IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 17-40517

Summary Calendar

ANTHONY L. PIERCE,

Plaintiff-Appellant

v.

BRAD LIVINGSTON; DAVID G. GUTIERREZ; BOBBY LUMPKIN,

Defendants-Appellees

Appeals from the United States District Court

for the Eastern District of Texas

USDC No. 6:16-CV-1105

Before REAVLEY, GRAVES, and HO, Circuit Judges. 

PER CURIAM:*

Anthony L. Pierce, Texas prisoner # 1813502, appeals the dismissal of 

his pro se 42 U.S.C. § 1983 complaint as frivolous pursuant to 28 U.S.C. 

§ 1915A(b). With the benefit of liberal construction, Pierce reurges his claims 

that Texas prison officials and the Texas Board of Pardons and Paroles (the 

Parole Board) have failed to adequately compensate him for his forced labor, 

in violation of 18 U.S.C. § 1589; that the defendants have violated his due 

 

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not 

be published and is not precedent except under the limited circumstances set forth in 5TH 

CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

June 21, 2018

Lyle W. Cayce

Clerk

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No. 17-40517

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process rights by failing to honor his earned good-conduct and work-time 

credits; that the Parole Board’s retroactive application of new parole rules

constitutes an ex post facto violation; and that, by depriving him of his total

time earned, the defendants have violated the Double Jeopardy Clause. Pierce

does not reurge his Thirteenth Amendment claim on appeal, and it is therefore 

abandoned. See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993).

Pierce fails to show that the district court erred or abused its discretion 

in dismissing his forced labor claim. As we have explained, compensation for 

prisoner labor “is discretionary and unless some specific kind of outlawed 

discrimination is shown the state has the right to make reasonable rules as to 

whether or not it will pay prisoners and under what circumstances prisoners 

will be paid.” Wendt v. Lynaugh, 841 F.2d 619, 621 (5th Cir. 1988).

Also unavailing is Pierce’s claim of a due process violation in relation to 

the defendants’ alleged failure to honor his good-time and work-time credits. 

Even if Pierce is eligible for discretionary parole, Texas law does not create a 

liberty interest in parole that is protected by the Due Process Clause, and 

Texas prisoners have no constitutional expectancy to early release on parole. 

See Teague v. Quarterman, 482 F.3d 769, 774 (5th Cir. 2007); Madison v. 

Parker, 104 F.3d 765, 768 (5th Cir. 1997).

Insofar as Pierce complains about the Parole Board’s application of 

parole laws that were not in effect at the time of his offense, the Board’s 

imposition of the three-year and five-year set-offs between parole reviews 

presents no ex post facto violation because the complained-of procedures create 

only a speculative and attenuated risk of increasing Pierce’s punishment. See 

California Dep’t of Corrections v. Morales, 514 U.S. 499, 508-09 (1995); 

Hallmark v. Johnson, 118 F.3d 1073, 1078 (5th Cir. 1997); see also Allison v. 

Kyle, 66 F.3d 71, 74-75 (5th Cir. 1995). Lastly, the district court did not err or 

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abuse its discretion in implicitly dismissing Pierce’s double jeopardy claim as 

there was no “multiple criminal punishment” or “successive proceeding.” See 

Hudson v. United States, 522 U.S. 93, 98-99 (1997).

Given the foregoing, the district court’s judgment is AFFIRMED. Pierce 

is cautioned that the dismissal of his complaint by the district court counts as 

a strike under 28 U.S.C. § 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 

388 (5th Cir. 1996). We note that Pierce recently incurred a second strike in 

the district court. Pierce v. Garrett, No. 6:17-CV-518, 20 (E.D. Tex. Feb. 27, 

2018). He is further cautioned that, once he accumulates three strikes, he may 

not proceed in forma pauperis in any civil action or appeal filed while he is 

incarcerated or detained in any facility unless he is under imminent danger of 

serious physical injury. See § 1915(g). Pierce’s motion for leave to file 

supplemental exhibits is DENIED. See United States v. Flores, 887 F.2d 543, 

546 (5th Cir. 1989).

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