Rubio v. Winkelmann et al Pleadings related to habeas matters to be filed in 2:26cv145 per Order at DE 16.

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION
JOSE TRINIDAD RUBIO, JR., et al.,
Plaintiffs,
VS.
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CIVIL ACTION NO. 2:26-CV-00130
JOHN D WINKELMANN, et al.,
Defendants.
ORDER ADOPTING MEMORANDUM AND RECOMMENDATION
On June 10, 2026, United States Magistrate Judge Mitchel Neurock issued his
Memorandum and Recommendation (M&R), recommending that the Court dismiss
Plaintiffs Jose T. Rubio, Sr. (“Senior”) and Jose T. Rubio, Jr.’s (“Junior’s”) case. D.E. 26.
Plaintiffs were provided proper notice of, and opportunity to object to, the Magistrate
Judge’s M&R. Fed. R. Civ. P. 72(b); 28 U.S.C. § 636(b)(1). They timely filed objections
on June 24, 2026. D.E. 30.
STANDARD OF REVIEW
A district court must review de novo any portion of a magistrate judge’s proposed
findings and recommendations on dispositive matters to which the parties have filed
specific, written objections. Fed. R. Civ. P. 72(b). Objections must point out with sufficient
particularity any alleged error in the magistrate judge’s analysis; otherwise, they do not
constitute proper objections and will not be considered. Id. After considering proper
objections, the district court may accept, reject, or modify, in whole or in part, those
United States District Court
Southern District of Texas
ENTERED
August 03, 2026
Nathan Ochsner, Clerk
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portions of the proposed findings and recommendations. Id. As to any portion for which
no objection is filed, a district court reviews for clearly erroneous factual findings and
conclusions of law. United States v. Wilson, 864 F.2d 1219, 1221 (5th Cir. 1989) (per
curiam).
DISCUSSION
A. Plaintiffs’ Objections
False Claims Act. The Magistrate Judge’s recommendation to dismiss Plaintiffs’
False Claims Act (FCA) claim is based on Plaintiffs’ failure to comply with procedural
requirements for such cases and because they cannot prosecute such a claim on a pro se
basis. D.E. 26, p. 17. Plaintiffs do not identify any error in either of those reasons for
dismissal. The objection is thus OVERRULED.
First Amendment. Plaintiffs object to the dismissal of their claims, stating that their
forensic investigative auditing, independent freedom of information disclosures, and public
dissemination of database manipulations constitute protected activity under Article I of the
United States Constitution (The First Amendment).” D.E. 30, p. 3. They contend that the
First Amendment “guarantees citizens the fundamental right to engage in investigative
journalism and to petition the Government for a redress of grievances.” Id., pp. 3-4.
Plaintiffs further state that defendants engaged in retaliatory conduct representing “an
unconstitutional chilling effect designed to suppress public exposure and obstruct access
to Article III courts.” Id., p. 4. And “[s]tatutory immunities cannot shield state officials
from federal equity when their operations actively criminalize a citizen’s First Amendment
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right to uncover and petition against structural public fraud.” Id. To the extent that
Plaintiffs’ objection is that their claims are somehow protected by the First Amendment
and should be allowed to proceed, the objection is OVERRULED.
Liberal Construction of Pro Se Filings. Plaintiffs object that the Magistrate Judge
failed to apply the proper standard for pro se pleadings. D.E. 30, pp. 4-5. They contend that
the Magistrate Judge did not examine “physical evidence” as a part of their complaint and
that he mischaracterized the “substantive record.” Id. at p. 5. They do not specify any
particular document that was overlooked or evidence that was not given effect. The
Magistrate Judge correctly recited and applied the liberal pleading standard applicable to
pro se complaints. D.E. 26, p. 11. The objection is OVERRULED.
Felipa’s Claims. Plaintiffs object to the Magistrate Judge’s conclusion that Junior
cannot assert claims on behalf of Felipa Rubio as her “next friend.” D.E. 30, pp. 5-8. The
Magistrate Judge correctly concluded that while a party may file a federal suit pro se, a
non-attorney pro se party may only represent himself. D.E. 26, pp. 11-12 (citing Rice v.
City of Fort Worth, Tex., No. 4:26-CV-00052, 2026 WL 1216762, at *3 (S.D. Tex. Mar.
25, 2026), recommendation adopted, No. 4:26-CV-00052, 2026 WL 1215663 (S.D. Tex.
May 4, 2026); Weber v. Garza, 570 F.2d 511, 514 (5th Cir. 1978)).
Plaintiffs argue that the appropriate procedural remedy for Felipa’s claims is to
“grant a 60-day conditional stay and abeyance to allow Plaintiffs to substitute a licensed
member of the Southern District bar to sign the operational tracks.” D.E. 30, pp. 7-8. The
Magistrate Judge recommended dismissal without prejudice as to the claims brought on
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Felipa’s behalf. D.E. 26, p. 11. The Court declines to grant the requested conditional stay,
and the objection is OVERRULED.
RICO Claim Predicates. The Magistrate Judge dismissed Plaintiffs’ RICO claim
because Plaintiffs (1) failed to plausibly allege “racketeering activity,” (2) failed to
plausibly allege the existence of an “enterprise” among the widely scattered Defendants,
and (3) failed to plausibly allege a RICO “conspiracy.” D.E. 26, pp. 12-16. Plaintiffs object
that the Magistrate Judge erred in finding that Plaintiffs’ allegations represent only “state-
law procedural errors.” D.E. 30, p. 10. They re-allege that many state court documents and
proceedings were corrupt and “void ab initio.” Id. at 8-9. Plaintiffs then present several
alleged schemes labeled “The Data Manipulation Enterprise” which appear to relate to
Felipa’s case and Junior’s CPS case. Id. at 10-14. They now assert that these schemes
constitute mail, wire, and honest services fraud, as well as a money laundering conspiracy.
Id. at 13. The Court finds no error in the Magistrate Judge’s recommendation to dismiss
the RICO claim as stated in the complaint. The objection regarding the RICO claim is thus
OVERRULED.
State Court Jurisdiction. Plaintiffs object that “the Magistrate Judge committed a
fatal error of law by failing to recognize that a total absence of initial or continuing subject-
matter jurisdiction is a structural defect that can never be cured, waived, or ignored during
initial screening.” D.E. 30, p. 15. Referencing Felipa’s state community supervision,
Plaintiffs argue that because Felipa’s term of supervision had expired in 2019, “any
subsequent enforcement action, warrantless seizure, or identity conversion represents an
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ultra vires exercise of simulated authority that is void ab initio.” Id. Plaintiffs claim that
the Magistrate Judge’s failure to evaluate this “absolute temporal expiration” constitutes a
Fourteenth Amendment Due Process violation. Id. Because Plaintiffs cannot bring claims
on behalf of Felipa, as previously addressed, the objection is OVERRULED.
Heck v. Humphrey. Plaintiffs object to the Magistrate Judge “recommending the
absolute dismissal of Plaintiffs’ claims for monetary and emergency relief, misapplying
Heck v. Humphrey and dismissing the state-created danger metrics.” D.E. 30, pp. 17-18.
The Magistrate Judge did not dismiss any claims based on Heck. Therefore, the objection
is OVERRULED.
B. Leave to Amend
The Magistrate Judge recommended that the Court deny leave to amend the False
Claims Act and peonage claims because amendment would be futile. D.E. 26, p. 20.
Regarding the RICO claim, the Magistrate Judge stated that Plaintiffs had 14 days to
explain to the district court how the deficiencies could be cured. Id., p. 21.
Plaintiffs now allege mail fraud, wire fraud, and money laundering under RICO.
D.E. 30, pp. 10-14. Although they may now allege offenses that constitute predicate acts
under RICO, the allegations are still deficient regarding the existence of an “enterprise” or
“conspiracy”. Accordingly, the Court DENIES Plaintiffs leave to amend their RICO claim.
CONCLUSION
Having reviewed the findings of fact, conclusions of law, and recommendations set
forth in the Magistrate Judge’s M&R, as well as Plaintiffs’ objections and all other relevant
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documents in the record, and having made a de novo review of the portions of the
Magistrate Judge’s M&R to which objections were specifically directed, the Court
OVERRULES Plaintiffs’ objections and ADOPTS as its own the findings and
conclusions of the Magistrate Judge (D.E. 26). Accordingly, the Court orders the
following:
• The claims brought on behalf of Felipa Rubio are DISMISSED WITHOUT
PREJUDICE.
o Junior’s motion to proceed in forma pauperis on behalf of Felipa (D.E. 9) is
DENIED as moot.
• Plaintiffs’ federal claims (RICO, the False Claims Act, peonage) are DISMISSED
WITH PREJUDICE for failure to state a claim.
• Plaintiffs’ state law claims, if any, are DISMISSED WITHOUT PREJUDICE.
• Leave to amend claims is DENIED.
ORDERED on August 3, 2026.
_______________________________
NELVA GONZALES RAMOS
UNITED STATES DISTRICT JUDGE
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