     Case: 17-40517      Document: 00514523419         Page: 1    Date Filed: 06/21/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT

                                                                       United States Court of Appeals

                                    No. 17-40517
                                                                                Fifth Circuit

                                                                              FILED
                                  Summary Calendar                        June 21, 2018
                                                                         Lyle W. Cayce
ANTHONY L. PIERCE,                                                            Clerk


                                                 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                  No. 17-40517

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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                                 No. 17-40517

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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