Diez v. Mr. Schneider et al

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION
JAMES LOGAN DIEZ,
Plaintiff,
VS.
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CIVIL ACTION NO. 2:24-CV-00295
MR. SCHNEIDER, et al.,
Defendants.
MEMORANDUM AND RECOMMENDATION
TO DENY PLAINTIFF’S RULE 60 MOTION TO SET
ASIDE JUDGMENT OF DISMISSAL DUE TO FRAUD
Plaintiff is a Texas prisoner appearing pro se. Pending is Plaintiff’s Rule 60 Motion
to Set Aside the Judgment of Dismissal. (D.E. 70). This case has been referred to the
undersigned magistrate judge for case management and making recommendations on
dispositive motions pursuant to 28 U.S.C. § 636. For the reasons set forth below, the
undersigned RECOMMENDS Plaintiff’s Rule 60 Motion (D.E. 70) be DENIED.
I. BACKGROUND
Plaintiff filed this prisoner civil rights action pursuant to 42 U.S.C. § 1983 on
December 5, 2024, alleging violations of the First Amendment and the Voting Rights Act
(“VRA”), 52 U.S.C. § 10101, et seq. in connection with his inability to vote while a TDCJ
McConnell Unit inmate. He named mailroom assistant supervisor Alan Schneider and
Bobby Lumpkin, the former Texas Department of Criminal Justice, Criminal Institutions
Division (TDCJ-CID) Director as defendants. (D.E. 1, D.E. 10). After being served, the
United States District Court
Southern District of Texas
ENTERED
May 22, 2026
Nathan Ochsner, Clerk
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Defendants entered the case by filing a Motion to Dismiss on April 8, 2025. (D.E. 28).
Plaintiff received extensions and filed extensive briefing, complaints, and other objections
in opposition to the Defendants’ Motion to Dismiss including:
• Plaintiff’s Rebuttal (D.E. 31);
• Plaintiff’s Advisory (D.E. 34);
• Plaintiff’s Supplemental Advisory (D.E. 37);
• Plaintiff’s Advisory Memorandum (D.E. 38);
• Plaintiff’s Memorandum on Applicability of Monroe v. Pape (D.E. 39);
• Plaintiff’s Rebuttal to Defendants’ Reply (D.E. 40);
• Plaintiff’s Memorandum on Retaliation (D.E. 44); and
• Plaintiff's Memorandum in Refutation of Defendant's Assertion That Re-
Enfranchised Felon's Right to Vote is Only a State Right. (D.E. 46).
On September 24, 2025, after considering all of Plaintiff’s briefing, the undersigned
entered a Memorandum and Recommendation (“M&R”) to Grant Defendants’ Motion to
Dismiss. (D.E. 47). Plaintiff filed objections and supplemental objections to the M&R.
(D.E. 50, D.E. 51). On March 27, 2026, United States District Judge Nelva Gonzales
Ramos entered an order adopting the undersigned’s M&R. (D.E. 54). Judge Ramos entered
Final Judgment on March 30, 2026, dismissing this action in its entirety. (D.E. 55).
On April 14, 2026, Plaintiff filed a Notice of Appeal, a Motion for Certificate of
Appealability, and a Motion for Leave to Appeal in forma pauperis (“ifp”)(D.E. 59, D.E.
60, D.E. 61). On April 20, 2026, the undersigned entered an M&R to deny Plaintiff’s
Motion to Proceed IFP, because he is a three-strikes litigant under provisions of the Prison
Litigation Reform Act. 28 U.S.C. § 1915(g) (D.E. 64). Plaintiff is unable to pay the filing
fee and, therefore, filed a motion for the Court to order the sale of certain property owned
by plaintiff through inheritance. (D.E. 68). The undersigned denied the motion for sale of
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property on May 4, 2026. (D.E. 69). Plaintiff’s application to proceed ifp on appeal remains
pending.
On May 8, 2026, Plaintiff filed the instant Rule 60 Motion For Court to Set Aside
the Judgment of Dismissal Due to Fraud. (D.E. 70). “[W]hile a proper notice of appeal
strips district courts of jurisdiction to grant a Rule 60(b) motion, it does not prevent litigants
from filing them in the district court while an appeal is pending.” Lartigue v. Northside
Indep. School Dist., No. SA-19-CV-00393-JKP, 2023 WL 5948975, at *1 (W.D. Tex. Sep.
12, 2023). “After a notice of appeal is filed, the district court retains jurisdiction to consider
and deny a Rule 60(b) motion.” Id.
II. PLAINTIFF’S RULE 60 MOTION
Rule 60(b) sets out five specific bases for granting relief from a final judgment: (1)
mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence; (3)
fraud, misrepresentation, or misconduct of an adverse party; (4) the judgment is void; and
(5) satisfaction, discharge, or release of the judgment. Fed. R. Civ. P. 60(b)(1)-(5). In
addition, Rule 60(b)(6) provides that a court may relieve a party from final judgment for
“any other reason that justifies relief.” Fed. R. Civ. P. 60(b)(6). Plaintiff presents his
motion under Rule 60(b)(3) for fraud, misrepresentation, or misconduct of an adverse
party.
Plaintiff argues the Defendants’ motion to dismiss is based on fraudulent arguments
misstating the holdings of certain cases. Plaintiff maintains the Defendants fraudulently
argued in their motion to dismiss that Plaintiff’s right to vote was a “only a state statutory
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right . . . and not a Constitutional right (or right under the federal laws).” (D.E. 70, p. 2).
Plaintiff further argues the Court’s dismissal was solely based on the Defendants’
fraudulent argument. Plaintiff presents arguments why he believes the authorities relied on
by the Defendants and the Court are distinguishable from the instant case. Plaintiff
continues that the Defendants misled the Court to rely on inapplicable legal authorities and
that the Defendants did in fact violate Plaintiff’s state and Constitutional rights.
III. ANALYSIS
A party making a Rule 60(b)(3) motion must establish: (1) that the adverse party
engaged in fraud or other misconduct, and (2) that this misconduct prevented the moving
party from fully and fairly presenting his case. Hesling v. CSX Transp., Inc., 396 F.3d 632,
641 (5th Cir. 2005). The movant must show the opposing party engaged in misconduct by
clear and convincing evidence. Id. A Rule 60(b)(3) motion “is addressed to the sound
discretion of the court,” 11 Charles A. Wright and Arthur R. Miller, Federal Practice and
Procedure § 2860 (1973), and “will be denied if it is merely an attempt to relitigate the case
or if the court otherwise concludes that fraud has not been established.” Id. In the present
motion, Plaintiff has not alleged fraud or misconduct. He has alleged disagreement with
the Defendants’ legal argument and presentation or interpretation of the authorities.
Plaintiff addressed and briefed the issues presented in his Rule 60 Motion several
times. He has repeatedly argued he has a statutory and constitutional right to vote which
was violated by Defendants and that a re-enfranchised felon’s right to vote is not only a
state right. (D.E. 31, pp. 1, 6-10; D.E. 37; D.E. 38, D.E. 39, D.E. 40, pp. 4-6; D.E. 46).
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Plaintiff made this argument clearly in one of his rebuttals: “Even a 5th Grader (at least one
educated in Plaintiff’s Generation) knows that the Right to Vote is founded in the U.S.
Constitution, not State Law.” (D.E. 40, p. 5)(emphasis in original). In fact, Plaintiff filed
an entire brief in which he presents his arguments that a re-enfranchised felon’s right to
vote is not only a state right. (D.E. 46). After the undersigned entered an M&R which
recommended dismissal, Plaintiff filed objections, where he again made similar arguments.
(D.E. 51). Judge Ramos squarely addressed Plaintiff’s objections and arguments in her
order adopting the undersigned’s M&R and she directly considered the applicable
authorities. (D.E. 54). What Plaintiff seeks to do in the instant Rule 60(b)(3) motion is
argue certain cases cited by the defendants are distinguishable to the facts of his case.
Plaintiff makes purely legal arguments about the applicability of the authorities relied on
by the Court. Plaintiff fails to allege any instance of fraud, misrepresentation, or
misconduct of an adverse party. Therefore, his Motion under Rule 60(b)(3) should be
denied.
Even if the Court were to liberally construe Plaintiff’s Rule 60 motion under the
“any other reason” clause, Plaintiff is not entitled to relief. The “any other reason” clause
in Rule 60(b)(6) is a “grand reservoir of equitable power” to do justice in a case when relief
is not warranted by the five enumerated grounds. Batts v. Tow-Motor Forklift Co., 66 F.3d
743, 747 (5th Cir. 1995) (citations omitted). This relief will be granted only if
“extraordinary circumstances” are present. Id. The burden of establishing relief under Rule
6(b)(6) “is on the movant, and the determination whether that burden has been met rests
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within the discretion of the court.” Smith v. City of Princeton, Texas, No. 4:17-CV-00085-
ALM-Can, 2020 WL 4275271, at *3 (E.D. Tex. July 1, 2020), adopted, 2020 WL 4261788
(E.D. Tex. July 24, 2020). A Rule 60(b) is not a means for “rehashing evidence, legal
theories, or arguments that could have been offered or raised before the entry of judgment.”
Templet, 367 F.3d at 479. Furthermore, the catch-all provision in Rule 60(b)(6) cannot be
used as a means to relitigate previous claims by introducing evidence that could have been
discovered earlier through the exercise of due diligence. Smith, 2020 WL 4275271, at *3.
A review of Plaintiff’s Rule 60(b) motion reveals he again impermissibly seeks to raise
both failed arguments as well as additional arguments that could have (and should have)
been raised before the Court issued its Final Judgment in this case. Plaintiff otherwise raises
nothing that would cause the Court to revisit its determination that the Defendants are
entitled to qualified immunity in this case.
IV. CONCLUSION
The undersigned RECOMMENDS Plaintiff’s Rule 60 Motion (D.E. 70) be
DENIED.
ORDERED on May 22, 2026.
_______________________________
Jason B. Libby
United States Magistrate Judge
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NOTICE TO PARTIES
The Clerk will file this Memorandum and Recommendation and transmit a copy to
each party or counsel. Within FOURTEEN (14) DAYS after being served with a copy of
the Memorandum and Recommendation, a party may file with the Clerk and serve on the
United States Magistrate Judge and all parties, written objections, pursuant to Fed. R. Civ.
P. 72(b), 28 U.S.C. § 636(b)(1), General Order No. 2002-13, United States District Court
for the Southern District of Texas.
A party’s failure to file written objections to the proposed findings, conclusions, and
recommendation in a magistrate judge’s report and recommendation within FOURTEEN
(14) DAYS after being served with a copy shall bar that party, except upon grounds of
plain error, from attacking on appeal the unobjected-to proposed factual findings and legal
conclusions accepted by the District Court. Douglass v. United Servs. Auto Ass’n, 79 F.3d
1415 (5th Cir. 1996) (en banc).
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