United States District Court, S.D. Texas, Corpus Christi Division
ORDER DENYING PLAINTIFF'S MOTION FOR LEAVE TO
FILE FIRST AMENDED COMPLAINT
B. Libby United States Magistrate Judge
Deamus Troy Casterline is a Texas inmate appearing pro
se and in forma pauperis. In this
prisoner civil rights action, Plaintiff asserts due process
and ex post facto violations due to the
purported failure of the Texas Board of Pardons and Paroles
(Board) to adhere to the pre-1987 mandatory supervision's
regulatory and statutory scheme. Pending before the Court is
Plaintiff's Motion for Leave to File First Amended
Complaint. (D.E. 18).
is a prisoner in the Texas Department of Criminal Justice,
Criminal Institutions Division (TDCJ-CID) and is currently
housed at the McConnell Unit in Beeville, Texas. Plaintiff is
serving a life sentence for a capital murder conviction out
of Aransas County, Texas. Plaintiff committed the offense in
1984 and was sentenced on June 14, 1985.
sued several members of the Board in this action, including
its presiding officer, David Gutierrez. Because he had
committed his crime in 1984, Plaintiff asserted that he was
eligible “for the pre-1987 Mandatory Supervision parole
program.” (D.E. 1-1, p. 1). Plaintiff claimed that his
due process rights were violated at his last parole review
hearing held on November 1, 2017, based on the Board's
failure to adhere to the pre-1987 mandatory supervision's
regulatory and statutory scheme. (D.E. 1-1, p. 14-15). He
further claimed that such failure “to adhere to the
pre-1987 Initial Eligibility Date Rule's substantive
formula create[d] a significant risk of increasing
Plaintiff's punishment in violation of the Ex Post Facto
Clause.” (D.E. 1-1, p. 15).
sought relief to “render invalid application of the
post-1987 substantive statutory and regulatory procedures
used to deny eligibility for the pre-1987 mandatory
supervision program.” (D.E. 1-1, p. 2). He further
sought prospective injunctive relief “for
future parole hearing to enforce the pre-1987
substantive eligibility procedures.” (D.E. 1-1, p. 2)
(emphasis in original). Plaintiff specifically denied
challenging the fact or duration of his sentence or otherwise
seeking an order for immediate or speedier release. (D.E.
1-1, p. 2).
Spears hearing was conducted on March 14, 2018.
On March 23, 2018, the undersigned issued a Memorandum and
Recommendation (M&R), recommending that: (1)
Plaintiff's complaint be dismissed with prejudice for
failure to state a claim and/or as frivolous pursuant to 28
U.S.C. §§ 1915(e)(2)(B) and 1915A(b)(1); and (2)
the dismissal of this case count as a “strike”
for purposes of 28 U.S.C. § 1915(g). (D.E. 8). On May 1,
2018, after considering Plaintiff's objections, District
Judge Hilda G. Tagle adopted the M&R, dismissed
Plaintiff's complaint with prejudice, and directed the
dismissal to count as a strike. (D.E. 15). That same day,
Judge Tagle entered a final judgment against Plaintiff. (D.E.
PLAINTIFF'S MOTION TO AMEND
April 30, 2018, Plaintiff signed and executed his Motion for
Leave to File First Amended Complaint. (D.E. 18). Plaintiff
attached his proposed first amended complaint to his motion.
(D.E. 18, pp. 7-24). Therein, Plaintiff attempts to clarify
and expand upon his claims challenging the pre-1987 mandatory
supervision regulatory scheme. (D.E. 18, pp. 1-2).
Specifically, Plaintiff seeks to: (1) raise more
particularized allegations regarding his due process and
ex post facto claims; (2) offer a rebuttal to the
findings and conclusions set forth in the M&R; (3)
request class certification; (4) raise a new claim based on a
violation of the Double Jeopardy Clause; (5) dismiss all
Defendants except for Mr. Gutierrez, the Board's
presiding officer; and (6) limit his request for injunctive
relief to seeking a hearing for the purpose of calculating
either his initial parole eligibility date or, in the
alternative, future parole hearing dates.
Fifth Circuit Court of Appeals has held that a plaintiff
generally should be granted leave to amend his complaint
prior to dismissal. Brewster v. Dretke, 587 F.3d
764, 767-68 (5th Cir. 2009) (per curiam) (“[A] pro
se litigant should be offered an opportunity to amend
his complaint before it is dismissed.”). Plaintiff
signed and executed his motion to amend on April 30, 2018.
(D.E. 18, p. 3). The undersigned assumes that he delivered
same to prison authorities for mailing on April 30, 2018, one
day before the Court dismissed this case and entered final
judgment against him. Accordingly, the undersigned will
consider whether his amendments should be allowed pursuant to
Federal Rule of Civil Procedure 15(a).
15(a) provides that leave to amend “shall be freely
given when justice so requires.” Determining when
justice requires permission to amend rests within the
discretion of the trial court. Zenith Radio Corp. v.
Hazeltine Research, Inc., 401 U.S. 321, 330 (1971);
Smith v. EMC Corp., 393 F.3d 590, 595 (5th Cir.
2004). A federal court has discretion to deny a motion to
amend when that amendment would be futile. Foman v.
Davis, 371 U.S. 178, 182 (1962); Martin's Herend
Imports, Inc. v. Diamond & Gem Trading U.S. Am. Co.,
195 F.3d 765, 771 (5th Cir. 1999). “An amendment is
futile if it would fail to state a claim upon which relief
could be granted.” Stripling v. Jordan Prod.
Co., 234 F.3d 863, 873 (5th Cir. 2000). Plaintiff's
motion to amend should be denied because his proposed
amendments would be futile for failing to state a claim for
forth in the M&R, which was later adopted by the District
Judge, Plaintiff's due process and ex post facto
claims were foreclosed by: (1) previous decisions in Ex
Parte Franks, 71 S.W.3d 327 (Tex.Crim.App. 2001) and
Arnold v. Cockrell, 306 F.3d 277 (5th Cir. 2002);
and (2) the holdings by both the district courts and Fifth
Circuit in prior actions filed by Plaintiff in which he
challenged his ineligibility for release to mandatory
supervision. Plaintiff seeks to repackage his due process and
ex post facto claims in his proposed first amended
complaint. However, Plaintiff continues to characterize his
claims as ultimately seeking adherence by the Board to the
pre-1987 mandatory supervision program. Such claims remain
fundamentally the same as his prior claims challenging his
ineligibility for release to mandatory supervision.
Accordingly, Plaintiff's due process and ex post
facto claims, as set forth in his proposed first amended
complaint, are foreclosed by the holdings in his prior cases.
seeks to add a double jeopardy claim in his proposed first
amended complaint. (D.E. 18, pp. 9, 21). The Double Jeopardy
Clause protects against: (1) prosecution of the same offense
after acquittal; (2) prosecution of the same offense after
conviction; and (3) multiple punishments for the same
offense. United States v. Berry, 977 F.2d 915, 918
(5th Cir. 1992). Plaintiff received one punishment for his
capital murder offense, and he was ineligible for mandatory
supervised release at the time he committed that offense in
1984. See Arnold, 306 F.3d at 279; Wade v.
Quarterman, No. H-08-2071, 2009 WL 2591246, at *4 (S.D.
Tex. Aug. 19, 2009). The fact that Plaintiff is ineligible