UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 10-1380

MICHAEL EUGENE TANN,

Plaintiff - Appellant,

v.

LUDWIKOSKI; GEORGE MATEJA,

Defendants - Appellees.

Appeal from the United States District Court for the District of 

Maryland, at Baltimore. Benson Everett Legg, District Judge. 

(1:10-cv-00612-BEL)

Submitted: August 2, 2010 Decided: August 18, 2010

Before DUNCAN, AGEE, and DAVIS, Circuit Judges.

Vacated and remanded by unpublished per curiam opinion.

Michael Eugene Tann, Appellant Pro Se. 

Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:

Michael Eugene Tann appeals the district court’s order 

summarily dismissing his 42 U.S.C. § 1983 (2006) complaint for 

failure to state a claim. In his complaint, Tann, a student at 

Baltimore County Community College, alleged that his professor, 

David Ludwikoski, treated him differently than white students 

regarding certain classroom and course policies. Specifically, 

Tann alleged that Ludwikoski maintained strict classroom 

policies and required students to sign a contract acknowledging 

these policies, but exceptions were made for white students 

regarding late class and homework assignments, while Tann was 

not given similar accommodations. In addition, Tann stated that

Ludwikoski gave a white student points for an incorrect answer, 

but refused to give Tann points for the same answer. Finally, 

Tann stated that George Mateja, the Assistant Dean for the 

College’s Science Department, discriminated against him by 

reinforcing and upholding Ludwikoski’s allegedly discriminatory 

decisions.

The district court found that neither Ludwikoski nor 

Mateja were state actors and their conduct was not fairly 

attributable to the State. It accordingly dismissed the 

complaint on this ground without requiring a responsive pleading 

from the defendants. We vacate the district court’s order and 

remand the case to the district court for further proceedings. 
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In order to state a claim under 42 U.S.C. § 1983, the 

plaintiff must allege that defendant violated “a right secured 

by the Constitution and laws of the United States,” and that the 

deprivation of that right “was committed by a person acting 

under color of state law.” West v. Atkins, 487 U.S. 42, 48-49 

(1988). There is no distinction between state action and action 

under color of state law. Lugar v. Edmondson Oil Co., 457 U.S. 

922, 930 (1982); United States v. Price, 383 U.S. 787, 794 n.7 

(1966). One acts under color of state law when he has exercised 

power “possessed by virtue of state law and made possible only 

because the wrongdoer is clothed with the authority of state 

law.” United States v. Classic, 313 U.S. 299, 326 (1941). 

“[S]tate employment is generally sufficient to render the 

defendant a state actor.” Lugar, 457 U.S. at 936 n.18; see

West, 487 U.S. at 50. 

We conclude that Ludwikoski and Mateja, as employees 

of a state public educational institution created by state law, 

are state actors. We also conclude that the district court’s

application of the Jackson∗

 ∗ Jackson v. Metro. Edison Co., 419 U.S. 345, 351 (1974).

test to determine whether Ludwikoski 

and Mateja acted under color of state law was inappropriate in 

the context of a public college setting. See Chalfant v. 

Wilmington Inst., 574 F.2d 739, 745 (3d Cir. 1978) (“We have 
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expressly rejected the application of the Jackson test, which 

was enunciated within the context of a private enterprise 

electric utility, to the analysis of state action in a public 

library, a university, or any other public educational 

institution.”). 

Accordingly, we vacate the district court’s order and 

remand the case to the district court for further proceedings. 

We deny Tann’s motion for appointment of counsel. We dispense 

with oral argument because the facts and legal contentions are 

adequately presented in the materials before the court and 

argument would not aid the decisional process. 

VACATED AND REMANDED