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 T. RUBIO, JR., et al.,
Plaintiffs,
v.
§
§
§
§
§
§
§
§
§
Case No. 2:26-CV-00130
JUDGE JOHN D. WINKELMANN, et al.,
Defendants.
MEMORANDUM AND RECOMMENDATION OF
UNITED STATES MAGISTRATE JUDGE
Plaintiffs Jose T. Rubio, Jr. (“Junior”) and Jose T. Rubio, Sr. (“Senior”), proceeding pro
se and in forma pauperis, filed this action against Judge John D. Winkelmann and nearly two
dozen other people and entities, alleging that the defendants violated the Racketeering Influenced
and Corrupt Organizations Act1 and other statutes. (Doc. No. 1.) For the reasons discussed
below, the undersigned recommends that the district court DISMISS Plaintiffs’ lawsuit.
A. Jurisdiction.
This case has been referred to the undersigned magistrate judge for case management and
recommendations on dispositive matters pursuant to 28 U.S.C. § 636. (Doc. No. 5.) Plaintiffs
bring this suit pursuant to 42 U.S.C. § 1983. See Doc. No. 1, p. 1. This Court therefore
possesses jurisdiction pursuant to 28 U.S.C. § 1331.
B. Proceedings.
Plaintiffs filed this action on May 4, 2026. (Doc. No. 1.) The defendants and claims are
discussed in the next section of this memorandum.
1 18 U.S.C. § 1961 et seq. (“RICO”).
United States District Court
Southern District of Texas
ENTERED
June 10, 2026
Nathan Ochsner, Clerk
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Also on May 4, Plaintiffs filed a second action, which was assigned case number 2:26-cv-
00132 (the “132 case”). The complaint in that case mirrored the complaint in this action and
sued the same defendants. See Rubio v. Winkelmann, No. 2:26-cv-00132 (S.D. Tex.), Doc. No.
1. The Court consolidated the 132 case into this action. (Doc. No. 7.) At the Court’s direction,
the Clerk filed supporting documents that had been filed in the 132 case on the docket of this
action. See Doc. Nos. 8-1, 8-2, 8-3, 8-4, 8-5, 8-6.
Junior thereafter submitted, as part of this case, a document that the Court construed as an
application for a writ of habeas corpus on behalf of a person named Felipa Rubio (“Felipa”),
seeking Felipa’s release from custody. (Doc. No. 11.) The Court severed that habeas claim into
a separate action. (Doc. No. 16.) The habeas case was subsequently transferred to the Eastern
District of Texas. See Rubio v. Warden Coastal Bend Detention Center, No. 2:26-cv-00145
(S.D. Tex.), Doc. Nos. 1, 7.
Description of any further proceedings relevant to the disposition of this case appears in
the sections below.
C. Plaintiffs’ allegations, claims, and requested relief.
Plaintiffs’ lawsuit, in essence, attacks actions allegedly taken by the defendants that have
resulted in the deportation – and now also apparently a second deportation – of Felipa, who is
Senior’s wife and Junior’s mother.2 Plaintiffs contend that the defendants, who include (among
others) current and former judges, prosecutors, attorneys, police officers, counties, and the State
of Texas, hatched and participated in an elaborate racketeering conspiracy. Along the way, the
2 Junior purports to bring claims in this suit as “next friend” of Felipa. (Doc. No. 1, p. 1.) That issue is discussed in
greater detail below.
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defendants allegedly engaged in embezzlement of federal funds, a scheme which Junior seeks a
“relator’s bounty” for uncovering.
The allegations and parties are described next. Except where noted, the factual
allegations are drawn from Plaintiffs’ numerous and lengthy filings and supporting documents.
See Doc. Nos. 1, 1-2, 1-3, 1-5, 8-1, 8-2, 8-3, 8-4, 8-5. They are liberally construed, because
Plaintiffs are proceeding pro se.
1. Allegations.
Felipa was convicted in Texas state court in 2011 of assaulting a public servant; she
pleaded guilty and was sentenced to eight years’ imprisonment, among other punishments, but
the incarceration portion of the sentence was probated. See Doc. No. 1-3, pp. 34, 42, 49. An
immigration detainer was placed, and in June 2013 Felipa was ordered deported. Id. at 16, 20.
At some point, Felipa apparently returned to the United States, because she was arrested in
Nueces County in March 2025. See Doc. No. 8-3, p. 11. Felipa’s probation was subsequently
revoked and in December 2025 she was sentenced to four years’ imprisonment. (Doc. No. 1-3,
pp. 34, 37.) Felipa was again taken into immigration custody for removal proceedings. See Doc.
No. 8-1, p. 1.3
Plaintiffs’ complaint contends that Felipa’s 2011 indictment for the assault offense was
defective because it was not signed properly and that Felipa is actually innocent of that crime.
(Doc. No. 1, p. 2 ¶ 2 (claiming that indictment was a “legal nullity” susceptible of collateral
attack at any time, in any court, and that “the entire 15-year process is a ‘Simulated Legal
3 Felipa was in immigration detention at the time Plaintiffs filed this lawsuit. Junior’s attempt to free Felipa through
the habeas corpus process was severed into a separate case, as discussed in the previous section. Felipa has since
been deported to Mexico. See Rubio v. Warden Coastal Bend Detention Center, No. 1:26-cv-00189, Doc. No. 21
(E.D. Tex. May 21, 2026).
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Process’”); Doc. No. 1-3, p. 1 (describing indictment as void because it is “defectively signed”
and “fails to invoke the Court’s jurisdiction, rendering it a nullity”).) As a result of this allegedly
void indictment, Plaintiffs, through purported “next friend” Junior, allege that Felipa thereby
suffered kidnapping (because the document seeking to revoke Felipa’s probation allegedly
lacked mandatory signatures, thus rendering Felipa’s arrest a “federal kidnapping and false
imprisonment”), identity fraud, and a “March 2025 cardiovascular emergency caused by state-
created danger.” (Doc. No. 1, p. 2 ¶ 4; Doc. No. 1-2, p. 4.) Senior, the complaint continues,
suffered “loss of consortium and 15 years of marital deprivation.” Id. at 2-3 ¶ 5. An unnamed
minor grandchild, the complaint alleges, suffered “severe psychological trauma and intentional
infliction of emotional distress (IIED) caused by the kidnapping of her primary caregiver.” Id. at
3 ¶ 6.4 And Junior alleges “[c]laims for the financial and psychological toll of a 15-year forensic
audit into this racketeering enterprise.” Id. ¶ 7.
Meanwhile, Plaintiffs allege the existence of “illegal venue swaps” – apparently transfers
of cases between courts that are being done without proper justification. Plaintiffs describe these
transfers as “off-book transfers” from Burleson County to Nueces County that are “designed to
conceal ‘Ghost Case’ #30007 and evade federal habeas review.” (Doc. No. 1, p. 2 ¶ 3.)
According to Plaintiffs’ documents, “Ghost Case #30007” is a child protection case brought in
2020 by the Texas Department of Family and Protective Services in Burleson County; Junior is
or was a party in the case. See Doc. No. 1-3, pp. 3, 61-64. “Ghost Case #30007” remains open,
Plaintiffs claim, despite an alleged final disposition in a separate case bearing a different case
number (the “DPS case”), and retains Plaintiff as an active party “solely for continued revenue
harvesting, violating 18 U.S.C. § 241 (conspiracy against rights).” Id. at 3, 65-69. It is not clear
4 The grandchild is not a party to this lawsuit.
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from the pleadings what revenue is being “harvested” from Junior. Plaintiffs contend that the
use of these so-called ghost cases and fabricated indictments “creates a perpetual demand for
detention to ensure state/federal funding remains continuous.” (Doc. No. 8-3, p. 9.) This alleged
use of ghost cases to “generate fraudulent financial obligations against the public and the state
triggers provisions under the False Claims Act (31 U.S.C. §§ 3729-3733).” (Doc. No. 1-2, p. 6.)
Junior postures himself as a “relator” under the False Claims Act. Id. at 6-7.
Finally, Plaintiffs allege the existence of something they call the “Tri-County Revenue &
Allocation Scheme.” See Doc. No. 1, p. 3 ¶ 10; Doc. No. 1-3, p. 2. That alleged scheme,
Plaintiffs say, “formalizes an inter-county revenue sharing and allocation agreement between the
District Courts of Burleson, Lee, and Washington Counties” in Texas. (Doc. No. 1-3, p. 2.) The
alleged
scheme functions as a clearinghouse for the predatory extraction of court costs,
fines, and administrative fees. The Burleson County District Court serves as the
primary collection hub, where cases are artificially prolonged – maintaining
‘Ghost Cases’ – to facilitate the systematic transfer of funds between these
jurisdictions to obscure financial accountability and circumvent statutory fee caps.
Id. Plaintiffs claim that the scheme’s “systematic exploitation of court-ordered financial
obligations for revenue generation violates Due Process, functions as RICO predicate acts under
18 U.S.C. § 1961, and constitutes abuse of official capacity (Tex. Penal Code § 39.02).” Id. As
proof of this supposed scheme, Plaintiffs have attached a March 2025 court order issued by two
Texas state judges setting forth the procedure to be followed by the district clerk serving
Burleson, Lee, and Washington Counties regarding the filing and assignment of felony criminal
cases in the district courts serving Bastrop County. Id. at 27.
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2. Defendants sued.
The Court, construing Plaintiffs’ complaint liberally, understands the following people
and entities to be sued in this case. All of the human defendants are sued solely in their
individual capacities:
• John D. Winkelmann, presiding judge of Texas’ 335th Judicial District Court, who
presided over Felipa’s probation revocation case and is one of the signatories of the order
allegedly forming the basis of the Tri-County Revenue and Allocation Scheme;
• Reva Towslee Corbett, former presiding judge of Texas’ 335th Judicial District Court,
who presided over Felipa’s assault case;
• Jennifer Lively, an attorney who prosecuted Felipa’s assault case;
• Cougan Dion Hignight, a former Caldwell, Texas police officer and the victim of Felipa’s
assault;
• the City of Caldwell, Texas;
• the Caldwell Police Department;
• the Caldwell City Manager;
• Peggy Nichols, a state probation officer;
• Jason Walker, a state probation officer;
• Bruno Shimek, a private attorney who represented Felipa in her assault case;
• Wesley Keng, a private attorney who represented Felipa during her probation revocation
case and who represented Junior in the DPS case;
• Chris Dillon, a private attorney who represented Felipa in the appeal of her probation
revocation case;
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• Susan Deski, currently the County Attorney of Burleson County and formerly an attorney
for the Texas Department of Family and Protective Services, who represented that agency
in the DPS case;
• John Brennan, an Assistant County Attorney in Burleson County;
• Janice Gonzales, described as “staff” with no further elaboration;
• Raquel Pena, described as “staff” with no further elaboration;
• the Nueces County Sheriff;
• the Burleson County Sheriff;5
• Burleson County;
• Nueces County; and
• the State of Texas.
3. Legal claims, as discerned by the Court.
The undersigned understands Plaintiffs’ claims to be these, after liberal construction:
• RICO conspiracy. Plaintiffs claim that a racketeering enterprise exists. They contend
that the 21st and 335th Judicial District Courts are allegedly “weaponizing docket
controls, executing unauthorized venue transfers, and maintaining ‘Ghost/Zombie
Cases.’” (Doc. No. 1-2, pp. 1-2.) The alleged result is the “utiliz[ation] of the Court’s
infrastructure to conduct financial harvesting.” Id. at 2. The “systematic exploitation of
court-ordered financial obligations for revenue generation,” Plaintiffs contend, “violates
Due Process, functions as RICO predicate acts under 18 U.S.C. § 1961, and constitutes
5 Plaintiffs refer to these last two people as the “wardens” of the Nueces County and Burleson County Jails, see
Doc. No. 1, p. 1, but in Texas the sheriff is the keeper of the county jail. See Tex. Loc. Gov’t Code § 351.041(a)
(“The sheriff of each county is the keeper of the county jail.”).
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abuse of official capacity (Tex. Penal Code § 39.02).” Id. at 5. Plaintiffs also appear to
contend that Felipa’s assault prosecution was “predicated on a fabricated narrative and
void instruments” as part of this conspiracy. See id. at 7. This alleged conspiracy
resulted in the “kidnapping” of Felipa, as well as identity fraud and a March 2025
“cardiovascular emergency caused by state-created danger.” (Doc. No. 1, p. 2 ¶ 4.)
Senior alleges that he suffered “loss of consortium and 15 years of marital deprivation.”
Id. at 2-3 ¶ 5. Junior claims to have suffered “financial and psychological toll”
occasioned by “a 15-year forensic audit into this racketeering enterprise.” Id. at 3 ¶ 7.
And on behalf of an unnamed “minor grandchild” who is not a party to this case,
Plaintiffs allege “severe psychological trauma and intentional infliction of emotional
distress.” Id. at 3 ¶ 6.
• False Claims Act. Plaintiffs state that they are bringing a qui tam claim under the False
Claims Act. (Doc. No. 1, p. 1.) Junior claims to be the relator. Id. at 1; id. at 3 ¶ 7.
Junior alleges that the defendants’ maintenance of “Ghost Case #30007” is solely for
“continued revenue harvesting” and that the “systematic utilization of these invalid
‘Ghost Cases’ to generate fraudulent financial obligations against the public and the state
triggers provisions under the False Claims Act ….” (Doc. No. 1-2, p. 6.) Junior states
that the qui tam provisions “protect those who disclose the misuse of judicial systems for
illicit revenue generation.” Id. at 6-7.
• Peonage. Plaintiffs lodge, without elaboration, a claim alleging peonage under 18 U.S.C.
§ 1581. (Doc. No. 1, p. 1.)
• Civil rights deprivations. Plaintiffs allege, without elaboration, “civil rights deprivations”
under 42 U.S.C. § 1983 and 18 U.S.C. § 241. (Doc. No. 1, pp. 1, 10.)
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4. Plaintiffs’ requested relief.
Plaintiffs appear to seek monetary and injunctive relief. They first demand, apparently
on behalf of Felipa, “immediate credit for all days since July 3, 2011, including the 2013
deportation phase, which constituted a ‘government-created exile’ predicated on a void
instrument.” (Doc. No. 1, p. 3 ¶ 8.) Plaintiffs also ask for “Rule 11 sanctions,” seeking
“maximum financial sanctions against all counsel for bad-faith maintenance of simulated
process.” Id. ¶ 9. Plaintiffs demand “asset forfeiture,” seeking the “[i]mmediate attachment of
public official surety bonds and the seizure of ‘Tri-County’ revenue funds under RICO … and
the False Claims Act.” Id. ¶ 10. They also request “immediate federal protective custody,”6
treble damages, and a “relator’s bounty for uncovering the federal grant fraud.” Id. ¶ 11.
The exact dollar amount Plaintiffs seek is unclear, but the civil cover sheet states that the
demand is “in excess of $100,000,000 and treble damages and stat. penalties.” (Doc. No. 1-1, §
VII.)
D. Standard of review for screening of Plaintiffs’ complaint.
Plaintiffs are proceeding in forma pauperis, so their complaint is subject to the provisions
of section 1915(e)(2)(B) of Title 28, United States Code. That statute imposes a screening
responsibility upon the district court, and provides for sua sponte dismissal of a complaint if the
court finds that the complaint is frivolous or malicious, that it fails to state a claim upon which
relief may be granted, or that it seeks monetary relief against a defendant who is immune from
such relief. The Court may determine that Plaintiffs’ complaint must be dismissed under §
6 Perhaps this protective custody was intended for Felipa, to prevent her deportation? As noted above, however,
Felipa has already been deported.
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1915(e)(2)(B) at any time, before or after service of process and before or after the defendant’s
answer. See Green v. McKaskle, 788 F.2d 1116, 1119 (5th Cir. 1986).
A claim is “frivolous” if it has no arguable basis in law or fact. Neitzke v. Williams, 490
U.S. 319, 328-29 (1989). A claim has no arguable basis in law if it is based on an indisputably
meritless legal theory, “such as if the complaint alleges the violation of a legal interest which
clearly does not exist.” Davis v. Scott, 157 F.3d 1003, 1005 (5th Cir. 1998) (citations omitted).
A claim has no arguable basis in fact if “after providing the plaintiff the opportunity to present
additional facts when necessary, the facts alleged are clearly baseless.” Talib v. Gilley, 138 F.3d
211, 213 (5th Cir. 1998) (citing Denton v. Hernandez, 504 U.S. 25, 32-33 (1992)).
A complaint fails to state a claim upon which relief may be granted if its factual
allegations are insufficient to raise a right to relief above the level of speculation. Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 555 (2007). Dismissal for failure to state a claim is appropriate
when the plaintiff has failed to plead enough facts to state a claim to relief that is plausible on its
face. Id. at 570. “In analyzing the complaint, [the court] will accept all well-pleaded facts as
true, viewing them in the light most favorable to the plaintiff.” Jones v. Greninger, 188 F.3d
322, 324 (5th Cir. 1999) (per curiam). “The issue is not whether the plaintiff will ultimately
prevail, but whether he is entitled to offer evidence to support his claim.” Id. (citations omitted).
Thus, dismissal is inappropriate “unless the plaintiff would not be entitled to relief under any set
of facts or any possible theory that he could prove consistent with the allegations in the
complaint.” Id. “Threadbare recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Plaintiffs
must allege sufficient facts in support of their legal conclusions that give rise to a reasonable
inference that the defendants are liable. Id.; Twombly, 550 U.S. at 556. The factual allegations
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must raise Plaintiffs’ claim for relief above the level of mere speculation. Twombly, 550 U.S. at
555. If the complaint, taken as a whole, gives rise to a plausible inference of actionable conduct,
then Plaintiffs’ claim should not be dismissed. Id.
Pleadings filed by pro se litigants like Plaintiffs are construed using a less stringent
standard of review. Documents filed by pro se litigants are to be liberally construed, and pro se
complaints, however inartfully drafted they might be, are held to less stringent standards than
formal pleadings drafted by lawyers. See Oliver v. Scott, 276 F.3d 736, 740 (5th Cir. 2002)
(citing Haines v. Kerner, 404 U.S. 519, 520 (1972)). A plaintiff’s well-pleaded factual
allegations in the complaint are to be taken as true for purposes of screening, but such deference
does not extend to conclusory allegations, unwarranted factual inferences, or legal conclusions.
DeMarco v. Davis, 914 F.3d 383, 386-87 (5th Cir. 2019). The complaint must state more than
“an unadorned, the-defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678
(citation omitted).
E. The district court should dismiss all claims brought on behalf of Felipa.
There are two plaintiffs in this case: Junior and Senior. Junior, however, purports to
bring some claims on behalf of Felipa, as her “next friend.” As an initial matter, the district
court should dismiss without prejudice all claims purportedly brought on Felipa’s behalf.7
Parties may bring federal lawsuits pro se. See 28 U.S.C. § 1654. But with one limited
exception not present here, a non-attorney pro se party may only represent himself: he cannot
assert claims on behalf of anyone else. See Rice v. City of Fort Worth, Tex., No. 4:26-cv-00052,
2026 WL 1216762, at *4 (S.D. Tex. Mar. 25, 2026) (Ho, M.J.), adopted, 2026 WL 1215663
7 These claims include kidnapping, identity fraud, and the “March 2025 cardiovascular emergency caused by state-
created danger.” (Doc. No. 1, p. 2 ¶ 4.) Any claims seeking habeas-type relief were previously severed from this
case. See Doc. No. 16.
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(S.D. Tex. May 4, 2026) (citing Raskin ex rel. JD v. Dall. Indep. Sch. Dist., 69 F.4th 280, 283
(5th Cir. 2023)); Sprague v. Dep’t of Family and Protective Servs., 547 F. App’x 507, 508 (5th
Cir. 2013) (unpublished) (citing Johnson v. Lufkin Daily News, 48 F. App’x 917 (5th Cir. 2002)
and Morgan v. Texas, 251 F. App’x 894, 896 n.2 (5th Cir. 2007)). Individuals who are “not
licensed to practice law by the state may not use the ‘next friend’ device as an artifice for the
unauthorized practice of law.” Weber v. Garza, 570 F.2d 511, 514 (5th Cir. 1978).
Junior does not contend that he is an attorney. Indeed, other filings in this case indicate
that he is not. E.g., Doc. No. 8-4, p. 2 (Junior invokes something he calls the “non-attorney ‘next
friend’ protection clause”). Nor does Junior argue or demonstrate that Felipa’s claims are
actually his own. Cf. Raskin, 69 F.4th at 283-84. As a non-attorney, Junior therefore cannot
bring a claim on behalf of Felipa. He can only bring claims of his own. The district court should
dismiss without prejudice all claims purportedly brought on Felipa’s behalf.
Junior has also filed a motion to proceed in forma pauperis, citing Felipa’s financial
status, in order to bring claims on behalf of Felipa. (Doc. No. 9.) Because Junior cannot bring
claims pro se on behalf of Felipa, the district court should DENY that motion without prejudice.
F. The district court should dismiss Plaintiffs’ RICO claim.
RICO provides for a civil suit by any person “injured in his business or property by
reason of a violation of [18 U.S.C. § 1962] … and shall recover threefold the damages he
sustains and the cost of the suit, including a reasonable attorney’s fee.” 18 U.S.C. § 1964(c).
Section 1962(c) makes it unlawful for “any person employed by or associated with any
enterprise engaged in, or the activities which affect, interstate or foreign commerce, to conduct
or participate, directly or indirectly, in the conduct of such enterprise’s affairs through a pattern
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of racketeering activity ….” 18 U.S.C. § 1962(c). Subsection 1962(d) prohibits conspiracies to
violate § 1962(c). 18 U.S.C. § 1962(d).
Plaintiffs contend that the defendants have engaged in a “racketeering enterprise.” (Doc.
No. 1, p. 1; Doc. No. 1-2, p. 24; Doc. No. 1-3, pp. 2, 27.) Plaintiffs’ RICO allegations fall far
short of the required level of plausibility and should be dismissed as frivolous and for failure to
state a claim upon which relief may be granted.
1. Plaintiffs fail to plausibly allege “racketeering activity.”
Plaintiffs’ RICO claim is not especially easy to follow. Liberally construed after a
searching review of their pleadings, Plaintiffs appear to be claiming that the defendants have
violated 18 U.S.C. § 1962(c) through the use of what Plaintiffs call “ghost dockets” and “venue
fraud.” See Doc. No. 1-2, pp. 1-2. “Ghost dockets,” Plaintiffs contend, are cases that are
artificially prolonged in order to enable “revenue harvesting.” See Doc. No. 1-2, p. 6. By
“venue fraud,” Plaintiffs appear to mean that the Texas state courts or defendant judges are
transferring cases to other courts without authority to do so. See Doc. No. 1, p. 2 ¶ 3 (alleging
that the defendants “engaged in illegal venue swaps without valid transfer orders (28 U.S.C. §
1406)”; Doc. No. 1-2, p. 24 (“All unauthorized venue swaps are ultra vires.”).8 Plaintiffs do not
list specific federal crimes as predicate acts.
Section 1961(1) of Title 18, United States Code, defines “racketeering activity” as
including various types of criminal acts; those criminal acts are listed in § 1961(1). If an act is
not listed in § 1961(1), it cannot serve as a RICO predicate act because it does not meet the
8 It is unclear exactly which defendants are alleged to have engaged in this conduct. Plaintiffs have sued a current
and a former state judge, but they also sue others, including private attorneys, a city police department, a city
manager, and two probation officers (among others). Plaintiffs do not explain each defendant’s involvement in
“ghost dockets” or “venue swapping.” As will be discussed in a moment in the main text, however, that
shortcoming is irrelevant because the RICO claim is insufficient no matter who the defendants are.
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definition of “racketeering activity.” See Gordon v. Neugebauer, No. 1:14-cv-0093, 2014 WL
6611991, at *9 (N.D. Tex. Nov. 21, 2014) (citing Bonton v. Archer Chrysler Plymouth, Inc., 889
F. Supp. 995, 1002 (S.D. Tex. 1995) (“Any act that does not fall within the purview of RICO’s
definition of predicate offenses is not an act of ‘racketeering activity.’”)); Sam v. Easy Honda
and Exeter Finance LLC, No. 4:25-cv-2988, 2026 WL 1579942, at *6 n.5 (S.D. Tex. Apr. 28,
2026) (Palermo, M.J.), adopted, 2026 WL 1579169 (S.D. Tex. June 1, 2026) (“forgery,” “use of
forged instrument in litigation,” “securities fraud,” “fraudulent payment reversal,” “document
fraud,” and “concealment by mail” were not predicate acts because they were not listed in §
1961(1)).
Although Plaintiffs believe that one or more of the defendants have acted improperly,
Plaintiffs do not allege any predicate act listed in 18 U.S.C. § 1961(1). Plaintiffs’ claimed
predicate acts are the use of “ghost dockets” and “venue swaps;” they also appear to be claiming
that these acts amounted to a conspiracy to engage in deprivation of civil rights under 18 U.S.C.
§ 241. See Doc. No. 1, p. 1; Doc. No. 1-2, p. 6. None of these acts, however, are federal crimes
listed in § 1961(1). The acts therefore cannot serve as predicate acts to support a RICO claim.
Plaintiffs’ filings could possibly be read to allege “federal grant fraud” as a predicate act.
See Doc. No. 1, p. 3 ¶ 11; Doc. No. 1-3, p. 2. But Plaintiffs do not explain to which federal grant
they are referring. In any event, “federal grant fraud” is not listed as a predicate act in § 1961(1),
either.9 Plaintiffs also mention “embezzlement,” “unlawful handling,” and “misappropriation”
9 Plaintiffs’ reference to United States v. Ciavarella, a federal prosecution in the Third Circuit involving honest
services wire fraud and money laundering conspiracy associated with kickbacks paid in return for imprisonment of
juveniles (Doc. No. 1, p. 6), is inapt. That case involved allegations of predicate acts that were listed in § 1961(1).
See United States v. Ciavarella, 716 F.3d 705, 731 (3d Cir. 2013).
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of state funds, see Doc. No. 1, p. 6, but those activities likewise are not listed as predicate acts in
the statute.10
Plaintiffs’ RICO allegation fails to plausibly allege racketeering activity. It therefore
fails to state a claim upon which relief may be granted, and the district court should dismiss it.
Dismissal on this basis should end the RICO discussion altogether. There are, however,
additional bases for dismissal.
2. Plaintiffs fail to plausibly allege a RICO “enterprise.”
Plaintiffs also fail to plausibly allege the existence of a RICO “enterprise.” The term
“enterprise” is defined broadly in the RICO statute. In addition to any “individual, partnership,
corporation, association, or other legal entity,” the term includes any “union or group of
individuals associated in fact although not a legal entity.” 18 U.S.C. § 1961(4).
Plaintiffs do not allege that the widely scattered defendants in this case are part of any
legal entity together. Nor do Plaintiffs allege that the defendants were in fact associated with
each other or worked in concert. An association-in-fact enterprise “must be more than a
summation of predicate acts.” Ocean Energy II, Inc. v. Alexander & Alexander, Inc., 868 F.2d
740, 748 (5th Cir. 1989). There must be some demonstration of a common purpose of engaging
in a course of conduct. See Allstate Ins. Co. v. Plambeck, 802 F.3d 665, 673 (5th Cir. 2015).
The group “must function as a continuing unit and remain in existence long enough to pursue a
course of conduct.” Boyle v. United States, 556 U.S. 938, 948 (2009). Here, Plaintiffs accuse
10 Plaintiffs treat a March 2025 memorandum signed by two state judges as a sort of “smoking gun” indicating
racketeering activity. See Doc. No. 1-3, p. 27; id. at 2 (describing the memo as formalizing “an inter-county revenue
sharing and allocation agreement between the district courts” of three counties, which allegedly “functions as a
clearinghouse for the predatory extraction of court costs, fines, and administrative fees”). That document, however,
is merely an unremarkable division of work order, specifying how courts will handle the processing of criminal
cases arising in Bastrop County. There is no indication that Felipa was prosecuted in Bastrop County, or that the
memorandum relates in any way to “Ghost Case #30007” cited by Junior – the Department of Family and Protective
Services case.
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the defendants – some being natural persons, others being governmental entities – of undertaking
a set of actions together, but fail to “provid[e] any detail as to how they acted together,” and thus
“fail[] to provide a factual basis from which to plausibly infer the connected structure of an
organization.” Crosswell v. Martinez, 120 F.4th 177, 187 (5th Cir. 2024) (emphasis in original).
Other than mouthing the word “enterprise,” Plaintiffs do not attempt to allege the
existence of any type of entity, organization, or association-in-fact. They do not, in any
nonconclusory manner, allege ongoing activity by the defendants (and those activities they do
allege, as discussed above, do not qualify as RICO predicate acts anyway). Plaintiffs’ claims
therefore fail to viably allege the existence of an “enterprise” under RICO. The district court
should dismiss the claim.
3. Plaintiffs fail to plausibly allege a RICO “conspiracy.”
Plaintiffs assert a RICO “conspiracy.” See Doc. No. 1, pp. 1, 10. Plaintiffs fail, however,
to allege any nonconclusory facts indicating that the defendants (or any combination of the
defendants) ever entered into any agreement with one another to commit the acts that form the
basis of Plaintiffs’ conspiracy claim. Cf. Rogers v. McLane, No. 5:22-CV-130-BQ, 2023 WL
4629044, at *9 (N.D. Tex. June 30, 2023), adopted, 2023 WL 4636894 (N.D. Tex. July 19,
2023) (citing Crowe v. Henry, 43 F.3d 198, 206 (5th Cir. 1995)). Plaintiffs allege many facts in
their voluminous filings, but they do not plausibly allege an agreement, and that failure is fatal to
their conspiracy claim. The district court should dismiss the RICO conspiracy claim.
G. The district court should dismiss Plaintiffs’ False Claims Act claim.
Plaintiffs purport to bring a claim under the False Claims Act. See Doc. No. 1, pp. 1, 3.
Plaintiffs’ claim suffers from two fatal shortcomings, each meriting dismissal.
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First, Plaintiffs do not purport to bring their False Claims Act action on behalf of the
United States. They also have not served their suit on the United States as required by the False
Claims Act, and they did not file their suit in camera as required by the Act. See 31 U.S.C. §
3730(b). Plaintiffs therefore cannot avail themselves of the False Claims Act’s qui tam
provisions, and dismissal is appropriate. See Williams v. Urology Gp., P.C., No. 3:25-CV-280,
2025 WL 3030440, at *1 (N.D. Miss. Oct. 8, 2025), adopted, 2025 WL 3027248 (N.D. Miss.
Oct. 29, 2025) (citing White v. Apollo Gp., 241 F. Supp. 2d 710, 714 (W.D. Tex. 2003))
(plaintiff’s failure to comply with False Claims Act’s strict procedural requirements required
dismissal of qui tam claim).
Additionally, Plaintiffs are proceeding pro se. Pro se litigants may not prosecute False
Claims Act suits. See United States ex rel. Brooks v. Ormsby, 869 F.3d 356, 356 (5th Cir. 2017)
(“regardless of the right of anyone to represent himself pro se, he is not representing himself
when he brings an action solely as relator for another non-intervening party, including the United
States, and therefore cannot do so pro se.”). The district court should therefore dismiss
Plaintiffs’ False Claims Act allegations.
H. The district court should dismiss Plaintiffs’ peonage claim.
The district court should dismiss the Plaintiffs’ peonage claim, brought under 18 U.S.C. §
1581. Plaintiffs offer no factual allegations regarding the claim: they merely list it as a cause of
action without further elaboration. See Doc. No. 1, p. 1. In any event, § 1581 is a criminal
statute and does not provide a private right of action. See Bautista v. Gexa Energy, LP, No.
3:24-CV-2920, 2026 WL 796491, at *4 (N.D. Tex. Feb. 11, 2026), adopted, 2026 WL 792555
(N.D. Tex. Mar. 20, 2026).
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I. To the extent Plaintiff’s other allegations could be liberally viewed as standalone
claims, the district court should dismiss them. The district court should decline to
exercise supplemental jurisdiction sua sponte over any state claim.
If Plaintiffs’ claims of “civil rights deprivations,” “abuse of official capacity,” “venue
fraud,” and loss of consortium could be liberally construed as standalone claims instead of RICO
predicate acts, dismissal would still be appropriate.11
Section 241 of Title 18 is criminal statute, and does not provide a private right of action.
See English v. United States, No. 4:24-CV-00283, 2024 WL 3976864, at *3 (S.D. Tex. Aug. 27,
2024) (Hanks, J.) (citing Lang v. Quinlan, 990 F.2d 1252, 1993 WL 129675, at *4 (5th Cir. Apr.
9, 1993) (summary calendar)).
Likewise, section 39.02 of the Texas Penal Code, which criminalizes abuse of official
capacity, does not create a private cause of action. See Aguilar v. Chastain, 923 S.W.2d 740,
745 (Tex. Ct. App. – Tyler 1996, writ ref’d) (“the Texas Penal Code does not create private
causes of action ….”); Hampton v. Abbott, No. SA-15-CA-1155, 2016 WL 6094375, at *3 (W.D.
Tex. Mar. 11, 2016), adopted, 2016 WL 6078485 (W.D. Tex. May 18, 2016).
Senior briefly alleges “loss of consortium and 15 years of marital deprivation.” (Doc.
No. 1, pp. 2-3 ¶ 5.) In Texas, however, loss of consortium is not a standalone cause of action
except perhaps in the case of a physical injury to one’s spouse caused by a third person’s
negligent conduct – a claim not present in this case. See Whittlesey v. Miller, 572 S.W.2d 665,
666 n.1, 668 (Tex. 1978); accord Rodriguez v. Blaine Larsen Farms, Inc., No. 22-10514, 2025
WL 2222994, at *8 (5th Cir. Aug. 5, 2025) (unpublished).
11 Plaintiffs also claim that the unnamed “minor grandchild” suffered intentional infliction of emotional distress
(Doc. No. 1, p. 3 ¶ 6), but the grandchild is not a party to this case.
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As for the so-called “venue swaps,” which according to Plaintiffs’ description are
unauthorized transfers of cases between state courts, Plaintiffs do not allege that any case of
theirs was wrongly transferred using such a “venue swap.”12 Research reveals no authority that,
assuming some authority might prohibit certain case transfers, provides a private right of action
or other means of redress outside the context of the specific case being transferred.
Additionally, Plaintiffs’ claims regarding abuse of official capacity and “venue swaps” do
not arise under any federal statute, and thus do not trigger federal question jurisdiction under 28
U.S.C. § 1331. The same is true for Senior’s attempt to raise a claim for loss of consortium. Nor
do these claims qualify for diversity jurisdiction under 28 U.S.C. § 1332: Plaintiffs are citizens of
Texas, and review of the complaint indicates that some or all of the defendants are also citizens
of Texas. See Doc. No. 1, p. 1.
This Court therefore can consider Plaintiffs’ state law claims only if it exercises
supplemental jurisdiction over them. Should the district court dispose of Plaintiffs’ federal
claims as recommended, it would still have discretion whether to exercise supplemental
jurisdiction over any remaining state law claims. See 28 U.S.C. § 1367(c)(3). The general rule
in this circuit, however, is that state law claims should be dismissed when the federal claims to
which they are pendent are dismissed. See Parker & Parsley Petroleum Co. v. Dresser Indus.,
972 F.2d 580, 585 (5th Cir. 1992); see also Brookshire Bros. Holding, Inc. v. Dayco Prods., Inc.,
554 F.3d 595, 602 (5th Cir. 2009) (citing Batiste v. Island Records, Inc., 179 F.3d 217, 227 (5th
Cir. 1999)) (“The general rule is that a court should decline to exercise jurisdiction over
remaining state-law claims when all the federal-law claims are eliminated before trial . . . .”).
12 Plaintiffs cite 28 U.S.C. § 1406 when alleging that cases are being transferred “without valid transfer orders”
(Doc. No. 1, p. 2 ¶ 3), but § 1406 applies only to federal cases, not to state cases.
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Here, there is no federal interest in adjudicating Plaintiffs’ liberally construed state law claims.
No significant federal resources have been devoted to this Court’s consideration of Plaintiffs’
state law claims, cf. Enochs v. Lampasas Cnty., 641 F.3d 155, 159 (5th Cir. 2011) (citing
common law factors of judicial economy, convenience, fairness, and comity in deciding whether
to retain supplemental jurisdiction over state claim), and there is simply no reason to retain this
case in federal court. The district court should decline to exercise supplemental jurisdiction sua
sponte in this case, and instead should dismiss Plaintiffs’ construed state law claims without
prejudice to their raising those claims (such as they are) in a state court. Cf. Lucky Tunes #3,
L.L.C. v. Smith, 812 F. App’x 176, 184-85 (5th Cir. 2020) (dismissal of claim without prejudice,
when based on decision not to exercise supplemental jurisdiction).
J. Leave to amend?
The undersigned has recommended dismissal of Plaintiffs’ claims. Plaintiffs are
proceeding pro se, and ordinarily “a pro se litigant should be offered an opportunity to amend his
complaint before it is dismissed.” Wiggins v. La. State Univ. – Health Care Servs. Div., 710 F.
App’x 625, 627 (5th Cir. 2016); Brewster v. Dretke, 587 F.3d 764, 767-68 (5th Cir. 2009). But
leave to amend is not required where amendment would be futile – that is, where an amended
complaint would fail to survive a Rule 12(b)(6) motion. See Stem v. Gomez, 813 F.3d 205, 215-
16 (5th Cir. 2016).
The district court should deny leave to amend with regard to the False Claims Act and
peonage allegations, because amendment would be futile. Plaintiffs have already violated the
strict procedural requirements of the False Claims Act, and they cannot pursue such a claim pro
se in any event. The peonage statute does not provide for a private right of action, so amendment
would be futile for that claim as well.
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Plaintiffs’ RICO allegations do not make out a plausible claim, and the undersigned
doubts that, given the facts as currently understood, Plaintiffs could amend their complaint to
articulate a plausible claim. But this memorandum and recommendation allows Plaintiffs 14
days in which to explain how they would cure the deficiencies identified above and thus
demonstrate to the Court why their RICO claim should not be dismissed with prejudice and that
the Court should instead grant Plaintiffs leave to amend that claim. Cf. Parham v. Wayne
McCollum Detention Ctr., No. 3:22-cv-2790, 2023 WL 2504910, at *6 (N.D. Tex. Jan. 10,
2023), adopted, 2023 WL 2518853 (N.D. Tex. Mar. 14, 2023) (citing Scott v. U.S. Bank Nat’l
Ass’n, 16 F.4th 1204, 1209 (5th Cir. 2021) (per curiam) (“A court should freely give leave to
amend when justice so requires … but a movant must give the court at least some notice of what
his or her amendments would be and how those amendments would cure the initial complaint’s
defects.”)). The district court should therefore decide whether to grant leave to amend the RICO
claim only after reviewing any objections to this memorandum and recommendation.
K. Conclusion and recommendations.
The district court should take the following actions:
• DENY without prejudice Junior’s motion to proceed in forma pauperis on behalf of
Felipa (Doc. No. 9).
• DISMISS Plaintiffs’ lawsuit as frivolous or for failure to state a claim upon which relief
may be granted.
• DENY leave to amend the False Claims Act and peonage claims.
• DENY leave to amend the RICO claim, unless Plaintiffs explain in an objection to this
memorandum and recommendation how they would amend their claim to yield a viable
RICO cause of action.
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• If leave to amend is denied, dismissal of the RICO, False Claims Act, and peonage claims
should be with prejudice.
• Dismissal of any construed state law claims should be without prejudice.
• Dismissal of Felipa’s claims should be without prejudice.
L. Notice.
The Clerk will file this Memorandum and Recommendation and transmit a copy to each
party or counsel. Plaintiffs shall be served by certified mail, return receipt requested. Within 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), and General Order No.
2002-13, United States District Court for the Southern District of Texas.
A failure to file written objections to the proposed findings, conclusions, and
recommendation in a magistrate judge’s report and recommendation within 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. See Douglass v. United Servs. Auto Ass’n, 79 F.3d 1415 (5th Cir. 1996) (en banc).
SIGNED on June 10, 2026.
_____________________________
MITCHEL NEUROCK
United States Magistrate Judge
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