McElhinny v. Collier et al

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION
DEMIAN MCELHINNY,
Plaintiff,
VS.
§
§
§
§
§
§
§
§
§
CIVIL ACTION NO. 2:25-CV-00216
BRYAN COLLIER, et al.,
Defendants.
MEMORANDUM AND RECOMMENDATION
Plaintiff Demian McElhinny, proceeding pro se and in forma pauperis, filed this
prisoner civil rights lawsuit pursuant to 42 U.S.C. §1983. The lawsuit was referred to the
undersigned for findings of fact, conclusions of law, and recommendations for the
disposition of the case.
Plaintiff’s case is subject to screening pursuant to the Prison Litigation Reform
Act. See 42 U.S.C. § 1997e(c); 28 U.S.C. §§1915(e)(2), 1915A. For purposes of
screening, the undersigned recommends that the district court: (1) DISMISS with
prejudice Plaintiff’s Fourteenth Amendment due process claims against the defendants
as frivolous and/or for failure to state a claim pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and
1915A(b)(1); and (2) DECLINE to exercise supplemental jurisdiction over Plaintiff’s
United States District Court
Southern District of Texas
ENTERED
December 03, 2025
Nathan Ochsner, Clerk
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related state law claims. The undersigned recommends further that the dismissal of this
case counts as a “strike” for purposes of 28 U.S.C. § 1915(g).1
I. BACKGROUND AND PLAINTIFF’S CLAIMS
Plaintiff is a prisoner in the Texas Department of Criminal Justice, Criminal
Institutions Division (TDCJ-CID) and is currently housed at the Garza East Unit in
Beeville, Texas. Plaintiff was convicted of aggravated sexual assault of a child and
possession of a controlled substance in 2016 and sentenced to serve an eighteen-year
term and a two-year term of incarceration respectively. Public online records for the
TDCJ show that Plaintiff became eligible for parole on June 18, 2024, and that he was
denied parole on August 14, 2024.2
Plaintiff originally filed this action on August 5, 2025. In response to the Court’s
order (D.E. 8), Plaintiff filed a More Definite Statement. (D.E. 11). Plaintiff sues TDCJ
Executive Director Bryan Collier, the Texas Board of Pardons and Paroles (“TBPP”),
TBPP Institutional Parole Officer Steve Quinones, and McConnell Unit Wardon
Amonette. (D.E. 1). He alleges a denial of his rights under both the Due Process Clause
of the Fourteenth Amendment pursuant to 42 U.S.C. § 1983 and the Texas Constitution.
(D.E. 1, pg. 7-26). Plaintiff sues the individual Defendants in their individual and official
capacities. (D.E. 1, pg. 2).
1 Plaintiff is WARNED that if he accumulates three strikes, he will not be allowed to 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 injury. See 28 U.S.C. § 1915(g).
2 See https://inmate.tdcj.texas.gov/InmateSearch/viewDetail.action?sid=50069342 (last visited on December 2,
2025).
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Plaintiff claims that the defendants violated his constitutional rights because he
was denied an opportunity to fully participate in the parole process and was repeatedly
denied access to his parole file to ensure accuracy and to contest erroneous information
that may be included. (D.E. 11, pg. 22). Plaintiff also complains that the TBPP
erroneously and illegally claims to retain discretion over parole release matters in
violation of the U.S. and Texas Constitutions. (D.E. 11, pg. 24-28). Plaintiff does not
challenge his underlying conviction or the eighteen-year sentence that he received.
Instead, he challenges the calculation of his sentence as it relates to his eligibility for
early release on parole. Plaintiff contends that prison officials have wrongfully
discounted the credit that he has earned for good behavior in inmate treatment plan
(”ITP”) programs while in prison. (D.E. 11, pg. 23-28). Plaintiff’s challenges to these
parole matters arise not only under the Fourteenth Amendment but also state law –
Texas’s “separation or powers” doctrine and the due process clause of the Texas
Constitution. (D.E. 11, pg. 23-28).
Plaintiff is requesting a declaratory judgment stating that: (1) Texas law expressly
grants the judicial branch the exclusive authority to factor parole and good conduct time
into a defendant’s sentence; (2) the executive branch of Texas government is barred from
exercising discretion regarding parole release; (3) trial courts retain discretion regarding
the question of parole release to the exclusion of other branches of government; (4) a
“curative sentence” included in Article 37.07, § 4(a) of the Texas Code of Criminal
Procedure “adds to the condition of the exercise of the trial courts rights” under the Texas
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Constitution; and (5) parole and good conduct time are two methods defendants can earn
time off their period of incarceration. (D.E. 11, pg. 29). He also requests prospective
injunctive relief enjoining (1) TBPP from using presentence factors as parole denial
reasons; (2) TBPP from exercising discretion over parole release; and (3) TDCJ from
non-compliance with parole file requests and state inmate program placement. (D.E. 11,
pg. 30).
II. PRELIMINARY SCREENING
Plaintiff is an inmate in the Texas prison system who has been permitted to
proceed in forma pauperis. As a prisoner seeking redress from an officer or employee of
a governmental entity, Plaintiff's complaint is subject to preliminary screening pursuant
to 28 U.S.C. § 1915A. See Martin v. Scott, 156 F.3d 578, 579–80 (5th Cir. 1998) (per
curiam). Because he is proceeding in forma pauperis, his complaint is also subject to
screening under 28 U.S.C. § 1915(e)(2). Both § 1915(e)(2)(B) and § 1915A(b) provide
for sua sponte dismissal of the complaint, or any portion thereof, if the Court finds it is
frivolous or malicious, if it fails to state a claim upon which relief may be granted, or if it
seeks monetary relief against a defendant who is immune from such relief. Samford v.
Dretke, 562 F.3d 674, 678 (5th Cir. 2009).
A complaint is frivolous when it “lacks an arguable basis either in law or in fact.”
Neitzke v. Williams, 490 U.S. 319, 325 (1989). A claim lacks an arguable basis in law
when it is “based on an indisputably meritless legal theory.” Id. at 327. A complaint fails
to state a claim upon which relief may be granted when it fails to plead “enough facts to
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state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007); accord Ashcroft v. Iqbal, 566 U.S. 662, 678 (2009). “A complaint lacks
an arguable basis in fact if, after providing the plaintiff the opportunity to present
additional facts, when necessary, the facts alleged are clearly baseless.” Rogers v.
Boatright, 709 F.3d 403, 407 (5th Cir. 2013) (internal quotation marks and citation
omitted).
In reviewing the pleadings, the Court is mindful of the fact that Plaintiff proceeds
pro se. Complaints filed by pro se litigants are entitled to a liberal construction and,
“however, in artfully pleaded, must be held to less stringent standards than formal
pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (internal
quotation marks and citation omitted). Even under this lenient standard, a pro se plaintiff
must allege more than “‘labels and conclusions’ or a ‘formulaic recitation of the elements
of a cause of action.’ ” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555).
“Threadbare recitals of the elements of a cause of action, supported by mere conclusory
statements, do not suffice.” Id. (citation omitted). Additionally, regardless of how well-
pleaded the factual allegations may be, they must demonstrate that the plaintiff is entitled
to relief under a valid legal theory. See Neitzke, 490 U.S. at 327; McCormick v. Stadler,
105 F.3d 1059, 1061 (5th Cir. 1997).
Plaintiff has been allowed to plead his best case. Jacquez v. Procunier, 801 F.2d
789, 792 (5th Cir. 1986). After a plaintiff has had a fair opportunity to make his case—
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and if a cause of action has not been established—the court may dismiss the suit. Id. at
792.
III. DISCUSSION AND ANALYSIS
A. Habeas Corpus or Civil Rights
The Court pauses briefly to ensure that subject matter jurisdiction is properly
alleged. In this case, Plaintiff expressly invokes § 1983 as the basis for his challenge to
the calculation of his sentence. Ordinarily, a prisoner may not file a civil rights lawsuit
under § 1983 to challenge the fact or duration of his confinement. See Preiser v.
Rodriguez, 411 U.S. 475, 489 (1973). Rather, a prisoner who seeks his release from
custody must pursue appropriate relief in state court followed, if necessary, by a petition
governed by the federal habeas corpus statutes found at 28 U.S.C. § 2254. See id. The
“core issue in determining whether a prisoner must pursue habeas corpus relief rather
than a civil rights action is to determine whether the prisoner challenges the ‘fact or
duration’ of his confinement or merely challenges the rules, customs, and procedures
affecting ‘conditions’ of confinement.” Cook v. Texas Dep’t of Criminal Justice
Transitional Planning Dep’t, 37 F. 3d 166, 168 (5th Cir. 1994). The Fifth Circuit has
stated that if a favorable determination would not automatically entitle the prisoner to
accelerated release from confinement, the complaint is properly characterized as a §1983
suit. Carson v. Johnson, 112 F. 3d 818, 820-21 (5th Cir. 1997).
Plaintiff’s complaint concerns the parole process employed and the calculation of
his sentence as it relates to his eligibility for early release from custody on parole.
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Plaintiff does not challenge a particular decision denying his release on parole and does
not seek his immediate release from custody. (D.E. 11, pgs. 28-20). Instead, Plaintiff
argues that he is entitled to relief because the calculation of his sentence has delayed his
eligibility for parole in an unlawful manner. To the extent that Plaintiff seeks expedited
consideration for parole, his claims appear cognizable under § 1983. See Wilkinson v.
Dotson, 544 U.S. 74, 82 (2005); Serio v. Members of Louisiana State Bd. of Pardons, 821
F.2d 1112, 1118 (5th Cir. 1987).
To establish liability under § 1983, a civil rights plaintiff must establish two
elements: (1) state action, i.e., that the conduct complained of was committed under color
of state law, and (2) a resulting violation of federal law, i.e., that the conduct deprived the
plaintiff of rights secured by the Constitution or laws of the United States. See Collins v.
City of Harker Heights, 503 U.S. 115, 120 (1992); Baker v. McCollan, 443 U.S. 137, 142
(1979); see also Townsend v. Moya, 291 F.3d 859, 861 (5th Cir. 2002) (explaining that
“[s]ection 1983 provides a claim against anyone who, ‘under color of state law, deprives
another of his or her constitutional rights.”) (citing Doe v. Taylor Indep. Sch. Dist., 15
F.3d 443, 452 (5th Cir.1994)). The complaint filed by Plaintiff poses a “federal question
of law” that reportedly concerns the calculation of his sentence. Liberally construed,
Plaintiff alleges that prison officials have calculated his sentence incorrectly under Texas
law by failing to count his good-time credits, thereby delaying his eligibility for parole in
violation of the Due Process Clause found in the Fourteenth Amendment of the United
States Constitution. As outlined further below, however, Plaintiff fails to allege facts
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showing that his sentence has been calculated incorrectly under the laws governing good-
time credit and parole eligibility in Texas.
B. Good-Time Credit and Parole Eligibility in Texas
Plaintiff’s arguments can be construed to contend that prison officials have
incorrectly calculated his sentence with regard to his parole eligibility date, he was not
given an opportunity to participate in the parole process, and that they have failed to
count the ITP and/or good-time credits that he has earned. The determination of a Texas
prisoner’s eligibility for early release depends on the type of parole that he is eligible to
receive, if any, and whether his underlying criminal conviction affects his parole
eligibility.
There are two ways in which a state prisoner becomes eligible for early release
from confinement under Texas law. The first is by “parole” and the second is “mandatory
supervision” release. “Parole” means “the discretionary and conditional release of an
eligible inmate sentenced to the institutional division so that the inmate may serve the
remainder of the inmate's sentence under the supervision of the pardons and paroles
division.” TEX. GOV'T CODE § 508.001(6) (Vernon 2004). Subject to several important
exceptions, most Texas inmates are “eligible for release on parole when the inmate's
actual calendar time served plus good conduct time equals one-fourth of the sentence
imposed or 15 years, whichever is less.” TEX. GOV'T CODE ANN. § 508.145(f).
Similarly, “mandatory supervision” is “the release of an eligible inmate so that the inmate
may serve the remainder of the inmate's sentence not on parole but under the supervision
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of the pardons and paroles division.” TEX. GOV'T CODE § 508.001(5). Whereas parole
is wholly discretionary, however, an inmate's release to mandatory supervision is
required, subject to certain exceptions, when the “actual calendar time the inmate has
served plus any accrued good conduct time equals the term to which the inmate was
sentenced.” Id. at § 508.147(a); Jackson v. Johnson, 475 F.3d 261, 263 n. 1 (5th Cir.
2007).
As the Texas statutes governing parole and mandatory supervision reflect, “good
conduct time” or “good-time credit” can affect the timing of an inmate's eligibility for
early release.3 Importantly, good-time credit in Texas is a privilege and not a right. See
TEX. GOV'T CODE ANN. § 498.003(a). It is further well established that good-time
credit does not reduce an inmate’s actual sentence and relates only to his eligibility for
early release. See id.; see also Ex parte Henderson, 645 S.W.2d 469, 472 (Tex. Crim.
App. 1983). In that respect, good-time credit serves two functions in Texas: (1) it
determines a prisoner's mandatory supervision release date (if he is eligible for early
release on mandatory supervision parole); and (2) depending on the nature of his
underlying offense, it advances a prisoner's date of eligibility for early release on
discretionary parole. See 5 JOHN M. SCHMOLESKY, TEXAS CRIMINAL PRACTICE
GUIDE: PAROLE § 101.03[2]-[3] (2007).
3 A Texas inmate does not earn good-time credit simply for good behavior. Depending on his classification, a Texas
inmate may earn good-time credit only if prison officials find that the inmate is actively engaged in an agricultural,
vocational, or educational endeavor, in an industrial program or other work program, or in a treatment program. See
TEX. GOV'T CODE ANN. §§ 498.003(a), (d).
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Notwithstanding the amount of good-time credit that he earns while in prison, an
inmate’s underlying criminal conviction also affects his eligibility for early release on
parole. Because Plaintiff has been convicted of aggravated sexual assault of a child, he is
not eligible for early release on mandatory supervision. See TEX. GOV'T CODE ANN. §
508.149(a)(1).
C. Procedures Impacting his Eligibility for Parole
Plaintiff claims that his due process rights have been violated with respect to
certain matters that impacted his eligibility for parole. Despite the recent denial of his
parole, Plaintiff’s claims challenging the procedures attendant to his parole eligibility fail
to rise to the level of a constitutional violation.
The U.S. Constitution does not create a liberty interest in parole. Greenholtz v.
Inmates of Nebraska Penal & Corr. Complex, 442 U.S. 1, 7 (1979). Likewise, Texas law
makes parole discretionary and does not create a liberty interest in parole that is protected
by the Due Process Clause. Orellana v. Kyle, 65 F.3d 29, 31-32 (5th Cir. 1995); see also
Johnson v. Rodriguez, 110 F.3d 299, 308 (5th Cir. 1997). Because Texas inmates have no
protected liberty in parole, they cannot have a liberty interest in parole considerations or
other aspects of parole procedures. Johnson, 110 F.3d at 308 (stating that Texas prisoners
cannot mount a challenge against any state parole review procedure on procedural or
substantive due process grounds). In Johnson, the Fifth Circuit concluded Johnson's
allegations that the TBPP considers unreliable or even false information in making parole
determinations, without more, simply does not assert a federal constitutional violation. Id.
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Parole is a privilege, not a right, even after an inmate accrues the minimum
amount of time-served credit necessary to be eligible for parole. See Greenholtz, 442
U.S. at 7 (holding that convicted persons have no constitutional right to be conditionally
released before the expiration of a valid sentence); 37 Tex. Admin Code § 145.3(1).
(“Release to parole is a privilege, not an offender right, and the parole decision maker is
vested with complete discretion to grant, or to deny parole release as defined by statutory
law.”). An inmate who has met the minimum requirement for time served under the
applicable parole eligibility statute is not automatically entitled to be released on parole;
rather, he is only entitled to a review to determine whether or not he will be released on
parole. See 37 Tex. Admin. Code § 145.3(1) (“[T]he parole decision maker is vested with
complete discretion to grant, or to deny parole release....”) (emphasis added); Allison v.
Kyle, 66 F.3d 71, 74 (5th Cir. 1995) (holding that because a prisoner has no liberty
interest in obtaining parole in Texas, he cannot complain of the constitutionality of
procedural devices attendant to parole decisions). Because Plaintiff has no liberty interest
in obtaining parole in Texas, he has no claim for violation of due process in the
procedures attendant to his parole decisions or with respect to his eligibility for parole.
Orellana, 65 F.3d at 31.
D. Due Process
Prison inmates typically are entitled to protection under the Due Process Clause
only when an official action infringes upon a constitutionally protected liberty interest.4
4 The Fourteenth Amendment of the United States Constitution prohibits the deprivation “of life, liberty, or property,
without due process of law.” U.S. CONST. amend. XIV, § 1. The forfeiture of good-time credits does not result in
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See Sandin v. Conner, 515 U.S. 472, 483-84 (1995). Liberty interests emanate from
either the Due Process Clause itself or from state law. See Kentucky Dept. of Corrections
v. Thompson, 490 U.S. 454, 460 (1989). As noted above, a convicted prisoner does not
have a constitutional right to conditional release on parole before the expiration of a valid
sentence. See Greenholtz, 442 U.S. at 7 (1979). Likewise, the Constitution does not
guarantee an inmate good-time credit for satisfactory behavior while in prison. Wolff v.
McDonnell, 418 U.S. 539, 557 (1974); Madison v. Parker, 104 F.3d 765, 768 (5th Cir.
1997). Therefore, Plaintiff’s due process claim depends on the existence of an interest
created by state law.
The Supreme Court has decided that only those state-created substantive interests
which “inevitably affect the duration of [a prisoner's] sentence” may qualify for
constitutional protection under the Due Process Clause. Sandin, 515 U.S. at 487. See also
Orellana v. Kyle, 65 F.3d 29, 31-32 (5th Cir.1995). In Texas, it is well established that
only those inmates who are eligible for mandatory supervision have a constitutional
expectancy of early release under the Texas mandatory supervision scheme and a
protected liberty interest in the good-time credits that they have earned. Malchi v. Thaler,
211 F.3d 953, 956 (5th Cir.2000) (addressing the mandatory supervision scheme in place
prior to September 1, 1996); see also Teague v. Quarterman, 482 F.3d 769, 2007 WL
the loss of life, and it is also settled that Texas prisoners have no property interest in their accumulated good-time
credits. Ex parte Montgomery, 894 S.W.2d 324, 328-29 (Tex.Crim.App.1995). To prevail with a claim under the Due
Process Clause, therefore, a Texas inmate must demonstrate that he has a liberty interest in the good-time credit at
issue.
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841600 (5th Cir. 2007) (addressing the mandatory supervision scheme in place before
and after September 1, 1996).
Because Plaintiff is not eligible for mandatory supervision, he does not have a
protected liberty interest in his accrued good-time credits. Likewise, Plaintiff does not
have a protected liberty interest in the attainment of parole. The United States Supreme
Court has recognized that the states have no duty to establish a parole system and that
there is no constitutional right to be released on parole before the expiration of a valid
sentence. See Board of Pardons v. Allen, 482 U.S. 369, 378 n. 10 (1987) (explaining that
“statutes or regulations that provide that a parole board ‘may’ release an inmate on parole
do not give rise to a protected liberty interest”); Greenholtz, 442 U.S. at 11 (1979)
(holding that a statute which “provides no more than a mere hope that the benefit will be
obtained ... is not protected by due process”). In light of this authority, the Fifth Circuit
has recognized repeatedly that the Texas parole statutes create no constitutional right to
release on parole because they encourage no expectancy of early release. See Kalluvilayil
v. Texas Bd. Members of Pardons and Paroles, 554 F. App’x 282-83 (5th Cir. 2014)
(recognizing that inmates have no right or expectancy for early parole “‘because parole is
within the total and unfettered discretion of the State’”) (quoting Teague v. Quarterman,
482 F.3d 769, 774 (5th Cir. 2007); Williams v. Briscoe, 641 F.2d 274, 277 (5th Cir. 1981)
(Texas parole statute does not create a protectable expectancy of release, as recognized in
[Greenholtz], but rather creates nothing more than a hope of parole); see also Allison v.
Kyle, 66 F.3d 71, 74 (5th Cir.1995); Orellana v. Kyle, 65 F.3d 29 (5th Cir.1995);
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Gilbertson v. Texas Board of Pardons and Paroles, 993 F.2d 74, 75 (5th Cir.1993); Creel
v. Keene, 928 F.2d 707, 712 (5th Cir. 1991). It is settled that Texas inmates “have no
protected liberty interest in parole.” Johnson, 110 F.3d at 308. It follows that Texas
inmates who are eligible for parole, but not for mandatory supervision, have no protected
liberty interest in their good-time credits.
Plaintiff insists, nevertheless, that a protected liberty interest exists in his case. In
support of his claim that prison officials have discounted his good-time credits in
violation of a constitutionally protected liberty interest, Plaintiff points to Article 37.07, §
4(a) of the Texas Code of Criminal Procedure (D.E. 11, pg. 29), which authorizes the
following jury instruction during the penalty phase of a trial involving certain aggravated
offenses:
(a) In the penalty phase of the trial of a felony case in which the punishment is to
be assessed by the jury rather than the court, if the offense of which the jury has
found the defendant guilty is listed in Section 3g(a)(l), Article 42.12, of this code
or if the judgment contains an affirmative finding under Section 3g(a)(2), Article
42.12, of this code, unless the defendant has been convicted of a capital felony the
court shall charge the jury in writing as follows:
“Under the law applicable in this case, the defendant, if sentenced to a term of
imprisonment, may earn time off the period of incarceration imposed through the
award of good conduct time. Prison authorities may award good conduct time to a
prisoner who exhibits good behavior, diligence in carrying out prison work
assignments, and attempts at rehabilitation. If a prisoner engages in misconduct,
prison authorities may also take away all or part of any good conduct time earned
by the prisoner.”
“It is also possible that the length of time for which the defendant will be
imprisoned might be reduced by the award of parole.”
“Under the law applicable in this case, if the defendant is sentenced to a term of
imprisonment, he will not become eligible for parole until the actual time served
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equals one-half of the sentence imposed or 30 years, whichever is less, without
consideration of any good conduct time he may earn. If the defendant is sentenced
to a term of less than four years, he must serve at least two years before he is
eligible for parole. Eligibility for parole does not guarantee that parole will be
granted.”
“It cannot accurately be predicted how the parole law and good conduct time
might be applied to this defendant if he is sentenced to a term of imprisonment,
because the application of these laws will depend on decisions made by prison and
parole authorities.”
“You may consider the existence of the parole law and good conduct time.
However, you are not to consider the extent to which good conduct time may be
awarded to or forfeited by this particular defendant. You are not to consider the
manner in which the parole law may be applied to this particular defendant.”
TEX.CODE CRIM. PROC. art. 37.07, § 4(a). Plaintiff argues that this statute creates a
liberty interest because the Texas Constitution expressly grants an expectation that the
sentencing court will be the sole authority to consider the effect of parole on his period of
incarceration. (D.E. 1, pg. 9; D.E. 11, pgs. 22-23). However, inmates such as Plaintiff,
who have been convicted of an aggravated offense of the sort listed in Article 42.12, §
3g, are not eligible for early release based on the good-time credit that they earn.
Plaintiff does not allege or otherwise show that the instruction authorized by
Article 37.07, § 4(a) was actually given to the jury in his case. Even if it was given to the
jury, the Texas Court of Criminal Appeals has held that the instruction authorized by
Article 37.07, § 4(a) is not misleading on its face and that it does not violate due process
to give this instruction under the circumstances presented by Plaintiff. See Luquis v.
State, 72 S.W.3d 355, 364-67 (Tex. Crim. App. 2002). In that respect, the statutory
instruction simply alerts jurors to the possibility that awards of good time could shorten
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the time which the defendant is actually incarcerated. The statutory instructions further
advise the jury that it cannot accurately be predicted how parole law and good-time credit
might be applied to the defendant if he is sentenced to a term of imprisonment. Therefore,
as other district courts within the Fifth Circuit have also concluded, Article 37.07, § 4(a)
creates no reasonable expectancy of early release of the type protected by a due process
liberty interest. See Pohl v. Livingston, No. 9:06cv4, 2006 WL 1050649 (E.D. Tex. Apr.
18, 2006) (rejecting a claim that Article 37.07, § 4 creates a liberty interest protected by
the Due Process Clause); see also Parks v. Perry, No. 5:06cv255, 2007 WL 438251, at *5
(E.D. Tex. Feb. 6, 2007) (same); Gordon v. Perry, No. 5:06cv242, 2007 438253, at *11
(E.D. Tex. Feb. 6, 2007) (same).
Plaintiff also fails to establish a general violation of his due process rights. “The
protections of the Due Process Clause are only invoked when State procedures which
may produce erroneous or unreliable results imperil a protected liberty or property
interest.” Johnson, 110 F.3d at 308 (citations omitted). As stated above, Texas prisoners
have no constitutionally-protected liberty interest in parole. Id. (citations omitted). Even
if the TBPP or its voting members consider unreliable or false information in making
parole determinations, Plaintiff has failed to state a cause of action that rises to the level
of a constitutional violation. Id. He cannot challenge parole procedures under the Due
Process Clause. Id. at 309 n.13. Again, because Plaintiff has no liberty interest in
obtaining parole in Texas, he has no claim for violation of his Fourteenth Amendment
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due process rights in the procedures attendant to his parole decisions. Orellana, 65 F.3d
at 31.
E. Supplemental Jurisdiction
Along with his Fourteenth Amendment due process claims, Plaintiff asserts related
state law claims under Texas’s separation of powers doctrine as well as the due process
clause of the Texas Constitution. (D.E. 11, pg. 23, 25-28). A district court is authorized
to exercise supplemental jurisdiction over all claims that are so related to the claims that
provide the district court with original jurisdiction. 28 U.S.C. § 1367(a). However, that
same statute provides that, if the district court dismisses the claims upon which federal
jurisdiction was originally based, especially at the onset of a proceeding, it is prudent to
decline to exercise supplemental jurisdiction over any state law claims and to dismiss
those claims without prejudice. Id. § 1367(c); Enochs v. Lampasas County, 641 F.3d 155,
159 (5th Cir. 2011). See also LaPorte Construc. v. Bayshore Nat’l Bank, 805 F.2d 1254,
1257 (5th Cir. 1986) (when district court dismisses federal claims at a preliminary stage
of litigation, judicial economy argues against exercise of supplemental jurisdiction over
state claims); Toney v. Owens, No. A-12-CA-313-LY, 2014 WL 358401, at *15 (W.D.
Tex. Jan. 31, 2014) (declining to exercise supplemental jurisdiction over plaintiff’s
related “state law claim under the Texas separation of powers doctrine and due process
clause of the Texas Constitution” after the Court “dismissed all claims over which it has
original jurisdiction”).
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Because Plaintiff's Fourteenth Amendment claims against the defendants are
subject to dismissal, the undersigned recommends that the Court decline to exercise
supplemental jurisdiction over Plaintiff's related state law claims.
IV. RECOMMENDATION
For the foregoing reasons, the undersigned respectfully recommends that district
court: (1) DISMISS with prejudice Plaintiff’s Fourteenth Amendment due process
claims against the defendants as frivolous and/or for failure to state a claim pursuant to
§§ 1915(e)(2)(B) and 1915A(b)(1); and (2) DECLINE to exercise supplemental
jurisdiction over Plaintiff’s related state law claims. The undersigned respectfully
recommends further that the dismissal of this case counts as a “strike” for purposes of 28
U.S.C. § 1915(g).
Respectfully recommended on December 2, 2025.
____________________________
Julie K. Hampton
United States Magistrate Judge
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NOTICE TO PARTIES
The Clerk will file this Memorandum and Recommendation and transmit a copy to
each party or counsel. Within FOURTEEN (14) DAYS after being served with a copy of
the Memorandum and Recommendation, a party may file with the Clerk and serve on the
United States Magistrate Judge and all parties, written objections, pursuant to Fed. R.
Civ. P. 72(b), 28 U.S.C. § 636(b)(1), General Order No. 2002-13, United States District
Court for the Southern District of Texas.
A party’s failure to file written objections to the proposed findings, conclusions,
and recommendation in a magistrate judge’s report and recommendation within
FOURTEEN (14) DAYS after being served with a copy shall bar that party, except upon
grounds of plain error, from attacking on appeal the unobjected-to proposed factual
findings and legal conclusions accepted by the district court. Douglass v. United Servs.
Auto Ass’n, 79 F.3d 1415 (5th Cir. 1996)(en banc).
Case 2:25-cv-00216 Document 12 Filed 12/02/25 in TXSD Page 19 of 19