Davis v. Bayless

                  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this opinion should not be published and is not precedent except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.