IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

TYLER DIVISION

JOHN A. GRIMES #01964464 §

VS. § CIVIL ACTION NO. 6:23cv406

DIRECTOR, TDCJ-CID, et al. §

REPORT AND RECOMMENDATION 

OF THE UNITED STATES MAGISTRATE JUDGE

Plaintiff John A. Grimes, an inmate of the Texas Department of Criminal Justice (TDCJ)

proceeding pro se and in forma pauperis, filed this civil rights lawsuit pursuant to 42 U.S.C. § 1983 

alleging violations of his constitutional rights. The case was referred to the undersigned for 

findings of fact, conclusions of law, and recommendations for the disposition of the case. 

I. Plaintiff’s Allegations and Procedural History

Plaintiff filed his original complaint on August 11, 2023. (Dkt. #1.) On August 17, 2023, 

the Court determined that the original complaint was deficient in several respects and ordered 

Plaintiff to file an amended complaint. (Dkt. #4.) The Court specifically observed that the original 

complaint “goes on at length about his religious beliefs, but he does not mention the Defendants 

in the body of his complaint or say specifically what they have done to violate those beliefs or 

when.” (Id. at 2.) The Court explained that Plaintiff “must state when, where, how, and by whom 

his rights have been violated and how he has been harmed by such violations. He must also assert 

a specific, cognizable demand for relief.” (Id.)

Plaintiff filed his amended complaint on September 1, 2023. (Dkt. #7.) This pleading 

focused primarily on alleged violations of Plaintiff’s religious rights. However, it included a claim 

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that Plaintiff is housed under conditions that expose him to extreme levels of heat that are causing 

him injury and pose a threat of serious harm. On October 17, 2023, the Court severed that claim 

into a new lawsuit for further development. (Dkt. #16.)

Before the Court could complete a screening of what remained of Plaintiff’s first amended 

complaint, Plaintiff filed multiple supplements to his amended complaint, which the Court 

construed to seek leave to amend. (Dkt. ##21–23.) On November 8, 2023, the Court granted 

Plaintiff leave to file a second amended complaint (Dkt. #24), which Plaintiff did on November 

22, 2023. (Dkt. #26.) This pleading again focused primarily on Plaintiff’s religious rights, but it 

included an unrelated claim against a new defendant for excessive force in violation of the Eighth 

Amendment, which the Court severed into a new action on November 28, 2023. (Dkt. #28.) Only 

Plaintiff’s claims concerning his religious liberties and a violation of his right to due process

remain pending in this action. (Id.)

Plaintiff begins by asserting that he is a “child of God” and “no longer a slave-inmate.” 

(Dkt. #26 at 5.) He alleges that he is a saint and a “new creation,” forgiven and freed from all his 

sins. (Id.) He says that he has been “declared free of guilt by God.” (Id.) Accordingly, he asserts:

I believe and understand my mind is deceived whenever Man made law or policy 

is being read pressuring me to not understand the Truth.

I am chosen in Christ . . . that I be holy and blameless before my Father.

I decree it is ordered that [my] liberty is to granted ordered [sic] as soon as 

practicable, free my body, it is ordered, let it be on Earth as it is ordered in Heaven. 

. . . 

I renounce and reject all beliefs in everything conflicting with my God’s word.

(Id. at 6 (citations omitted).)

Plaintiff alleges that the fact of his “incarceration and application to plaintiff of agency 

rules” prevent him from practicing his faith by “caring for orphans and [his] mother/widows in 

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their distress, at liberty,” “walking with God freely,” “serving [his] mother and family,” and “going 

into [his] closet closing the door and praying . . . in secret/private.” (Dkt. #26 at 7.) He asserts that 

these acts of faith are “prohibited by incarceration.” (Id.) He repeatedly references the need to 

practice his religion “at liberty” and says that his religious practice is “prohibited by incarceration.” 

(Id. at 8.)

For example, Plaintiff’s incarceration prevents him from being able to “share in the divine 

nature and escape the world’s corruption,” denies him “access to [his] True places of worship built 

by [his] God . . . at liberty,” prevents him from obeying God’s instruction to “stand up, pick up 

your mat and go home,” and forces him to “burn with passion” due to lack of sexual relations 

sanctioned by the Bible. (Id. at 8–9.) He specifically references the TDCJ’s prohibition against 

escape as contrary to these religious practices. (Id. at 9.)

Plaintiff complains of not being able to take communion of wine and bread with his mother 

and asserts that “[w]orshipping God by walking with God in Spirit and in Truth which according 

to [his] understanding is impossible to do incarcerated where [his] God’s Son Sacrifice for all [his] 

sins is not honored by [his] prison experience.” (Dkt. #26 at 10.) The gist of his claims may be 

best summarized by the following portion of his second amended complaint:

My private faith and worship practice of Honoring God with my body is prohibited 

by incarceration, based on man made ideas of law and TDCJ policy that conflict 

with my sincere belief in God’s law that set me Free[.] I believe I can not fully 

Honor my Lord’s God Son Jesus Christ Sacrifice for all my sins and setting me free 

from sin and their penalty by me remaining incarcerated violating my belief in my 

God’s commands to stand in the Liberty Christ died for me to have[.] I believe I 

am free (my practice believing in) regardless of all worldly beliefs in applied 

adopted policy, as opposed to my beliefs in Christ’s redeeming work finished on 

the cross and this is one of my Faith practices which is prohibited and burdened by 

TDCJ adopted policy requiring me to “understand and abide by policy rules” and 

subjecting my Faith and worship practices to behavior modifying techniques of 

disciplinary rules and procedures policy applied, and holding my Faith and worship 

practice under threat of Sanctions/Level I Offense 1.0—Escape . . ..

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(Id. at 8 (citations omitted).)

Plaintiff further alleges that the Texas Board of Pardons and Paroles violates his religious 

liberties by adhering to its own rules rather than Plaintiff’s “Justification by Faith” in denying him 

“any opportunity to exercise [his] God’s gift of [his] new Life of Liberty in Christ.” (Id. at 11.) 

Finally, he alleges that his counsel substitute refused to let him attend a disciplinary hearing for an 

unspecified offense after he indicated that wanted to enter the Bible as evidence, which resulted in 

his being subjected to custody restrictions for six months in violation of his right to due process. 

(Id. at 12.)

Plaintiff sues TDCJ Director Brian Collier, the Texas Board of Pardons and Paroles, and 

Counsel Substitute S. Holomon.1(Dkt. #26 at 3.) As relief, he seeks: “grant injunction and 

privilege to exercise freely my private faith and worship practices; grant preliminary injunction 

for my private faith and worship practices be non prohibited any longer,” and unspecified “nominal 

and punitive damages” from Counsel Substitute Holomon. (Id.)

II. Legal Standards and Preliminary Screening

Because Plaintiff is a prisoner seeking redress from an officer or employee of a 

governmental entity, his complaint is subject to preliminary screening pursuant to the Prison 

Litigation Reform Act (PLRA), 28 U.S.C. § 1915A. See Martin v. Scott, 156 F.3d 578, 579-80 

(5th Cir. 1998) (per curiam). Because he is proceeding as a pauper, his pleading is also subject to 

screening pursuant to 28 U.S.C. § 1915(e)(2)(B). Both statutes provide for sua sponte dismissal of 

a complaint—or any portion thereof—if the Court finds it frivolous or malicious, if it fails to state 

1 Plaintiff also sued Officer Loppolt for alleged excessive force, which was severed into another case. (See

Dkt. #28.) Other defendants named in previous pleadings were also severed (see Dkt. #16) and/or simply 

omitted from the second amended complaint. Each of these defendants should be dismissed from the current 

action.

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a claim upon which relief can be granted, or if it seeks monetary relief against a defendant who is 

immune from such relief. 

A complaint is frivolous if it lacks an arguable basis in law or fact. Samford v. Dretke, 562 

F.3d 674, 678 (5th Cir. 2009). The Fifth Circuit has held that a complaint lacks an arguable basis 

in fact when “the facts alleged are fantastic or delusional scenarios or the legal theory upon which 

a complaint relies is indisputably meritless.” Id. (quoting Harris v. Hegmann, 198 F.3d 153, 156 

(5th Cir. 1999) (internal quotation marks omitted)). In other words, during the initial screening 

under section 1915A, a court may determine that a prisoner’s complaint is frivolous if it rests upon 

delusional scenarios or baseless facts—and dismiss the complaint. See Henry v. Kerr County, 

Texas, 2016 WL 2344231 *3 (W.D. Tex. May 2, 2016) (“A court may dismiss a claim as factually 

frivolous only if the facts alleged are clearly baseless, fanciful, fantastic, delusional, or otherwise 

rise to the level of the irrational or the wholly incredible, regardless of whether there are judicially 

noticeable facts available to contradict them.”) (citing Denton v. Hernandez, 504 U.S. 25, 32-33 

(1992)). 

Moreover, a complaint fails to state a claim upon which relief may be granted where it does 

not allege sufficient facts which, taken as true, state a claim which is plausible on its face and thus 

does not raise a right to relief above the speculative level. See Montoya v. FedEx Ground 

Packaging Sys. Inc., 614 F.3d 145, 149 (5th Cir. 2010) (citing Bell Atl. Corp. v. Twombly, 550 

U.S. 544, 555 (2007)). A claim has factual plausibility when the pleaded factual content allows 

the court to draw reasonable inferences that the defendant is liable for the misconduct alleged. See 

Hershey v. Energy Transfer Partners, L.P., 610 F.3d 239, 245 (5th Cir. 2010); Ashcroft v. Iqbal, 

556 U.S. 662, 678 (2009). This plausibility standard is not akin to a probability standard; rather, 

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the plausibility standard requires more than the mere possibility that the defendant has acted 

unlawfully. Twombly, 550 U.S. at 556 (emphasis supplied). 

All well-pleaded facts are taken as true, but the district court need not accept as true 

conclusory allegations, unwarranted factual inferences, or legal conclusions. See Whatley v. Coffin, 

496 F. App’x 414 (5th Cir. 2012) (unpublished) (citing Plotkin v. IP Axess Inc., 407 F.3d 690, 696 

(5th Cir. 2005)). Crucially, while the federal pleading rules do not require “detailed factual 

allegations,” the rule does “demand more than an unadorned, the-defendant-unlawfully-harmedme accusation.” Iqbal, 556 U.S. at 678. A pleading offering “labels and conclusions” or a 

“formulaic recitation of the elements of a cause of action” will not suffice, nor does a complaint 

which provides only naked assertions that are devoid of further factual enhancement. Id. 

Particularly with regard to any claim that defendants have conspired to harm him, a plaintiff must 

plead specific, non-conclusory facts that establish that there was an agreement among the 

defendants to violate his federal civil rights. Priester v. Lowndes County, 354 F.3d 414, 420 (5th 

Cir. 2004); Lynch v. Cannatella, 810 F.2d 1363, 1369-70 (5th Cir. 1987) (plaintiffs asserting 

conspiracy claims under Section 1983 must plead the operative facts on which their claim is based; 

bald allegations that a conspiracy existed are insufficient). 

III. Discussion and Analysis 

A. First Amendment

Plaintiff alleges that the very fact of his imprisonment conflicts with his religious belief 

that he is forgiven and “free” and prevents him from exercising his religion in specific ways that 

must necessarily occur outside the prison setting. This does not state a claim for violation of his 

right to free exercise of his religion under the First Amendment. First Amendment free exercise 

protections require the government to refrain from interfering with the religious beliefs and 

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practices of individuals. Cutter v. Wilkinson, 544 U.S. 709, 719 (2005). “The government does not 

impermissibly regulate religious belief, however, when it promulgates a neutral, generally 

applicable law or rule that happens to result in an incidental burden on the free exercise of a 

particular religious practice or belief.” Cornerstone Christian Sch. v. Univ. Interscholastic League, 

563 F.3d 127, 135 (5th Cir. 2009) (citing Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 

508 U.S. 520, 531 (1993)).

Moreover, a prisoner retains only those First Amendment freedoms which are “not 

inconsistent with his status as a prisoner or with legitimate penological objectives of the 

corrections system.” Pell v. Procunier, 417 U.S. 817, 822 (1974). Therefore, a government 

regulation may lawfully interfere with the religious beliefs and practices of a prisoner if it is 

reasonably related to a legitimate penological interest. Turner v. Safley, 482 U.S. 78, 89 (1987); 

see also Hicks v. Garner, 69 F.3d 22, 25 (5th Cir. 1995). The burden is not on the state to prove 

the validity of the challenged prison regulation under Turner but instead is on the inmate to 

disprove it. Overton v. Bazzetta, 539 U.S. 126 (2003).

In order to balance federal constitutional guarantees with the legitimate concerns of prison 

administrators, Turner requires a court to determine: (1) whether a rational connection exists 

between the prison policy regulation and a legitimate governmental interest; (2) whether 

alternative means of exercising the constitutional right are available; (3) what effect 

accommodating the exercise of the right would have on the prison system and resources; and (4) 

whether ready, easy-to-implement alternatives exist that would accommodate the prisoner’s rights 

at low costs to valid penological interests. Turner, 482 U.S. at 89–91. No single factor is 

dispositive, and there is no requirement that all four factors be met. Scott v. Mississippi Dep’t of 

Corr., 961 F.2d 77, 80 (5th Cir. 1992). Where a regulation restricts First Amendment rights in a 

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neutral fashion, it is likely to withstand judicial scrutiny. McAlister v. Livingston, 348 F. App’x 

923, 932-32 (2009) (citing Thornburgh v. Abbott, 490 U.S. 401, 415 (1989)). Prison officials are 

afforded great deference in carrying out their complex duties. O’Lone v. Shabazz, 482 U.S. 342,

349 (1987); Oliver v. Scott, 276 F.3d 736, 745 (5th Cir. 2002).

In this case, the forms of religious exercise on which Plaintiff relies are inherently 

inconsistent with his status as a prisoner. Plaintiff’s right to “walk freely” for any reason is 

necessarily curtailed by his lawful incarceration pursuant to a thirty-five year sentence imposed in 

2014 in Smith County, Texas for murder. See Inmate Information Details, available at 

https://inmate.tdcj.texas.gov/InmateSearch/viewDetail.action?sid=08415390 (last visited Dec. 15, 

2023). While Plaintiff retains a constitutional right to believe and practice his religion to some 

degree, that right must yield to the state’s religion-neutral and legitimate penological interest in 

requiring him to serve the prison term for which he was lawfully sentenced for his crime. Plaintiff 

does not allege that he is unable to practice his faith in prison in other ways, such as individual 

prayer, Bible-study, or worship services. And he does not allege that there is any way to 

accommodate his preferred religious practices, short of releasing him from prison. 

In addition to his incarceration itself, Plaintiff also objects to being subjected to “man 

made” rules, including the TDCJ rule against escape and the Board of Pardons and Paroles’ rules 

governing their proceedings. But there can be no doubt that the state has a legitimate interest in 

preventing prison escapes and managing the criteria and procedures through which prisoners seek 

pardons or paroles. Plaintiff’s claim that he should be released or allowed to escape without 

consequence as a matter of religious faith is so lacking in merit that it is frivolous.

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B. RLUIPA

Plaintiff does not expressly allege that Defendants have violated his rights under the 

Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C. §§ 2000cc, et seq., 

but he would fail to state a claim even if he did. RLUIPA provides in pertinent part as follows:

No government shall impose a substantial burden on the religious exercise of a 

person residing in or confined to an institution, as defined in section 1997 of this 

title, even if the burden results from a rule of general applicability, unless the 

government demonstrates that imposition of the burden on that person—

(1) is in furtherance of a compelling governmental interest; and

(2) is the least restrictive means of furthering that compelling governmental 

interest.

See Brown v. Collier, 929 F.3d 218, 228–29 (5th Cir. 2019); 42 U.S.C. § 2000cc-1(a). The Fifth 

Circuit has explained the framework for a Court’s analysis of a RLUIPA claim:

Initially, “it falls to the plaintiff to demonstrate that the government practice 

complained of imposes a ‘substantial burden’ on his religious exercise.” To 

demonstrate a substantial burden, “the plaintiff must show that the challenged 

action ‘truly pressures the adherent to significantly modify his religious behavior 

and significantly violate his religious beliefs.’” If the inmate makes this showing, 

the burden shifts to the government “to show that its action or policy is the least 

restrictive means of furthering a compelling interest.” In making this assessment, 

we must give “due deference to the experience and expertise of prison and jail 

administrators in establishing necessary regulations and procedures to maintain 

good order, security and discipline, consistent with consideration of costs and 

limited resources.” However, the Supreme Court has made clear that even when 

prison regulations are at issue, “RLUIPA requires [courts] to ‘scrutiniz[e] the 

asserted harm of granting specific exemptions to particular religious claimants’ and 

‘to look to the marginal interest in enforcing’ the challenged government action in 

that particular context.”

Brown, 929 F.3d at 229 (citations omitted).

Despite RLUIPA’s higher level of scrutiny on restrictions of an inmate’s ability to practice 

his religion, Plaintiff’s claim fails for the same reasons: the state clearly has a compelling interest 

in enforcing its criminal laws and incarcerating convicted murderers, see Frazier v. Jordan, 457 

F.2d 726, 730 (5th Cir. 1972) (recognizing “state’s compelling interests in effective punishment 

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and deterrence of crime”); Kean v. Clark, 56 F. Supp. 2d 719, 731 (S.D. Miss. 1999) (observing 

that “the State has a compelling interest in enforcing its criminal statutes”), and nothing short of 

total freedom would satisfy Plaintiff’s particular religious demands. Accordingly, even when 

analyzed under the RLUIPA, Plaintiff’s allegations fail to state a claim and are legally frivolous.

C. Due Process

Finally, Plaintiff does not allege any facts that would establish a violation of his right to 

Due Process under the Fourteenth Amendment. As an initial matter, the Defendant to this claim—

Plaintiff’s counsel substitute at a prison disciplinary hearing—was not acting under color of state 

law in his representation of Plaintiff, and therefore not subject to suit under Section 1983. Banuelos 

v. McFarland, 41 F.3d 232, 234 (5th Cir. 1995) (affirming dismissal because “the actions of 

counsel substitute in a prison disciplinary hearing are not actions under the color of state law”).

But even if Plaintiff had named a proper defendant to his due process claim, prisoners only 

have a Fourteenth Amendment right to procedural due process before the imposition of restrictions 

that “impose[] atypical and significant hardship on the inmate in relation to the ordinary incidents 

of prison life.” Sandin v. Conner, 515 U.S. 472, 484 (1995). Plaintiff does not identify any such 

hardship arising from his disciplinary conviction. Punishment consisting of placement in 

administrative segregation or the loss of the opportunity to earn good time is not enough to trigger 

due process protections. See Luken v. Scott, 71 F.3d 192, 193 (5th Cir. 1995). Nor are the 

imposition of commissary, recreation, and cell restrictions. See Antone v. Preschel, 347 F. App’x 

45, 46 (5th Cir. 2009) (unpublished); Gaona v. Erwin, 224 F. App’x 327, 328 (5th Cir. 2007); see 

also Madison v. Parker, 104 F.3d 765, 768 (5th Cir. 1997) (“We agree that Madison’s 30[-]day 

commissary and cell restrictions as punishment are in fact merely changes in the conditions of 

confinement and do not implicate due process concerns.”). And an inmate also does not have a 

protected liberty interest in his custodial classification. See Wilson v. Budney, 976 F.2d 957, 958 

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(5th Cir. 1992); Espinoza v. Benoit, 108 F. App’x 869, 871 (5th Cir. 2004) (finding that close 

custody confinement “does not constitute an ‘atypical and significant hardship ... in relation to the 

ordinary incidents of prison life.’”) (quoting Sandin v. Conner, 515 U.S. 472, 484 (1995)). 

Accordingly, even if the more restrictive custody level to which Plaintiff was moved upon his 

conviction involves these restrictions, it does not present the denial of a constitutional right. 

Under certain circumstances, the loss of accrued sentence credits could inflict punishment 

imposing an atypical and significant hardship upon an inmate—because the loss of such time could 

result in the denial of a liberty interest in early release from prison. This is true where an inmate is 

eligible for release on mandatory supervision. See Madison, 104 F.3d at 768. Here, however, 

Plaintiff is not eligible for mandatory supervision due to his conviction for murder. See Tex. Gov’t 

Code § 508.149(a)(2) (providing that defendants convicted of murder are not eligible for 

mandatory supervision). Accordingly, even a loss of sentence credits in this case would not 

implicate due process concerns. See Stewart v. Cain, 308 F. App’x 748, 750 (5th Cir. 2009) 

(unpublished) (“Because Stewart is ineligible for early release under the Texas mandatory 

supervision scheme, he has no constitutionally protected interest in previously earned good-time 

credits.”). Plaintiff’s exclusion from his disciplinary hearing, therefore, did not constitute a 

violation of due process.

IV. Conclusion

For the reasons set forth above, Plaintiff’s second amended complaint is frivolous and fails 

to state a claim for which relief can be granted. Dismissal is appropriate where Plaintiff has already 

been given a chance to cure his deficiencies but still fails to state a viable claim. See Jacquez v. 

Procunier, 801 F.2d 789, 793 (5th Cir. 1986) (holding that “once given adequate opportunity, even 

a pro se complaint must contain specific facts supporting its conclusions”); Garcia v. City of 

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Lubbock, Texas, 487 F. Supp. 3d 555, 566 (N.D. Tex. 2020) (dismissing where inmate had “already 

amended his complaint once” and been afforded “an opportunity to further flesh out his claims”).

RECOMMENDATION

Accordingly, the undersigned recommends that Plaintiff=s lawsuit be dismissed with 

prejudice pursuant to 28 U.S.C. §§ 1915A(b) and 1915(e)(2)(B).

Within fourteen (14) days after receipt of the Magistrate Judge’s Report, any party may 

serve and file written objections to the findings and recommendations contained in the Report.

A party’s failure to file written objections to the findings, conclusions and 

recommendations contained in this Report within fourteen days after being served with a copy 

shall bar that party from de novo review by the district judge of those findings, conclusions and 

recommendations and, except on grounds of plain error, from appellate review of unobjected-to 

factual findings and legal conclusions accepted and adopted by the district court. Douglass v. 

United Servs. Auto. Ass’n, 79 F.3d 1415, 1430 (5th Cir. 1996) (en banc).

The Clerk shall accept no further submissions from Plaintiff in this matter other than the 

objections referenced above.

So ORDERED and SIGNED this 26th day of December, 2023.

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