UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
NO. 97-20280
Summary Calendar
LANA RYAN DAVIS, ET AL.,
LANA RYAN DAVIS,
Plaintiff-Appellant-Cross-Appellee
VERSUS
BOBBIE G. BAYLESS; BAYLESS & STOKES,
Defendants-Appellees-Cross-Appellants,
BURTA RHOADS RABORN,
Defendant-Appellant.
Appeals from the United States District Court
For the Southern District of Texas
(H-94-CV-444)
July 17, 1998
Before JOLLY, BENAVIDES and PARKER, Circuit Judges.
PER CURIAM:*
I.
Lana and Lori Davis filed this civil rights action claiming
that Burta Raborn and Bobbie G. Bayless and the law firm of Bayless
*
Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
& Stokes (collectively referred to hereinafter as “Bayless”)
violated their constitutional rights under color of state law,
while conducting a search of their residence for the non-exempt
assets of Dr. Gerald Johnson.2 Dr. Johnson was residing at the
Davis home at the time and consented to a limited search. Bayless
represented Mr. and Mrs. Earl Newsome, who were the beneficiaries
of an $11,360,000 malpractice judgment against Dr. Johnson. Raborn
was the court-appointed receiver of Dr. Johnson’s non-exempt assets
and had been using Bayless to perform various functions of the
receivership. Bayless actually conducted the search at the Davis
home, as Raborn was not present.
Raborn has since been properly relieved of liability, because
she enjoyed derivative, judicial immunity. See Davis I, 70 F.3d at
374. The district court refused to grant summary judgment for
Bayless on the basis of immunity, but sua sponte granted summary
judgment for her on the grounds that she did not act under color of
law. The Davises appealed the sua sponte summary judgment and
Bayless cross-appealed the denial of her motion for summary
judgment based on derivative, judicial immunity.
We need not reach the question of Bayless’s immunity or
whether she acted under color of state law, because, in any event,
no constitutional violation occurred. Bayless conducted the search
with consent. To the extent that Bayless may have exceeded the
2
For a complete exposition of the facts at the center of this
controversy, see this Court’s first opinion in this matter, Davis v.
Bayless, 70 F.3d 367 (5th Cir. 1995).
scope of that consent, any resulting constitutional violation was
so small as not to make out a federal case. Therefore, on this
alternative basis, we affirm.
AFFIRMED.