* Pursua nt to 5 T H C IR

. 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this opinion should not be published and is not precedent except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 5 TH C IR

. R. 47.5.4. United States Court of Appeals

Fifth Circuit



## FILED

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 Defen dant-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.2

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 Kell y’s vehicle. With respect to

Gresham’s personal liability, the distr ict 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 (5 th 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 “cl early

esta blished statutory or constitutional rights of which a

reasonable person would have known”. H arlow v. Fitzg erald , 457

U.S. 800, 818 (1982).

Kelly first claims that Gresham violated his Fourth Amendment

rights when h e 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.” U nited

States v. Blocker

, 104 F.3d 720, 728 (5 th Cir. 1997). We conclude3

that the district court was correct in concluding that commercial

trucking is a “pervasively regulated” industry and t hat Kelly’s

claims are therefor e properly analyzed under N ew York v. Burger

,

482 U.S. 691 (1987).

Burg er requires, i nter 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 auth orizing 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”. U nited

States v. Fort

, 248 F.3d 475 (5 t h Cir. 2001). He further argues

that the relevant statute, M ISS

. C ODE A NN

. § 77-7-16, does not grant

an officer the authority to stop a commercial trucker without

probable cause.

We can assum e, a rguendo

, 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 whet her his

actions violated Kelly’s “clearly established statutory or

constitutional rights.” H arlow

, 457 U.S. 818. Kelly does not cite

any statute or decisional authority establishing the unlawfulness4

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. S ee 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 rule s clearly established at the time of the incident”.

Jones v. City of Jackson

, 203 F.3d 875, 879 (5 th 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

p revious seven days. Kelly argues that the regulation provides

only for civil penalties, not criminal sanctions. Kelly was also

charged under M ISS

. C O DE A NN

. § 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.5

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. S ee Jones

, 2 0 3

F.3d at 879.

With respect to his claims against Gresham in his official

capacity, Kelly has waived the issue of Gresh am’s Eleventh

Amendment immunity from suit by failing to address it in his

opening brief. S ee Yohey v. Collins

, 985 F.2d 222, 225 (5 th Cir.

1993). He has likewise waived any challenge to the district

court’s determination that Gresham was entitled to immunity under

M ISS

. C ODE A NN

. § 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 (5 th Cir. 2002); 28 U.S.C. § 1367.6

The judgment of the district court is therefore

AFFIRMED.