McCormick v. Gordy et al (INMATE 3)

Filing 13

ORDERED as follows: 1) Plf Samuel Allan McCormick's 12 "Objection to the Purported Recommendation of Susan R. Walker" is OVERRULED; 2) The 10 Recommendation of the Magistrate Judge is ADOPTED; 3) Plf's 3 Motion for Summary Judgment is DENIED; and 4) This case is DISMISSED with prejudice. Signed by Chief Judge William Keith Watkins on 11/30/2016. (wcl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
SAMUEL ALLAN
MCCORMICK,
Plaintiff,
v.
CHRISTOPHER GORDY and
LUTHER STRANGE,
Defendants.

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CASE NO. 2:16-CV-834-WKW
[WO]

ORDER
Before the court is the Recommendation of the Magistrate Judge. (Doc. # 10.)
On November 21, 2016, Plaintiff Samuel Allan McCormick filed his self-styled
Objection to the Purported Recommendation of Susan R. Walker. (Doc. # 12). The
court has conducted an independent and de novo review of those portions of the
Recommendation to which objection is made. See 28 U.S.C. § 636(b).
Mr. McCormick urges that, against all odds, Rule 60(b)(4) really is the proper
vehicle for his challenge to his 2008 Alabama harassment conviction. (Doc. # 12 at
2–3.) Plaintiff does not specify whether he is referring to the Alabama Rules of Civil
Procedure or the Federal Rules of Civil Procedure—rather, he appears to refer to the
two collectively. But neither rule applies in this case: Alabama’s Rule 60(b) is

inapplicable, as “[t]he rules of procedure that apply in federal cases—even those in
which the controlling substantive law is that of a state—are the Federal Rules of
Civil Procedure.” Palm Beach Golf Center-Boca, Inc. v. John G. Sarris, D.D.S., 781
F.3d 1245, 1260 (11th Cir. 2015). The federal Rule 60(b) is similarly inapplicable.
“[T]he appropriate remedy for state prisoners attacking the validity of the fact or
length of their confinement” is a petition for a writ of habeas corpus. Preiser v.
Rodriguez, 411 U.S. 475, 490 (1973). And although a Rule 60(b) motion may be
treated as a habeas petition, see Gonzalez v. Crosby, 545 U.S. 524, 533 (2005), the
court lacks jurisdiction to entertain such a petition because Mr. McCormick is not
“in custody in violation of the Constitution or laws or treaties of the United States”
under the challenged state-court judgment. 28 U.S.C. § 2254(a); see Howard v.
Warden, 776 F.3d 772, 775 (11th Cir. 2015) (“Federal courts have jurisdiction to
entertain habeas corpus petitions only from persons who are in custody in violation
of the Constitution or laws or treaties of the United States.”) (citation and internal
quotation marks omitted) (emphasis in original). Therefore, neither Rule 60(b)(4)
of the Alabama Rules of Civil Procedure nor Rule 60(b)(4) of the Federal Rules of
Civil Procedure affords Mr. McCormick the relief he seeks.
Accordingly, it is ORDERED as follows:
1.

Plaintiff Samuel Allan McCormick’s “Objection to the Purported

Recommendation of Susan R. Walker” (Doc. # 12) is OVERRULED;
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2.

The Recommendation of the Magistrate Judge (Doc. # 10) is

ADOPTED;
3.

Plaintiff’s Motion for Summary Judgment (Doc. # 3) is DENIED; and

4.

This case is DISMISSED with prejudice.

A final judgment will be entered separately.
DONE this 30th day of November, 2016.
/s/ W. Keith Watkins
CHIEF UNITED STATES DISTRICT JUDGE

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