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Coleman v. Bunch

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

April 18, 2018

EDWIN TYRONE COLEMAN PLAINTIFF
v.
WESLEY BUNCH, et al. DEFENDANTS

          REPORT AND RECOMMENDATION

          JOHN C. GARGIULO UNITED STATES MAGISTRATE JUDGE.

         BEFORE THE COURT is a Motion to Dismiss or, in the Alternative, for Summary Judgment (ECF No. 26) filed by Defendants Justin Clifton, Dean Schultz, Kurwin Smith, Marlin Champagne, and Jason Cueves. Wesley Bunch joined in the Motion. (ECF No. 29). To date, Plaintiff Edwin Tyrone Coleman has not filed a response to Defendants' Motion. However, the Court cannot solicit a response from Plaintiff because Plaintiff has failed to keep the Court apprised of his current address. Accordingly, the Court proceeds without the benefit of a response from Plaintiff. Having reviewed the record, Defendants' Motion, and relevant law, the undersigned recommends that Defendants' Motion to Dismiss or, in the Alternative, for Summary Judgment (ECF No. 26) be GRANTED and Plaintiff's claims be dismissed as barred by Heck v. Humphrey, 512 U.S. 477 (1994). Additionally, Plaintiff should be given a strike pursuant to 28 U.S.C. § 1915(g) because he has failed to state a claim for which relief may be granted.

         I. BACKGROUND

         A. Procedural History

         Plaintiff Edwin Tyrone Coleman was a pre-trial detainee at the Harrison County Adult Detention Center (“HCADC”) in Gulfport, Mississippi when he filed his Complaint (ECF No. 1) on June 28, 2017. He was subsequently transferred to Southern Mississippi Correctional Institution, and appears to have been since released from the custody of the Mississippi Department of Corrections (“MDOC”). After being arrested for and charged with simple assault of a police officer, he pleaded guilty to - and was thus convicted of - resisting arrest. See (ECF No. 26-3). Proceeding pro se and in forma pauperis, Mr. Coleman alleges that Defendants violated his Fourth and Fourteenth Amendment rights by using excessive force while arresting him on June 5, 2016. He maintains that he was arrested and criminally charged “to justify and cover up what was inflicted upon [him] by [Defendants]” and seeks $2, 700, 000.00 in compensatory and punitive damages under 42 U.S.C. § 1983. (ECF No. 1, at 4-8).

         On October 30, 2017, Defendants filed the instant Motion to Dismiss or, in the Alternative, for Summary Judgment (ECF No. 26) with an accompanying Memorandum in Support (ECF No. 27). Plaintiff has not filed a response to Defendants' Motion, and the Court is unable to solicit a response from Plaintiff because he has failed to keep the Court apprised of his current address. The most recent filing sent to Plaintiff's address of record was returned as undeliverable, see (ECF No. 31), and the Court's own search of MDOC inmate records indicates that Plaintiff is no longer in MDOC custody. See Inmate Search Results, Miss. Dep't of Corrections, https://www.ms.gov/mdoc/inmate (last visited Apr. 17, 2018). Accordingly, the Court proceeds without the benefit of a response from Plaintiff.

         B. Plaintiff's Factual Allegations

         As alleged by Plaintiff, he went to pick up his girlfriend from the Chili's Restaurant where she worked on June 5, 2016. Plaintiff had previously been employed at the same Chili's but was fired. When he arrived at Chili's, he was told that he was trespassing and was instructed to vacate the premises. Defendant Officer Wesley Bunch of the Gulfport, Mississippi Police Department arrived on the scene shortly thereafter. Plaintiff assumes that a Chili's employee called the Gulfport Police about his presence.

         Bunch drew his firearm, pointed it at Plaintiff, and told him to stand still while radioing for other units to assist. Bunch then holstered his weapon, took out OC spray, and proceeded to spray it in Plaintiff's face. He grabbed Plaintiff and wrestled Plaintiff to the ground. Plaintiff says he pulled Bunch to the ground with him by grabbing Bunch in the back of the neck in order “to keep from being seriously hurt from the pavement.” (ECF No. 1, at 5). Bunch broke Plaintiff's hold and “continued to fight” by punching Plaintiff and pressing his thumb into Plaintiff's eye. Id. This continued until backup units arrived.

         Officers Justin Clifton, Dean Schultz, Kurwin Smith, Marlin Champagne, and Jason Cueves - who are also defendants in this suit - exited their vehicles and joined the melee. Clifton kneed Plaintiff in the head, Schultz kneed Plaintiff in the left side of his torso three times, Smith discharged his taser into Plaintiff, and Champagne grabbed Plaintiff's legs. Clifton then took Schultz's taser and discharged it into Plaintiff's neck and back. Finally, Cueves handcuffed Plaintiff and placed him in a patrol car. Plaintiff was taken to the Harrison County Jail and charged with simple assault of a police officer. He maintains that he was criminally charged “to justify and cover up what was inflicted upon [him] by [Defendants].” Id. at 5.

         Plaintiff asserts the following instances of excessive force: Bunch used excessive force when he sprayed Plaintiff with OC spray in the face and pressed his thumbs into Plaintiff's eyes; Clifton used excessive force by kneeing him in the head while he was being restrained; Schultz used excessive force by kneeing him in the side three times after he was already restrained; Smith used excessive force by tasing Plaintiff while he was being restrained; Champagne used excessive force by holding Plaintiff's legs while he was being tased by another defendant; and Cueves used excessive force by handcuffing Plaintiff after he was restrained. Id. at 4, 7).

         II. DISCUSSION

         Defendants Motion (ECF No. 26) argues that Plaintiff's Complaint should be dismissed because his claims are barred by Heck v. Humphrey, 512 U.S. 477 (1994). Although the Motion suggests that it could be treated as either a motion to dismiss or a motion for summary judgment, Defendants submit no record evidence in support of a summary judgment decision. The Court therefore will treat Defendants' Motion solely as a motion to dismiss for failure to state a claim for which relief can be granted pursuant to Federal Rule of Civil Procedure 12(b)(6). For the reasons that follow, the undersigned recommends that Defendants' Motion be granted.

         A. Motion to ...


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