Coleman v. Bunch et al

Filing 34

ORDER ADOPTING REPORT AND RECOMMENDATIONS for 32 Report and Recommendations, and granting 26 Motion to Dismiss, filed by Jason Cueves, Kurwin Smith, Dean Schultz, Justin Clifton, Marlin Champagne. That this civil action is dismissed with prejudice and Plaintiff is assessed a strike pursuant to 28 USC 1915(g) because he failed to state a claim for which relief may be granted. A separate judgment will be entered in accordance with this Order, as required by Rule 58 of the Federal Rules of Civil Procedure. Signed by District Judge Halil S. Ozerden on 5/15/18 (PKS)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
SOUTHERN DIVISION
EDWIN TYRONE COLEMAN
v.

PLAINTIFF
CIVIL NO. 1:17cv186-HSO-JCG

WESLEY BUNCH, ET AL.

DEFENDANTS

ORDER ADOPTING MAGISTRATE JUDGE’S REPORT AND
RECOMMENDATION [32], GRANTING DEFENDANTS’ MOTION [26]
TO DISMISS, AND DISMISSING PLAINTIFF’S CLAIMS WITH PREJUDICE
This matter comes before the Court on the Report and Recommendation [32]
of United States Magistrate Judge John C. Gargiulo, entered on April 18, 2018,
recommending that Defendants Justin Clifton, Dean Schultz, Kurwin Smith,
Marlin Champagne, and Jason Cuevas’ Motion [26] to Dismiss, in which Defendant
Wesley Bunch joined, Joinder [29], be granted, that pro se Plaintiff Edwin Tyrone
Coleman’s Complaint [1] dismissed as barred by Heck v. Humphrey, 512 U.S. 477
(1994), and that Plaintiff be given a strike pursuant to 28 U.S.C. § 1915(g) for
failure to state a claim upon which relief may be granted. Plaintiff has not filed an
objection and the time for doing so has passed.
After due consideration of the Report and Recommendation [32], the Motion
[26], the record, and relevant legal authority, the Court finds that the Report and
Recommendation should be adopted as the finding of this Court, that Defendants’
Motion to Dismiss and Joinder should be granted, that Plaintiff’s claims should be
dismissed with prejudice, and that Plaintiff should be assessed a strike.

I. BACKGROUND
On June 28, 2017, Plaintiff Edwin Tyrone Coleman (“Plaintiff”), proceeding
pro se and in forma pauperis, filed a 42 U.S.C. § 1983 Complaint [1] asserting
claims against Defendants Wesley Bunch, Justin Clifton, Dean Schultz, Kurwin
Smith, Marlin Champagne, and Jason Cuevas (“Defendants”) for violating his
Fourth and Fourteenth Amendment rights due to their use of excessive force while
arresting him on June 5, 2016. Compl. [1] at 1-10. Defendants Justin Clifton, Dean
Schultz, Kurwin Smith, Marlin Champagne, and Jason Cuevas’ Motion to Dismiss
[26], filed October 30, 2017, and Defendant Wesley Bunch’s Joinder [29], filed
November 22, 2017, seek dismissal of Plaintiff’s Complaint on grounds that his
claims are barred by Heck v. Humphrey, 512 U.S. 477 (1994).
On April 18, 2018, the Magistrate Judge entered a Report and
Recommendation [32], recommending that
the 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, and joined by Defendant
Wesley Bunch – which the undersigned construes as a motion to dismiss
– be GRANTED and Plaintiff Edwin Tyrone Coleman’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.
R&R [32] at 12.
A copy of the Report and Recommendation and Notice of Electronic Filing
were mailed to Plaintiff at his address of record via the United States Postal Service

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on April 18, 2018, but were returned to the Clerk of Court on April 26, 2018, as
undeliverable because Plaintiff was “NO LONGER AT THIS INSTITUTION.” See
Correspondence [33] at 1-15. The Report and Recommendation reflects that
previously, on December 22, 2017, other correspondence [31] addressed to Plaintiff
had been returned as undeliverable, and that “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).” R&R [32] at 2-3. Plaintiff has not notified the Court of his
current address.
Plaintiff has not objected to the Report and Recommendation, and the time
for doing so has passed.
II. DISCUSSION
Where no party has objected to a magistrate judge’s proposed findings of fact
and recommendation, the Court need not conduct a de novo review of it. 28 U.S.C. §
636(b)(1) (“A judge of the court shall make a de novo determination of those portions
of the report or specified proposed findings or recommendations to which objection
is made.”). In such cases, the Court applies the “clearly erroneous, abuse of
discretion and contrary to law” standard of review. United States v. Wilson, 864
F.2d 1219, 1221 (5th Cir. 1989).
Having conducted the required review, the Court concludes that the
Magistrate Judge’s findings are not clearly erroneous, nor are they an abuse of

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discretion or contrary to law. For the reasons stated by the Magistrate Judge, the
Report and Recommendation will be adopted as the order of this Court, Defendants
Justin Clifton, Dean Schultz, Kurwin Smith, Marlin Champagne, and Jason
Cueves’ Motion [26]to Dismiss or, in the Alternative, for Summary Judgment, and
Defendant Wesley Bunch’s Joinder [29] therein, will be granted, and Plaintiff
Edwin Tyrone Coleman’s Complaint [1] will be dismissed with prejudice on grounds
that his claims are barred by Heck v. Humphrey, 512 U.S. 477 (1994). Additionally,
Plaintiff will be assessed a strike pursuant to 28 U.S.C. § 1915(g) because he failed
to state a claim for which relief may be granted.
III. CONCLUSION
IT IS, THEREFORE, ORDERED AND ADJUDGED that, the Report and
Recommendation [32] of United States Magistrate Judge John C. Gargiulo, entered
on April 18, 2018, is ADOPTED in its entirety as the finding of this Court.
IT IS, FURTHER, ORDERED AND ADJUDGED that, Defendants Justin
Clifton, Dean Schultz, Kurwin Smith, Marlin Champagne, and Jason Cueves’
Motion [26] to Dismiss or, in the Alternative, for Summary Judgment, and
Defendant Wesley Bunch’s Joinder [29] therein, are GRANTED, and Plaintiff
Edwin Tyrone Coleman’s claims are DISMISSED WITH PREJUDICE.
IT IS, FURTHER, ORDERED AND ADJUDGED that, this Civil Action is
DISMISSED WITH PREJUDICE and Plaintiff is assessed a STRIKE pursuant to
28 U.S.C. § 1915(g) because he failed to state a claim for which relief may be

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granted. A separate judgment will be entered in accordance with this Order, as
required by Rule 58 of the Federal Rules of Civil Procedure.
SO ORDERED AND ADJUDGED, this the 15th day of May, 2018.

s/ Halil Suleyman Ozerden

HALIL SULEYMAN OZERDEN
UNITED STATES DISTRICT JUDGE

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