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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

LUIS BENJAMIN LOPEZ, §

Petitioner, §

§

 v. § No. 3:22-cv-00883-X (BT)

§

THE STATE OF TEXAS, et al., §

Respondents. §

FINDINGS, CONCLUSIONS, AND RECOMMENDATION 

OF THE UNITED STATES MAGISTRATE JUDGE

Before the Court is Luis Benjamin Lopez’s letter motion under Rule 

60(b). (ECF No. 27.) For the reasons stated, the Court should GRANT 

Lopez’s motion and reopen this case. 

I. 

Lopez initiated this action by filing a prisoner civil rights complaint 

on the court-approved form and a motion for leave to proceed in forma 

pauperis. At the time, he was incarcerated at the TDCJ East Texas 

Treatment Facility in Henderson, Texas. (ECF No. 3.) Thereafter, the 

Court construed Lopez’s civil rights complaint as a petition for writ of 

habeas corpus under 28 U.S.C. § 2254 and provided him with the 

warnings under Castro v. United States, 540 U.S. 375 (2003). (ECF No. 

5.) The Court instructed Lopez to either withdraw his petition or amend 

it to include all the claims he wished to raise with respect to his state 

conviction and/or sentence. Lopez responded by filing several amended 

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petitions (ECF Nos. 7, 11, 18). On October 24, 2022, the undersigned 

United States magistrate judge issued findings and conclusions, 

recommending the Court dismiss Lopez’s petition because he failed to 

state a claim for ineffective assistance of counsel under Strickland v. 

Washington, 466 U.S. 668, 688 (1984). FCR (ECF No. 21) (“In total, 

Lopez filed four petitions, and each of those petitions is legally insufficient 

because it is not factually supported. The operative petition, Lopez’s third 

amended petition, has been liberally construed, but it consists of bare 

bones phrases and statements. In addition, Lopez has not stated coherent, 

logical thoughts that can be followed. Thus, Lopez has failed to 

demonstrate that his attorney, Chatham, acted deficiently, or that he 

suffered prejudice therefrom.”) (cleaned up). On November 8, the Court 

received the magistrate judge’s findings and conclusions marked 

“RETURN TO SENDER, NOT DELIVERABLE AS ADDRESSED, 

UNABLE TO FORWARD.” (ECF No. 22.) 

On February 16, 2023, the Court accepted the magistrate judge’s 

findings and recommendation, denied a certificate of appealability 

(COA), and entered judgment. Ord. (ECF No. 23); J. (ECF No. 24). Then, 

on February 28, the order of acceptance was returned to the Court marked 

“RETURN TO SENDER, NOT DELIVERABLE AS ADDRESSED, 

UNABLE TO FORWARD.” (ECF No. 25.) On April 20, the judgment was 

similarly returned to the Court. (ECF No. 26.) 

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On July 29, Lopez filed his letter motion, in which he states that he 

is “writing to notify [the undersigned] of the reazon [sic] why [he] [has] 

not answered. [He] was very sick and had brain surgery[.]” Further, Lopez 

states that he “need[s] to keep the case active[.]” (ECF No. 27 at 1.) The 

Court construes Lopez’s letter motion as a Rule 60(b) motion. See 

Demahy v. Schwarz Pharma, Inc., 702 F.3d 177, 182 n.2 (5th Cir. 2012)

(providing that when a party files his motion within twenty-eight days 

after the entry of judgment, a court evaluates the motion under Rule 59, 

but when the party files it beyond that time period, a court analyzes the 

motion under Rule 60). 

II. 

Under Rule 60(b), a court may relieve a party from a final judgment or 

order for the following reasons:

(1) mistake, inadvertence, surprise, or excusable neglect;

(2) newly discovered evidence that, with reasonable diligence, 

could not have been discovered in time to move for a new trial 

under Rule 59(b);

(3) fraud (whether previously called intrinsic or extrinsic), 

misrepresentation, or misconduct by an opposing party;

(4) the judgment is void; 

(5) the judgment has been satisfied, released, or discharged; it is 

based on an earlier judgment that has been reversed or 

vacated; or applying it prospectively is no longer equitable; or

(6) any other reason that justifies relief.

Fed. R. Civ. P. 60(b). 

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In his letter motion, Lopez explains that the reason he failed to respond 

to documents from the Court was because he has been very sick. And he 

provides medical records that substantiate this claim. These records state 

that Lopez has been suffering from multiple medical conditions, including a 

stroke and left side paralysis, and that, as of July 5, 2023, Lopez was “not 

medically stabilized.” (ECF No. 27-1 at 1.) It is also apparent from Lopez’s 

submissions in support of his motion and other entries on the docket that 

Lopez was in and out of different treatment centers after he was released 

from prison. (ECF Nos. 19, 20, 28.) 

Due to his medical condition, Lopez had to move several times for 

treatment, and he did not receive the magistrate judge’s findings and 

conclusions. Although Lopez attempted to keep the Court apprised of his 

current address, the Court mail did not reach him, and he was precluded 

from responding to the magistrate judge’s findings and conclusions. For this 

reason, the subsequent dismissal of Lopez’s case was the result of a 

“mistake,” and he is entitled to relief under Rule 60(b)(1).

Recommendation 

The Court should GRANT Lopez’s Rule 60(b) motion (ECF No. 27) and 

reopen this case. 

SO RECOMMENDED.

September 11, 2023. 

____________________________

REBECCA RUTHERFORD

UNITED STATES MAGISTRATE JUDGE

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INSTRUCTIONS FOR SERVICE AND

NOTICE OF RIGHT TO APPEAL/OBJECT

A copy of this report and recommendation shall be served on all 

parties in the manner provided by law. Any party who objects to any part of 

this report and recommendation must file specific written objections within 

14 days after being served with a copy. See 28 U.S.C. § 636(b)(1); FED. R. CIV.

P. 72(b). In order to be specific, an objection must identify the specific 

finding or recommendation to which objection is made, state the basis for 

the objection, and specify the place in the magistrate judge's report and 

recommendation where the disputed determination is found. An objection 

that merely incorporates by reference or refers to the briefing before the 

magistrate judge is not specific. Failure to file specific written objections will 

bar the aggrieved party from appealing the factual findings and legal 

conclusions of the magistrate judge that are accepted or adopted by the 

district court, except upon grounds of plain error. See Douglass v. United 

Services Automobile Ass'n, 79 F.3d 1415, 1417 (5th Cir. 1996).

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