Petition for Writ of Certiorari — Bruce Ellis, et al., Petitioners v. City of Clarksdale, Mississippi, et al.

APPENDIX TABLE OF CONTENTS

Opinions and Orders

Opinion of the United States Court of Appeals for

the Fifth Circuit (May 8, 2023)........................ la

Judgment of the United States Court of Appeals

for the Fifth Circuit (May 8, 2023).................. 9a

Order of the United States Court of Appeals for

the Fifth Circuit (March 31, 2023).................. 11a

Order of the United States Court of Appeals for

the Fifth Circuit (March 22, 2022).................. 13a

Memorandum Opinion of the United States

District Court for the Northern District of

Mississippi (November 12, 2021)...............

15a

Judgment of the United States District Court

for the Northern District of Mississippi

(November 12, 2021)..................................

33a

Other Documents

Motion for Rehearing En Banc

(June 6, 2023)....................

35a

Motion for Stay of Judgment and Mandate

(June 5, 2023)........................................

41a

App.la

OPINION OF THE UNITED STATES COURT

OF APPEALS FOR THE FIFTH CIRCUIT

(MAY 8, 2023)

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRUCE ELLIS, doing business as DELTA CINEMA;

WILLIE ELLIS, doing business as DELTA CINEMA,

Plaintiffs-Appellants,

v.

CLARKSDALE PUBLIC UTILITIES;

CLARKSDALE PUBLIC WORKS;

CITY OF CLARKSDALE,

Defendants-Appellees.

No. 21-60885

Appeal from the United States District Court

for the Northern District of Mississippi

USDC No. 4:20-CV-32

Before: HIGGINBOTHAM, SOUTHWICK, and

WILLETT, Circuit Judges.

PER CURIAM:*

* This opinion is not designated for publication. See 5th Cir. R.

47.5.

App.2a

Bruce and Willie Ellis (“Plaintiffs”), doing business

as Delta Cinema, filed a pro se § 1983 lawsuit against

the City of Clarksdale, Mississippi, Clarksdale Public

Utilities, and Clarksdale Public Works (“Defend­

ants”). Plaintiffs asserted a Fifth Amendment inverse

condemnation claim, alleging that Defendants’ trans­

port of raw sewage and storm water across their private

property caused damage for which they were not

justly compensated. On appeal, Plaintiffs challenge

the district court’s rulings on several motions, along

with its grant of summary judgment to Defendants.

We AFFIRM.

I

The parties dispute the facts that led to this litiga­

tion. In their complaint, Plaintiffs allege that Defend­

ants’ operation and repair of the City’s sanitary sewer

and storm water drainage system created a 17-foot hole

under their business, Delta Cinema, causing damage

such as “mold, rot, rust, decay, and erosion of soils.”

Plaintiffs sued Defendants under 42 U.S.C. § 1983 for

monetary damages, arguing that Defendants’ actions

constituted a taking under the Fifth Amendment.

Defendants assert that the only work performed on the

property was the lining of piping that ran under the

Delta Cinema and the subsequent testing of the piping.

Defendants also contend, through their expert witness,

that “there is no action or inaction by [Defend­

ants] .. . that would explain any of the detrimental

effects to the [Plaintiffs’ property alleged in their

complaint.”

The record below contains a multitude of motions,

mostly from Plaintiffs. Before engaging in substantive

discovery, Plaintiffs moved for summary judgment.

App.3a

One week later, they filed a supplemental motion for

summary judgment, which included twenty photos

without any explanation of what they depict. 1 The

district court denied both motions on the basis that

Plaintiffs failed to establish municipal liability.

Due to the technical nature of the case, Defendants

jointly designated engineer Blake Mendrop as an

expert witness. Plaintiffs, however, failed to properly

designate any expert witnesses or produce any expert

reports before the deadline set by the court’s scheduling

order. After the deadline passed, Plaintiffs filed a

Daubert motion to exclude Defendants’ expert.

Relying on the expert testimony of Blake Mendrop,

Clarksdale Public Utilities filed a motion for summary

judgment, which was joined by the City of Clarksdale.

The City of Clarksdale and Clarksdale Public Works

filed their own motion for summary judgment, sub­

mitting in support an affidavit from Arch Corley, the

City Engineer for the City of Clarksdale.

Approximately three weeks after the court’s

deadline to file dispositive motions, Plaintiffs filed a

motion for judgment on the pleadings, along with a

supplemental motion for judgment on the pleadings.

The court struck both as untimely.

With a plethora of motions before it, the court

entered a Memorandum Opinion which denied all

the evidentiary motions, including Plaintiffs’ Daubert

motion. The court also granted Defendants’ summary

judgment motions, reasoning that Plaintiffs failed to

create a factual dispute by neglecting to refute the

1 The images appear to depict piping and holes, presumably

near the Delta Cinema.

App.4a

opinions of Defendants’ experts that Defendants did not

cause the alleged damage. Plaintiffs timely appealed.

Liberally construing their appellate brief, Haines

P. Kerner, 404 U.S. 519, 520 (1972), Plaintiffs argue

that: (1) the district court abused its discretion by

striking Plaintiffs’ motion for judgment on the pleadings

based on timeliness; (2) the district court abused its

discretion by denying Plaintiffs’ Daubert motion based

on timeliness; and (3) the district court erred by

denying Plaintiffs’ summary judgment motion and

granting summary judgment to Defendants.2

II

We review the district court’s denial of a Federal

Rule of Civil Procedure 12(c) motion for judgment on

the pleadings for lack of timeliness under an abuse of

discretion standard. See Argo v. Woods, 399 F. App’x

1, 2-3 (5th Cir. 2010) (per curiam); e.g., accord United

States v. Dabney, 42 F.4th 984, 989 (8th Cir. 2022);

United States v. Soto, 794 F.3d 635, 655 (6th Cir.

2015); United States v. Smith, 918 F.2d 1501, 1509

(11th Cir. 1990). We also “review the admission of

expert testimony for an abuse of discretion.” Carlson

v. Bioremedi Therapeutic Sys., Inc., 822 F.3d 194, 199

(5th Cir. 2016).

‘We review a grant of summary judgment de

novo, viewing all evidence in the light most favorable

to the nonmoving party and drawing all reasonable

inferences in that party’s favor.” Pierce v. Dep’t of the

2 In addition to the arguments listed, Plaintiffs repeatedly and

confusingly argue that Defendants are subject to a “strict liability”

standard. We do not address this argument because it does not fit

within the theory of liability Plaintiffs set forth in their complaint.

App.5a

Air Force, 512 F.3d 184, 186 (5th Cir. 2007). “Summary

judgment is proper only if the pleadings and record

materials reveal no genuine issue as to any material

fact.” Renwick v. PNK Lake Charles, L.L.C., 901 F.3d

605, 611 (5th Cir. 2018).

Ill

A

First, the untimely motions.

To assist in the speedy and efficient resolution of

cases, Federal Rule of Civil Procedure 16(b) requires

courts to enter a scheduling order that “limits the time

to join other parties, amend the pleadings, complete

discovery, and file motions.” Fed. R. Civ. P. 16(b)(3)(A).

Once in place, the scheduling order may only be

modified “for good cause and with the judge’s consent.”

Fed. R. Civ. P. 16(b)(4).3 “Consistent with the authority

vested in the trial court by rule 16, our court gives

the trial court ‘broad discretion to preserve the integrity

of the [scheduling order].’” Geiserman v. Macdonald,

893 F.2d 787, 790 (5th Cir. 1990).

Here, Plaintiffs filed a Rule 12(c) motion for

judgment on the pleadings roughly three weeks after

the deadline set by the court’s scheduling order. And

they filed their Daubert motion nearly two weeks

after the deadline. They neither sought nor received

leave from the court to file either motion after the

deadline. Nor did they demonstrate good cause.

3 This rule applies to motions filed under Federal Rule of Civil

Procedure 12(c) and evidentiary motions alike. See Argo, 399 F.

App’x at 3; Reliance Ins. Co. v. La. Land & Exploration Co., 110

F.3d 253, 257 (5th Cir. 1997).

App.6a

The district court had already displayed great

patience and flexibility with Plaintiffs by, for example,

extending the deadline for Plaintiffs to serve the City

and declining to strike unauthorized surreplies. We

hold that it was within the sound discretion of the

district court to reject Plaintiffs’ untimely motions.

B

We turn to Plaintiffs’ argument that the district

court erred by denying their motions for summary

judgment and granting summary judgment to Defend­

ants.

‘We give pro se briefs a liberal construction.”

Brown v. Sudduth, 675 F.3d 472, 477 (5th Cir. 2012).

But even though “this court applies less stringent

standards to parties proceeding pro se than to parties

represented by counsel and liberally construes the

briefs of pro se litigants, a pro se appellant still must

actually argue something that is susceptible of liberal

construction.” Toole v. Peak, 361 F. App’x 621, 621

(5th Cir. 2010) (citing Grant P. Cuellar, 59 F.3d 523,

524 (5th Cir. 1995)). Here, no matter how liberally we

construe Plaintiffs’ filings on appeal and below, there

are no reasonable inferences that can be drawn that

lead to the conclusion that Plaintiffs have created a

factual dispute regarding their Fifth Amendment claim.

Municipalities and other local governments may

be sued under § 1983 when official policies are in clear

violation of constitutional rights. See Monell P. Dep’t

of Social SerPs., 436 U.S. 658, 663 (1978). “To establish

municipal liability pursuant to § 1983, a plaintiff

must demonstrate three elements: a policymaker; an

official policy; and a violation of constitutional rights

App.7a

whose ‘moving force’ is the policy or custom.” Shumpert

P. City of Tupelo, 905 F.3d 310, 316 (5th Cir. 2018).

Both on appeal and below, Plaintiffs have failed

to identify any of these three required elements. First,

Plaintiffs failed to identify officials or governmental

bodies “who speak with final policymaking authority

for the local governmental actor concerning the action

alleged to have caused the particular constitutional

or statutory violation at issue.” Bolton P. City of Dallas,

541 F.3d 545, 548 (5th Cir. 2008) (internal quotation

marks omitted). At one point in the litigation, Plaintiffs

argued that the EPA is the policymaker, but critically,

they failed to identify a municipal policymaker as

required by law.

Second, Plaintiffs identified no official policy.

Beyond one conclusory statement in their opening

brief about Defendants’ “failure to adequately train”

employees, Plaintiffs have completely neglected to

engage with this element of municipal liability.

Finally, as to causation, Plaintiffs did not produce

any evidence to refute Defendants’ experts’ opinions

and show that damages to the Delta Cinema were

caused by Defendants, let alone an official custom or

policy of Defendants. Plaintiffs have thus failed to

create a factual dispute on the issue of municipal

liability. Accordingly, the district court properly denied

Plaintiffs’ motions for summary judgment and granted

summary judgment to Defendants.4

4 Plaintiffs also challenge the district court’s acceptance of Clarksdale Public Utilities motion for summary judgment, which they

contend was filed “47 days after the dose of all discovery.” But this

argument lacks a factual basis. The dispositive motion deadline

App.8a

AFFIRMED.

set by the operative scheduling order was almost two months

after Clarksdale Public Utilities moved for summary judgment.

App.9a

JUDGMENT OF THE UNITED STATES COURT

OF APPEALS FOR THE FIFTH CIRCUIT

(MAY 8, 2023)

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRUCE ELLIS, doing business as DELTA CINEMA;

WILLIE ELLIS, doing business as DELTA CINEMA,

Plaintiffs-Appellants,

v.

CLARKSDALE PUBLIC UTILITIES;

CLARKSDALE PUBLIC WORKS;

CITY OF CLARKSDALE,

Defendants-Appellees.

No. 21-60885

Appeal from the United States District Court

for the Northern District of Mississippi

USDC No. 4:20-CV-32

Before: HIGGINBOTHAM, SOUTHWICK, and

WILLETT, Circuit Judges.

JUDGMENT

This cause was considered on the record on appeal

and the briefs on file.

App.lOa

IT IS ORDERED and ADJUDGED that the

judgment of the District Court is AFFIRMED.

IT IS FURTHER ORDERED that plaintiffsappellants pay to defendants-appellees the costs on

appeal to be taxed by the Clerk of this Court.

App.lla

ORDER OF THE UNITED STATES COURT OF

APPEALS FOR THE FIFTH CIRCUIT

(MARCH 31, 2023)

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRUCE ELLIS, doing business as DELTA CINEMA;

WILLIE ELLIS, doing business as DELTA CINEMA,

Plaintiffs-Appellants,

v.

CLARKSDALE PUBLIC UTILITIES;

CLARKSDALE PUBLIC WORKS;

CITY OF CLARKSDALE,

Defendants-Appellees.

No. 21-60885

Appeal from the United States District Court

for the Northern District of Mississippi

USDC No. 4:20-CV-32

ORDER:

IT IS ORDERED that Appellants’ unopposed

motion for leave to file supplemental record excerpts

is GRANTED. Appellees must confirm with the court

that the new photos are identical to those in the record.

App.l2a

Lyle W. Cayce, Clerk

United States Court of Appeals

for the Fifth Circuit

Is/ Lvle W. Cavce

Entered at the Direction of the Court

App.l3a

ORDER OF THE UNITED STATES COURT OF

APPEALS FOR THE FIFTH CIRCUIT

(MARCH 22, 2022)

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRUCE ELLIS, doing business as DELTA CINEMA;

WILLIE ELLIS, doing business as DELTA CINEMA,

Plaintiffs-Appellants,

v.

CLARKSDALE PUBLIC UTILITIES;

CLARKSDALE PUBLIC WORKS;

CITY OF CLARKSDALE,

Defendants-Appellees.

No. 21-60885

Appeal from the United States District Court

for the Northern District of Mississippi

USDC No. 4:20-CV-32

Before: Jerry E. SMITH, United States Circuit Judge.

ORDER:

IT IS ORDERED that appellees’ opposed motion

to strike appellants’ brief is DENIED. IT IS FURTHER

ORDERED that appellees’ opposed alternative motion

to file a supplemental brief is GRANTED. The supple­

mental brief is limited to any issues presented for the

App.l4a

first time in appellants’ successive briefs and is due

April 7, 2022. Appellants’ reply brief was due March

17, 2022, but none was filed. Appellants have forfeited

the right to file a reply.

/s/ Jerry E. Smith

United States Circuit Judge

App.l5a

MEMORANDUM OPINION OF THE

UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF MISSISSIPPI

(NOVEMBER 12, 2021)

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF MISSISSIPPI

GREENVILLE DIVISION

BRUCE ELLIS and

WILLIE ELLIS dba Delta Cinema,

Plaintiffs,

v.

CLARKSDALE PUBLIC UTILITIES,

CLARKSDALE PUBLIC WORKS, and

CITY OF CLARKSDALE,

Defendants.

No. 4:20-CV-32-DMB-JMV

Before: Debra M. BROWN,

United States District Judge.

MEMORANDUM OPINION

Bruce Ellis and Willie Ellis seek to hold liable the

City of Clarksdale, Clarksdale Public Utilities, and

Clarksdale Public Works on an “inverse condemnation”

theory that damage to their private property was

allegedly caused by the defendants’ transport of raw

App.l6a

sewage and storm water across their property without

payment of just compensation. Before the Court are

various evidentiary and dispositive motions filed by

the parties. As explained below, the evidentiary

motions are all denied and the dispositive motions

ultimately resolved in the defendants’ favor.

I.

Relevant Procedural History

On February 26, 2020, Bruce and Willie Ellis,

doing business as Delta Cinema, filed a pro se com­

plaint in the United States District Court for the

Northern District of Mississippi against Clarksdale

Public Utilities, Clarksdale Public Works, and the

City of Clarksdale. Doc. #1. The Ellises assert a Fifth

Amendment claim through the vehicle of 42 U.S.C.

§ 1983 based on the defendants allegedly “taking plain­

tiffs [sic] private property for public use to transport

untreated raw sewage and storm drain water without

paying just compensation.”! Id. at 3.

1 On March 31, 2020, Public Utilities moved to dismiss the

complaint on arguments that the takings claim was not ripe

because the Ellises failed to exhaust state remedies and failed

to comply with the Mississippi Tort Claims Act (‘MTCA”). Doc.

#7. The City moved to dismiss for insufficient service of process

on May 7, 2020. Doc. #17. On May 22, 2020, the City, on behalf of

Public Works, moved to dismiss Public Works as it “is not a

separate legal entity capable of suing or being sued.” Doc. #32 at 1.

The Court disposed of these motions in three separate orders.

First, rejecting Public Utilities’ ripeness argument, the Court,

though finding based on Knick v. Township of Scott, Pennsylvania,

that “dismissal is not warranted simply because the Ellises have

state remedies available to them,” dismissed “any claims under

the MTCA” due to the Ellises’ failure to comply with the MTCA’s

notice requirements. Doc. #62 at 3, 5. Then, after finding service

on the City insufficient, the Court extended the Ellises’ deadline to

serve the City and denied the City’s motion to dismiss. Doc. #63 at

App.l7a

While discovery was ongoing,2 the Ellises filed a

motion for summary judgment, Doc. #90, and one

week later, a supplemental motion for summary judg­

ment, Doc. #93. The Court denied both motions on April

16, 2021, because the Ellises did not “carr[y] their

burden of showing there is no genuine dispute as to

any material fact.” Doc. #133 at 7.

Ten days later, on April 26, 2021, the Ellises filed

a motion for reconsideration of the summary judgment

denial. Doc. #136. The City and Public Utilities sepa­

rately responded. Docs. #143, #144. The Ellises filed

two untimely replies. Docs. #146, #151. Construing

the second reply as a “second motion for reconsid­

eration,” the City filed a surreply,3 Doc. #155, to which

the Ellises responded, contesting the City’s character­

ization of the reply as a second motion for reconsid­

eration, Doc. #157.

On April 30, 2021, after the Ellises failed to

respond to its interrogatories and requests for produc­

tion, Public Utilities filed a motion to compel their

discovery responses. Doc. #139. Because the Ellises’

6. Finally, the Court denied for failure to comply with the Local

Rules the City's motion to dismiss Public Works. Doc. #64 at 2.

2 Doc. #78.

3 Neither the City nor the Ellises sought leave to file surreplies

in this case but they did so nevertheless. “[Sjurreplies are

heavily disfavored by courts” and are typically stricken by this

Court. See Alston v. Prairie Farms Dairy, Inc., No. 4:18-cv-157,

2019 WL 2719793, at *1-2 (N.D. Miss. June 28, 2019). However,

in an effort not to further muddle a somewhat confusing docket

caused by the multitude of pending motions, the Court declines

to strike the unauthorized surreplies associated with the

Ellises’ April 26 motion for reconsideration and Public Utilities’

May 19 motion for summary judgment mentioned below.

App.l8a

“utter failure to respond to [the] discovery requests

[was] without excuse,” United States Magistrate Judge

Jane M. Virden granted the motion to compel and

ordered the Ellises to serve their responses on Public

Utilities within “ten (10) business days” of the May

27, 2021, order. Doc. #156. The order warned that

“failure to timely comply with this order may lead to

the imposition of sanctions, including but not limited

to . .. dismissal of this case.” Id. at 2.

On May 19, 2021, Public Utilities, relying on the

report of Blake Mendrop,4 filed a motion for summary

judgment, Doc. #153, which the City joined on June

2, 2021, Doc. #159. The Ellises filed a response, Doc.

#160, and Public Utilities filed a reply, Doc. #163,

which the City joined, Doc. #164. The Ellises filed a

surreply, Doc. #165, and subsequently moved to strike

the City’s joinder as a “sham pleading,” Doc. #176.

On June 15, 2021, after briefing closed on Public

Utilities’ summary judgment motion, Public Utilities,

joined by the City,5 moved to exclude “any evidence

offered by the Plaintiffs through any individuals pur­

ported by them to be experts pursuant to Federal

Rules of Civil Procedure 26(a) and 37.” Doc. #171.6

Rather than respond directly to the motion to exclude,

the Ellises filed a “Motion in Opposition to Defendant’s

Doc. [171] to Exclude Plaintiffs Expert’s.” Doc. #178.

The Ellises also filed a motion asking the Court “to

4 Doc. #153-1.

5 Doc. #173.

5 Though this filing is titled, ‘Daubert Motion to Exclude Plaintiffs’

Experts,” it does not seek exclusion based on any substantive

Daubert issue.

App.l9a

conduct a Daubert Rule 702 inquiry to ensure that any

and all scientific testimony offered by the Defendant’s

[sic] is not only relevant, but valid and reliable.” Doc.

#177.

On July 12, 2021, the City and Public Works

moved to dismiss the Ellises’ claims for failure to

prosecute. Doc. #184. Public Utilities joined the motion

on July 15, 2021. Doc. #194. This motion to dismiss is

fully briefed. See Docs. #185, #199, #205, #210.

On July 13, 2021, the City and Public Works filed

a motion for summary judgment. Doc. #187. The Ellises

responded the next day. Doc. #192. On July 15, 2021,

Public Utilities joined this summary judgment motion,

Doc. #195, and the Ellises filed a supplemental res­

ponse, Doc. #197. The City and Public Works replied,

Doc. #206, joined by Public Utilities, Doc. #211.

II. Ellises’ Motion for Reconsideration

The Ellises move “the Court for reconsideration

of previous denials [of their summary judgment

motions] under a liberal construction,” seeming to

believe the reason for the denials was their “mislabeling

and linking documents filed”7 but also asserting “there

is no genuine issue as to any material fact.” Doc. #136

at PagelD 560-61. Both the City and Public Utilities

respond that “Federal Rule of Civil Procedure 60 pro­

vides finite grounds upon which this Court may relieve

Plaintiffs from its order, none of which are mentioned”

by the Ellises. Doc. #143 at PagelD 583; Doc. #144 at

1. In reply, the Ellises, asserting that the defendants’

expert Mendrop “admitted a violation of (EPA) Envi­

ronmental Protection Agency Clean Water Act (CFR)

7 Doc. #137 at PagelD 565.

App.20a

Code of Federal Regulation 122.41(e),” argue in support

of their § 1983 claims that the EPA is the policymaker,

the defendants have failed to comply with federal

regulations, and that such failure caused a violation

of their constitutional rights. Doc. #152 at PagelD 612,

614-15. The City argues that Mendrop’s report is not

“newly discovered evidence” under Rule 60. Doc. #155.

Though the defendants rely on Rule 60, Rule

54(b) provides the correct standard for deciding the

Ellises’ motion for reconsideration since the order

denying the Ellises’ summary judgment motion is inter­

locutory, not final. McClendon v. United States, 892

F.3d 775, 781 (5th Cir. 2018). Rule 54(b) “authorizes

the district court to revise at any time any order or

other decision that does not end the action.” Austin v.

Kroger Tex., L.P., 864 F.3d 326, 336 (5th Cir. 2017)

(cleaned up). “Under Rule 54(b), the trial court is free

to reconsider and reverse its decision for any reason

it deems sufficient...” Id.

The Court denied the Ellises’ motion for summary

judgment because the Ellises failed to “identify a policy

maker or official policy or establish that a

constitutional violation occurred,” thus failing to show

there was no genuine dispute as to any material fact.

Doc. #133 at 7. Even considering all of the multiple

filings since the denial of summary judgment, the

Ellises still have not established a policymaker or an

official policy by any of the defendants8 or that a

8 Despite the Ellises’ argument that the EPA was the policymaker

and that the defendants violated their constitutional rights by

failing to comply with federal regulations, they fail to show

there was an official policy by any of the defendants and that

any policy or custom was the moving force behind a constitutional

App.21a

constitutional violation occurred. As such, the motion

for reconsideration is denied.

III. Motion to Dismiss for Failure to Prosecute

The City and Public Works argue dismissal

pursuant to Rule 37(d)(3) and Rule 41(b) is proper

because the Ellises “have failed to answer written

discovery propounded by City of Clarksdale, failed to

provide deposition dates, and failed to allow an

inspection of their property.” Doc. #184 at 1. Public

Utilities’ joinder to the motion asserts that although

the Ellises “did ultimately respond to [Public Utilities’]

discovery requests after [its] motion to compel was

granted,... the responses provided were wholly

deficient.” Doc. #194 at 1. Although difficult to compre­

hend, the Ellises’ response seems to primarily argue

that the motion to dismiss is improper under Rule

12(g) because the defendants have already filed a Rule

12(b) motion to dismiss. See Doc. #199. But at no point

do the Ellises’ assert that they complied with their dis­

covery requirements. The City and Public Works reply

that this “complete failure to respond to any of City of

Clarksdale’s points is a confession of those facts and

underscores that Plaintiffs continue to fail to litigate

their case.” Doc. #205 at 2.

Federal Rule of Civil Procedure 41(b) provides

that if a plaintiff fails “to prosecute or to comply with

[the Federal Rules of Civil Procedure] or a court

order, a defendant may move to dismiss the action or

violation as required for municipal liability. See Shumpert v.

City of Tupelo, 905 F.3d 310, 316 (5th Cir. 2018).

App.22a

any claim against it.”9 Under Rule 37, if a party “fails

to obey an order to provide or permit discovery,” the

court may dismiss the action in whole or in part. Fed.

R. Civ. P. 37(b)(2)(A)(v). “While dismissal under either

rule is a harsh sanction, it is nonetheless appropriate

if a clear record of delay or contumacious conduct by

the plaintiff exists and lesser sanctions would not

serve the best interests of justice.” Romero v. ABC Ins.

Co., 320 F.R.D. 36, 40-41 (W.D. La 2017). “Ultimately,

exercise of the power to dismiss is committed to the

sound discretion of the district court[ ].” Id. at 41.

Since the Ellises are proceeding pro se, their fail­

ure to comply with their discovery obligations as to

the discovery served by the City and Public Works,

and their providing of “deficient” responses to Public

Utilities’ discovery requests, 1° are wholly attributable

to them. However, it is not clear to the Court that

lesser sanctions would not serve the best interests of

justice and, as such, any dismissal would necessarily

be without prejudice. See id. (“The Fifth Circuit affirms

dismissals with prejudice for failure to prosecute . . .

when... the district court has expressly determined

that lesser sanctions would not prompt diligent

9 Though they rely on Rules 41(b) and 37, the City and Public

Works do not explicitly cite an order with which the Ellises

failed to comply but rather argue a failure to participate in

discovery amounts to a failure to prosecute. See Doc. #185. In

its joinder to the motion, Public Utilities does not mention much

less argue that dismissal is proper under Judge Virden’s May 27

order requiring the Ellises to respond to its discovery requests.

Doc. #194.

10 Given the decision to address the case on the merits, the

Court did not independently analyze whether the Ellises’ responses

were deficient.

App.23a

prosecution ... or proved to be futile.”). Because, as

explained below, the Court finds summary judgment

in the defendants’ favor is proper, the motion to dismiss

is denied and the Court will decide the case on the

merits.

IV. Public Utilities’ Motion to Exclude

Public Utilities, joined by the City,H moved to

exclude “any evidence offered by the Plaintiffs through

any individuals purported by them to be experts

pursuant to Federal Rules of Civil Procedure 26(a) and

37.” Doc. #171. Because the Ellises did not submit any

expert evidence in response to the defendants’ motions

for summary judgment, the question becomes whether

the Ellises may present expert evidence if this case

proceeds to trial. This question need not be reached

though because, as discussed below, the Court finds

summary judgment in the defendants’ favor proper on

all of the Ellises’ claims. Accordingly, Public Utilities’

motion to exclude, Doc. #171, and the Ellises’ motion

in opposition, Doc. #178, are denied as moot.

V.

Ellises’ Daubert Motion

Regarding Mendrop’s report, the Ellises ask the

Court “to conduct a Daubert Rule 702 inquiry to

ensure that any and all scientific testimony offered by

the Defendant’s [sic] is not only relevant, but valid and

reliable.” Doc. #177. Under Daubert v. Merrell Dow

Pharmaceuticals, Inc., 509 U.S. 579 (1993), a district

court has a “special obligation... to ensure that any

and all scientific testimony is not only relevant but

reliable.” Bear Ranch, L.L.C. v. Heartbrand Beef, Inc.,

11 Doc. #173.

App.24a

885 F.3d 794, 802 (5th Cir. 2018) (cleaned up). Rather

than arguing why Mendrop’s report is not relevant,

valid, or reliable, the Ellises simply ask the Court

whether one of Mendrop’s statements in the report

establishes a violation of federal law and whether

another statement shows strict liability should apply.

Doc. #177 at PagelD 743-44. To the extent the Ellises

properly raise Daubert issues in the motion, the

motion is denied as untimely because it was filed after

the June 15, 2021, deadline for such motions. See Doc.

#108. Regardless, because the Ellises do not present

any arguments attacking Mendrop’s expert qualifica­

tions or the reliability of his report, the motion is

denied. 12

VI. Ellises’ Motion to Strike

Without citation to any authority, the Ellises

ask the Court to strike the City’s joinder to Public

Utilities’ motion for summary judgment as a sham

pleading. 13 Doc. #176. Because the Ellises do not cite

12 To the extent the Ellises intended to challenge Mendrop’s

qualifications, his education and 29 years of engineering

experience, including serving as city engineer for two different

cities in Mississippi, appear to qualify him to provide reliable

information on the subject matter of their claims. See Kumho

Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 141 (1999) (a district

court enjoys wide latitude in determining reliability). And

Mendrop’s report, which directly addresses the issues in this

case, is clearly relevant.

13 The Ellises also challenge the City’s answer and request a

default judgment against the City. Doc. #176 at PagelD 735. Judge

Virden later addressed arguments by the Ellises regarding the

answer and found default was improper. See Doc. #209. Because

the Ellises did not appeal that decision, the Court need not address

the matter further.

App.25a

any authority for their assertion that the joinder is

improper and because the referenced document simply

indicates that the City joins in and incorporates by

reference Public Utilities’ motion, the Ellises’ motion

to strike is denied.

VII. Defendants’ Summary Judgment Motions

The Ellises allege the defendants’ operation of

sanitary sewer and storm drains caused “mold, rot, rust,

decay, and erosion” of their property which amounts

to a taking of their “private property for public use

... without paying just compensation.” Doc. #1 at 3.

Public Utilities, joined by the City, 14 argues summary

judgment is proper because the Ellises have not estab­

lished the necessary elements for municipal liability

and failed to offer “competent expert testimony” in

support of causation. Doc. #154 at 4-9. In response,

the Ellises again argue that Mendrop’s report supports

their claim because it admits violations of the Clean

Water Act and further argue that the defendants are

strictly liable. Docs. #160-1, #161. Public Utilities

replies that the Ellises have “failed to identify a

policymaker, failed to identify a policy, and have

failed to offer any competent evidence that CPU,

pursuant to a policy or custom of the municipality,

did anything to cause the alleged damage” and that

ultimately the Ellises “lack the requisite training or

education required to render an opinion as to the

cause of their alleged property damage [because]

determining the cause of any such damage involves

scientific, technical, or other specialized knowledge

14 Doc. #159.

App.26a

typical of an expert and beyond the perception of a

lay witness.” Doc. #163 at 1-3.

In support of their separate motion for summary

judgment, the City and Public Works, joined by Public

Utilities,15 argue that the plaintiffs “bald allegations

are not evidence” to establish municipal liability and

they have failed to offer evidence of causation to refute

Mendrop’s report. Doc. #188 at 6-7. The Ellises ignore

the arguments made by the defendants and instead

repeat their prior argument that “Strict Liability is

imposed on the Defendant for violation of the Code of

Federal Regulation Section 122.41(e), Federal Rules of

Civil Procedure Rule 12(g); Rule 12(h), Federal Rules of

Civil Procedure 55(a), and Fed. R. Civ. P. 56(g) which

imposes sanctions for acts of bad faith.” Doc. #193 at

PagelD 846-47. The City and Public Works reply that

the Ellises’ “submissions do not address any of City

of Clarksdale’s legal or factual points.” Doc. #206.

A. Standard of Review

Summary judgment shall be entered if “the

movant shows that there is no genuine dispute as to

any material fact and the movant is entitled to judg­

ment as a matter of law.” Fed. R. Civ. P. 56(a). “An

issue is genuine if the evidence is such that a reasonable

factfinder could return a verdict for the nonmoving

party.” Jones v. United States, 936 F.3d 318, 321 (5th

Cir. 2019) (cleaned up). “A fact is material if its reso­

lution could affect the outcome of the action.” Dyer v.

Houston, 964 F.3d 374, 380 (5th Cir. 2020).

The “party seeking summary judgment always

bears the initial responsibility of demonstrating the

15 Doc. #195.

App.27a

absence of a genuine issue of material fact.” Jones,

936 F.3d at 321 (alterations omitted). When the

movant does not bear the burden of persuasion at

trial, he may satisfy his initial summary judgment

burden “by pointing out that the record contains no

support for the non-moving party’s claim.” Wease v.

Ocwen Loan Servicing, L.L.C., 915 F.3d 987, 997 (5th

Cir. 2019). If the moving party satisfies his initial

burden, the nonmovant “must go beyond the pleadings

and designate specific facts showing that there is a

genuine issue for trial.” Jones, 936 F.3d at 321 (cleaned

up).

B. Analysis

“When evaluating whether governmental action

constitutes a taking, a court employs a two-part test.

First, .. . the court determines whether the claimant

has identified a cognizable Fifth Amendment property

interest that is asserted to be the subject of the

taking. Second,... [the court] determines whether that

property interest was taken.” White Oak Realty,

L.L.C. v. U.S. Army Corps of Eng., 746 F. App’x 294,

301 (5th Cir. 2018).

The defendants do not argue that the Ellises could

not establish a cognizable property interest. Assuming

the Ellises can show such, the pivotal question is

whether the Ellises’ property interest was taken.16

Public Utilities argues the Ellises failed to offer “any

competent evidence that [it], pursuant to a policy or

custom of the municipality, did anything to cause the

16 “[U]nder appropriate circumstances[,] damage to property

will be construed as a taking.” Porter v. United States, 473 F.2d

1329, 1336 n.9 (5th Cir. 1973).

App.28a

alleged damage to Plaintiffs’ property.” Doc. #154 at

6. In arguing the Ellises cannot establish causation,

Public Utilities relies on the expert report of Mendrop,

a civil engineer with 29 years of experience. Doc.

#153-1 at PagelD 625. Mendrop states in the report:

For background, the City of Clarksdale is

responsible for storm water collection through

its storm drains, while Clarksdale Public

Utilities is responsible for water service and

sewage treatment, including sewage effluent.

The City of Clarksdale maintains its storm

water drainage system. Clarksdale Public

Utilities maintains the main water lines

and the piping up to the meter. Any piping

and/or plumbing beyond the meter is the

responsibility of the property owner. The

meters are within the City of Clarksdale’s

right of way, but on private property. As for

sewage, any piping from the property to the

main sewage line is traditionally the property

owner’s responsibility.

While making repairs to the stormwater

drainage system near the Delta Cinema, the

City of Clarksdale discovered that existing

corrugated drainage pipes typically used for

drainage systems had additional flow that was

sanitary sewer effluent coming from service

lines that were tied into the stormwater drain­

age system in preceding years. This resulted

in raw sewage bypassing any treatment and

entering the Sunflower River through the

City of Clarksdale’s storm drains. It is un­

known who performed the work of tying the

sewer service lines into the stormwater drain-

App.30a

constructed with corrugated-steel piping.

Clarksdale Public Utilities determined that

some of the piping needed to be replaced and

the remaining corrugated-steel piping needed

to be lined. The only work done under the

Delta Cinema property was the lining of the

corrugated pipe and then testing (via video)

the pipe that ran under the Delta Cinema to

assure the integrity of that portion of the sewer

system. Clarksdale Public Utilities took these

remedial actions (lining the corrugated struc­

ture and replacing other corrugated pipes)

with typical sanitary sewer pipe materials

which met industry standards and applicable

specifications.

Doc. #153-1 at PagelD 622-23. Based on these facts,

“it is [Mendrop’s] opinion to a reasonable degree of

professional and scientific certainty that there is no

action or inaction by the City of Clarksdale or

Clarksdale Public Utilities ... that would explain any

of the detrimental effects to the plaintiffs’ property

alleged in their Complaint.” Id. at 624.

In support of their own motion for summary

judgment, the City and Pub he Works submitted the

affidavit of Arch Corley, who has served as the City’s

City Engineer since 1989. Doc. #187-1. “In [Corley’s]

professional opinion as a civil engineer with approxi­

mately 50 years of experience, the City of Clarksdale

has done everything that it can within its public rightof-way to rectify the Ellises’ alleged issues.” Id. at 3.

In all of their filings in response to the motions

for summary judgment, the Ellises failed to provide

any evidence to refute the defendants’ experts’ opinions

that their alleged damages were not caused by any

App.31a

action of the defendants.17 See Docs. #160, #165,

#192, #197. The Ellises have thus failed to create a

factual dispute as to whether their property was

taken as a result of the defendants’ actions. Summary

judgment in the defendants’ favor will be granted.

VIII. Conclusion

In accordance with the rulings above:

1.

The Ellises’ motion for reconsideration [136]

is DENIED;

2.

The City and Public Works’ motion to dismiss

[184] is DENIED;

3.

Public Utilities’ motion to exclude [171] and

the Ellises’ motion in opposition [178] are

DENIED;

4.

The Ellises’ “Daubert inquiry” motion [177]

is DENIED;

5.

The Ellises’ motion to strike [176] is DENIED;

6.

Public Utilities’ motion for summary judgment

[153] is GRANTED; and

17 Throughout the course of this litigation, the Ellises have sub­

mitted various photographs, both with and without explanation;

repair estimates; an “NPDES Compliance Inspection Manual;”

and portions of the Uniform Plumbing Code as their “evidence”

to support their claims. See Doc. #53 at PagelD 205-18; Doc.

#56 at PagelD 229-31; Doc. #93-1; Doc. #114-1; Doc. #119-1;

Doc. #151-1. The Court is not bound to consider any information

beyond the summary judgment record. Regardless, consideration

of these materials does not alter the Court’s conclusion that the

Ellises have failed to show a factual dispute on the issues because

such materials do not refute the defendants’ evidence that the

Ellises’ alleged damages were not caused by the defendants.

App.32a

7.

The City and Public Works’ motion for sum­

mary judgment [187] is GRANTED.

SO ORDERED, this 12th day of November, 2021.

/s/ Debra M. Brown

United States District Judge

App.33a

JUDGMENT OF THE UNITED STATES

DISTRICT COURT FOR THE NORTHERN

DISTRICT OF MISSISSIPPI

(NOVEMBER 12, 2021)

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF MISSISSIPPI

GREENVILLE DIVISION

BRUCE ELLIS and WILLIE ELLIS

dba DELTA CINEMA,

Plaintiffs,

v.

CLARKSDALE PUBLIC UTILITIES,

CLARKSDALE PUBLIC WORKS, and

CITY OF CLARKSDALE,

Defendants.

No. 4:20-CV-32-DMB-JMV

Before: Debra M. BROWN,

United States District Judge.

FINAL JUDGMENT

In accordance with the memorandum opinion

entered this day, summary judgment on the plaintiffs’

claims is granted in favor of the defendants.

App.34a

SO ORDERED, this 12th day of November, 2021.

/s/ Debra M. Brown

United States District Judge

App.35a

MOTION FOR REHEARING EN BANC

(JUNE 6, 2023)

No. 21-60885

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRUCE ELLIS, DOING BUSINESS AS

DELTA CINEMA; WILLIE ELLIS, DOING

BUSINESS AS DELTA CINEMA,

Plaintiffs-Appellants,

v.

CLARKSDALE PUBLIC UTILITIES; CITY OF

CLARKSDALE/CLARKSDALE PUBLIC WORKS,

Defendants-Appellees.

MOTION FOR REHEARING EN BANC

PURSUANT TO F.R.APP.P. 36;

F.R.APP.P. 41; F.R.APP.P. 39

COMES NOW, Appellants in the above—captioned

cause, and respectfully moves the Court to GRANT

Rehearing en banc. Appellants’ saith the following:

1. The Constitutional violation involving 5th

Amendment Taking is still ongoing as of June 5, 2023.

2. Appellant City of Clarksdale/Clarksdale Public

Works filed their F.R.C.P. 56(c) in violation of F.R.C.P.

56(b) procedural which provides, TIME TO FILE A

MOTION. Unless a different time is set by local rule

App.36a

or the court orders otherwise, a party may file a

motion for summary judgment at any time until 30

days after the close of all discovery.

3. F.R.C.P. Subdivision (e) addresses questions

that arise when a party fails to support an assertion

of fact or fails to properly address another party’s

assertion of fact as required by Rule 56(c). as explained

below, summary judgment cannot be granted even if

there is a complete failure to respond to the motion,

much less when an attempted response fails to comply

with Rule 56(c) requirements .... if summary judg­

ment is denied, a party who failed to make a proper

Rule 56 response or reply remains free to contest the

fact in further proceedings. And the court may choose

not to consider the fact as undisputed, particularly if

the court knows of record materials that show grounds

for genuine dispute.

4. Subdivision (e)(3) recognizes that the court

may grant summary judgment only if the motion and

supporting materials - including the facts considered

undisputed under subdivision (e)(2)—show that the

movant is entitled to it. Considering some facts un­

disputed does not itself allow summary judgment. If

there is a proper response or reply as to some facts,

the court cannot grant summary judgment without

determining whether those facts can be genuinely

disputed.

5. The Trial Court DENIED all evidentiary

motions during Court proceedings to include ‘Daubert’

request made by Appellants’ to establish the validity

and reliability of Defendants’ Clarksdale Public Utilities

Joint Expert witness Blake Mendrops’ statement that

contradicts a disputed issue involving our 5th Amend­

ment Takings Claim shown in CCTV video footage

App.37a

showing that Appellees’ “Utility easement” lying and

situated under the floor approximately 100 feet on

Appellants’ private property located at 11 Third St.

Clarksdale, MS was defective and rusted-out on 09/27/

2017 prior to Suncoast pipe refitting company making

repairs on or about 09/27/2017. This defective galvan­

ized steel utility easement being operated for the

good of the community by Appellees lost its watertight

and gastight characteristics and caused an illegal

unauthorized (SSO) Sanitary Sewer Overflow that later

resulted in damages claimed in Complaint Document

No. [1]. The attached color photo shown in Trial Court

Doc. 93-1 Filed: 01/05/2021 page 1 of 20 PagelD #: 348

was never disputed by Appellees Clarksdale Public

Utilities or City of Clarksdale/Clarksdale Public Works

due to Trial Court denial of all “evidentiary motions.”

6. Appellants are familiar with the scene in CCTV

video footage because the photograph was taken by

Appellant Bruce Ellis while a Suncoast employee was

performing repairs on Appellees’ sewer/storm drain

behind Delta Cinema 11 Third St. Clarksdale, MS

38614.

7. This disputed CCTV photograph establishes

causal connection between sec. 1983 civil rights vio­

lation, inverse condemnation action establishing delib­

erate indifference by government official acting under

color of law to cover up illegal sanitary sewer overflow

that violates EPA Clean Water Act 40 C.F.R. 122.41(e)

and also establish a policy violation of Appellees City of

Clarksdale/Clarksdale Public Works; Clarksdale Public

Utilities own Ordinance Chapter 11 Health and Sani­

tation Code 14-25 (b) (9) which prohibits collection of

unsanitary conditions within the City limits of Clarks­

dale, MS.

App.38a

8. Appellees also violated C.F.R. 122.41 required

mandatory reporting of Untreated Raw Sewage unin­

tentional releases. Appellees have never notified Appel­

lants as of 6/5/2023 of hazardous conditions they created

on our personal property while “diverting” raw sewage

in the course of operating the “Utility Easement located

on our private property.

9. Appellants also requests the Honorable en banc

Panel to determine if Appellees City of Clarksdale/

Clarksdale Public Works F.R.C.P. Rule 56(c) motion

for summary judgment was granted in ‘ERROR’ and

is grounds for this en banc Court to ‘SET ASIDE

“prejudicial Trial Court Grant of Summary Judgment

due to City of Clarksdale filing its ANSWER in the

name of its Public Works Department, Clarksdale

Public Works.

10. City of Clarksdale previously stated in

Documents filed on the Trial Court Docket in 4:20-cv00032 that Clarksdale Public Works is a Department

of the City off Clarksdale and is incapable of suing or

being sued.

11. The “Improper Designation” of Clarksdale

Public Works on 12/10/2020 as the party filing the law

suit has never been “AMENDED” as required by law.

12. Defendants Doc. [187] EXHIBIT [A] also

results in a disputed issue because the map diagram

showing illegal galvanized steel sewer storm drain

utility easement is not a separate sewer and a separate

storm drain as Appellees Clarksdale Public Utilities

states.

13. Arch Corley City Engineer Expert Testimony

contradicts Clarksdale Public Utilities admissions

on the record that the drain located on our property

App.39a

is a combined Storm Sewer which diverts both Sewer

and Storm water to the navigable water of the Sun­

flower River.

14. Appellants Doc. [160] Separate Statement of

Facts also refute Appellees GRANT of Rule 56(c)

Motion for Summary Judgment.

CONCLUSION

1. F.R.APP.P. Rule 36 provided that there may

still be Plain/Clear Errors contained in the Judgement

that may call into question F.R.C.P. 52(b) plain error

rule. Appellants assert Appellees never refuted the

condition of their utility easement lying and situated

on approximately 100 feet under the floor of Appellants

personal property running in a north and south

direction and shown in Doc. #: 93-1 Filed: 01/05/2021

photograph 1 of 20 PagelD #: 348 of Trial Court Docket.

See “Color Photo” attached as EXHIBIT A establishing

‘Causal Connection’ for damages claimed in Complaint

Doc. [1].

2. The Trial Court and Appeals Court statement

that Plaintiffs-Appellants challenge the district court’s

acceptance of Clarksdale Public Utilities motion for

summary judgment Doc. [153] filed on 05/19/2021

resulted in “Plain / Clear ERROR.”

3. Correctly stated, Plaintiffs’—Appellants chal­

lenged the district court’s acceptance of City of

Clarksdale/Clarksdale Public Works motion for sum­

mary judgment Doc. [187] filed on 07/13/2021 filed 47

days after the close of all discovery on 05/27/2021.

4. Lastly, Appellants contends that City of Clarks­

dale filing its ANSWERS to complaint Doc. [1] in the

name of its Public Works Department, Clarksdale

App.40a

Public Works and never “AMENDING” the ERROR

resulted in actual prejudice to Plaintiffs Appellants in

Trial Court GRANTING and Appeals Court Affirming

F.R.C.P. 56(c) motion for summary judgment.

App.41a

MOTION FOR STAY OF

JUDGMENT AND MANDATE

(JUNE 6, 2023)

No. 21-60885

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRUCE ELLIS, DOING BUSINESS AS

DELTA CINEMA; WILLIE ELLIS, DOING

BUSINESS AS DELTA CINEMA,

Plaintiffs-Appellants,

v.

CLARKSDALE PUBLIC UTILITIES; CITY OF

CLARKSDALE/CLARKSDALE PUBLIC WORKS,

Defendants-Appellees.

MOTION FOR STAY OF JUDGMENT

AND MANDATE PURSUANT TO

F.R.APP.P. 36; F.R.APP.P. 41

COMES NOW, Appellants in the above-captioned

cause, and respectfully moves the Court to GRANT a

stay of this court orders dated May 30, 2023 pending

Appellate review of those orders. Appellants’ saith

the following:

1. A stay is appropriate because Judgment

AFFIRMED pursuant to F.R.APP.P. 36 contain clear/

plain errors and a substantial question will be pre-

App.42a

sented to en banc Court or Supreme Ct. due to

Appellees failure to seek leave of Court prior to filing

F.R.C.P. 56(c) motions for summary judgments and

other plain errors.

2. F.R.C.P. 52(b) provides Appellate Review of

plain/clear errors that affect the substantial rights of

Appellants’.

3. Absent a stay, Appellants’ will suffer irreparable

injury or harm.

4. Decision conflicts with Fifth Circuit and other

Circuit Court rulings.

Respectfully submitted,

/s/ Bruce Ellis/Willie Ellis

pro se

June 5, 2023

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