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February 15, 2000


The opinion of the court was delivered by: Joseph F. Anderson, Jr., District Judge.


This matter is before the court on motion of defendants John Justice Anderson and James Saleeby for summary judgment and, with consent of all parties, for determination by the court of any factual issues relating to whether these defendants are state actors. The state actor inquiry is critical to any determination of liability under plaintiff's sole remaining claim, which is asserted under 42 U.S.C. § 1983, as to the moving defendants.

Plaintiff alleges that defendants Saleeby and Anderson violated plaintiff's constitutional rights to equal protection under the Fourteenth Amendment by taking actions against plaintiff with the intent and to the effect of depriving her of equal access to educational opportunities at a state college. To support this claim, plaintiff must demonstrate, inter alia, that these defendants were "state actors" for purposes of imposing liability under 42 U.S.C. § 1983. This critical threshold issue presents a novel question.

The facts relevant to the state actor issue are largely undisputed. However, to the extent factual issues are presented, the parties have consented to resolution of the factual questions by this court. Milburn by Milburn v. Anne Arundel County DSS, 871 F.2d 474, 476 (4th Cir.), cert. denied, 493 U.S. 850, 110 S.Ct. 148, 107 L.Ed.2d 106 (1989) (state actor determination "depends on the facts of the case, as it must in each instance"). This order also confirms earlier oral rulings on these defendants' motions for summary judgment and provides further rulings on matters held under advisement.


This action is pursued by Jeanie Mentavlos, who was one of the first female students at The Citadel, a state supported institution of higher education in South Carolina.*fn1 Plaintiff initially alleged that a number of cadets and one army officer assigned to the school conspired to harass plaintiff and drive her from the school because of her gender. Plaintiff asserted claims against the individual defendants under both 42 U.S.C. § 1983 and 42 U.S.C. § 1985.

The case proceeded through extensive discovery. All defendants except for one defendant who is in default, Edward Bohm, moved for summary judgment as to all claims. These motions were fully briefed and argued. The court requested and received supplemental briefing to help clarify which allegations related to which parties. The court then heard supplemental arguments and made oral rulings as to a number of claims. The remaining allegations were taken under advisement.

In the course of hearing argument on the motions for summary judgment, the court allowed plaintiff to amend her complaint to allege that the individual cadet defendants were themselves state actors for purposes of imposing Section 1983 liability. Prior to that amendment, plaintiff's state actor allegations depended on proof that the cadet defendants acted in concert with one or more members of the college's faculty or staff, including a member of the armed services temporarily assigned to the college.

All claims except those asserted against defendants John Justice Anderson, James Saleeby, and Edward Bohm were resolved by settlement prior to any final ruling on the summary judgment motions.*fn2 The claims against defendant Bohm are not at issue here as he is in default.

The remaining claims against the remaining defendants were set for trial and a jury was selected. On plaintiff's motion and over defendants' objections, the court subsequently dismissed the jury so that the newly-raised state actor theory could first be addressed. The decision to release the jury rested, in part, on all parties' consent to this court's resolution of any underlying factual questions on the state actor issue.

During, or shortly prior to, the hearing on the state actor issue, plaintiff withdrew her allegations under Section 1985, her allegations of violation of due process under Section 1983, and her claims of a Section 1983 conspiracy. Therefore, the only claims remaining against defendants Anderson and Saleeby are based on Section 1983 and allege violation of plaintiff's Fourteenth Amendment right to equal protection of the laws.


Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). It is well established that summary judgment should be granted "only when it is clear that there is no dispute concerning either the facts of the controversy or the inferences to be drawn from those facts." Pulliam Inv. Co. v. Cameo Properties, 810 F.2d 1282, 1286 (4th Cir. 1987).

The party moving for summary judgment has the burden of showing the absence of a genuine issue of material fact, and the court must view the evidence before it and the inferences to be drawn therefrom in the light most favorable to the nonmoving party. United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962). When the defendant is the moving party and the plaintiff has the ultimate burden of proof on an issue, the defendant must identify the parts of the record that demonstrate the plaintiff lacks sufficient evidence. The nonmoving party, here the plaintiff, must then go beyond the pleadings and designate "specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e); see also Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

A party "cannot create a genuine issue of material fact through mere speculation or the building of one inference upon another." Beale v. Hardy, 769 F.2d 213, 214 (4th Cir. 1985). Therefore, "[m]ere unsupported speculation . . . is not enough to defeat a summary judgment motion." Ennis v. National Ass'n of Business & Educational Radio, Inc., 53 F.3d 55, 62 (4th Cir. 1995).


While defendants concede that some of the interactions between the parties occurred, there are significant differences as to the details of the events. However, because this matter is before the court on these defendants' motion for summary judgment, the court must view the record in the light most favorable to the plaintiff.*fn3

Plaintiff has produced evidence which, if believed, would show that Cadet Saleeby was involved in three instances of harassment or improper treatment of plaintiff:

1. The Fire Incident — Saleeby, together with Bohm, came into plaintiff's room in October 1996 and lit plaintiff's clothing on fire. The fire was first lit by Bohm. Plaintiff promptly put out the fire using her hands. After Saleeby commented that plaintiff did not have permission to move, Saleeby then directed Bohm to again set fire to plaintiff's clothes. Bohm did so. This time, plaintiff did not move. As the flames grew, defendant Saleeby used his foot to put out the fire. Plaintiff described the action of putting out the fire as kicking or brushing her with his foot. The kicks were apparently to plaintiff's waist area.*fn4 The force was adequate to knock plaintiff back, but not to knock her down or leave bruises. The fire did not cause any burns to plaintiff, but did burn a hole about the size of a tennis ball in her sweatshirt.
2. The Kicking Incidents — On one or more later occasions, defendant Saleeby kicked plaintiff in the legs. At least once, he did so after saying that plaintiff "likes to be kicked." None of these incidents left bruises on the plaintiff.
3. The Shorts Incidents — On one occasion fairly early in the school year, cadet Saleeby entered plaintiff's room wearing only non-uniform shorts and shower-type shoes. He did not have on a shirt. Plaintiff believed at the time that the shorts were boxer shorts (underwear) and she felt uncomfortable, although she did not believe that anything about the visit was sexual in nature. Defendant Saleeby subsequently produced an affidavit and photograph demonstrating that the shorts were gym shorts, rather than boxer shorts (underwear). Plaintiff has offered no contrary evidence of the actual nature of the shorts, as opposed to her perception at the time.*fn5

At a hearing set for oral ruling on the motion for summary judgment, plaintiff withdrew any claims that Saleeby should be held liable for events involving a second fire or making plaintiff sit on an upturned trash can (the so-called "naughty knob bucket" routine)*fn6 for an extended period of time. Both of these events involved cadet Bohm. There was no evidence offered to connect Saleeby to these events. There are no other viable claims against defendant Saleeby.*fn7

Plaintiff has produced evidence which, if believed, would show that Cadet Anderson was involved in three different instances of harassment or improper treatment of plaintiff:

1. The Cardboard Incident — Early in the school year, when correcting plaintiff for smiling when she was at attention, Anderson took plaintiff into another room and shut the door with only the two of them present. Anderson began ranting and raving at plaintiff, pushing cardboard into her face and chin. The incident left welts under plaintiff's chin that lasted for one or two days. During the incident, Anderson made crudely worded comments to the effect that he had been sloppy when he first came to The Citadel, but the experience whipped him into shape quickly and could do the same for plaintiff.*fn8 He also stated that even though his parents had taught him "not to hit girls," he would make an exception for plaintiff.
2. The Thanksgiving Drinking Incident — Cadet Anderson was involved in an incident in which plaintiff was disciplined by upperclassmen for coming in drunk just before the Thanksgiving break. Anderson's involvement was limited to stopping plaintiff and a female classmate and sending them to the company commander's room. Plaintiff alleges that this limited involvement is actionable because Anderson treated the two female cadets differently than two male classmates based on gender differences rather than on differences in behavior. Plaintiff's testimony has varied as to the details of this incident, and it is not clear from the record whether plaintiff was with the male cadets when she was stopped or whether the circumstances differed between them such that, even if the four freshmen were together, Anderson had no reason to stop the males.
3. The Threats of Physical Violence — Anderson made threatening statements to plaintiff at various times, including statements that he would physically harm or kill plaintiff or her brother, who was an upperclass cadet at The Citadel.
  In addition to the above allegations, plaintiff had alleged that Anderson went into plaintiff's room with other upperclassmen when plaintiff was not present, opened her underwear drawer, and made comments regarding the relative breast sizes of plaintiff and her roommate. Plaintiff offered only hearsay testimony that the event occurred. This court, therefore, orally granted summary judgment on this allegation for lack of any admissible evidence.

In each of the preceding incidents, plaintiff alleged that defendants used their authority as upperclassmen to some degree. That is, they relied on the basic power of an upperclassman to direct the activities of freshmen and to require the freshmen to stand at attention. However, the events alleged all violate official written school policy. The relevant rules and policies are discussed in detail below.

As plaintiff acknowledged in her various depositions, she was aware that the upperclassmen were engaging in prohibited activities in each instance.*fn9 Plaintiff reported some of these incidents at the time they occurred (the Anderson cardboard and Saleeby "boxer shorts" incidents). In most cases, however, she did not report the incidents until just before she withdrew from the school in December 1996. Plaintiff asserts that she did not report most incidents of alleged harassment for fear that defendants and other upperclassmen would retaliate by increasing their harassment of plaintiff. There is evidence in the record from which a jury could conclude that this concern was reasonable. Plaintiff also believed that the punishment previously dispensed for the incidents she reported had been inadequate.

The school disciplined Anderson for the cardboard incident by restricting him to campus for some period of time and by requiring him to "walk tours."*fn10 Cadets, including Saleeby, were reminded of the proper rules of attire after plaintiff reported that Saleeby had come into her room clad only in shorts.

Plaintiff's later reports of harassment or hazing by Saleeby and Anderson and other students resulted in significant investigations and punishments by the school. A number of cadets, including these defendants, were effectively placed on house arrest during the investigations. Defendant Saleeby faced a commandant's board and was suspended from the school for one year. Defendant Anderson resigned from The Citadel rather than face a commandant's board. His resignation precludes his return to the school.

Gender Motive Evidence

During the first oral argument on the summary judgment motions of numerous parties, it became clear to this court that the various allegations against the numerous defendants were not adequately delineated. The court, therefore, asked plaintiff to submit an outline which, inter alia, individually described each of her allegations of harassment at The Citadel and explained what evidence connected each defendant to any given allegation. The court also requested a specification of all evidence showing gender-based motivation on a defendant-by-defendant basis.

Plaintiff subsequently filed a detailed chart summarizing this information and attaching all supporting evidence. In these submissions, plaintiff primarily relied on a single short and general statement from her own deposition to support her suggestion that she was harassed because of her gender. Specifically, in a deposition in a related matter, Mellette v. Jones, C/A 2:93-488-2 (D.S.C.), plaintiff testified that a number of cadets told her she "didn't belong" at The Citadel. Pltf Chart, Exhibit 10C (Pltf depos (Mellette) at 179). The cadets listed included "Batson, Amhaus, Spruills, Anderson, [and] Bohm." Id. While it may be debatable whether such a generic statement is adequate evidence of gender bias, this court has presumed, for present purposes, that it is.

There is at least some suggestion of other animus evidence as to Anderson. According to an FBI report of a statement given by Anderson, he "was concerned at the beginning of the school year when he found out that female cadets would be allowed to attend The Citadel. Anderson was concerned that the females would disrupt the atmosphere of The Citadel. Anderson made it a point to ...

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