Salinas et al v. Wallek et al

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION
ROBERTO J SALINAS, et al.,
Plaintiffs,
VS.
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§
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§
§
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§
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CIVIL ACTION NO. 2:25-CV-00045
L WALLEK, et al.,
Defendants.
ORDER ADOPTING MEMORANDUM AND RECOMMENDATION
This matter, brought by Plaintiffs pro se, is pending initial screening. On December
23, 2025, United States Magistrate Judge Julie K. Hampton issued a Memorandum and
Recommendation (M&R, D.E. 27), recommending that this action be dismissed without
prejudice for failure to comply with Court orders to file an amended pleading to provide a
more definite statement of Plaintiffs’ claims, which are currently insufficient under Federal
Rule of Civil Procedure 8. Plaintiff Roberto Salinas timely filed objections (D.E. 28, 29)
on December 29, 2025. He filed additional objections that are repetitive of the prior
objections, combined with a motion for leave to amend his pleading (D.E. 32), on February
9, 2026, well after the deadline. All of the objections and the multiple requests for leave to
amend are considered below.
Due Process/Lack of Notice. Plaintiff objects, claiming that he did not receive
notice of the Magistrate Judge’s prior orders requiring him to amend his pleading with
specific instructions, characterizing this as a due process violation, and stating that any
United States District Court
Southern District of Texas
ENTERED
March 06, 2026
Nathan Ochsner, Clerk
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default on his part was unintentional. D.E. 28, pp. 1-2; D.E. 29, pp. 1-3; D.E. 32, p. 1.
However, the record reflects that Plaintiff did respond to the orders (and even referenced
them and partially complied), but—as the Magistrate Judge observes—failed to fully
comply with their material terms and failed to comply with additional opportunities to do
so. See D.E. 11, 15, 16, 23. Plaintiff’s objection regarding notice and due process is refuted
by the record and it is OVERRULED.
Mistake. Plaintiff objects that his failures constitute mistake, inadvertence, surprise,
or excusable neglect, entitling him to relief under Federal Rule of Civil Procedure 60(b).
D.E. 28, p. 3. This is another way of arguing that he lacked notice, rejected above. To the
extent that it invokes Rule 60(b), it is procedurally improper. That rule is for post-judgment
relief and no judgment has yet been entered in this case. Plaintiff’s repeated failure to
follow clear directions is not consistent with his claim of mistake and he offers no
independent reason other than the disingenuous claim of lack of notice. The objection
based on mistake is OVERRULED.
Pro Se Liberal Construction. Plaintiff complains that he is entitled to liberal
construction of his pleadings and he claims that they are accurate. D.E. 29, p. 4. To the
extent that he can benefit from liberal construction, the rule has already been applied. The
defects identified by the Magistrate Judge are fundamental. Plaintiff has failed to include
basic information required in order to determine what his claims are so that they can be
evaluated in initial screening. This objection seeks to undermine the requirements of Rule
8, without supplying any basis for his interpretation of the rule. The liberal construction he
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claims must be applied where the plaintiff supplies the basics, from which inferences can
be made. Liberal construction cannot supply those basics for him. The objection seeking
liberal construction of his pleading is OVERRULED.
Brain Injury. Plaintiff objects that “at a prior juncture in this case, his ability to
respond was severely hampered by a severe brain injury he suffered.” D.E. 29, p. 2. He
offers no more detail regarding when this alleged injury occurred, what “juncture” of time
was affected, or why he continues to fail to comply with the Court’s orders, now that the
“prior juncture” has passed. The objection based on a claimed injury is OVERRULED.
Inappropriate Sanction. Plaintiff complains that dismissal is an inappropriate
sanction because his failures have not been intentional. D.E. 29, pp. 2-3. Yet he
acknowledges that a pattern of delay can justify dismissal. Again, the Court has already
rejected his argument that his failures were due to lack of notice or mistake. And his
concern regarding dismissal constituting prejudice because of limitations was addressed by
the Magistrate Judge, noting that dismissal at this point is prior to the expiration of
limitations on his claims. The objection that dismissal is an inappropriate sanction is
OVERRULED.
Complaints Regarding Counsel. His contention that opposing counsel in other
matters has been engaging in ex parte conduct has no apparent relevance to this case or the
matter now before the Court. See D.E. 28, pp. 2-3. No defendant has been served in this
case and there is no appearance by any opposing counsel. The objection is OVERRULED.
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Leave to Amend. Plaintiff repeatedly seeks another opportunity to amend his
complaint. D.E. 28, p. 4; D.E. 29, p. 5; D.E. 32, p. 2. Despite requests spanning months,
Plaintiff has failed to submit any document purporting to be a compliant second amended
complaint to show that he can and has cured the defects. Instead, he repeatedly asks for
another period of time, such as thirty days, in which to file the pleading. Plaintiff has had
abundant opportunities to amend his complaint. There is no good reason for further delay.
And a motion for leave to amend that does not attach or describe the allegations to be
amended is a nullity. United States ex rel. Willard v. Humana Health Plan of Tex. Inc., 336
F.3d 375, 387 (5th Cir. 2003). The objection seeking leave to amend is OVERRULED.
Having reviewed the findings of fact, conclusions of law, and recommendations set
forth in the Magistrate Judge’s Memorandum and Recommendation, as well as Plaintiff’s
objections, and all other relevant documents in the record, and having made a de novo
disposition of the portions of the Magistrate Judge’s Memorandum and Recommendation
to which objections were specifically directed, the Court OVERRULES Plaintiff’s
objections and ADOPTS as its own the findings and conclusions of the Magistrate Judge.
Accordingly, Plaintiff’s motion for leave to amend (D.E. 32) is DENIED and this action
is DISMISSED WITHOUT PREJUDICE.
ORDERED on March 6, 2026.
_______________________________
NELVA GONZALES RAMOS
UNITED STATES DISTRICT JUDGE
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