     Case: 13-50007          Document: 00512359162              Page: 1      Date Filed: 08/30/2013




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

                                                                                      FILED
                                                                                    August 30, 2013

                                         No. 13-50007                                Lyle W. Cayce
                                       Summary Calendar                                   Clerk



ROBERT C. BONNET,

                                                         Plaintiff - Appellant
v.


WARD COUNTY, TEXAS; NATRELL CAIN, Ward County Clerk,
Individually and in Her Official Capacity,

                                                         Defendants - Appellees



                      Appeal from the United States District Court
                           for the Western District of Texas
                                 USDC No. 4:12-CV-85


Before WIENER, ELROD, and GRAVES, Circuit Judges.
PER CURIAM:*
        Robert C. Bonnet appeals the district court’s grant of Defendants’ motion
to dismiss, construed as a motion for summary judgment, against Bonnet’s
claims alleged under 42 U.S.C. § 1983 and Texas state law. AFFIRMED.




        *
          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 R. 47.5, the court has determined that this opinion should not be published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.
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                     I. Facts and Procedural History
      Bonnet is a landman who was engaged through a broker to perform title
record searches for Clayton Williams, Inc. On or about February 10, 2011,
Bonnet entered the county clerk’s office for Ward County, Texas, to research
deed records and other official public records for his work. He began making
digital images of the documents he required. A deputy clerk informed Bonnet
that photographing the documents was prohibited. Bonnet maintained that he
was unable to see the documents; photographing them to enlarge them was
necessary for him to do his job. Because Bonnet refused to comply with the
clerk’s request, the Sheriff’s office was called. A deputy sheriff ordered Bonnet
to leave or be arrested for trespassing. After the deputy sheriff used Bonnet’s
driver’s license to run a warrant check, which came back negative, Bonnet left
the office.
      Bonnet returned to the office over the next several days and continued to
work without using his camera. County Clerk Natrell Cain, who had not been
present on February 10, approached Bonnet to explain the no-photography rule.
After Bonnet explained his vision issues and again requested permission to take
digital images of the documents he needed, Cain refused the request. Sometime
after these events, Bonnet was taken off the Clayton Williams, Inc. project.
      Bonnet filed suit against Ward County and Cain, individually and in her
official capacity as county clerk, on July 25, 2012 under 42 U.S.C. § 1983,
alleging defendants violated his substantive due-process rights by: failing to
accommodate his physical disability by not allowing him to photograph needed
documents; ignoring Texas law through the denial of free access to public
records, such that he was denied liberty and property; and threatening arrest for


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trespassing. Bonnet further alleged: he has a liberty and property interest in
accessing county title and property records, which is protected under the
Fourteenth Amendment; he was denied equal protection when defendants
refused to accommodate his physical disability (he does not allege a violation of
the Americans with Disabilities Act or the Rehabilitation Act); he is owed
damages for Cain’s contacting his employer and having him removed from his
job; and he is owed damages for violation of the Texas Local Government Code
and other Texas state law, specifically Texas Local Government Code § 118.023
and the “Free Access to Records law under Texas State Law and the Local
Government Code.”
      Defendants thereafter filed a motion to dismiss, which contained several
attached affidavits; Bonnet responded and attached his own affidavit. The
district court considered the attached motions, and therefore construed the
motion as one for summary judgement.         Defendants motion for summary
judgment was granted on November 28, 2012. This timely appeal followed.
                               II. Discussion
      Because the district court considered matters outside the pleadings,
presented in defendants’ motion to dismiss under Federal Rule of Civil
Procedure 12(b)(6), the motion was properly “treated as one for summary
judgment under Rule 56.” Fed. R. Civ. P. 12(d). The court’s summary-judgment
ruling is reviewed de novo. See Lewis v. Ascension Parish Sch. Bd., 662 F.3d
343, 347 (5th Cir. 2011) (citation omitted). “The court shall grant summary
judgment if the movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.” Fed.
R. Civ. P. 56(a). In so doing, we must construe all facts and inferences in the


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light most favorable to Bonnet, the non-movant. E.g., E.E.O.C. v. Agro Distrib.,
LLC, 555 F.3d 462, 469 (5th Cir. 2009) (citation omitted).
      Bonnet appeals the district court’s grant of summary judgment on several
grounds. He first contends substantive due process was implicated when he was
not allowed to photograph the records. He also challenges the court’s findings
under Texas law concerning his liberty or property interest in accessing the
records and the denial of his request to photograph them due to his physical
disability.   Finally, he challenges the court’s finding Ward County’s no-
photography policy reasonable.
      For Bonnet’s substantive due-process claim brought under § 1983, we must
assess whether any deprivation of a life, liberty, or property interest was
arbitrary or not reasonably related to a legitimate governmental interest. See
Brennan v. Stewart, 834 F.2d 1248, 1256 (5th Cir. 1988). As the district court
stated correctly, the Supreme Court has spoken on this issue, finding, inter alia,
that “[t]here is no constitutional right to have access to particular government
information...” Houchins v. KQED, Inc., 438 U.S. 1, 14 (1978) (citation omitted).
Contrary to Bonnet’s assertion, the Fourteenth Amendment does not “mandate[]
a right of access to government information or sources of information within the
government’s control.” Id. at 15. Accordingly, the district court correctly found
that Bonnet did not have a constitutionally protected liberty or property interest
in accessing the records.
      Finding further, the district court stated that were it to assume arguendo
that Bonnet had a constitutionally protected interest to access the records, he
was not denied such access because he was only prevented from photographing
the documents. This conclusion is further supported by Bonnet’s returning to


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the court house the following day, and several days after, where he accessed the
records without use of his camera.
      As to the reasonableness of the clerk’s office preventing him from
photographing the records, the district court’s findings were correct.            The
decision was a result of a policy put in place by the Ward County clerk,
instituted in June 2010 after landmen, attempting to photograph and scan
records, damaged, destroyed, or lost some of them in the process. We agree with
the district court’s findings:
      [T]he Court finds the County Clerk’s policy regarding the records
      was reasonable; the records were being destroyed and the policy
      allowed them to remain accessible, photocopied, and viewed and
      enlarged electronically. The Court further finds the policy was
      related to a legitimate government interest—the protection of the
      records from being lost or destroyed. Thus, any such right Plaintiff
      had to access the records by photographing them was subject to the
      County Clerk’s reasonable policy. . . . [E]ven if Plaintiff had a liberty
      or property interest [in] the right [to] photograph the records,
      Defendant Ward County’s policy is not arbitrary, and therefore, no
      violation of Plaintiff’s substantive due process rights occurred.
Bonnet v. Ward Cnty, et. al, No. P-12-CV-085 at *12 (W.D. Tex. Nov. 30, 2012).
      As to his claims concerning Texas state law, the district court correctly
found that although Texas law allows the public to access records belonging to
the county clerk’s office at all reasonable times and allows copies of such records
to be made, see TEX. LOC. GOV’T CODE §§ 191.006, 118.024, this access is subject
“to reasonable rules and regulations set out by the County Clerk to protect the
records and to minimize the interference in the Clerk’s office,” Permian Report
v. Lacy, 817 S.W.2d 175, 177 (Tex. App. – El Paso 1991, writ denied) (citation
omitted). As discussed above, we agree with the court’s finding reasonable both



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the policy as well as its application to Bonnet such that granting summary
judgment on these issues was proper.
                            III. Conclusion
     For the foregoing reasons, the judgment of the district court is
AFFIRMED.




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