* 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not be published and is not precedent except under the limited circumstances set forth in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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-20502

Summary Calendar

DAVID SUMMERS,

Plaintiff-Appellant,

versus

KENNETH REILLY, DWIGHT CANTRELL, 

DIANE DOTTAVIO, CITY OF MONTGOMERY, TEXAS,

Defendants-Appellees.

--------------------

Appeal from the United States District Court

for the Southern District of Texas, Houston Division

USDC No. H-05-4272

--------------------

Before KING, DAVIS, and CLEMENT, Circuit Judges.

W. EUGENE DAVIS, Circuit Judge:*

Plaintiff David Summers appeals the dismissal of his § 1983 claims. 

Finding no error, we affirm. 

I.

This § 1983 case arises out of a dispute among corporate directors for

control of Endovasc, Inc., a publicly traded company. At the time of the

events giving rise to this lawsuit, David Summers was the founder, majority

United States Court of Appeals

Fifth Circuit

F I L E D

December 28, 2007

Charles R. Fulbruge III

Clerk
No. 7-20502

2

shareholder, and a director of a publicly traded company called Endovasc, Inc. 

Defendants Diane Dottavio and Dwight Cantrell were Endovasc’s other two

directors. Dottavio and Cantrell decided to remove Summers as a director

and CEO of the company at a directors’ meeting to be held on December 16,

2003. They asked defendant Kenneth Reilly, a part-time municipal judge for

the City of Montgomery, to attend to advise the corporation on corporate

procedures. They asked Reilly to provide security for the meeting. Reilly

arranged for an off-duty police officer, who was also Reilly’s bailiff, to

accompany him. 

After the meeting, at which Summers was removed from his position as

CEO, Summers was asked to gather his things and leave the premises. 

Summers’ affidavit states that Reilly and his bailiff told him to leave the

premises immediately and that he was trespassing. The officer stated that

Summers had better do what Reilly said and approached Summers indicating

that he was to escort him from the building or he would be forcibly removed. 

Summers complied with the officer’s demand, which Summers deemed an

arrest and legal directive from a peace officer and a sitting judge. Summers

was physically escorted from the building and prevented from going

anywhere but to the exit. 

Summers claims that Reilly was acting in his capacity as a judge and as

a policymaker for the city when he had him removed from Endovasc’s offices,

violating his due process and liberty interests. His claims against the City

were dismissed by the district court in two opinions based on the district

court’s conclusions that Summers failed to allege that he was engaged in any

speech or activity protected by the First Amendment, that he was deprived of

any liberty interest protected by substantive due process or that any policy of

the City of Montgomery that caused him to be removed from Endovasc. After
No. 7-20502

3

allowing Summers the opportunity to amend his complaint, the district court

dismissed Summers’ remaining claims against the remaining defendants

because no evidence was submitted to prove that Summers had been arrested

or deprived of a property or liberty interest protected by due process. 

Summers appeals. 

II.

Summers argues that the district court erred in dismissing his claims

against the City of Montgomery on a Rule 12(b)(6) motion. He argues that his

complaint alleges that Reilly’s conduct was part of a pattern or practice

because Reilly was previously reprimanded for using his office to further his

private interests. Summers also argues that the district court erred in

dismissing his claims against the other defendants on summary judgment. 

He states that his affidavit contains sufficient facts to create an issue as to

whether he was detained, supporting his liberty interest and due process

claims. 

A plaintiff seeking recovery under 42 U.S.C. § 1983 can prevail only if

he can demonstrate that he was deprived of rights secured by the United

States Constitution or federal statutes. Chapman v. Houston Welfare Rights

Org., 441 U.S. 600, 617 (1979). Summers complains that he was deprived of

liberty and property without due process when he was removed from

Endovasc’s offices by a judge and his bailiff. He also complains that his liberty

was restricted in violation of the Fourth and Fourteenth Amendments when

he was arrested or detained by Reilly and his bailiff. 

Summers’ claims fail. First, the record does not support a claim that he

had any property interest in remaining at Endovasc’s offices. Immediately

prior to his removal, the board of Endovasc removed Summers as President of

the company. Thus there can be no due process violation resulting from his
No. 7-20502

4

removal from Endovasc’s offices. Second, Summers’ own affidavit does not

establish that any liberty interest was violated. Simply stated, after he was

asked to leave the Endovasc’s offices, where he had no legal right to be, he

complied with the request. We agree with the district court that a person

who is peaceably asked to leave, and then peaceably escorted from, private

property by authorized personnel has not been detained or arrested in any

recognizable sense. 

III.

For the foregoing reasons, the judgment of the district court is

AFFIRMED.