Herod v. Lumpkin

S.D. Texas

Herod v. Lumpkin

DecidedJuly 28, 2025

Docket4:24-cv-04600

StatusUnknown

This text of Herod v. Lumpkin (Herod v. Lumpkin) is published on Counsel Stack Legal Research, covering District Court, S.D. Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Herod v. Lumpkin, (S.D. Tex. 2025).

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IN THE UNITED STATES DISTRICT COURT July 29, 2025 FOR THE SOUTHERN DISTRICT OF TEXAS Nathan Ochsner, Clerk HOUSTON DIVISION

DONALD DWAYNE HEROD § TDCJ # 01538539, § § Petitioner, § § VS. § CIVIL ACTION NO. 4:24-4600 § BOBBY LUMPKIN, § § Respondent. §

MEMORANDUM OPINION AND ORDER

On January 27, 2025, the Court dismissed this habeas action under Federal Rule of Civil Procedure 41(b) because the petitioner, Donald Dwayne Herod, had not complied with a notice of deficient pleading. The notice had instructed him to submit a pleading on the Court’s form and to either pay the filing fee or apply to proceed in forma pauperis (Dkt. 4). The dismissal order stated that relief from the order could be granted if the petitioner complied with all past instructions, including submission of a form pleading and the filing fee or an application for leave to proceed in forma pauperis (Dkt. 7). On February 5, 2025, the petitioner filed a motion to reopen the case (Dkt. 8). The petitioner’s motion is timely under Federal Rule of Civil Procedure 59(e), which permits a litigant to file a motion to alter or amend a judgment. A motion for reconsideration “is not the proper vehicle for rehashing evidence, legal 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). Instead, Rule 59(e) serves the narrow purpose of allowing a party to bring manifest errors or newly discovered evidence to the Court’s attention. See In re Rodriguez, 695 F.3d 360, 371 (Sth Cir. 2012). Herod’s motion states that he sent the Clerk the filing fee for this action on January 15, 2025. He also contends that his conviction and incarceration violate the federal and state constitutions (Dkt. 8). The Court’s docket reflects no filing-fee payment from Herod. In any event, even if he had paid the fee, he has not complied with the Court’s instruction to submit a form pleading. Because he demonstrates no basis for relief under Rule 59(e) or other authority, his motion to reopen the case (Dkt. 8) is DENIED. The Clerk will provide a copy of this order to the parties. SIGNED at Houston, Texas, on July 28 , 2025.

7 GEORGE HANKS, x UNITED STATES DISTRICT JUDGE

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IN THE UNITED STATES DISTRICT COURT July 29, 2025 FOR THE SOUTHERN DISTRICT OF TEXAS Nathan Ochsner, Clerk HOUSTON DIVISION

DONALD DWAYNE HEROD § TDCJ # 01538539, § § Petitioner, § § VS. § CIVIL ACTION NO. 4:24-4600 § BOBBY LUMPKIN, § § Respondent. §

MEMORANDUM OPINION AND ORDER

On January 27, 2025, the Court dismissed this habeas action under Federal Rule of Civil Procedure 41(b) because the petitioner, Donald Dwayne Herod, had not complied with a notice of deficient pleading. The notice had instructed him to submit a pleading on the Court’s form and to either pay the filing fee or apply to proceed in forma pauperis (Dkt. 4). The dismissal order stated that relief from the order could be granted if the petitioner complied with all past instructions, including submission of a form pleading and the filing fee or an application for leave to proceed in forma pauperis (Dkt. 7). On February 5, 2025, the petitioner filed a motion to reopen the case (Dkt. 8). The petitioner’s motion is timely under Federal Rule of Civil Procedure 59(e), which permits a litigant to file a motion to alter or amend a judgment. A motion for reconsideration “is not the proper vehicle for rehashing evidence, legal 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). Instead, Rule 59(e) serves the narrow purpose of allowing a party to bring manifest errors or newly discovered evidence to the Court’s attention. See In re Rodriguez, 695 F.3d 360, 371 (Sth Cir. 2012). Herod’s motion states that he sent the Clerk the filing fee for this action on January 15, 2025. He also contends that his conviction and incarceration violate the federal and state constitutions (Dkt. 8). The Court’s docket reflects no filing-fee payment from Herod. In any event, even if he had paid the fee, he has not complied with the Court’s instruction to submit a form pleading. Because he demonstrates no basis for relief under Rule 59(e) or other authority, his motion to reopen the case (Dkt. 8) is DENIED. The Clerk will provide a copy of this order to the parties. SIGNED at Houston, Texas, on July 28 , 2025.

7 GEORGE HANKS, x UNITED STATES DISTRICT JUDGE

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