                              UNPUBLISHED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Vacated and remanded by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.
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 ∗ 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

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



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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




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