Ellis v. Dunn et al
ORDER ADOPTING REPORT AND RECOMMENDATIONS in part as the opinion of this Court. Defendant's motions for summary judgment 86 90 are granted. Ellis's Motion to Amend 98 is denied. This action is dismissed with prejudice. Signed by District Judge Daniel P. Jordan, III on 8/2/17.(TLC)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF MISSISSIPPI
THOMAS EARL ELLIS
CIVIL ACTION NO. 3:14-CV-994-DPJ-FKB
BARBARA DUNN, et al.
This pro se § 1983 action is before the Court on the Report and Recommendation  of
Magistrate Judge F. Keith Ball. Judge Ball recommended granting Defendants’ motions for
summary judgment [86, 90] and dismissing this action with prejudice. Plaintiff Thomas Earl
Ellis did not object; instead, he moved to amend his complaint . The Court, having
considered each of these filings, finds that the Report and Recommendation should be adopted in
part. Ellis’s motion to amend is denied.
Facts and Procedural History
In 1991, Ellis pleaded guilty in the Circuit Court of Hinds County, Mississippi, to one
count of sexual battery. After serving time, he was again indicted in 2009 in state court for
sexual battery and gratification of lust. He was tried and convicted on those counts in March
2011. The court sentenced Ellis as a habitual offender, using his 1991 conviction to enhance his
sentence. His 2011 convictions were affirmed in March 2014, and his application for postconviction relief was denied seven months later.
Ellis filed suit in this Court on December 23, 2014, alleging, among other things, that
Defendants failed to keep accurate records, falsified records, and refused to produce records.
Because Ellis is a prisoner proceeding in forma pauperis, his Complaint was subject to the
screening procedures of 28 U.S.C. § 1915. As part of that process, the Court dismissed Ellis’s
case in part. See Order .1 All that is left are Ellis’s federal-law claims against Defendants
Barbara Dunn, Alicia Box, Tyrone Lewis, and Robert Schuler Smith regarding their alleged
failure to provide records Ellis allegedly requested.
Judge Ball conducted an omnibus hearing on August 31, 2016, to question Ellis
concerning these claims and to address other case-management issues. Omnibus Order  at 1.
Based on Ellis’s testimony, Judge Ball clarified Ellis’s claims as alleging a failure to produce
records regarding his previous 1991 conviction in Hinds County, Mississippi.
Once Ellis’s claims against the remaining Defendants were clearly framed, Defendants
Dunn, Lewis, Box, and Smith moved for summary judgment. Motion ; Motion . Judge
Ball issued a Report and Recommendation , recommending the Court grant their summaryjudgment motions and dismiss this action with prejudice. Ellis did not file an objection,
choosing instead to file a motion to amend his complaint . The Court has personal and
subject-matter jurisdiction and is prepared to rule.
Summary judgment is warranted under Federal Rule of Civil Procedure 56(a) when
evidence reveals no genuine dispute regarding any material fact and that the moving party is
entitled to judgment as a matter of law. The rule “mandates the entry of summary judgment,
after adequate time for discovery and upon motion, against a party who fails to make a showing
That Order dismissed the following: habeas claim, request for writ of mandamus, all
§ 1983 claims against Judge William F. Coleman, Ed Peters, George S. Luter, and Malcom E.
McMillin, some § 1983 claims against Barbara Dunn, all damage claims regarding alleged
deficiencies in the records and procedures related to Ellis’s 1990 arrest and 1991 conviction, all
claims challenging the legality of Ellis’s 1991 conviction and its alleged use as a sentence
enhancement in connection with this 2011 conviction, and all Bivens/FTCA claims.
sufficient to establish the existence of an element essential to that party’s case, and on which that
party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
The party moving for summary judgment “bears the initial responsibility of informing the
district court of the basis for its motion, and identifying those portions of [the record] which it
believes demonstrate the absence of a genuine issue of material fact.” Id. at 323. The
nonmoving party must then “go beyond the pleadings” and “designate ‘specific facts showing
that there is a genuine issue for trial.’” Id. at 324 (citation omitted). In reviewing the evidence,
factual controversies are to be resolved in favor of the nonmovant, “but only when . . . both
parties have submitted evidence of contradictory facts.” Little v. Liquid Air Corp., 37 F.3d 1069,
1075 (5th Cir. 1994) (en banc). When such contradictory facts exist, the court may “not make
credibility determinations or weigh the evidence.” Reeves v. Sanderson Plumbing Prods., Inc.,
530 U.S. 133, 150 (2000). Conclusory allegations, speculation, unsubstantiated assertions, and
legalistic arguments have never constituted an adequate substitute for specific facts showing a
genuine issue for trial. TIG Ins. Co. v. Sedgwick James of Wash., 276 F.3d 754, 759 (5th Cir.
2002); Little, 37 F.3d at 1075; SEC v. Recile, 10 F.3d 1093, 1097 (5th Cir. 1993).
The Court will first examine the grounds for dismissal as set forth by Judge Ball and then
turn to Ellis’s motion to amend.
Failure to State a Claim
In his Report and Recommendation, Judge Ball observed that “the only constitutional
right implicated by [Ellis’s] allegations is that of access to the courts.” R&R  at 3. Ellis
never objected to this description of his claim, and it otherwise seems correct. To state such a
an inmate . . . must demonstrate a relevant, actual injury stemming from the
defendant’s unconstitutional conduct. This requires the inmate to allege that his
ability to pursue a “nonfrivolous,” “arguable” legal claim was hindered. The
inmate must describe the underlying claim well enough to show that its “arguable
nature . . . is more than hope.”
Brewster v. Dretke, 587 F.3d 764, 769 (5th Cir. 2009) (citation omitted).
Here, Judge Ball determined that Ellis requested the records at issue in order to challenge
the validity of his 1991 conviction as a basis for the enhancement of his 2011 sentences. R&R
 at 3. The Court agrees with that conclusion. Omnibus Tr. [90-1] at 6–7 (“I was enhanced as
a habitual offender. . . . Those [a]re the facts that . . . I needed to really go ahead and proceed
with my habeas corpus.”). So Ellis must show that the challenge to his enhanced 2011 sentence
based on the validity of his 1991 conviction is “nonfrivolous” and “more than hope.” Brewster,
587 F.3d at 769.
According to Judge Ball, Ellis failed to do so because his allegations are “insufficient to
establish that he has an arguable basis for challenging his 1991 conviction.” R&R  at 3.
Judge Ball is probably correct that Ellis failed to make a sufficient showing in this case that his
records requests regarding the 1991 conviction relate to a nonfrivolous issue. That said, Ellis has
a habeas petition pending before another judge in this district in which he claims that “the
habitual . . . enhancement must be vacated.” See Ellis v. Byrd, No. 3:15-CV-121-HTW-FKB,
docket no. 1 at 5 (CM/ECF pagination). In other words, it appears that Ellis may be challenging
the 1991 conviction in his pending habeas case as it relates to the sentencing enhancement he
received for his 2011 conviction. See Order  at 4.
If that is so, then another judge will ultimately decide whether Ellis’s 1991 conviction
could enhance his subsequent conviction. And for that reason, this Court is reluctant to hold that
Ellis has no arguable legal claim that was hindered by the alleged failure to produce records. Out
of caution, the Court therefore concludes that it would be better to focus on Judge Ball’s
alternative holding that Ellis’s claims fail as to each Defendant.
Turning first to Mississippi Department of Corrections (“MDOC”) Records Officer Box
and Hinds County District Attorney Smith, the Court adopts Judge Ball’s finding that Ellis’s
claims against them in their official capacities are barred under the Eleventh Amendment. See
R&R  at 4; see also Brooks v. George Cty., Miss., 84 F.3d 157, 168 (5th Cir. 1996) (finding
district attorney entitled to Eleventh Amendment immunity); Williams v. Miss. Dep’t of Corr.,
No. 3:12-CV-259-CWR-FKB, 2012 WL 2052101, at *1 (S.D. Miss. June 6, 2012) (holding
MDOC entitled to Eleventh Amendment immunity). Because Ellis asserts a claim against Smith
in his official capacity only, Smith is dismissed entirely from this suit. Omnibus Tr.  at 15.
As for Hinds County Sheriff Lewis and Hinds County Circuit Clerk Dunn, Ellis’s claims
against them in their official capacities are treated as claims against the County. So to hold these
Defendants liable, Ellis must show “(1) the existence of a policymaker, and (2) an official policy
or custom, (3) which is the moving force behind a constitutional violation.” Smith v. Harrison
Cty., Miss., No. 1:07CV1256-LG-JMR, 2010 WL 4105674, at *2 (S.D. Miss. Sept. 27, 2010)
(citing Piotrowski v. City of Hous., 237 F.3d 567, 578 (5th Cir. 2001)). As Judge Ball observed,
Ellis has neither shown nor alleged any such policy or custom. See R&R  at 4. Ellis offers
no objection to that finding, which is otherwise correct. Therefore, his official-capacity claims
as to Lewis and Dunn are dismissed.2
Judge Ball found that Ellis stated at the omnibus hearing that he is asserting a claim
against Lewis in his official capacity only. R&R  at 4. But that is not entirely clear on the
In order to prevail on a claim for violation of the constitutional right to access the courts,
Ellis must show “a deliberate denial of his right of access to the courts” in failing or refusing to
provide him with records. Hughes v. Hamlin, 275 F.3d 1079 (5th Cir. 2001) (emphasis added).
The Court agrees with Judge Ball that Ellis fails to make any showing that Dunn deliberately
denied his access to the Court by withholding records. R&R  at 4–5. Similarly, Lewis states
in his affidavit, “I have received no requests for records from Mr. Ellis related to [the 1991
conviction] criminal investigation.” Lewis Aff. [86-2]. This sworn statement remains
uncontested, and Ellis does not otherwise show that Lewis deliberately failed or refused to
provide him with records or documents. Finally, Judge Ball found that Ellis’s sole allegation
that Box misinterpreted Ellis’s request for a prison-mail log and instead sent him a copy of a
sentencing order “hardly rises to the level of an intentional interference with Ellis’s attempts to
obtain the desired records.” R&R  at 6. In the absence of any evidence or objection from
Ellis to the contrary, the Court agrees. See Hughes, 275 F.3d at 1079 (holding negligent conduct
is not actionable under § 1983 court-access claim). On this record, Ellis’s claims against all
individual defendants are due to be dismissed.
Motion to Amend
But the Court’s work does not end there. Following entry of Judge Ball’s Report and
Recommendation, Ellis filed a motion to amend his complaint. And indeed, “a pro se litigant
should be offered an opportunity to amend his complaint before it is dismissed.” Brewster, 587
face of the transcript, so in the interest of justice, the Court will evaluate whether any individual
claim asserted against Lewis survives summary judgment.
F.3d at 767–68. But the Court may properly consider futility of the amendment, i.e., situations
where “the plaintiff has already pleaded his ‘best case.’” Id.
Because Ellis did not file a proposed amended complaint, the Court construes his
Complaint  as amended by the allegations asserted in his motion to amend.3 After review, the
Court finds that Ellis’s motion neither alleges any materials facts that would alter the Court’s
findings as to any Defendant nor addresses the deficiencies identified by Judge Ball. His motion
to amend is futile and thus denied.4
In sum, the Court has considered all arguments raised by Ellis in his filings; those not
addressed would not have changed the outcome. For the foregoing reasons, the Court finds that
the Report and Recommendation  of Magistrate Judge F. Keith Ball should be adopted in
part as the opinion of this Court. Defendants’ motions for summary judgment [86, 90] are
granted. Ellis’s Motion to Amend  is denied.
This action is dismissed with prejudice. A separate judgment will be entered in
accordance with Federal Rule of Civil Procedure 58.5
Ellis previously moved for leave to amend his Complaint to add Ed Peterson and
Malcolm McMillin as Defendants. Am. Mot. . That motion was granted and those
Defendants were joined; but an amended complaint was never filed. Order . Therefore,
Ellis’s initial pleading, filed December 23, 2014, appears to remain the operative complaint with
the addition of those now-dismissed Defendants.
At different points in his motion, Ellis discusses issues common to collateral relief
proceedings. See, e.g., Am. Mot.  at 2, 4. But the Court reminds Ellis, as Judge Ball did at
his omnibus hearing, that is not what this case is about. His claims here challenge whether he
was denied his fundamental constitutional right of access to the courts. Any challenge to his
conviction or sentence must be pursued in Ellis’s habeas corpus action, which remains pending
On July 17, 2017, an “Alert” was docketed from Ellis, bringing the Court’s attention to
the actions of his fellow inmate Melvin Perkins. Ellis asserts that Perkins “seriously
SO ORDERED AND ADJUDGED this the 2nd day of August, 2017.
s/ Daniel P. Jordan III
UNITED STATES DISTRICT JUDGE
threaten[ed]” Ellis’s life and that he wants Perkins moved. Alert  at 1. This does not appear
to relate in any way to the case before this Court. But in the event Ellis is attempting to initiate a
new civil action, the Clerk’s Office is directed to send him the proper forms and applications to
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