IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

RAYMON CERVANTES, JR., )

)

Plaintiff, )

vs. ) No. 3:22-CV-1802-S (BH)

)

DALLAS COUNTY CIU UNIT, et al., )

)

Defendants. ) Referred to U.S. Magistrate Judge1

FINDINGS, CONCLUSIONS, AND RECOMMENDATION

Based on the relevant filings and applicable law, to the extent it seeks post-judgment relief

in this court, the Plaintiffs’ Writ of Mandamus ..., filed August 21, 2023 (doc. 38), should be

liberally construed as a motion to alter or amend the judgment under Fed. R. Civ. P. 59(e) and

DENIED.

I. BACKGROUND

In this civil rights action arising from his criminal conviction in 1976, the pro se plaintiff

sued the Conviction Integrity Unit (CIU) of the Dallas District Attorney’s Office, an attorney with

that unit, the prosecutor, his defense attorney, and the Dallas County Criminal Court System. (See

doc. 3 at 1-2; doc. 3-1 at 12-; doc. 7 at 3, 6-8, 10-20.)2

 He claims that as a result of a conspiracy to

get him, a “Mexican out of an all white neighborhood,” he was illegally arrested, indicted convicted

and incarcerated in violation of his constitutional rights. (See doc. 3 at 2; doc. 3-1 at 12, 13-28, 30-

32, 47-49; doc. 3-3 at 7-12.) The plaintiff sought assistance in obtaining exoneration from the CIU,

but it declined his case because “all records were destroyed.” (See doc. 3-1 at 26; doc. 3-2 at 54-58;

doc. 7 at 21-22.) By his lawsuit, he sought to be exonerated and $10,000,000 in damages. (See doc.

1

 By Special Order No. 3-251, this pro se case has been automatically referred for full case management.

2

 Citations to the record refer to the CM/ECF system page number at the top of each page.

Case 3:22-cv-01802-S-BH Document 39 Filed 08/25/23 Page 1 of 4 PageID 407
3-1 at 10, 20, 26, 30, 32; doc. 3-3 at 14; doc. 7 at 4.) By partial judgment dated August 18, 2023, his

claims against all defendants except the CIU were dismissed without prejudice sua sponte under

Fed. R. Civ. P. 4(m) for failure to timely serve them. (See docs. 23, 34, 35.) By final judgment also

dated August 18, 2023, his claims against the CIU were dismissed with prejudice sua sponte for

failure to state a claim because it is a non-jural entity. (See docs. 25, 36, 37.)

On August 21, 2023, the plaintiff filed what he titled as a “writ of mandamus” in this court,

challenging “wrongful conclusions” to disavow his briefs filed to overturn his illegal conviction and

seeking transfer of this case to “the criminal court section” of the court, where it should have been

handled in the first place. (See doc. 38.)

II. RULE 59(e)

Because the plaintiff’s filing appears to challenges the judgments in this case, and was filed

within 28 days of their entry, it is properly construed as arising under Rule 59(e). See St. Paul

Mercury Ins. Co. v. Fair Grounds Corp., 123 F.3d 336, 339 (5th Cir. 1997) (noting that where a case

is resolved without a trial, a motion to alter or amend judgment is generally considered under Rule

59(e)); see also Williams v. Thaler, 602 F.3d 291, 303 & n.10 (5th Cir. 2010) (“When a litigant files

a motion seeking a change in judgment, courts typically determine the appropriate motion based on

whether the litigant filed the motion within Rule 59(e)’s time limit.”).

To prevail on a motion to alter or amend a judgment under Rule 59(e), the moving party must

show (1) an intervening change in controlling law; (2) the availability of new evidence not

previously available; or (3) a manifest error of law or fact. See Alexander v. Wells Fargo Bank, N.A.,

867 F.3d 593, 597 (5th Cir. 2017) (citing Schiller v. Physicians Res. Grp., Inc., 342 F.3d 563, 567

(5th Cir. 2003)). A Rule 59(e) motion is “not the proper vehicle for rehashing evidence, legal

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theories, or arguments that could have been offered or raised before the entry of judgment.” Templet

v. HydroChem Inc., 367 F.3d 473, 479 (5th Cir. 2004). Although courts have “considerable

discretion” to grant or to deny a Rule 59(e) motion, they use the “extraordinary remedy” under Rule

59(e) “sparingly.” Id. at 479, 483. When considering a motion to alter or amend a judgment, “[t]he

court must strike the proper balance between two competing imperatives: (1) finality, and (2) the

need to render just decisions on the basis of all the facts.” Edward H. Bohlin Co. v. Banning Co.,

6 F.3d 350, 355 (5th Cir. 1993).

Here, the plaintiff’s assertions that his case should not have been dismissed because it has

merit and that it should have been handled in this court’s criminal section, which this court does not

have, essentially re-urge and again seek review of the same arguments which he made in his

objections to the recommended dismissal, and which have been rejected. Rehashing evidence, legal

theories, or arguments that were raised before the entry of judgment is insufficient to show

entitlement to relief under Rule 59(e). See Simon v. United States, 891 F.2d 1154, 1159 (5th Cir.

1990) (explaining that a Rule 59(e) motion cannot be used to repeat old arguments previously

considered and rejected). The plaintiff has failed to identify an intervening change in controlling

law, point out the availability of new evidence not previously available, identify a manifest error of

law or fact, or identify any other extraordinary circumstances justifying alteration or amendment of

the judgment. He has provided insufficient grounds to justify relief under Rule 59(e).

III. RECOMMENDATION

To the extent that it seeks post-judgment relief in this court, the pro se plaintiff’s filing

should be liberally construed as a motion to alter or amend the judgment under Fed. R. Civ. P. 59(e)

and DENIED.

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SO RECOMMENDED on this 25th day of August, 2023.

 ___________________________________

 IRMA CARRILLO RAMIREZ

 UNITED STATES MAGISTRATE JUDGE

INSTRUCTIONS FOR SERVICE AND

NOTICE OF RIGHT TO APPEAL/OBJECT

A copy of these findings, conclusions, and recommendation shall be served on all parties in

the manner provided by law. Any party who objects to any part of these findings, conclusions 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 findings, conclusions 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 Servs. Automobile Ass’n, 79 F.3d 1415, 1417 (5th Cir. 1996). 

 ___________________________________

 IRMA CARRILLO RAMIREZ

 UNITED STATES MAGISTRATE JUDGE

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