United States District Court, S.D. Mississippi, Southern Division
REPORT AND RECOMMENDATION
C. GARGIULO UNITED STATES MAGISTRATE JUDGE.
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
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).
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.
Plaintiff's Factual Allegations
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.
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
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.
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).
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
Motion to ...