McCray v. Olive

Filing 29

ORDER ADOPTING REPORT AND RECOMMENDATIONS, 27 Report and Recommendations, denying as moot 19 Motion for More Definite Statement filed by Otis Oliver McCray, denying as moot 3 MOTION to Secure filed by Otis Oliver McCray, denying as moot [11 ] Motion to Strike filed by Kelly Suzanne Olive, denying as moot 6 Motion for Miscellaneous Relief filed by Otis Oliver McCray, denying as moot 5 Motion for More Definite Statement filed by Otis Oliver McCray, denying as moot 16 Motion to A mend/Correct filed by Otis Oliver McCray, denying as moot 17 MOTION to Show Conspiracy filed by Otis Oliver McCray, denying as moot 18 MOTION to Bar Claims filed by Otis Oliver McCray, denying as moot 7 MOTION to Secure filed by Otis Oliver McCray, denying as moot 4 MOTION for Evidentiary Hearing filed by Otis Oliver McCray, granting 14 Motion for Judgment on the Pleadings filed by Kelly Suzanne Olive, denying 12 Motion for Judgment on the Pleadings as to State Law Claims filed by Kelly Suzanne Olive Signed by Honorable David C. Bramlette, III on 5/18/2017 (cwl)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
WESTERN DIVISION
OTIS OLIVER MCCRAY

PLAINTIFF

v.

CIVIL ACTION NO. 5:17-cv-11-DCB-MTP

KELLY SUZANNE OLIVE

DEFENDANT

ORDER ADOPTING REPORT AND RECOMMENDATION
This cause is before the Court on Magistrate Judge Michael T.
Parker’s Report and Recommendation (docket entry 27), to which no
objections were filed.1

Having carefully reviewed the same, the

Court finds that the Report and Recommendation is well-taken and
should be adopted as the opinion of this Court.
Plaintiff

Otis Oliver McCray (“McCray”)’s

federal claims

under 42 U.S.C. § 1983 are barred by Heck v. Humphrey, 512 U.S.
477, 486-87 (1994), because his convictions have not been reversed,
expunged, declared invalid, or called into question by federal
habeas corpus. Furthermore, any amendment to the plaintiff’s pro
se pleadings would be futile as none of the Heck conditions have
been satisfied in this case.

The Court shall therefore dismiss

the plaintiff’s § 1983 claims with prejudice

to their being

asserted again unless and until the Heck conditions are met.

1 The plaintiff has filed a Letter (docket entry 28) responding to the
Report and Recommendation. Within this letter, the plaintiff expressly states,
“I have no wish to object to the [r]emand.” Doc. 28. Attached to the Letter is
a series of pleadings addressed to the Circuit Court of Wilkinson County, which
re-allege many of the plaintiff’s claims. However, these documents do not appear
to raise any objection to Judge Parker’s report.

Because
dismissal,

the
the

plaintiff’s
Court

federal

declines

claims

to

are

exercise

subject

to

supplemental

jurisdiction over McCray’s remaining state-law claims.
Accordingly,
IT IS HEREBY ORDERED that Magistrate Judge Michael T. Parker’s
Report and Recommendation (docket entry 27) is ADOPTED as the
findings and conclusions of this Court;
FURTHER ORDERED that Defendant’s Motion for Judgment on the
Pleadings as to Federal Claims (docket entry 14) is GRANTED;
FURTHER ORDERED that Plaintiff’s claims under 42 U.S.C. §
1983 are dismissed with prejudice to their being asserted again
until the Heck conditions are met;
FURTHER ORDERED that Defendant’s Motion for Judgment on the
Pleadings as to State Law Claims (docket entry 12) is DENIED
without

prejudice

insofar

as

the

Court

declines

to

exercise

supplemental jurisdiction over Plaintiff’s state law claims;
FURTHER ORDERED that all remaining motions (docket entries 3,
4, 5, 6, 7, 11, 16, 17, 18, and 19) are denied as MOOT.
A Final Judgment dismissing Plaintiff’s federal claims will
follow in accordance with Federal Rule of Civil Procedure 58. A
separate order of remand transferring the above styled and numbered
cause to the Circuit Court of Wilkinson County, Mississippi shall
issue this day.

SO ORDERED, this the 18th day of May, 2017.
/s/ David Bramlette_________
UNITED STATES DISTRICT JUDGE