United States District Court, S.D. Mississippi, Western Division
ORDER DENYING MOTION FOR RELIEF FROM
BRAMLETTE, UNITED STATES DISTRICT JUDGE.
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
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 convicted felon. McCray pled guilty to lesser
charges of manslaughter and robbery as a habitual offender
and was sentenced to serve fifteen and twenty years on the
December 7, 2016, McCray filed a pro se complaint in the
Circuit Court of Wilkinson County, asserting claims under
state and federal law in connection with defendant Davasha
Nelson (“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.
the Report and Recommendation of Magistrate Judge Michael T.
Parker, the Court entered an Order (docket entry 15) on May
31, 2017, granting Nelson's Motion for Judgment on the
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
declined to exercise supplemental jurisdiction over
McCray's remaining state law claims and remanded the
action to the Circuit Court of Wilkinson County.
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
Rule 60, the Court may relieve a party from a final judgment
or order for the following reasons:
(1) mistake, inadvertence, surprise, or excusable neglect;
(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);
(3) fraud...misrepresentation, or misconduct by an opposing
(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 ...