          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                  Fifth Circuit

                                                                         FILED
                                                                     December 28, 2007

                                   No. 07-20502                    Charles R. Fulbruge III
                                 Summary Calendar                          Clerk




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

      *
          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not be published and is not precedent except under the limited circumstances set forth in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.
                                   No. 7-20502


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

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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

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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.




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