Scarborough v. Frederick Cnty. Sch. Bd.
517 F. Supp. 3d 569 (W.D. Va. 2021)
and Edwards, the court's analysis must cease here.
The procedural due process claims against FCSB
and Edwards may accordingly proceed.
Supreme Court has held that a predeprivation
hearing was required where, for example,
government officials obtained an injunction
forbidding a political rally, ... does not mean that
such a hearing was required here, where a public
official banned a single individual from a
Facebook page for a period of 12 hours." (citation
omitted)). In a footnote, the Fourth Circuit
affirmed the district court's rejection of the
plaintiff's "proposed categorical rule." Davison ,
912 F.3d at 688 n.8.5
b. Sovine and Angelo
Regarding Sovine and Angelo, Defendants argue
that Scarborough "has affirmatively [pleaded]
facts which show that she received due process
through contact with FCPS'[s] counsel, after
which she obtained relief from the asserted actions
of Sovine and Angelo." (Id. at 10–11.) As such,
Defendants argue that the claim is "implausible on
its face." (Id. at 11.)
Resolution of this argument requires a more
nuanced analysis than Defendants' motion
suggests. The district court opinion in Davison v.
Loudon County Board of Supervisors is instructive
for this claim. The district court addressed the pro
se plaintiff's procedural due process claim after the
bench trial held in that case. There, the plaintiff
had been blocked from a government official's
Facebook page for approximately 12 hours.
Davison , 267 F. Supp. 3d at 706. Like
Scarborough's allegations in the Second Amended
Complaint, where she broadly states that the
Fourteenth Amendment "requires that the
government give ‘notice’ and an ‘opportunity to
be heard’ before taking any adverse action against
a citizen," (2d Am. Compl. ¶ 32 (emphasis
added)), the plaintiff in Davison also "flatly
asserted that due process always requires the
government to provide a hearing before imposing
a prior restraint on speech," Davison , 267 F.
Supp. 3d at 719 (first emphasis in original; second
emphasis added).
In Davison , the court rejected the plaintiff's
assertion that a hearing is always required and
explained that procedural due process is a flexible
concept requiring different protections depending
on the circumstances. Id. (citing Cafeteria & Rest.
Workers Union, Local 473 v. McElroy , 367 U.S.
886, 895, 81 S.Ct. 1743, 6 L.Ed.2d 1230 (1961) ;
Morrissey v. Brewer , 408 U.S. 471, 481, 92 S.Ct.
2593, 33 L.Ed.2d 484 (1972) ) ("The fact that the
5 Because Davison "abandoned that asserted
categorical rule on appeal," the Fourth
Circuit declined to further consider the
plaintiff's procedural due process claim.
See id.
583
The court then examined the Supreme Court's
balancing test for procedural due process claims: "
(1) the nature of the private interest that will be
affected, (2) the comparative risk of an erroneous
deprivation of that interest with and without
additional or substitute procedural safeguards, and
(3) the nature and magnitude of any countervailing
interest in not providing additional or substitute
procedural requirement[s]." Davison , 267 F.
Supp. 3d at 720 (internal quotation marks omitted)
(quoting *583 Turner v. Rogers , 564 U.S. 431,
444–45, 131 S.Ct. 2507, 180 L.Ed.2d 452 (2011) ;
Mathews v. Eldridge , 424 U.S. 319, 335, 96 S.Ct.
893, 47 L.Ed.2d 18 (1976) ).
In applying the above analysis, the court first
found that the plaintiff's cognizable First
Amendment interest in commenting on a
government Facebook page was "relatively weak."
Id. at 720–21. Second, the court weighed the
comparative risk of erroneous deprivations with
and without additional predeprivation safeguards.
Id. at 721. The plaintiff in that case, like
Scarborough, wanted notice that a comment was
"targeted and under review." Id. The court held:
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