Avila v. Placido et al

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION
ISRAEL AVILA,
Plaintiff,
VS.
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CIVIL ACTION NO. 2:26-CV-00023
SAMINIEGO JR. PLACIDO, et al.,
Defendants.
MEMORANDUM AND RECOMMENDATION
TO DENY PLAINTIFF’S MOTION TO REOPEN CASE
Plaintiff Israel Avila, a Texas inmate appearing pro se, has filed this prisoner civil
rights action under 42 U.S.C. § 1983. Pending before the Court is Plaintiff’s Motion to
Reopen Case (D.E. 13). For the reasons set forth below, the undersigned respectfully
recommends that Plaintiff’s motion to reopen be DENIED.
I. BACKGROUND
Plaintiff is a prisoner in the Texas Department of Criminal Justice, Criminal
Institutions Division (“TDCJ”) and is currently housed at the McConnell Unit in Beeville,
Texas. Plaintiff originally filed this action in the Victoria Division of this Court. On
January 16, 2026, this case was transferred to the Corpus Christi Division of this Court.
(D.E. 6).
In this action, Plaintiff sues three officials from the McConnell Unit: (1) Assistant
Warden Placido Samaniego, Jr.; (2) Warden Larissa Wysocki; and (3) Major Aaron M.
United States District Court
Southern District of Texas
ENTERED
March 03, 2026
Nathan Ochsner, Clerk
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Cavazos. (D.E. 1, pp. 1, 3). Plaintiff generally alleges that Defendants “demoted” his
custody level from G4 to G5 without any disciplinary cases resulting in him being brutally
assaulted on October 30, 2025 and his life generally being placed at risk. Id. at 3-4.
On January 20, 2026, the Court received Plaintiff’s letter motion to voluntarily
dismiss this case. (D.E. 7). The undersigned granted Plaintiff’s motion, dismissed this
action without prejudice and directed the Clerk to close this case. (D.E. 8).
Plaintiff’s Motion to Reopen Case, dated February 17, 2026, was received by the
Court on February 23, 2026. (D.E. 13). Plaintiff attached to his motion a prisoner civil
rights complaint. (D.E. 13-1). Plaintiff also has filed a prisoner trust find account (D.E.
11), a related letter (D.E. 12), and a Motion to Proceed in forma pauperis (D.E. 14).
II. DISCUSSION
Plaintiff does not indicate whether he seeks to reopen this case pursuant to either
Federal Rules of Civil Procedure 59(e) or Rule 60(b). “A motion to alter or amend a
judgment must be filed no later than 28 days after the entry of the judgment.” Fed. R. Civ.
P. 59(e). Rule 59(e), however, does not apply because this case was dismissed without
prejudice in the absence of a final judgment following Plaintiff’s motion to voluntarily
dismiss. Def. Distributed v. U.S. Dep’t of State, 947 F.3d 870, 873 (5th Cir. 2020). As
such, Rule 59(e) “does not allow a party to revive and initiate further proceedings in a
dismissed lawsuit.” Id.
On the other hand, the Supreme Court recently has held that “a voluntary dismissal
without prejudice is ‘final’ under Rule 60(b).” Waetzig v. Halliburton Energy Servs., Inc.,
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604 U.S. 305, 312 (2025). The Supreme Court explains that, in the context of Rule 60(b),
a voluntary dismissal without prejudice is “final” because it terminates the case and counts
as a “proceeding” under that rule as well. Id. at 315-16. Thus, a plaintiff can seek relief
from a voluntary dismissal and reopen a case “[w]hen the requirements of Rule 60(b) are
satisfied.” Id. at 319; see also Yesh Music v. Lakewood Church, 727 F.3d 356, 362-63 (5th
Cir. 2013) (holding that a plaintiff’s voluntary dismissal without prejudice under Federal
Rule of Civil Procedure 41(a)(1)(A) qualifies as a “final proceeding” subject to being
vacated under Rule 60(b)).
Rule 60(b) sets out five specific bases for granting relief from a final judgment,
order, or proceeding: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly
discovered evidence that, with reasonable evidence, could not have been discovered in time
to move for a new trial under Rule 59(b); (3) fraud, misrepresentation, or misconduct of an
opposing 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 does not specify which subsection of Rule 60(b) that he seeks relief. When
moving to voluntarily dismiss this action, Plaintiff expressly stated that he did not want to
proceed anymore with this action. (D.E. 7). Plaintiff states in his motion to reopen that he
regretted dismissing this case because he thought his case would not be taken seriously or
that justice would be done. (D.E. 13, p. 1). Plaintiff sets forth nothing in his motion to
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suggest that he seeks relief under Rules 60(b)(1) or Rule (b)(3). Furthermore, subsections
60(b)(4) and (b)(5) do not apply because the Court has not entered a judgment in this case.
See Pena v. Guerra, No. 7:23-CV-166, 2024 WL 4045487, at *5 (S.D. Tex. Jul. 24, 2024)
(Madrano, M.J.), adopted, 2024 WL 4047161 (S.D. Tex. Sep. 4, 2024) (Alvarez, J.).
In his motion, Plaintiff references having “new evidence” in connection with a new
lawsuit. (D.E. 18, p. 1). While not entirely clear, it appears Plaintiff’s new evidence
primarily relates to a new complaint which is attached to his motion. (See D.E. 18-1). A
review of this new complaint reflects that Plaintiff seeks to sue the same three defendants
but raises entirely new claims arising out of incidents occurring after this case was filed.
Id. Indeed, Plaintiff’s claims in the attached new complaint arise in connection with his
allegations of retaliation following the filing of this lawsuit and a new inmate assault
occurring on February 12, 2026. Id. a 3-4. Plaintiff has filed a letter, which also purports
to cite new evidence relating to retaliation occurring after Plaintiff filed this action. (D.E.
12, p. 1).
In contrast, Plaintiff’s claims in the original complaint submitted in this lawsuit arise
in connection with his allegations that Defendants “demoted” his custody level from G4 to
G5 without any disciplinary cases resulting in him being brutally assaulted by a cellmate
in G5 housing on October 30, 2025. (D.E. 1, pp. 3-4). Plaintiff presents no “new evidence”
with regard to these precise claims or otherwise show he is entitled to relief under Rule
60(b)(2).
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Lastly, the undersigned considers the catch-all provision of Rule 60(b)(6). 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 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).
The fact that Plaintiff apparently wants to change his mind and proceed with this
lawsuit does not rise to the extraordinary circumstances necessary for relief under Rule
60(b)(6). See Pena, 2024 WL 4045487, at *6 (collecting cases). Moreover, Plaintiff will
not suffer any manifest injustice because this case was dismissed without prejudice. Id.
The applicable two-year statute of limitations is far from expiring on his claims advanced
in this action. Plaintiff, therefore, remains free to file another lawsuit within the
limitations’ period challenging his demotion from G4 to G5 and resulting injuries suffered
in connection with the alleged assault on October 30, 2025.
Accordingly, the undersigned finds that Plaintiff has failed to show an entitlement
to relief under any subsection of Rule 60(b) that warrants the reopening of this case.
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III. RECOMMENDATION
For the foregoing reasons, the undersigned respectfully recommends that Plaintiff’s
Motion to Reopen Case (D.E. 13) be DENIED. Plaintiff should be mindful—with respect
to his allegations about being demoted from G4 to G5, resulting in a cellmate attacking and
injuring him on October 30, 2025—that this action is dismissed without prejudice to him
filing another lawsuit and asserting the same claims.1
Respectfully submitted on March 3, 2026.
____________________________
Julie K. Hampton
United States Magistrate Judge
1 While not entirely clear, the undersigned nevertheless construes Plaintiff’s true intent as seeking to file a new civil
rights complaint arising from incidents occurring after the filing of this action when he was allegedly subject to
retaliatory acts for filing this action and an assault occurring on February 12, 2026. When reviewing the new complaint
attached to his motion to reopen, Plaintiff references this action as another one filed on January 16, 2026 and then
dismissed. (D.E. 13-1, p. 2). Accordingly, in a separate order, the undersigned will direct the Clerk to: (1) open a
new action for Plaintiff; (2) remove certain filings from this action; and (3) file them in the new action.
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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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