McCray v. Olive

Filing 36

ORDER denying 35 Motion for Writ of Mandamus. Further ordered that should the plaintiff continue to file frivolous motions or lawsuits, appropriate sanctions may be imposed against him. Signed by Honorable David C. Bramlette, III on 2/15/2018 (ECW)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
WESTERN DIVISION
OTIS OLIVER McCRAY
VS.

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

KELLY SUZANNE OLIVE

DEFENDANT
ORDER

This cause is before the Court on the plaintiff Otis Oliver
McCray’s Motion for Writ of Mandamus (docket entry 35).
On May 22, 2017, this Court entered a Final Judgment as to the
plaintiff’s federal claims, dismissing his claims under 42 U.S.C.
§ 1983 with prejudice.

On the same day, the Court remanded the

plaintiff’s state law claims to the Circuit Court of Wilkinson
County, Mississippi, thereby closing this civil action.
On October 4, 2017, the plaintiff filed a “Writ of Mandamus”
asking this Court to compel the Circuit Court of Wilkinson County
to “comply with the order of remand.”

See docket entry 32.

The

pleading cited no grounds and failed to show that the Circuit Court
has refused to comply with this Court’s order of remand.
Docket entry 32 also included an attachment titled “Affidavit
for Arrest,” seeking the arrest of defendant Kelly Suzanne Olive
for civil contempt.

Again, the pleading cited no grounds and

failed to show any civil contempt on the part of the defendant.
Consequently, the motion for “Writ of Mandamus” and the “Affidavit
for Arrest” were denied by this Court on October 27, 2017.

See

docket entry 34.
The present Motion for Writ of Mandamus seeks an order from
this Court compelling the Circuit Court of Wilkinson County,
Mississippi,

to

“act

in

accord

with

the

dictates

of

the

Constitution, and in particular, in accord with the Due Process
Clause.”

See docket entry 35.

Again, the pleading cites no

grounds for the relief requested.
In Johnson v. United States Marine Corps, 2013 WL 3652377, *6
(N.D. Tex. July 15, 2013), the district court observed:
The Fifth Circuit has noted, “[l]ike every other pastime,
recreational litigation has its price; ... sanctions ...
are imposed for the very purpose of causing the would-be
pro se litigant, with time on his hands and a disposition
to retaliate against the system, to think twice before
cluttering our dockets with frivolous or philosophical
litigation.” Gelabert v. Lynaugh, 894 F.2d 746, 748 (5th
Cir. 1990).
Even pro se litigants, who are given
considerable latitude, do not have the right to abuse the
court system by repeatedly filing frivolous claims and
motions. Myers v. Klevenhagen, 941 F.2d 346, 348 (5th
Cir. 1991). When it becomes clear that a litigant is a
major consumer of court time who continually wastes
judicial resources, sanctions are an appropriate remedy.
Id.
This Court shall deny plaintiff Otis Oliver McCray’s Motion for
Writ of Mandamus.

Furthermore, the Court finds that sanctions may

also be appropriate, should the plaintiff continue to submit
frivolous claims.

Where a plaintiff is “abusing the judicial

process by such filings and [is] delaying the consideration of
meritorious

claims,”

requiring

a

plaintiff

to

receive

the

permission of the Court before filing a motion or a lawsuit is

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appropriate.

Murphy v. J.A. Collins, 26 F.3d 541, 544 (5th Cir.

1994); Balawajder v. Scott, 160 F.3d 1066, 1067 (5th Cir. 1999).
Accordingly,
IT IS HEREBY ORDERED that plaintiff Otis Oliver McCray’s
Motion for Writ of Mandamus (docket entry 35) is DENIED;
FURTHER ORDERED that should the plaintiff continue to file
frivolous motions or lawsuits, appropriate sanctions may be imposed
against him.
SO ORDERED, this the 15th day of February, 2018.

/s/ David Bramlette
UNITED STATES DISTRICT JUDGE

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