.) Defendants argue that, even
assuming the underlying allegations are true, they
fail to give rise to an equal protection claim. The
court agrees.
The Fourteenth Amendment of the Constitution
provides: "No state shall ... deny to any person
within its jurisdiction the equal protection of the
laws." U.S. Const. amend. XIV, § 1. "The equal
protection requirement does not take from the
States all power of classification, ... but keeps
governmental decisionmakers from treating
differently persons who are in all relevant respects
alike." Veney v. Wyche , 293 F.3d 726, 730 (4th
Cir. 2002) (internal quotation marks omitted).
The elements of an equal protection claim are well
settled. The plaintiff "must first demonstrate that
[s]he has been treated differently from others with
whom [s]he is similarly situated[,] and that the
unequal treatment was the result of intentional or
purposeful discrimination." Kolbe v. Hogan , 849
F.3d 114, 146 (4th Cir. 2017) (en banc) (quoting
Morrison v. Garraghty , 239 F.3d 648, 654 (4th
Cir. 2001) ). The plaintiff must accordingly "allege
facts which show that the defendants treated [her]
differently from others with whom she was
similarly situated." Mills v. City of Roanoke , 518
F. Supp. 2d 815, 822–23 (W.D. Va. 2007) (citing
Veney , 293 F.3d at 730–31 ) (granting a motion to
dismiss an equal protection claim because the
B. Count II: 42 U.S.C. § 1983 —
Violation of Due Process Clause
581
In Count II of her Second Amended Complaint,
Scarborough alleges that Defendants violated her
procedural due process *581 rights by deleting her
comments from the FCPS Facebook page and later
blocking her from that page without notice and an
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