IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

JOSEPH KELLY DINGLER, )

# 00149118, )

Petitioner, )

vs. ) No. 3:22-CV-1252-D (BH)

)

ROCKWALL COUNTY COURT #2, et al., )

Respondents. ) Referred to U.S. Magistrate Judge1

MEMORANDUM OPINION AND ORDER

Based on the relevant filings and applicable law, the“Motion to Correct the Record and

Properly Rule on the Motion for Return of Seizure of Property”, filed on July 24, 2022 (doc. 12),

is liberally construed as a motion for reconsideration and DENIED.

I. BACKGROUND

The petitioner initiated this case through a handwritten “Petition for Writ of Habeas Corpus

Petition for Federal Asylum under 28 U.S.C. § 2254”, received on June 9, 2022. (See doc. 2.) 

Because it appeared to challenge his pretrial detention instead of a state conviction, the filing was

properly construed as a petition for writ of habeas corpus under 28 U.S.C. § 2241 instead of § 2254.

(See doc. 3.) By Notice of Deficiency and Order dated June 10, 2022, the petitioner was notified

that he had neither paid the $5 filing fee nor submitted a motion to proceed in forma pauperis (IFP),

and that he needed to complete and file a form petition under 28 U.S.C. § 2241 and either pay the

fee or file an IFP motion, within thirty days. (Id.)

The Notice of Deficiency and Order specifically noted that the habeas petition also

mentioned claims that could arise under 42 U.S.C. § 1983. (Id.) It notified him that courts may only

consider federal habeas petitions on grounds that the petitioner is in custody in violation of the

1

 By Special Order No. 3-251, this habeas case has been automatically referred for findings and recommendation.

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Constitution or federal laws. See Preiser v. Rodriguez, 411 U.S. 475, 484-87 (1973). (Id.) He was

specifically advised that he may only raise habeas claims in his amended habeas petition, and this

case will proceed only as a habeas action. (Id.) Any other types of claims, including claims under

§ 1983, were required to be raised in a separate civil action. (Id.) The Clerk’s Office was instructed

to forward him the forms used in other types of civil actions. (Id.) The petitioner was notified that

because of the filing fee, a separate § 1983 action would only be opened if he file it on the enclosed

forms.2

 (Id.) In spite of the specific directions he was given, the petitioner filed a motion in this §

2241 case seeking civil relief, i.e., return of seized property, that may not be had in a § 2241 habeas

case. (See docs. 6, 8.)

Because he appeared to seek to file a civil action, the Clerk of Court was instructed to open

a new civil action under 42 U.S.C. § 1983, file the petitioner’s motion (doc. 6) in that case, and

terminate it in this habeas action. (See doc. 7.) A new case has been opened, and his motion for the

return of property was filed in that case. (See No. 3:22-CV-1588-L-BK (N.D. Tex.).) The petitioner

now appears to seek reconsideration of that order. (See doc. 12.)

II. RECONSIDERATION

As noted by the Fifth Circuit, “the Federal Rules of Civil Procedure do not provide for a

motion for reconsideration.” Shepherd v. International Paper Co., 372 F.3d 326, 328 n. 1 (5th Cir.

2004); Lavespere v. Niagara Mach. & Tool Works, Inc., 910 F.2d 167, 173 (5th Cir.1990) (noting

2

 The Prison Litigation Reform Act (PLRA) requires that all prisoners who bring a civil non-habeas action must pay the

full filing fee, although the fee may be paid in installments where leave to proceed in forma pauperis is granted. See

28 U.S.C. § 1915(b)(1). A $52 administrative fee will be assessed in addition to the $350 filing fee, resulting in a total

filing fee of $402 for a civil action in which the plaintiff has not sought or been granted leave to proceed in forma

pauperis. See District Court Miscellaneous Fee Schedule. Where a prisoner plaintiff has been granted leave to proceed

in forma pauperis, only the $350 filing fee will be deducted from the prisoner’s account. See id. The $52 administrative

fee will not be deducted. Id.

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that the federal rules of procedure “do not recognize a ‘motion for reconsideration’ in haec verba”),

abrogated on other grounds by Little v. Liquid Air Corp., 37 F.3d 1069, 1076 n. 14 (5th Cir.1994). 

Where a motion for reconsideration challenges a final judgment, it is treated either as a motion to

alter or amend the judgment under Rule 59(e), or as a motion seeking relief from judgment under

Rule 60(b). Id. Where a motion does not challenge a final judgment, it is considered under Rule

54(b). See McClendon v. United States, 892 F.3d 775, 781 (5th Cir. 2018) (citing Austin v. Kroger

Texas, L.P., 864 F.3d 326, 336 (5th Cir. 2017)).

Rule 54(b) provides that “any order or other decision, however designated, that adjudicates

fewer than all the claims or the rights and liabilities of fewer than all the parties ... may be revised

at any time before the entry of a judgment adjudicating all the claims and all the parties’ rights and

liabilities.” Fed. R. Civ. P. 54(b). Under Rule 54(b), “‘the trial court is free to reconsider and

reverse its decision for any reason it deems sufficient, even in the absence of new evidence or an

intervening change in or clarification of the substantive law.’” Austin, 864 F.3d at 336 (quoting

Lavespere, 910 F.2d at 185). The Fifth Circuit has specifically noted Rule 54(b)’s flexibility, which

reflects courts’ inherent power to provide relief from interlocutory orders and decisions “‘as justice

requires.’” Id. at 337 (quoting Cobell v. Jewell, 802 F.3d 12, 25–26 (D.C. Cir. 2015)); Cabal v.

Brennan, 853 F.3d 763, 766 n. 3 (5th Cir. 2017).

Here, the petitioner has not shown any reason justifying reconsideration of the order that his

motion for the return of property be opened as a new non-habeas civil action. Section 2241, “‘which

applies to persons in custody regardless of whether final judgment has been rendered and regardless

of the present status of the [pending case,]’” is the proper vehicle for seeking habeas relief from

pretrial detention. Stringer v. Williams, 161 F.3d 259, 262 (5th Cir. 1998) (quoting Dickerson v.

3

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Louisiana, 816 F.2d 220, 224 (5th Cir. 1987)). In the context of pretrial detainees, the Fifth Circuit

has recognized that “[t]he purpose of this writ is not to examine the validity of any judgment, but

merely to inquire into the legality of a detention.” Fain v. Duff, 488 F.2d 218, 222 (5th Cir. 1973). 

Because the petitioner’s motion is not challenging the legality of, or seeking relief from, his pretrial

detention, but instead seeks to recover alleged seized property, the relief sought is not available

under § 2241 and is properly raised in a civil rights action.

III. CONCLUSION

The petitioner’s filing is liberally construed as a motion for reconsideration of the order that

a new non-habeas civil case be opened for his motion for return of property, and it is DENIED. Any 

request for relief relating to his motion for the return of property should be filed in the new civil

action, No. 3:22-CV-1588-L-BK (N.D. Tex.).

SO ORDERED this 25th day of July, 2022.

 ___________________________________

 IRMA CARRILLO RAMIREZ

 UNITED STATES MAGISTRATE JUDGE

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