                                                                                                                           Opinions of the United
1999 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-12-1999

Tourscher v. McCullough
Precedential or Non-Precedential:

Docket 97-3671,98-3499




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Recommended Citation
"Tourscher v. McCullough" (1999). 1999 Decisions. Paper 196.
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Filed July 12, 1999

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

NO. 97-3671

MARK D. TOURSCHER,

       Appellant

v.

JOHN MCCULLOUGH; KATHY EMIL;
COMMISSIONER HORN; JAY WHITESEL

(D.C. Civil No. 97-cv-00223J)

NO. 98-3499

MARK D. TOURSCHER,

       Appellant

v.

MARTIN HORN, SECRETARY OF THE PA.
DEPT. OF CORRECTIONS; JOHN
MCCULLOUGH, SUPERINTENDENT

(D.C. Civil No. 98-cv-00176J)

ON APPEAL FROM THE
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
District Judge: The Honorable D. Brooks Smith
Argued April 5, 1999

Before: SLOVITER and ALITO, Circuit Judges,
and ALARCON, Senior Circuit Judge*

(Opinion Filed July 12, 1999)

       Stanley B. Edelstein (argued)
       Jacoby Donner, P.C.
       Suite 2000
       1515 Market Street
       Philadelphia, PA 19102

       Attorney for Appellant

       Calvin R. Koons (argued)
       Senior Deputy Attorney General
       D. Michael Fisher
       Attorney General
       John G. Knorr, III
       Chief Deputy Attorney General
       Office of Attorney General
       Appellate Litigation Section
       15th Fl. Strawberry Square
       Harrisburg, PA 17120

       Attorneys for Appellees

OPINION OF THE COURT

ALARCON, Senior Circuit Judge:

Mark D. Tourscher ("Tourscher") appeals from the district
court's order of November 25, 1997 dismissing his pro se
complaint ("first complaint") as frivolous under 28 U.S.C.
SS 1915(e)(2)(B) and 1915A. He also appeals from the
August 31, 1998 order dismissing a second pro se
complaint ("second complaint"). This court consolidated the
two appeals.
_________________________________________________________________

* Hon. Arthur L. Alarcon, Senior Judge, United States Court of Appeals
for the Ninth Circuit, sitting by designation.

                                 2
In his first complaint, Tourscher alleged that he was
deprived of rights by Pennsylvania Department of
Corrections officials ("Prison Officials") that are guaranteed
under the Eighth, Thirteenth and Fourteenth Amendments
because they compelled him to work in the prison cafeteria
while he was a pretrial detainee. In his second complaint,
he asserted that the Prison Officials deprived him of
meaningful access to the courts in violation of the Due
Process Clause by compelling him to work in the prison
cafeteria while he was preparing his appeal from his second
state conviction. In addition, Tourscher maintained in each
complaint that he is entitled to be compensated pursuant
to the minimum wage provisions of the Fair Labor
Standards Act ("FLSA"), 29 U.S.C. S 206(a), for the work he
was compelled to do in the prison cafeteria.

We conclude that Tourscher was a duly convicted
prisoner who could be compelled to work in the prison
cafeteria until the date the Court of Common Pleas regained
jurisdiction following the Pennsylvania Supreme Court's
denial of the Commonwealth's petition for allowance of
appeal. Accordingly, we affirm in part the dismissal of the
first complaint. We vacate the dismissal of that portion of
the first complaint that alleges he was compelled to work in
violation of the Thirteenth Amendment between September
4, 1997 and September 18, 1997, and remand with
instructions. We also hold that the district court did not err
in dismissing the second complaint because Tourscher has
failed to show that the work he was required to perform
after his second conviction denied him meaningful access
to the courts. Additionally, we reject Tourscher's contention
that pretrial detainees and convicted prisoners are covered
by the FLSA minimum wage section for services performed
in intra-prison work.

I

In 1995, Tourscher was convicted of burglary, criminal
trespass, recklessly endangering another person, simple
assault, and terroristic threats in the Court of Common
Pleas of Lackawana County, Pennsylvania. He was
sentenced to serve three and one-half years to twenty-two
years. While his appeal from his first conviction was

                               3
pending, the Prison Officials ordered Tourscher to work in
the prison cafeteria or face administrative misconduct
charges.

On August 23, 1996, the Pennsylvania Superior Court
vacated his first conviction and remanded the case for a
new trial. See Commonwealth v. Tourscher, 682 A.2d 1275
(Pa. Super. Ct. 1996).

The Commonwealth filed a motion for reargument in the
Pennsylvania Superior Court. The Commonwealth's motion
was denied on October 21, 1996. The Commonwealth then
filed a timely petition for allowance of appeal with the
Pennsylvania Supreme Court on November 21, 1996. While
the petition for allowance of appeal was pending, the Court
of Common Pleas set bail for Tourscher at $25,000 on
December 6, 1996. Tourscher remained in custody,
however, because he was unable to post bail.

The Pennsylvania Supreme Court denied the petition for
allowance of appeal on August 21, 1997. Tourscher was not
excused from his work assignment in the prison cafeteria
until September 18, 1997.

Tourscher filed his first complaint pursuant to 28 U.S.C.
S 1983 on July 27, 1997. He alleged that the Prison
Officials, in both their individual and official capacities,
violated his right not to be compelled to work under the
Eighth, Thirteenth, and Fourteenth Amendments.
Tourscher also alleged that he should be paid the minimum
wage for his labor pursuant to the FLSA, 29 U.S.C.SS 201-
209. Tourscher prayed for compensatory damages, punitive
damages, and declaratory relief. He did not request
injunctive relief.

Tourscher alleged that "the defendants have been forcing
the Plaintiff to involuntary servitude, and threatening to
lock him up in the hole if he did not contie [sic] to labor for
the state." In documents filed with the district court,
Tourscher asserted that he was required to work in the
prison cafeteria, at a wage of 22 cents per hour. He further
stated that he was paid approximately $15 per month. At a
wage of 22 cents per hour, Tourscher worked approximately
69 hours per month or less than 17 hours per week. (22
cents x 69 hours = $15.18.)

                                4
In his report dated November 5, 1997, the magistrate
judge recommended that the district court consider either
dismissing the complaint for failing to state facts showing
a federal constitutional violation, or on the basis that the
Prison Officials are immune because the law regarding
whether a pretrial detainee can be compelled to work in a
prison cafeteria was "not so clearly established that
defendants could be considered to know that their conduct
is unlawful." On November 25, 1997, the district court
adopted the report and recommendation of the magistrate
judge as its opinion and dismissed the complaint pursuant
to 28 U.S.C. 1915(e)(2)(B), without indicating whether it
believed Tourscher had failed to state a claim, or that the
Prison Officials were immune.

Following the denial of the Commonwealth's petition for
allowance of appeal, Tourscher was retried for the same
offenses. On March 13, 1998, he was found guilty of
criminal trespass and sentenced to eleven and one-half
months to ten years.

Tourscher filed his second complaint against the Prison
Officials on July 27, 1998. In the second complaint,
Tourscher alleged that the Prison Officials had deprived
him of his rights under the Eighth, Thirteenth, and
Fourteenth Amendments. His complaint also alleged, inter
alia, that the requirement that he perform intra-prison
work assignments interfered with his ability to prepare the
appeal from his second criminal conviction. He also claimed
that he was entitled to be paid minimum wages under the
FLSA for the work he performed in the prison cafeteria.
Tourscher prayed for compensatory damages, punitive
damages, declaratory relief, and injunctive relief in his
second complaint. Tourscher failed to allege the number of
hours he was required to work during the pendency of his
March 13, 1998 state court conviction and his in forma
pauperis application did not set forth his monthly income.

The second complaint was also referred to a magistrate
judge for a report and recommendation. The magistrate
judge issued a recommendation that the complaint be
dismissed for "failure to state a claim," pursuant to 28
U.S.C. S 1915(e)(2)(B), "rely[ing] on the Report and
Recommendation" filed regarding the disposition of the first

                               5
complaint. The district court adopted the magistrate judge's
report and recommendation as its opinion and dismissed
the action on August 31, 1998.

We have jurisdiction over these consolidated appeals
pursuant to 28 U.S.C. S 1291. Our review of the dismissal
of each action is plenary. See Gibbs v. Roman, 116 F.3d 83,
85 (3d Cir. 1997); see also Jenkins v. Morton, 148 F.3d 257,
258 (3d Cir. 1998). "[W]e must accept as true the factual
allegations in the complaint and all reasonable inferences
that can be drawn therefrom." Nami v. Fauver , 82 F.3d 63,
65 (3d Cir. 1996). We may affirm the district court on any
ground supported by the record. See Central Penn.
Teamsters Fund v. McCormick Dray Line, Inc., 85 F.3d
1098, 1107 (3d Cir. 1996); see also Erickson v. United
States, 976 F.2d 1299, 1300-01 (9th Cir. 1992) (affirming
district court's judgment on the basis of qualified immunity
without deciding whether plaintiff had established a
constitutional violation, where district court had reached
constitutional issue).

II

Tourscher asserts that it is a violation of the Thirteenth
Amendment's prohibition against involuntary servitude to
require a party not duly convicted of a crime to work in a
prison cafeteria.1 This court has not previously considered
the question whether the Thirteenth Amendment precludes
prison authorities from compelling a prisoner to work
during the pendency of his or her appeal from a conviction.
Other circuits, however, have held that a person sentenced
to serve a term of imprisonment can be required to work
during the time his or her appeal is pending before a
reviewing court. See Stiltner v. Rhay, 322 F.2d 314, 315
(9th Cir. 1963) ("There is no federally protected right of a
state prisoner not to work while imprisoned after
_________________________________________________________________

1. Section 1 of the Thirteenth Amendment provides as follows:

       Neither slavery nor involuntary servitude, except as a punishment
       for crime whereof the party shall have been duly convicted, shall
       exist within the United States, or any place subject to their
       jurisdiction.

                               6
conviction, even though that conviction is being appealed.").
See also Plaisance v. Phelps, 845 F.2d 107, 108 (5th Cir.
1988) ("The fact that appellant is appealing does not require
the district court to assume that his conviction was other
than duly obtained."); Omasta v. Wainwright, 696 F.2d
1304, 1305 (11th Cir. 1983) (holding that "where a prisoner
is incarcerated pursuant to a presumptively valid judgment
. . . the thirteenth amendment's prohibition against
involuntary servitude is not implicated. . . . even though the
conviction may be subsequently reversed."). We agree with
our sister circuits that a duly convicted prisoner continues
in that status until his or her appeal becomes final even if
it results in a reversal of the conviction.

Tourscher contends that he ceased being a duly
convicted prisoner after the Pennsylvania Superior Court
reversed his original conviction on August 23, 1996. He
maintains that he reverted to the status of a pretrial
detainee on that date and could not be compelled to work
during the pendency of the Commonwealth's attempts to
overturn the Pennsylvania Superior Court's decision. To
support this contention, Tourscher points out that on
December 5, 1996, the Court of Common Pleas granted his
motion to post bail pending his retrial. The Prison Officials
maintain that the judgment of the Pennsylvania Superior
Court did not become effective until the Pennsylvania
Supreme Court's denial of the Commonwealth's petition for
allowance of appeal became final on September 4, 1997. To
resolve this dispute, we must decide when the judgment of
the Pennsylvania Superior Court reversing Tourscher's
original conviction became effective and restored Tourscher
to the status of a pretrial detainee.

The parties have not cited any authority to us that
defines "duly convicted," as that term is used in the
Thirteenth Amendment. We are persuaded that, in
determining whether a person incarcerated under state law
is a "duly convicted" prisoner, we must examine the state's
laws regarding the effective date of the judgments of its
courts. Under Rule 1736(b) of the Pennsylvania Rules of
Appellate Procedure, the taking of an appeal acts as an
automatic supersedeas.2 In Elizabeth Forward School
_________________________________________________________________

2. Rule 1736(b) reads in relevant part:

       Supersedeas automatic. Unless otherwise ordered pursuant to this

                               7
District of Pennsylvania Labor Relations Board, 149 Pa.
Commw. 235, 613 A.2d 68 (1992), the court noted that the
term "appeal," as used in Rule 1736(b), includes petitions
"under any other provision of law." 149 Pa. Commw. at
240, 613 A.2d at 70. The court held in Elizabeth that a
petition for the allowance of an appeal filed by the
Commonwealth acted as an automatic supersedeas.3 See id.
A later case, relying on Elizabeth, reached the same result.
See Public Advocate v. Philadelphia Gas Commission , 177
Pa. Commw. 41, 45, 646 A.2d 19, 21 (1994). Although, as
Tourscher argues, Elizabeth and Public Advocate concern
civil matters, Rule 1764 of the Pennsylvania Rules of
Appellate Procedure provides that Rule 1736(b) applies to
criminal matters not involving capital punishment.4 Thus,
under Pennsylvania law, the filing of a petition for
allowance of appeal by the Commonwealth stayed the
effective date of the judgment of the Pennsylvania Superior
Court. The Commonwealth's petition for allowance of
appeal was not acted upon by the Pennsylvania Supreme
Court until August 21, 1997. Pursuant to Rule 2572(b)(2) of
the Pennsylvania Rules of Appellate Procedure, "the time for
_________________________________________________________________

       chapter the taking of an appeal by any party specified in
       Subdivision (a) [including the Commonwealth or any officer thereof,
       acting in his official capacity] of this rule shall operate as a
       supersedeas in favor of such party.

3. Although not defined in the Pennsylvania Rules, the term
"supersedeas" is defined as follows in Black's Law Dictionary: "In modern
times the term is often used synonymously with a"stay of proceedings,"
and is employed to designate the effect of an act or proceeding which of
itself suspends the enforcement of a judgment." Black's Law Dictionary
1437 -38 (6th ed. 1990).

4. The full text of Rule 1764 reads:

       Other Stays in Criminal Matters

       Except as otherwise prescribed by the Pennsylvania Rules of
       Criminal Procedure, Rule 1731 (automatic supersedeas of orders
       for the payment of money) et seq. shall be applicable to criminal
       or quasi-criminal matters or orders relating thereto which are not
       within the scope of Rule 1761 (capital cases) through Rule 1763
       (vacation of supersedeas on affirmance of conviction). Pa. R.A.P.
       1764.

                               8
the remand of Record" from an order of the Pennsylvania
Supreme Court is 14 days. Under this rule the record
should have been remanded on or before September 4,
1997. Accordingly, on that date he reverted to the status of
a pretrial detainee.

Tourscher, in his opening brief, "concedes that the
Commonwealth's attempt to appeal the Superior Court's
order may have kept that order from becoming final."
Appellant's Opening Brief at 18. He argues, however, that
"technical notions of finality must bow to the United States
Constitution . . . ." Id. Tourscher fails, however, to cite any
authority to support the proposition that the Thirteenth
Amendment requires us to hold that the decision of an
intermediate court reversing a conviction takes immediate
effect, notwithstanding the fact that the judgment is not
final under state law until its highest court has acted upon
a prosecutor's petition for review of an intermediate court's
adverse judgment. Tourscher was a duly convicted prisoner
until the automatic stay of the Pennsylvania Superior
Court's judgment expired on September 4, 1977. The
requirement that he work in the prison cafeteria prior to
September 4, 1997 did not violate the Thirteenth
Amendment.

III

It appears that Tourscher's status was equivalent to that
of a pretrial detainee in the period between September 4,
1997 and September 18, 1997. This does not necessarily
mean that Tourscher could not be compelled to perform
some service in the prison. In Hause v. Vaught, 993 F.2d
1079 (4th Cir. 1993), and Bijeol v. Nelson, 579 F.2d 423
(7th Cir. 1978) (per curiam), the courts held that pretrial
detainees may be required to perform "general
housekeeping responsibilities" consistently with the Due
Process Clause.

Because the District Court dismissed Tourscher's
complaint before filing and service, the nature of the
services that Tourscher was required to perform during that
period and the amount of time they took is not on record.
Such information is necessary before a court can determine

                               9
whether the prison officials deprived him of this Thirteenth
Amendment right to be free from involuntary servitude or
his rights under the Due Process Clause. Indeed, the
defendants have not even had the opportunity tofile an
answer.

Therefore, we must vacate the dismissal of that portion of
the complaint that alleges that Tourscher was compelled to
work between September 4, 1997 and September 18, 1997.
We will remand with instructions that the District Court
direct that Tourscher's complaint be filed and let the case
proceed thereafter.

IV

In his second complaint, Tourscher alleged that the
Prison Officials deprived him of his right to meaningful
access to the Pennsylvania courts by compelling him to
work in the prison cafeteria while his appeal from his
second conviction was pending in state court. In Lewis v.
Casey, 518 U.S. 343 (1996), the Court held that the Due
Process Clause prohibits prison officials from denying a
prisoner meaningful access to the courts. See id. at 350-55.

Tourscher failed to allege any facts that demonstrate that
the number of hours he was required to work denied him
sufficient time to prepare an appeal to the Pennsylvania
courts from his second criminal conviction. To state a
viable claim of the denial of meaningful access to the
courts, Tourscher was required to plead facts
demonstrating that the work he performed in the prison
cafeteria interfered with his ability to prosecute his appeal.
See id. at 351 (an inmate must demonstrate actual injury,
i.e., that state actors hindered his efforts to pursue a legal
claim.) Accordingly, we must reject Tourscher's due process
claim.

V

Tourscher asserts that each of his complaints alleged
valid claims under the Fair Labor Standards Act, 29 U.S.C.
SS 201-209. He argues that pretrial detainees and convicted

                               10
prisoners must be paid the minimum wage pursuant to
S 206 of the FLSA.5

The minimum wage provisions of the FLSA, however,
apply only to workers who are "employees" within the
meaning of the Act. See 29 U.S.C. S 206(a).6 This term must
be interpreted in light of the "economic reality" of the
relationship between the parties. Goldberg v. Whitaker
House Co-op., Inc., 366 U.S. 28, 33 (1961).

Each circuit that has addressed the question has
concluded that prisoners producing goods and services
used by the prison should not be considered employees
under the FLSA. See Gambetta v. Prison Rehabilitative
Industries, 112 F.3d 1119, 1124-25 (11th Cir. 1997);
Danneskjold v. Hausrath, 82 F.3d 37, 43 (2d Cir. 1996);
Reimonenq v. Foti, 72 F.3d 472, 475 n.3 (5th Cir. 1996);
Henthorn v. Department of Navy, 29 F.3d 682, 684-87
(D.C.Cir. 1994); McMaster v. Minnesota, 30 F.3d 976, 980
(8th Cir. 1994); Hale v. Arizona, 993 F.2d 1387, 1392-98
(9th Cir. 1993) (en banc); Franks v. Oklahoma State Indus.,
7 F.3d 971, 972 (10th Cir. 1993); Harker v. State Use
Indus., 990 F.2d 131, 133 (4th Cir. 1993); Miller v. Dukakis,
961 F.2d 7, 8-9 (1st Cir. 1992); Vanskike v. Peters, 974
F.2d 806, 809-10 (7th Cir. 1992); but cf. Watson v. Graves,
909 F.2d 1549, 1554-55 (5th Cir. 1990) (holding the FLSA
applicable where the prisoners worked for an outside
construction company in competition with other private
employers and where this competition tended to undermine
compliance with the FLSA).

In Danneskjold, the Second Circuit reasoned as follows:

       The relationship is not one of employment; prisoners
       are taken out of the national economy; prison work is
_________________________________________________________________

5. The minimum wage for the period specified in Tourscher's complaints
ranged from $4.25 per hour to $5.15 per hour. See 29 U.S.C. S 206(a)(1).

6. Section 206(a) reads in relevant part:

       Every employer shall pay to each of his employees who in any
       workweek is engaged in commerce or in the production of goods for
       commerce, or is employed in an enterprise engaged in commerce or
       in the production of goods for commerce, wages at the following
       rates . . . . (emphasis added).

                               11
       often designed to train and rehabilitate; prisoners'
       living standards are determined by what the prison
       provides; and most such labor does not compete with
       private employers. . . .

       As a result, no Court of Appeals has ever questioned
       the power of a correctional institution to compel
       inmates to perform services for the institution without
       paying the minimum wage. Prisoners may thus be
       ordered to cook, staff the library, perform janitorial
       services, work in the laundry, or carry ou[t] numerous
       other tasks that serve various institutional missions of
       the prison, such as recreation, care and maintenance
       of the facility, or rehabilitation. Such work occupies
       prisoners' time that might otherwise be filled by
       mischief; it trains prisoners in the discipline and skills
       of work; and it is a method of seeing that prisoners
       bear a cost of their incarceration.

82 F.3d at 42-43.

We agree with our sister circuits that prisoners who
perform intra-prison work are not entitled to minimum
wages under the FLSA.

Tourscher also claims that the minimum wage provision
of the FLSA should apply to the work he performed while
he was a pretrial detainee. The only circuit which has
examined this question held that the FLSA is inapplicable
to pretrial detainees working for prison authorities since,
like prisoners, they are not employees under the FLSA. See
Villareal v. Woodham, 113 F.3d 202, 206-07 (11th Cir.
1997).

The Eleventh Circuit reasoned as follows:

       Focusing on the economic reality of the situation in its
       entirety, we conclude that [a pretrial detainee] is not an
       "employee" under the FLSA. The purpose of the FLSA
       is to protect the standard of living and general well-
       being of the American worker. Because the correctional
       facility meets Villarreal's needs, his "standard of living"
       is protected. In sum, "the more indicia of traditional,
       free-market employment the relationship between the
       prisoner and his putative `employer' bears, the more

                               12
       likely it is that the FLSA will govern the employment
       relationship." Villarreal's situation does not bear any
       indicia of traditional free-market employment
       contemplated under the FLSA. Accordingly, we hold
       that Villarreal and other pretrial detainees in similar
       circumstances are not entitled to the protection of the
       FLSA minimum wage requirement.

Id. at 207 (citations omitted).

We agree with this rationale. Tourscher's employment
bears no indicia of traditional free-market employment.
Therefore, we hold that the minimum wage requirements of
the FLSA do not apply to Tourscher or other similarly
situated pretrial detainees.

VI

After reviewing the record and the applicable law, we
conclude that Tourscher's remaining contentions are devoid
of merit.

Conclusion

We affirm the dismissal of that portion of thefirst
complaint that alleges that Tourscher was not a duly
convicted prisoner after the reversal of his state conviction
by the Pennsylvania Superior Court. We hold that
Tourscher was a duly convicted prisoner until the
automatic stay on the Pennsylvania Superior Court's
judgment expired on September 4, 1998, the date the Court
of Common Pleas regained jurisdiction following the
Pennsylvania Supreme Court's denial of the
Commonwealth's petition for allowance of appeal. We vacate
the dismissal of that portion of the complaint that alleges
that the Prison Officials deprived him of his right as a
pretrial detainee not to be subjected to involuntary
servitude between September 4, 1997 and September 18,
1997, with instructions that the district court direct the
clerk to file Tourscher's complaint and order that it be
served on the defendants, and, following appropriate
pretrial proceedings, make a determination concerning the
matter of the services Tourscher performed and the number

                                  13
of hours he was compelled to work during that period. We
affirm the dismissal of Tourscher's second complaint
because he failed to allege sufficient facts to demonstrate
that he was denied access to the courts. Finally, we hold
that he is not entitled to be paid the minimum wage under
the FLSA for work he performed as a pretrial detainee or as
a duly convicted prisoner.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

                               14
