Scarborough v. Frederick Cnty. Sch. Bd.
appropriate where ... there is a pro se complaint
raising civil rights issues." Smith v. Smith , 589
F.3d 736, 738 (4th Cir. 2009) (alteration in
original) (citation omitted). Nevertheless, "
[p]rinciples requiring generous construction of pro
se complaints are not ... without limits." Beaudett
v. City of Hampton , 775 F.2d 1274, 1278 (4th Cir.
1985). "A pro se plaintiff still must allege facts
that state a cause of action." Bracey v. Buchanan ,
55 F. Supp. 2d 416, 421 (E.D. Va. 1999) (citation
omitted).
ANALYSIS
A. Count I: 42 U.S.C. § 1983 —First
Amendment and Equal Protection
Clause
576
Defendants argue that the first of Scarborough's
three § 1983 claims should be dismissed as to all
four defendants, but for different reasons. As to
the First Amendment claim premised on
Edwards's and FCSB's alleged acts of deleting her
critical comments and banning her from the FCPS
Facebook
page,
Defendants
argue
that
Scarborough has failed to allege enough facts—
including the specifics of the comments at issue—
to support this claim. Regarding the First
Amendment claim stemming from Sovine's and
Angelo's use of Twitter, Defendants argue, among
other things, that Scarborough has failed to
credibly allege that these school administrators
maintained these accounts in their official
capacities. Finally, defendants argue that the equal
protection aspect of Count I fails because
Scarborough's allegations fail to establish the
elements of an *576 equal protection claim. The
court will address each argument in turn.
a.
Alleged
First
Violation: Facebook
Amendment
Defendants argue that Scarborough's First
Amendment claims against FCSB and Edwards
are too vague and fail to state a claim.
Specifically,
Defendants
contend
that
Scarborough's allegations that FCSB and Edwards
517 F. Supp. 3d 569 (W.D. Va. 2021)
"censored" her are devoid of sufficient factual
detail to identify which act or acts of free speech
these two defendants allegedly abridged, including
"what comments or statements were made,
blocked, or deleted." (ECF No. 38 at 11.) As the
argument goes, neither the court nor Defendants
can evaluate whether Scarborough engaged in any
protected First Amendment activity.
Scarborough has adequately pleaded a First
Amendment claim against Edwards and FCSB. To
determine
whether
Defendants
violated
Scarborough's First Amendment rights, the court
must engage in a three-step analysis.3 First, the
court must determine whether the speech at issue
is "protected by the First Amendment." Cornelius
v. NAACP Legal Def. & Educ. Fund, Inc. , 473
U.S. 788, 797, 105 S.Ct. 3439, 87 L.Ed.2d 567
(1985). Assuming that it is, the court "must then
assess whether the putative forum is susceptible to
forum analysis at all." Knight First Amend. Inst. at
Columbia Univ. v. Trump , 302 F. Supp. 3d 541,
564 (S.D.N.Y. 2018). If forum analysis applies,
the court must lastly assess whether "the extent to
which the Government [has] control[led] access"
is permissible given the type of forum at issue.
Cornelius , 473 U.S. at 800, 105 S.Ct. 3439.
3 Scarborough also brings this claim under
Article I, section 12 of the Virginia
Constitution, which is Virginia's analogue
to the First Amendment of the federal
Constitution. Because the Supreme Court
of Virginia has held that Article I, section
12
of
the
"coextensive
provisions
Virginia
with
of
the
the
Constitution
free
federal
is
speech
First
Amendment," the court analyzes these
claims together. Elliott v. Commonwealth ,
267 Va. 464, 593 S.E.2d 263 (2004).
Scarborough easily satisfies the first element. As
alleged in her Second Amended Complaint, the
speech at issue consists of her Facebook
comments about FCPS's COVID-19 protocols.
This type of public expression—i.e. , "speech on
matters of public concern"—falls squarely within
4
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