McCray v. Nelson
ORDER denying 18 Motion for Relief from Judgment. Signed by Honorable David C. Bramlette, III on 7/13/2017 (EB)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
OTIS OLIVER MCCRAY
CIVIL ACTION NO. 5:17-cv-15-DCB-MTP
ORDER DENYING MOTION FOR RELIEF FROM JUDGMENT
This cause is before the Court on plaintiff Otis Oliver McCray
(“McCray”)’s Motion for Relief from Judgment (docket entry 18).
Having carefully reviewed motion and applicable statutory and case
law, the Court finds and orders as follows:
Plaintiff Otis Oliver McCray (“McCray”) was charged on March
7, 2007, as a habitual offender in the Circuit Court of Wilkinson
County with murder, robbery, and possession of a firearm by a
manslaughter and robbery as a habitual offender and was sentenced
to serve fifteen and twenty years on the charges, respectively.
On December 7, 2016, McCray filed a pro se complaint in the
Circuit Court of Wilkinson County, asserting claims under state
(“Nelson”)’s alleged forgery of McCray’s 2007 criminal indictment.
Nelson timely removed the action to federal court on January 27,
2017, and subsequently filed a motion for judgment on the pleadings
as to the plaintiff’s state and federal claims.
Adopting the Report and Recommendation of Magistrate Judge
Michael T. Parker, the Court entered an Order (docket entry 15) on
Pleadings as to Federal Claims (docket entry 9) and dismissing the
plaintiff’s federal claims under 42 U.S.C. § 1983 with prejudice
to their being asserted again until the conditions set forth in
Heck v. Humphrey, 512 U.S. 477, 486-87 (1994) are satisfied. The
Court denied the defendant’s Motion for Judgment on the Pleadings
as to State Law Claims (docket entry 7) insofar as the Court
remaining state law claims and remanded the action to the Circuit
Court of Wilkinson County.
McCray now moves for relief from judgment under Federal Rule
of Civil Procedure 60(b) (docket entry 18). Though the subject of
McCray’s motion is somewhat unclear, the Court construes the motion
as one seeking relief from the judgment entered on May 31, 2017,
which dismissed McCray’s federal claims.1
Under Rule 60, the Court may relieve a party from a final
judgment or order for the following reasons:
Attached as an exhibit to McCray’s Rule 60(b) motion is an Order (docket
entry 12) dated April 12, 2017, referring the cause to Magistrate Judge Parker
for all further proceedings provided by 28 U.S.C. § 636 and Rule 72. See Doc.
18-1. To the extent that McCray seeks relief from this order referring the cause
to Magistrate Judge Parker, the motion is denied. District judges are permitted
to designate a magistrate judge to conduct hearings and submit proposed findings
of fact and recommendations for the disposition of claims like those alleged by
McCray. See § 636(b)(1)(B); Fed. R. Civ. P. 72(b).
(2) newly discovered evidence that, with reasonable
diligence could not have been discovered in time to move
for a new trial under Rule 59(b);
(4) the judgment is void;
(5) the judgment has been satisfied, released or
discharged; it is based on an earlier judgment that has
been reversed or vacated; or applying it prospectively
is no longer equitable; or
(6) any other reason that justifies relief.
Fed. R. Civ. P. 60(b). The entirety of McCray’s motion consists of
a recitation of the six grounds for relief set forth in Rule 60(b)
and an observation that “[he] thinks this is clearly extraordinary
demonstrate any extraordinary circumstances, mistake, fraud, newly
discovered evidence or otherwise, which would justify relief under
As set forth in the Court’s May Order, McCray’s federal claims
under 42 U.S.C. § 1983 are foreclosed by Heck v. Humphrey, 512
2 Though McCray invokes Rule 60(b) as the basis for his motion, the motion
was filed within 28 days of the final judgment. Nonetheless, the Court finds
that construing the motion as one to alter or amend the judgment under Rule
59(e) would require the same result. Rule 59(e) motions “must clearly establish
either manifest error of law or fact or must present newly discovered evidence”
and “cannot be used to raise arguments which could, and should, have been made
before the judgment issued.” Zey v. Miss., 2012 WL 729749, at *1 (S.D. Miss.
Mar. 6, 2012) (quoting Rosenzweig v. Azurix Corp., 332 F.3d 854, 863 (5th Cir.
2003)). McCray has not claimed any error or newly discovered evidence which
would require the Court to alter its prior judgment.
U.S. 477 (1994). See Doc. 15. When a judgment in the plaintiff’s
favor would necessarily imply the invalidity of his conviction or
sentence, the plaintiff’s Section 1983 claims “must be dismissed
sentence has already been invalidated.” Heck, 512 U.S. at 487.
McCray alleges that he was wrongfully imprisoned because the
defendant forged the grand jury foreperson’s signature on his
criminal indictment. Clearly, a ruling in the plaintiff’s favor
would necessarily imply the invalidity of his convictions. McCray
has not provided any new evidence or argument to show that his
manslaughter and robbery convictions have been reversed, expunged,
declared invalid, or called into question by federal habeas corpus.
Thus, McCray’s Section 1983 claims remain barred by Heck.
Furthermore, McCray cannot maintain his federal claims based
on Nelson’s alleged violation of a criminal statute because “a
private party may not enforce criminal statutes through a civil
action.” Madden v. Harrison, 2010 WL 1238972, at *4 (S.D. Miss.
Feb. 25, 2010); see also Oliver v. Collins, 914 F.2d 56, 60 (5th
Cir. 1990) (noting that there is no constitutional right to have
someone criminally prosecuted).
IT IS HEREBY ORDERED that the plaintiff’s Motion for Relief
from Judgment (docket entry 18) is DENIED.
SO ORDERED, this the 13th day of July, 2017.
/s/ David Bramlette_________
UNITED STATES DISTRICT JUDGE
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