UNPUBLISHED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.

_________________________________________________________________

Affirmed by unpublished per curiam opinion. Judge Hall wrote a con-
curring 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 Assis-
tant 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 POLY-
TECHNIC INSTITUTE AND STATE UNIVERSITY, Blacksburg,
Virginia, for Appellees.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit.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 sum-
mary 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 subse-
quent 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 dis-
missal, 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 aca-
demic 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, spe-
cial, 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. Mel-
drum then directed Webb and Rene Armstrong, Meldrum's adminis-
trative 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 Car-
boni'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 Car-
boni 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 look-
ing at any of these notes during the exam.

Carboni was not permitted to finish the exam, and was subse-
quently brought before the VPI Honor Board. The Honor Board found
Carboni guilty of cheating, and consequently placed her on a six-
week academic suspension. Waldron, however, refused to allow Car-
boni to take another Urology make-up examination, which caused her

                    3
original failing grade to be re-instated. As a result, Carboni was dis-
missed 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 six-
week academic suspension to dismissal from VPI.

The district court granted summary judgment in favor of the defen-
dants. 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 reason-
ably 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, indepen-
dent of the Honor Board, to refuse to allow Carboni to take a make-
up 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

                     4
Fourth Amendment claim. Although the evidence reveals the defen-
dants' 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 acknowl-
edged, 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 veteri-
nary 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.*
_________________________________________________________________
*I concur in the majority's conclusion that Dr. Sponenberg was enti-
tled to summary judgment on Carboni's claim that the Student and Fac-
ulty Board hearings themselves violated her due process rights.

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