United States Court of Appeals
Fifth Circuit
F I L E D
REVISED JULY 28, 2006
July 7, 2006
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT Charles R. Fulbruge III
Clerk
No. 05-10679
Summary Calendar
DOUGLAS R LOVING
Plaintiff - Appellant
v.
GARY L JOHNSON, EXECUTIVE DIRECTOR, TEXAS DEPARTMENT
OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION
Defendant - Appellee
--------------------
Appeal from the United States District Court
for the Northern District of Texas
--------------------
Before KING, WIENER, and DeMOSS, Circuit Judges.
PER CURIAM:
Douglas R. Loving, Texas inmate # 611599, brought this
action asserting that he was entitled to the legal minimum wage
under the Fair Labor Standards Act (FLSA), 29 U.S.C. §§ 201 et
seq., for work he performed as a “drying machine operator” in the
prison laundry. The district court dismissed the action as
frivolous and for failure to state a claim under 28 U.S.C.
§§ 1915 and 1915A, and 42 U.S.C. § 1997e. In this court, Loving
contends that he is entitled to the federal minimum wage under
the FLSA because he meets the test for employee status under the
No. 05-10679
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FLSA and because the FLSA does not specifically exempt prisoners
from FLSA coverage.
Compelling an inmate to work without pay does not violate
the Constitution. See Murray v. Miss. Dep’t of Corr., 911 F.2d
1167, 1167 (5th Cir. 1990). The failure of a state specifically
to sentence an inmate to hard labor does not change this rule.
See Ali v. Johnson, 259 F.3d 317, 317-18 (5th Cir. 2001).
We have held that prisoners not sentenced to hard labor, who
worked outside the jail for a private firm, were FLSA employees
of the private firm. Watson v. Graves, 909 F.2d 1549, 1556 (5th
Cir. 1990). In a similar situation, we held that a jailer was
not the FLSA employer of an inmate working in a work-release
program for a private employer outside the jail. Reimonenq v.
Foti, 72 F.3d 472, 475-76 (5th Cir. 1996). We have also held
that inmates who work inside a prison for a private enterprise
are not FLSA employees of the private company. Alexander v.
Sara, Inc., 721 F.2d 149, 150 (5th Cir. 1983). However, until
today we have not expressly stated whether there is any FLSA
employment relationship between the prison and its inmates
working in and for the prison.
Other circuits uniformly hold that prisoners doing prison
work are not the prison’s employees under the FLSA. The Seventh
Circuit recently explained that the FLSA
is intended for the protection of employees, and
prisoners are not employees of their prison. So they are
not protected by the Act.
. . . .
No. 05-10679
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People are not imprisoned for the purpose of enabling
them to earn a living. The prison pays for their keep.
If it puts them to work, it is to offset some of the cost
of keeping them, or to keep them out of mischief, or to
ease their transition to the world outside, or to equip
them with skills and habits that will make them less
likely to return to crime outside. None of these goals
is compatible with federal regulation of their wages and
hours. The reason the FLSA contains no express exception
for prisoners is probably that the idea was too
outlandish to occur to anyone when the legislation was
under consideration by Congress.
Bennett v. Frank, 395 F.3d 409, 409-10 (7th Cir. 2005) (internal
citations omitted); see also Tourscher v. McCullough, 184 F.3d
236, 243 (3d Cir. 1999) (pretrial detainee performing
intra-prison work not entitled to FLSA wage); Danneskjold v.
Hausrath, 82 F.3d 37, 43 (2d Cir. 1996); Franks v. Okla. State
Indus., 7 F.3d 971, 972 (10th Cir. 1993) (inmates working in
prison not FLSA employees); Harker v. State Use Indus., 990 F.2d
131, 133 (4th Cir. 1993) (prisoners working in prison for state
industry not FLSA employees); Miller v. Dukakis, 961 F.2d 7, 9
(1st Cir. 1992) (prisoners working at unit of incarceration not
FLSA employees of unit); Wentworth v. Solem, 548 F.2d 773, 775
(8th Cir. 1977) (FLSA did not cover convicts working in state
prison industries).
We join these other circuits and hold that a prisoner doing
work in or for the prison is not an “employee” under the FLSA and
is thus not entitled to the federal minimum wage.
Loving contends that the State should restore work credit to
his inmate trust account. This cryptic argument is merely a
facet of Loving’s general claim that he has not been properly
No. 05-10679
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compensated. The claim fails because Loving has no
constitutional right to compensation. See Ali, 259 F.3d at 318.
Loving also asserts that the system of employing inmates is
discriminatory, but he fails to identify the victims of the
alleged discrimination or the grounds for the alleged
discrimination. “[U]nless 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). Loving has made no
showing of discrimination.
Loving also argues that he is entitled to payment under
Texas negotiable instruments law and that the district court must
be deemed to have granted tacit relief on this contention. This
contention is based on the baseless proposition that, by
presenting the defendant with a record of his work, Loving has
somehow created an enforceable obligation in the form of a
“demand instrument” payable immediately to him. This contention
is frivolous. See Ali, 259 F.3d at 318 (concluding that “forcing
inmates to work without pay . . . do[es] not violate the
Thirteenth Amendment”).
Loving failed to state a cause of action on which relief
could be granted. The district court’s dismissal of the action
is AFFIRMED.