United States District Court, S.D. Mississippi, Western Division
ORDER ADOPTING REPORT AND RECOMMENDATION
Bramlette United States District Judge
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
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. McCray pled
guilty to lesser charges of manslaughter and robbery as a
habitual offender and 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. McCray claims that defendant
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
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).
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 to a magistrate judge's report
and recommendation must be “specific” to be
properly before the district court). 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.
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 state-law claims.
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
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;
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
ORDERED that all remaining motions (docket entries 3, 4, 5,
and 6) are denied as MOOT.
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.