Berkley v. Lafayette County, MS ( 2023 )

Case: 22-60418 Document: 00516779754 Page: 1 Date Filed: 06/08/2023
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
____________ FILED
June 8, 2023
No. 22-60418 Lyle W. Cayce
____________ Clerk
Linda Berkley,
Plaintiff—Appellant,
versus
City of Oxford, Mississippi; Ashley Atkinson, City of
Oxford, MS, In Her Individual and Official Capacity; Thik and Thin
Construction, L.L.C.; Lafayette County, Mississippi;
Sherry Wall,
Defendants—Appellees.
______________________________
Appeal from the United States District Court
for the Northern District of Mississippi
USDC No. 3:19-CV-217
______________________________
Before Dennis, Engelhardt, and Oldham, Circuit Judges.
Per Curiam: *
This appeal arises out of a tax sale of a certain property. Linda Berkley,
a part-owner of the property, brought suit against the city and county in
which the property is located, two government officials, and the purchasers
of the tax liabilities. She claimed that the government defendants violated her
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*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
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constitutional rights in the process of auctioning the taxes and that the tax
deed issued to the purchaser ought thus be voided. The district court granted
summary judgment to the defendants and sanctioned Berkley and her
husband, who served as her attorney, 1 for their conduct. For the reasons that
follow, we AFFIRM the grants of summary judgment and sanctions.
I. BACKGROUND
The property in question is located at 1717 Burney Branch Drive in
Oxford, Mississippi. For many years, the property belonged to Flora Porter,
Berkley’s mother. In December of 1999, Flora Porter passed away intestate.
Her four children therefore inherited equal shares of the property. Berkley
acquired, by quitclaim deeds, the interests of her two brothers but not that of
her sister Sandra.
In early August 2017, Berkley received a notice that unpaid 2016
property taxes on the Burney Branch house would be subject to an auction in
late August should they not be paid beforehand. Berkley claims that she had
received no prior notice of the 2016 property taxes. While the City admits
that it mistakenly sent its 2016 notice of taxes to “117 West Red Fern”
instead of Berkley’s actual address, 1117 West Red Fern, the County states
that it sent the bill to the correct address. In any event, Berkley claims that
she received no tax bills for 2016. She does admit that she received a tax bill
for 2017 and that she did not pay that bill.
In keeping with the auction notice issued to Berkley, Lafayette County
and the City of Oxford then auctioned off the property for delinquent
property taxes. Thik and Thin Constructions, LLC (“Thik and Thin”), won
the auction. Berkley claims that she received no notice of the result of the
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1
Linda Berkley and her husband/counsel (Drayton Berkley) share a last name. For
the sake of clarity: any references to “Berkley” standing alone will refer to Linda.
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No. 22-60418
auction until after the City declared the redemption period expired in August
of 2019, at which point it granted Thik and Thin a tax deed. The County
likewise declared the period expired and granted a tax deed in September
2019, whereafter Berkley claims that she discovered the existence of the
deeds on September 20, 2019. Four days later, Berkley filed suit in the
Northern District of Mississippi.
Berkley’s first cause of action was a 42 U.S.C. § 1983 claim alleging a
lack of due process in the deprivation of her property interest. She brought
this claim against Lafayette County, the City of Oxford, and two individuals
– Sherry Wall and Ashley Atkinson – who were employed as clerks by the
County and the City, respectively. She brought a second claim accusing Wall
and Atkinson of being the final policymakers in their roles and having enacted
or perpetuated policies of deficient notice to property owners with
delinquent taxes. Her third cause of action was a request that the tax deed be
declared void, her fourth a statement that she was entitled to compensatory
damages, and her fifth (the only one against Thik and Thin directly) a second
request that the court cancel the tax deeds.
After more than two years of litigation, the district court granted
summary judgment to the government defendants. 2 The court found that,
even in the light most favorable to the plaintiff, the record demonstrated no
actionable federal claims. Having determined that summary judgment was
appropriate as to the federal claims, the court declined to exercise
supplemental jurisdiction over the state law claims and dismissed them
without prejudice.
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2
That is, the City, the County, and their employees. Thik and Thin filed a motion
to dismiss for failure to join an indispensable party (namely, Berkley’s sister Sandra) that
was granted in the same order.
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The district court judge also noted that he found it “very difficult . . .
to assign any motive other than bad faith to [Berkley’s] actions,” given her
“blatantly deficient arguments regarding the key factual issue in this case, on
top of her repeated discovery violations.” Given this, the district court
adopted a magistrate judge’s report and recommendation that discovery
sanctions be levied in the form of an award of attorney’s fees to the
government defendants as well as Thik and Thin. Berkley filed a timely
notice of appeal as to the grants of summary judgment and sanctions.
II. STANDARD OF REVIEW
“We review a grant of summary judgment de novo, viewing all the
evidence in the light most favorable to the nonmoving party and drawing all
reasonable inferences in that party’s favor.” Parm v. Shumate, 513 F.3d 135,
142 (5th Cir. 2007) (citing Crawford v. Formosa Plastics Corp., 234 F.3d 899,
902 (5th Cir. 2000)). “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).
“A district court’s imposition of sanctions pursuant to Rule 37(b) is
reviewed for an abuse of discretion. ‘The district court’s underlying findings
of fact are reviewed for clear error and its underlying conclusions of law
reviewed de novo.’” Smith & Fuller, P.A. v. Cooper Tire & Rubber Co., 685
F.3d 486, 488 (5th Cir. 2012) (internal citation omitted) (quoting Am.
Airlines, Inc. v. Allied Pilots Ass’n, 228 F.3d 574, 578 (5th Cir. 2000)).
III. ANALYSIS
A. Federal Claims
Berkley’s federal claims fail for lack of a valid constitutional claim. As
the district court noted, there is no evidence in the record that would support
an inference that the defendants acted in any way other than negligently.
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Supreme Court precedent is clear that “the Due Process Clause of the
Fourteenth Amendment is not implicated by the lack of due care of an official
causing unintended injury to life, liberty or property. In other words, where
a government official is merely negligent in causing the injury, no procedure
for compensation is constitutionally required.” Davidson v. Cannon, 474 U.S.
344, 347 (1986). The district court concluded that Berkley “clearly failed to
create fact issues regarding any misconduct by defendants in this case which
consists of more than simple negligence.” This court agrees. Berkley claims
that the government officials’ general awareness that failure to provide notice
could harm property owners suffices to demonstrate recklessness or
deliberate indifference in this case. As the district court noted, no evidence
supports the leap from the former to the latter.
Berkley states that the notice given to her was constitutionally
inadequate under Mennonite Board of Missions v. Adams, 462 U.S. 791 (1983).
In support of this argument, Berkley cites a Fifth Circuit case, In re Paxton,
to show that “notice to [one joint owner of a property] simply does not satisfy
the Mennonite requirement of notice reasonably calculated to apprise a party
. . . of a proceeding which adversely affected that party’s property interest.”
440 F.3d 233, 236 (5th Cir. 2006) (internal quotation marks omitted). At
issue in this appeal, however, is not whether notice was adequate (an issue
which is open to any state court which receives this case, should Berkley file
there) but whether any government official violated Berkley’s constitutional
rights. See Davidson, 474 U.S. at 347. As Berkley has made no such showing,
her claims fail.
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B. Declination of Supplemental Jurisdiction
Berkley’s brief makes no challenge to the district court’s decision to
decline to exercise supplemental jurisdiction over her state law claims. 3 For
this reason, any challenge she might have made to the district court’s
declination is forfeited. See Guillot on behalf of T.A.G. v. Russell, 59 F.4th 743,
751 (5th Cir. 2023) (“Parties forfeit contentions by inadequately briefing
them on appeal.”). This includes all claims against Thik and Thin
Construction.
C. Sanctions
The magistrate judge noted serious and repeated misconduct
perpetrated by both Linda and Drayton Berkley. It is worth quoting the
magistrate judge’s introduction to her findings at length:
Plaintiff’s conduct and that of her counsel (who is also her
husband), from all appearances, has been in flagrant disregard
of the truth and their discovery obligations. This conduct
includes the following: provision of demonstrably false sworn
interrogatory answers; numerous false answers under oath by
Plaintiff at her deposition; improper refusal to answer
questions at her deposition, including at the improper
instruction of her counsel; failure to disclose documents
and/or spoliation of same and an alarming willingness by
Plaintiff and her counsel to double down on improper conduct
to evade responsibility for it, such as misrepresenting legal
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3
Berkley does challenge the district court’s determination that Sandra Porter was
an indispensable party to this action. That determination, however, was only “note[d]
parenthetically” by the district court as an alternative holding given the court’s decision to
“decline to exercise supplemental jurisdiction.” Berkley makes no challenge to the district
court’s primary holding: that it was exercising its discretion to decline to retain the state
law claims. As this court need not reach it, we make no comment regarding the
indispensable party argument.
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authorities to the court, the making of specious legal
arguments, and the misuse of errata sheets.
Berkley also misrepresented her past litigation history in two different ways,
claimed to have documents that she had previously denied having, and later
claimed that she could not find those documents despite her representations
that she had them “at her fingertips.” In sum, there is plentiful evidence of
misconduct.
In her briefing before this court, Berkley claims that the evidence
requested in the deposition was irrelevant and that her errata sheets (in which
she made numerous, substantive corrections to her deposition testimony and
which were submitted in response to the motion for sanctions) were
improperly discounted in the magistrate’s recommendations. Regarding the
latter, Berkley cites Gonzalez v. Fresenius Medical Care North America for the
proposition that she was permitted to make substantive changes to her
testimony using errata sheets. 689 F.3d 470 (5th Cir. 2012). What she fails to
note, though, is that the Gonzalez court upheld the imposition of sanctions:
“Counsel argues on appeal that Relator was entitled to submit an errata sheet
and make substantive changes to her deposition . . . . We do not necessarily
disagree, but the only question for our purposes is whether the district court
abused its discretion . . . . We find no abuse of discretion.” Id. at 480. More
generally, the court is convinced that the information requested and not
provided was, in fact, relevant to the lawsuit. Information about Berkley’s
past lawsuits (especially those involving emotional distress), her purchases
of her brothers’ interests in the property, and her records of her
communications with the City and County were all squarely at issue in both
proof and damages. The district court made no error in assessing sanctions.
Lastly, Berkley claims that the district court erred in its assignment of
certain billing rates to the defendants’ attorneys because “Fifth Circuit
precedent require[es] proof of the customary billing rate to calculate a
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reasonable hourly rate for fee applicants.” Not so. The case cited for this
proposition imposes no such requirement: instead, it notes that both regular
rates and prevailing market rates may be considered and that our overarching
concern is that the rates be “reasonable.” La. Power & Light Co. v. Kellstrom,
50 F.3d 319, 328 (5th Cir. 1995) (per curiam); see also McClain v. Lufkin Indus.,
Inc., 649 F.3d 374, 381 (5th Cir. 2011) (quoting Blum v. Stenson, 465 U.S. 886,
895, (1984)) (“‘[R]easonable’ hourly rates ‘are to be calculated according to
the prevailing market rates in the relevant community.’”). Berkley has
shown no abuse of discretion.
IV. CONCLUSION
As the district court noted, “state court was, in fact, the proper forum
for [Berkley] to file her claims.” Her federal claims were, from the outset,
weak at best. Her conduct, and that of her counsel, only weakened her suit.
The district court correctly granted summary judgment and did not abuse its
discretion in imposing sanctions. Therefore, we AFFIRM.
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