Kelly v. Shrf Dept Sunflower

* 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this opinion should not be published and is not precedent except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.
United States Court of Appeals
Fifth Circuit
F I L E D
October 18, 2004
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 03-60999
_____________________
VAUGHN KELLY,
Plaintiff - Appellant,
versus
THE SHERIFF’S DEPARTMENT OF
SUNFLOWER COUNTY, MISSISSIPPI; ET AL.,
Defendants,
E. B. GRESHAM, Individually, and in
his capacity as an officer of the
Mississippi Public Safety Commission,
Defendant - Appellee.
__________________________________________________________________
Appeal from the United States District Court
for the Northern District of Mississippi
USDC No. 4:02-CV-213-PB
_________________________________________________________________
Before GARWOOD, JOLLY, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Plaintiff-Appellant Vaughn Kelly, proceeding pro se, brought
this suit against the Defendant-Appellee, E. B. Gresham,
individually and in his capacity as an officer of the Mississippi
Public Safety Commission (MPSC). Kelly alleges violations of 42
U.S.C. § 1983 and liability under various common law tort theories.

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Kelly, a commercial truck driver, claims that Gresham violated his
rights by (1) unlawfully stopping Kelly’s truck; (2) unlawfully
arresting Kelly for failure to maintain an updated log book; and
(3) unlawfully searching Kelly’s vehicle. With respect to
Gresham’s personal liability, the district court granted summary
judgment on the grounds of his qualified immunity. With respect to
Gresham’s liability in his official capacity, the district court
determined that Kelly’s claims are barred by the Eleventh
Amendment. Our review is de novo. See Cousin v. Small, 325 F.3d
627, 637 (5th Cir. 2003). Because we find no reversible error, the
decision of the district court is AFFIRMED.
Kelly challenges the district court’s finding that Gresham, in
his individual capacity, was entitled to qualified immunity against
federal law claims. Government officials performing discretionary
functions are protected from civil liability under the doctrine of
qualified immunity if their conduct violates no “clearly
established statutory or constitutional rights of which a
reasonable person would have known”. Harlow v. Fitzgerald, 457
U.S. 800, 818 (1982).
Kelly first claims that Gresham violated his Fourth Amendment
rights when he stopped Kelly’s truck without a warrant. We have
previously said that “persons who engage in pervasively regulated
industries have a diminished expectation of privacy.” United
States v. Blocker, 104 F.3d 720, 728 (5th Cir. 1997). We conclude

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that the district court was correct in concluding that commercial
trucking is a “pervasively regulated” industry and that Kelly’s
claims are therefore properly analyzed under New York v. Burger,
482 U.S. 691 (1987).
Burger requires, inter alia, that a statutory or regulatory
scheme authorizing the search of a pervasively regulated business
“provide[] a constitutionally adequate substitute for a warrant”.
Id. at 480. Kelly appears to argue that provisions of the
Mississippi Code authorizing inspection of motor vehicles by the
MPSC do not provide such a substitute because the inspection system
does not “limit the discretion of the inspecting officers”. United
States v. Fort, 248 F.3d 475 (5th Cir. 2001). He further argues
that the relevant statute, MISS. CODE ANN. § 77-7-16, does not grant
an officer the authority to stop a commercial trucker without
probable cause.
We can assume, arguendo, that Kelly’s arguments have some
merit and thus, that a question exists as to whether the
Mississippi statutory scheme passes muster under Burger. The
relevant question in this case as it presents the issue of
qualified immunity, is not whether Gresham’s stop actually
satisfies the requirements set forth in Burger, but whether his
actions violated Kelly’s “clearly established statutory or
constitutional rights.” Harlow, 457 U.S. 818. Kelly does not cite
any statute or decisional authority establishing the unlawfulness

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of Gresham’s stop. By contrast, Gresham can point to at least one
case wherein the Mississippi Court of Appeals upheld the legality
of random stops of commercial truckers. See Edwards v. State, 795
So. 2d 554 (Miss. Ct. App. 2001). Thus, Kelly has failed to show
that Gresham’s stop was not “objectively reasonable in light of the
legal rules clearly established at the time of the incident”.
Jones v. City of Jackson, 203 F.3d 875, 879 (5th Cir. 2000). As
such, we conclude, with respect to individual liability, that the
district court did not err in granting summary judgment based on
Gresham’s qualified immunity.
Kelly also contends that arresting him based on a violation of
49 C.F.R. § 395.8(k)(2) was unlawful. This regulation requires
commercial truck drivers to retain a record of duty status for the
previous seven days. Kelly argues that the regulation provides
only for civil penalties, not criminal sanctions. Kelly was also
charged under MISS. CODE ANN. § 77-7-16(1), which incorporates by
reference all federal DOT regulations into Mississippi law, and §
77-7-311(1), which states that “any person violating any provision
of this chapter ... shall be deemed guilty of a misdemeanor”.
Thus, Kelly’s conduct constituted criminal behavior. Gresham was
entitled to arrest Kelly for “even a very minor criminal offense
[committed] in his presence”. Atwater v. City of Lago Vista, 532
U.S. 318, 354 (2001). As such, Kelly’s claim of unlawful arrest is
without merit.

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Kelly’s claim that Gresham unlawfully searched the cab of his
truck is similarly meritless. Gresham’s search was permissible
under New York v. Belton, which held that “when a policeman has
made a lawful custodial arrest of the occupant of an automobile, he
may, as a contemporaneous incident of that arrest, search the
passenger compartment of that automobile.” 453 U.S. 454, 460
(1981). Thus, we conclude that, as to all three alleged
violations, the district court did not err in concluding that
Gresham had failed to show the violation of any clearly established
constitutional or statutory right, and in thus granting summary
judgment based on Gresham’s qualified immunity. See Jones, 203
F.3d at 879.
With respect to his claims against Gresham in his official
capacity, Kelly has waived the issue of Gresham’s Eleventh
Amendment immunity from suit by failing to address it in his
opening brief. See Yohey v. Collins, 985 F.2d 222, 225 (5th Cir.
1993). He has likewise waived any challenge to the district
court’s determination that Gresham was entitled to immunity under
MISS. CODE ANN. § 11-46-9 against Kelly’s state law tort claims.
Kelly’s sole remaining argument is that the district court
erred in not remanding his state law claims against Gresham in his
official capacity to state court. Kelly has failed to show that
the district court abused its discretion in exercising supplemental
jurisdiction over these state law claims. See Smith v. Amedisys,
Inc., 298 F.3d 434, 446 (5th Cir. 2002); 28 U.S.C. § 1367.

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The judgment of the district court is therefore
AFFIRMED.

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