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Clark v. Miller

United States District Court, S.D. Mississippi, Southern Division

May 23, 2014

JOSEPH BRADLEY CLARK, Plaintiff,
v.
SERGEANT RAY MILLER, SERGEANT JOHN MASSENGILL, DEPUTY JUSTIN BRANNING, KENNETH MORAN, and SHERIFF MELVIN BRISOLARA, Defendants.

ORDER ADOPTING REPORT AND RECOMMENDATION

LOUIS GUIROLA, Jr., Chief District Judge.

BEFORE THE COURT is the Report and Recommendation [92] entered by Chief United States Magistrate Judge John M. Roper, Sr. Judge Roper recommends that the defendants' Motion for Summary Judgment [77] should be granted, and the defendants' Motion to Strike Clark's Surrebuttal [85] should be denied. Joseph Bradley Clark filed an Objection [94] to the Report and Recommendation on April 25, 2014. After reviewing the submissions of the parties and the applicable law, the Court finds that the Report and Recommendation should be adopted as the opinion of this Court.

FACTS

On November 25, 2010, Sergeant John Massengill of the Harrison County Sheriff's Department witnessed a Chevrolet Blazer being driven erratically on Interstate 10 near Canal Road in Gulfport, Mississippi. (Defs.' Mot., Ex. B, ECF No. 77-2). The vehicle left the roadway five times before crossing the middle lane and nearly sideswiping a vehicle. ( Id. ) Massengill pulled the vehicle over, but the vehicle sped away as Massengill approached the vehicle on foot. ( Id. ) The vehicle exited Interstate 10 at Beatline Road and almost struck two other vehicles. ( Id. ) A high speed chase continued until the vehicle turned west on a private driveway on Golden Pond Road and struck a tree. ( Id. ) Massengill has testified that he saw a man exit the vehicle and run north on foot. ( Id. ) The driver of the vehicle was later identified as Joseph Bradley Clark. ( Id. )

Sergeant Ray Miller arrived on the scene, and he began to track Clark using a canine named D'Ablo. ( Id. ) D'Ablo was on a fifteen foot leash. (Defs.' Mot., Ex. D, ECF No. 77-4). Miller described the search area as dark with heavy brush. ( Id. ) D'Ablo located Clark and "engaged [Clark's] left lower arm before [Miller] saw [Clark's] location." ( Id. ) Miller has testified that he was the only officer in the vicinity, and he was "unable to physically release the leash." ( Id. ) Miller claims that Clark resisted and pulled away from D'Ablo, which caused D'Ablo to "engage" Clark's lower right leg. ( Id. ) Miller ordered Clark to stop resisting, and he released D'Ablo's grip. ( Id. ) Deputy Justin Branning, who had approached the scene after Clark was apprehended by Miller and D'Ablo, handcuffed Clark, and transported him back to the scene of the accident. (Defs.' Mot., Ex. E, ECF No. 77-5). It was then verified that the vehicle driven by Miller had been reported stolen by the City of Biloxi, and Clark had outstanding warrants in the City of Pascagoula. ( Id. ) Banning next transported Clark to Memorial Hospital, for treatment of the dog bites.

Clark, a pro se prisoner, filed this lawsuit against Sergeant Miller, Deputy Branning, Sergeant Massengill, Kenneth Moran, and Sheriff Brisolara. In his Complaint, he states, "I was on the ground asleep" when "Miller made his dog bite me in the face and on my left arm and right leg. And then Sergeant Ray Miller and Sergeant John Massengill tassed [sic] me three times untill [sic] I was unconscious." (Compl. at 4, ECF No. 1). In an affidavit, Clark stated:

3. And when the dog bit me in the face I awoke. And I saw the dog, and two men. Ray Miller and Justin Branning.
4. And then Ray Miller said something to the dog and whiped [sic] the dog[']s leash.
5. And the dog grabed [sic] my left arm. And I said dam [sic] boy. And put my hand on the dog[']s head and he let go of my arm.
6. Then Ray Miller whiped [sic] the dog[']s leash again. And the dog bit my right leg. Chewing and biting me untill [sic] Ray Miller told him to stop.
7. And in the same instance the dog let go, they both, Ray Miller and Justin Branning poped [sic] me with their tasers.
8. And they tased me untill [sic] I fell unconscious to the ground causing damage to my artificial hip....
9. And cracked my allready [sic] bad right elbow. Which [sic] needs surgery now. And hurt my allready [sic] bad back.
10. Ray Miller, Justin Branning, and John Massengill all said in their affidavits that they did ...

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