UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

DEBORAH ANN CARBONI,

Plaintiff-Appellant,

v.

J. BLAIR MELDRUM, D.V.M, Ph.D.;

No. 96-1236

D. PHILLIP SPONENBERG, D.V.M.,

Ph.D.; DON WALDRON, D.V.M.;

RENE ARMSTRONG,

Defendants-Appellees.

Appeal from the United States District Court

for the Western District of Virginia, at Roanoke.

James C. Turk, District Judge.

(CA-95-539-R)

Argued: October 29, 1996

Decided: December 6, 1996

Before HALL and LUTTIG, Circuit Judges, and BULLOCK,

Chief United States District Judge for the Middle District of

North Carolina, sitting by designation.

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Affirmed by unpublished per curiam opinion. Judge Hall wrote a concurring and dissenting opinion.

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COUNSEL

ARGUED: Marc L. Fleischaker, Jeanine Marie Worden, ARENT,

FOX, KINTNER, PLOTKIN & KAHN, Washington, D.C., for
Appellant. Kay Heidbreder, Associate General Counsel/Special Assistant Attorney General, VIRGINIA POLYTECHNIC INSTITUTE

AND STATE UNIVERSITY, Blacksburg, Virginia, for Appellees.

ON BRIEF: Barbara S. Wahl, ARENT, FOX, KINTNER, PLOTKIN

& KAHN, Washington, D.C., for Appellant. Jerry D. Cain, General

Counsel/Special Assistant Attorney General, VIRGINIA POLYTECHNIC INSTITUTE AND STATE UNIVERSITY, Blacksburg,

Virginia, for Appellees.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

Appellant-plaintiff Deborah Ann Carboni appeals from the summary judgment dismissal of her suit under 42 U.S.C.§ 1983 against

appellee-defendants Dr. J. Blair Meldrum, Dr. Don Waldron, Rene

Armstrong, and Dr. Philip Sponenberg. Finding no error in the district

court's opinion, we affirm.

Carboni, a graduate student at the Virginia-Maryland Regional

College of Veterinary Medicine at the Virginia Polytechnic Institute

("VPI") from 1991 to 1995, was dismissed from VPI in 1995 subsequent to the school's determination that she had cheated on an exam.

The defendants were all state officials and employees of VPI at the

time of Carboni's dismissal. The circumstances surrounding this dismissal, summarized in the district court's opinion, J.A. at 681-87,

form the basis of Carboni's lawsuit against the defendants.

Throughout her tenure at VPI, Carboni experienced significant academic difficulty. In 1995, she received a failing grade in a Urology

course taught by Waldron. Pursuant to school policy, Waldron, "at

[his] discretion," J.A. at 94, permitted Carboni to take a "single, special, course comprehensive" make-up examination, J.A. at 94. The

make-up examination took place on April 13, 1995.

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During the exam, Waldron began to suspect that Carboni was

cheating. His suspicion was based on information provided to him by

Dreama Webb, his secretary, who told him that, during the exam, she

had seen someone in one of the stalls in the women's bathroom with

papers arrayed around her feet, and that, shortly thereafter, she heard

papers rustling under Carboni's clothes as she observed Carboni

emerge from the bathroom.

Waldron reported his suspicions to Meldrum, the Associate Dean

of Academic Affairs at VPI. Meldrum confronted Carboni about the

suspected cheating, and Carboni denied that she had cheated. Meldrum then directed Webb and Rene Armstrong, Meldrum's administrative assistant, both of whom are women, to take Carboni to the

women's bathroom to search her.

In the women's bathroom, Armstrong stated to Carboni, "I will

need you to remove your top," J.A. at 309-10, in response to which

Carboni lifted her shirt over her head. Armstrong looked around Carboni's bra and chest and "touched around [her] bra." J.A. at 310.

Without being requested to do so, Carboni then removed her boots.

J.A. at 310. Armstrong then stated that she needed to check the inside

of Carboni's pants, J.A. at 311, 555, and so Carboni pulled her pants

down to her knees, J.A. at 311. After Carboni pulled her pants back

up, Armstrong told Carboni to turn her pockets inside out, and then

did a pat-down frisk of Carboni, "feel[ing] [Carboni's] legs and feel-

[ing] around her buttocks and the front of[her] to make sure [that she]

had no notes in [her] pockets." J.A. at 555. This search disclosed no

evidence of cheating.

In the meantime, Dr. Meldrum had discovered some notes that Carboni had placed inside a credenza in the exam room, and, afterwards,

he learned from Carboni that she had placed other notes in a sanitary

napkin disposal in the bathroom stall. Carboni, however, denied looking at any of these notes during the exam.

Carboni was not permitted to finish the exam, and was subsequently brought before the VPI Honor Board. The Honor Board found

Carboni guilty of cheating, and consequently placed her on a sixweek academic suspension. Waldron, however, refused to allow Carboni to take another Urology make-up examination, which caused her

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original failing grade to be re-instated. As a result, Carboni was dismissed from VPI not for cheating, but for receiving an "F" in the

Urology class.

Carboni then filed this lawsuit against the defendants. She alleged,

first, that the defendants violated her Fourth Amendment right to be

free from unreasonable searches and seizures when they searched her

in the women's bathroom, and second, that the defendants violated

her Fourteenth Amendment Due Process rights when they unilaterally

increased the punishment imposed by the Honor Board from a sixweek academic suspension to dismissal from VPI.

The district court granted summary judgment in favor of the defendants. The district court first held that the defendants were entitled to

qualified immunity on Carboni's Fourth Amendment claim because

they did not violate clearly established law. According to the district

court, the defendants were entitled to qualified immunity because "Dr.

Waldron and Dean Meldrum had every justified reason to suspect that

[Carboni] was cheating and the court cannot say that [they] were

unreasonable in believing that they could authorize the search of Ms.

Carboni's person under the peculiar factual circumstances this case

presents," J.A. at 693, and, additionally, because "they were reasonably led to believe that [Carboni's] ready acquiescence to the search

indicated her implied consent," J.A. at 696. The district court then

held that the defendants did not violate Carboni's Due Process rights

because school policies gave Waldron complete discretion, independent of the Honor Board, to refuse to allow Carboni to take a makeup examination.

Having carefully reviewed the record, briefs, and contentions of the

parties at oral argument, we can find no error in the district court

opinion. We therefore affirm the decision of the district court on the

opinion of that court.

AFFIRMED

HALL, Circuit Judge, concurring in part and dissenting in part:

I agree with the majority that the district court properly granted

summary judgment to Armstrong and Dr. Meldrum on Ms. Carboni's

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Fourth Amendment claim. Although the evidence reveals the defendants' actions to have bordered on the outrageous, I am compelled to

conclude that both Armstrong and Meldrum could have reasonably

believed that Carboni had consented to the search.

I respectfully dissent, however, from the majority's affirmance of

the district court's grant of summary judgment to Drs. Meldrum and

Waldron on the due process claim. As the district court acknowledged, Carboni has a colorable claim of a liberty or property interest

in obtaining a veterinary degree. See Regents of the Univ. of Michigan

v. Ewing, 474 U.S. 214, 222-23 (1985) (assuming, without deciding,

that the pursuit of a medical career was a constitutionally protected

interest).

The evidence in this case, viewed in the light most favorable to

Carboni, would permit a reasonable jury to conclude that Meldrum

and Waldron exerted improper influence and control over the veterinary school's disciplinary process. The defendants' actions may well

have rendered impotent the very mechanism emplaced by the school

to ensure that Carboni's rights were vindicated. If, as a result, Carboni

received, in effect, "no" process, we can hardly deem her to have been

accorded "due" process. I would remand this aspect of the due process

claim for trial.*

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*I concur in the majority's conclusion that Dr. Sponenberg was entitled to summary judgment on Carboni's claim that the Student and Faculty Board hearings themselves violated her due process rights.

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