McCray v. Nelson

Filing 15

ORDER ADOPTING REPORT AND RECOMMENDATIONS for 5 Motion to Appoint Counsel filed by Otis O. McCray, 3 Motion to Amend/Correct filed by Otis O. McCray, 7 Motion for Judgment on the Pleadings filed by Davasha Nelson, 4 Motion for Miscellan eous Relief filed by Otis O. McCray, 6 Motion to Amend/Correct, filed by Otis O. McCray, 13 Report and Recommendations, 9 Motion for Judgment on the Pleadings filed by Davasha Nelson Signed by Honorable David C. Bramlette, III on 5/31/17 (MGB)

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-15-DCB-MTP

DAVASHA NELSON

DEFENDANT

ORDER ADOPTING REPORT AND RECOMMENDATION
This cause is before the Court on Magistrate Judge Michael T.
Parker’s

Report

and

Recommendation

(docket

entry

13).

Having

carefully reviewed the Report and Recommendation, the petitioner’s
response thereto, and applicable statutory and case law, the Court
finds and orders as follows:
On March 7, 2007, plaintiff Otis Oliver McCray (“McCray”) was
charged as a habitual offender in the Circuit Court of Wilkinson
County with murder, robbery, and possession of a firearm by a
convicted

felon.

manslaughter

and

McCray
robbery

pled
as

guilty
a

to

habitual

lesser

charges

offender

and

of
was

subsequently sentenced to serve fifteen and twenty years on the
charges, respectively. See McCray v. State, 107 So. 3d 1042, 1044
(Miss. Ct. App. 2012).

On December 7, 2016, McCray filed his pro

se complaint in the Circuit Court of Wilkinson County, asserting
claims under state and federal law.1

1 McCray
impersonation,
constitution
constitutional

McCray claims that defendant

alleges that the defendant engaged in falsifying a record, false
and illegal restraint. The Complaint also references the state
and
claims
violations
of
the
plaintiff’s
fundamental
rights. See Doc. 1-1.

1

Davasha Nelson (“Nelson”), who was acting as the deputy circuit
clerk at the time, forged the grand jury foreperson’s signature on
the plaintiff’s 2007 indictment.

The defendant timely removed the

case to this Court on January 27, 2017. Since the case was removed,
multiple motions have been filed by both parties.2
On

April

20,

2017,

Judge

Parker

filed

a

Report

and

Recommendation as to the pending motions, finding that 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.

To the extent that McCray’s

civil action is premised on a violation of some federal criminal
statute, Judge Parker concluded that McCray’s claim cannot be
sustained because the plaintiff failed to cite any federal criminal
statute

providing

a

civil

enforcement

remedy.

See

Madden

v.

Harrison Cty., 2010 WL 1238972, *4 (S.D. Miss. Feb. 25, 2010)
(“Criminal statutes can neither be enforced by civil action nor by
private parties.”); Oliver v. Collins, 914 F.2d 56, 60 (5th Cir.
1990) (noting that there is no constitutional right to have someone
criminally prosecuted).

2 The plaintiff has filed his Motion to Amend the Complaint (docket entry
3), Motion to Disregard Attorney (docket entry 4), Motion to Appoint Counsel
(docket entry 5), Motion to Amend (docket entry 6), and the defendant has filed
a Motion for Judgment on the Pleadings as to McCray’s state and federal claims
(docket entries 7 and 9).

2

After Judge Parker’s Report and Recommendation was filed,
McCray submitted a Letter (docket entry 14), wherein he seeks to
present evidence to support his claims “just in case.” Doc. 14, p.
1-2. Attached to the plaintiff’s letter is an affidavit signed by
Wendy Carlson, a forensic document examiner. Doc. 14-1. Yet,
nothing in the letter or accompanying affidavit appears to raise
a specific objection to Judge Parker’s report. See Wilson v. City
of Meridian Police Dept., 2011 WL 3510933, *2 (S.D. Miss. Aug. 10,
2011)

(objections

recommendation

must

district court).

to
be

a

magistrate

“specific”

to

judge’s
be

properly

report
before

and
the

Nonetheless, insofar as McCray’s letter may be

construed as a timely objection, the Court finds that the objection
should be overruled as none of the Heck conditions have been
satisfied.

Moreover, McCray has not identified, nor can the Court

find, any federal criminal statute conferring a private right of
action to the plaintiff.
Upon review of the record, the Court is satisfied that Judge
Parker has issued a thorough opinion. The plaintiff’s federal
claims are therefore subject to dismissal, and the Court declines
to exercise supplemental jurisdiction over the remaining statelaw claims.
Accordingly,

3

IT IS HEREBY ORDERED that Magistrate Judge Michael T. Parker’s
Report and Recommendation (docket entry 13) 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 9) is GRANTED;
FURTHER ORDERED that the Plaintiff’s federal 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 the Defendant’s Motion for Judgment on
the Pleadings as to State Law Claims (docket entry 7) 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, and 6) 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 31st day of May, 2017.

/s/ David Bramlette_________
UNITED STATES DISTRICT JUDGE

4