     Case: 18-40945      Document: 00515293745         Page: 1    Date Filed: 01/31/2020




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                    No. 18-40945                         January 31, 2020
                                  Summary Calendar
                                                                           Lyle W. Cayce
                                                                                Clerk
DEAMUS TROY CASTERLINE,

                                                 Plaintiff-Appellant

v.

DAVID GUTIERREZ; FRED SOLIS; JAMES LAFAVERS; FEDERICO
RANGEL; ED ROBERTSON; BRIAN LONG; CYNTHIA TAUSS; LORIE
DAVIS,

                                                 Defendants-Appellees


                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 2:18-CV-59


Before JOLLY, JONES, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
       Deamus Troy Casterline, Texas prisoner # 399472, was convicted of
capital murder and sentenced to imprisonment for life. He appeals the district
court’s sua sponte dismissal of his pro se, in forma pauperis (IFP), 42 U.S.C.
§ 1983 lawsuit with prejudice for failure to state a claim and as frivolous



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 18-40945

pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b)(1).               We GRANT
Casterline’s motion for leave to file a supplemental brief.
      A district court may sua sponte dismiss a prisoner’s IFP civil rights
complaint if, among other things, it is frivolous or fails to state a claim on which
relief may be granted. § 1915(e)(2)(B)(i) & (ii); § 1915A(b)(1). Our review of
the district court’s dismissal of Casterline’s complaint is de novo. See Coleman
v. Lincoln Par. Det. Ctr., 858 F.3d 307, 308-09 (5th Cir. 2017). We may affirm
the dismissal of a § 1983 complaint as frivolous under § 1915A(b) and
§ 1915(e)(2)(B) on any basis supported by the record. Berry v. Brady, 192 F.3d
504, 507 (5th Cir. 1999).
      Casterline argues that the defendants violated his due process and ex
post facto rights when they refused to calculate his eligibility for release to
mandatory supervision using a pre-1987 formula that set an inmate’s initial
eligibility date by calculating “the time credit which would be earned by an
inmate who is continuously in Line Class I.” When Casterline committed his
offense in 1984, however, the law governing his eligibility for release to
mandatory supervision provided that an inmate not under a sentence of death
“‘shall be released to mandatory supervision’ when the ‘calendar time he has
served plus any accrued good conduct time equal the maximum term to which
he was sentenced.’” Ex parte Franks, 71 S.W.3d 327, 327 (Tex. Crim. App.
2001) (quoting TEX. CODE CRIM. PROC. ANN. art. 42.12, § 15(c) (West 1981)).
Because Casterline was sentenced to life imprisonment, he is unable to show
that he is entitled to release under that formula. See id. at 327-28.
      Consequently, he has no constitutionally protected interest in release to
mandatory supervision, and any due process claim is frivolous. Wilkinson
v. Austin, 545 U.S. 209, 221 (2005); Arnold v. Cockrell, 306 F. 3d 277, 279
(5th Cir. 2002). Casterline’s ex post facto argument is frivolous, as his claim



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                                 No. 18-40945

that he faced a significant risk of increased punishment under the post-1987
scheme lacks arguable merit. See Garner v. Jones, 529 U.S. 244, 250 (2000);
Cal. Dep’t of Corr. v. Morales, 514 U.S. 499, 508-09 (1995); Hallmark v.
Johnson, 118 F.3d 1073, 1078 (5th Cir. 1997).        Last, to the extent that
Casterline professes that he seeks invalidation of the post-1987 procedures
used to determine his release date, rather than seeking immediate release, his
argument is frivolous. As an inmate sentenced to life imprisonment who is
ineligible for release, see Arnold, 306 F.3d at 279; Franks, 71 S.W.3d at 328,
his concern for the state procedure used to determine his release date is
unfounded.
      In light of the foregoing, this court need not reach Casterline’s
arguments that the district court in dismissing his complaint improperly relied
on res judicata and the doctrine of “issue preclusion.” Because the appeal is
frivolous, it is DISMISSED. See 5TH CIR. R. 42.2; Howard v. King, 707 F.2d
215, 219-20 (5th Cir. 1983). Casterline’s motion for judicial notice and for the
appointment of counsel are DENIED.
      Our dismissal of Casterline’s appeal as frivolous counts as a strike for
28 U.S.C. § 1915(g)’s purposes, as does the district court’s dismissal of
Casterline’s complaint. See Adepegba v. Hammons, 103 F.3d 383, 387 (5th Cir.
1996), abrogated on other grounds by Coleman v. Tollefson, 135 S. Ct. 1759,
1762-63 (2015). Thus, Casterline has two strikes. He is WARNED that if he
accumulates three strikes, he may not proceed IFP 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).




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