Driver v. Godfrey

Filing 122

ORDER overruling objections and adopting report and recommendation. Godfrey's amended motion for summary judgment is granted. The court declines to exercise supplemental jurisdiction over Driver's pendent state law claims for defamation and intentional infliction of emotional distress, and dismisses those claims without prejudice. Signed by Judge Ron Clark on 1/31/2017. (bjc, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
LUFKIN DIVISION
CHET DRIVER,
Plaintiff
v.
STEPHEN GODFREY,
Defendant.

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NO. 9:16-cv-10

ORDER OVERRULING OBJECTIONS AND
ADOPTING REPORT AND RECOMMENDATION
The court referred this case to the Honorable Zack Hawthorn, United States Magistrate
Judge, for pretrial management pursuant to General Order 05-07. The court has received and
considered Judge Hawthorn’s report (Doc. No. 119), which recommends granting Defendant
Stephen Godfrey’s amended motion for summary judgment on the basis of qualified immunity
(Doc. No. 87). Plaintiff Chet Driver timely filed objections to the report and recommendation.
Doc. No. 120. The court has reviewed Driver’s objections and concludes they are without merit.
As a result, the court adopts the report and recommendation of the magistrate judge.
A party who files timely, written objections to a magistrate judge’s report and
recommendation is entitled to a de novo determination of those findings or recommendations to
which the party specifically objects. 28 U.S.C. § 636(b)(1)(C); FED. R. CIV. P. 72(b)(2)-(3).
“Parties filing objections must specifically identify those findings [to which they object].
Frivolous, conclusive or general objections need not be considered by the district court.” Nettles
v. Wainwright, 677 F.2d 404, 410 n.8 (5th Cir. 1982) (en banc), overruled on other grounds by
Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415 (5th Cir. 1996) (en banc).

Driver contends that he has demonstrated a genuine dispute of material fact as to whether
Godfrey’s actions, in his capacity as Chief Deputy of the Nacogdoches County Sheriff’s Office,
violated his due process rights by infringing on Driver’s liberty interest in pursuing an occupation
of his choosing. Doc. No. 120, at 5-6. In order to overcome the qualified immunity defense raised
by Godfrey, a plaintiff must demonstrate that (i) the officer’s conduct violated a federal right and
(ii) that right was clearly established at the time of the violation. Tolan v. Cotton, 134 S.Ct. 1861,
1864 (2014). Driver argues evidence of increased stress caused by Godfrey’s actions, lost annual
revenue in his carpet cleaning business of nearly $5,500, and lost annual revenue in his poultry
business of approximately $50,000 is adequate to demonstrate the deprivation of a liberty interest.
Doc. No. 120, at 5.
In his objections, Driver relies almost exclusively upon Stidham v. Texas Commission on
Private Security. 418 F.3d 486 (5th Cir. 2005). Driver argues a state actor’s interference with a
person’s chosen occupation, regardless of the amount of damage inflicted on the plaintiff’s
business interests, is a violation of a liberty interest. Doc. No. 120, at 5 (citing Stidham, 418 F.3d
at 491. In Stidham, however, the Court noted the summary judgment evidence showed the state
officials’ actions “destroyed [Stidham’s] business,” and that destruction deprived him of his
“protectable liberty interest in pursuing an occupation of his choice.” Id. at 487, 490-92. Where
“the comprehensive, concerted actions of the [state actor]” damages a plaintiff’s business so
thoroughly that she is forced to “close her doors and default on her lease,” a state actor’s
interference rises to the level of a due process violation of a liberty interest under the Fourteenth
Amendment. See San Jacinto Sav. & Loan v. Kacal, 928 F.2d 697, 703 (5th Cir. 1991). By
contrast, the summary judgment evidence in this case, when viewed in the light most favorable to
Driver, shows he only suffered a loss in business revenue, not that he was forced to shutter either

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of his businesses. Doc. No. 120, at 5-6. Driver does not cite any summary judgment evidence
demonstrating Godfrey’s actions interfered with Driver’s businesses in a manner sufficiently
similar to that found in Kacal or Stidham to establish a violation of his liberty interest in pursuing
his chosen occupation. At a minimum, it is not clearly established in the Fifth Circuit that a loss
in business revenue constitutes an infringement of a defined liberty interest in order to afford
protection under the Due Process Clause.
Even if there was a genuine dispute of material fact as to whether Driver has demonstrated
a violation of his property interests by virtue of lost business revenue, Driver fails to show that his
property interest was clearly established at the time of the violation. As previously stated, to
overcome qualified immunity at the summary judgment stage, the party alleging a violation of a
federal right must prove that the right was clearly established when the violation occurred, such
that “existing precedent must have placed the statutory or constitutional question beyond debate.”
Mullenix v. Luna, 136 S.Ct. 305, 308 (2015). In the Fifth Circuit, it is unsettled whether lost profits
are considered a constitutionally-protected property interest, or merely a measure of damages for
the deprivation of a liberty interest. See Doss v. Morris, 642 F. App’x 443, 447 (5th Cir. 2016)
(citing Stidham, 418 F.3d at 492 n.9). Driver does not dispute this point. As such, Driver fails to
establish that Godfrey violated a clearly established federal right, failing to overcome the second
prong of the qualified immunity defense.
For the above-stated reasons, Driver’s objections to Judge Hawthorn’s report
recommending the court grant Godfrey’s Amended Motion for Summary Judgment are
OVERRULED and Godfrey’s amended motion for summary judgment is GRANTED. The court
declines to exercise supplemental jurisdiction over Driver’s pendent state law claims for

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defamation and intentional infliction of emotional distress, and dismisses those claims without
prejudice. See 28 U.S.C. § 1367(c).
So ORDERED and SIGNED this 31 day of January, 2017.

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Ron Clark, United States District Judge

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