   Case: 09-50266       Document: 00511062181          Page: 1    Date Filed: 03/25/2010




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

                                                 FILED
                                                                           March 25, 2010
                                     No. 09-50266
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk




ARTUMUS GREGG VILLARREAL,

                                                   Plaintiff-Appellant,

versus

SENIOR WARDEN PAUL MORALES,

                                                   Defendant-Appellee.




                   Appeal from the United States District Court
                        for the Western District of Texas
                              USDC No. 5:09-CV-72




Before DAVIS, SMITH, and DENNIS, Circuit Judges.
PER CURIAM:*


       Artumus Villarreal, Texas prisoner # 691769, contests the dismissal of his
42 U.S.C. § 1983 civil rights complaint as frivolous under 28 U.S.C. §§ 1915A

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
   Case: 09-50266       Document: 00511062181 Page: 2             Date Filed: 03/25/2010
                                    No. 09-50266

and 1915(e). Villarreal asserts that the Texas Department of Criminal Justice
SSCorrectional Institutions Division requires him to engage in prison labor or
face disciplinary charges and punishment in violation of his constitutional
rights. We review the dismissal as frivolous for abuse of discretion. See Geiger
v. Jowers, 404 F.3d 371, 373 (5th Cir. 2005). A complaint is “frivolous” if it lacks
“an arguable basis in law or fact.” Berry v. Brady, 192 F.3d 504, 507 (5th Cir.
1999). “A complaint lacks an arguable basis in law if it is based on an indisput-
ably meritless legal theory[.]” Harper v. Showers, 174 F.3d 716, 718 (5th Cir.
1999) (internal quotation marks and citations omitted).
       Villarreal argues that, because he was sentenced in 1994, when Texas law
did not provide specifically for the imposition of labor on convicted inmates, com-
pelling him to work violates the Thirteenth Amendment prohibition on involun-
tary servitude. The Thirteenth Amendment, however, excepts, from the general
prohibition, compelled labor as punishment for a crime. See Ali v. Johnson, 259
F.3d 317, 318 (5th Cir. 2001). That exception applies even where the inmate, as
in Villarreal’s case, is not sentenced specifically to labor. See id. To the extent
that Villarreal argues that compulsory labor violates state law, he asserts a “sep-
arate, non-constitutional issue.” See id. at 318 n.2. Villarreal’s argument that
he is compelled to work by the threat of disciplinary proceedings is similarly
without merit.1
       Moreover, Villarreal has failed to show that the district court abused its
discretion in dismissing as frivolous his Tenth Amendment claim. The legal con-
clusion that compulsory labor for convicted inmates is constitutional does not
contravene the Tenth Amendment’s directive that “powers not delegated to the
United States by the Constitution, nor prohibited by it to the States, are re-


       1
         See Mikeska v. Collins, 900 F.2d 833, 837 (5th Cir. 1990) (cited with approval in Ali,
259 F.3d at 318), opinion withdrawn and superseded on reh’g on jurisdictional grounds and
reinstated in relevant part, 928 F.2d 126, 126 (5th Cir. 1991), opinion on reh’g abrogated in
part on jurisdictional grounds by Wash v. Johnson, 343 F.3d 685, 687-88 (5th Cir. 2003) (per
curiam).

                                              2
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                                   No. 09-50266

served to the States respectively, or to the people.” 2 Rather, the legal conclusion
supports the prerogative of the states to determine the appropriate punishment
for violations of their laws. Villarreal’s challenge that the state prison system,
as part of the executive branch of state government, is acting as part of the
judicial branch of government when it imposes labor as part of the punishment
for a crime is equally without merit.3
       Villarreal argues that compelling him to work adds a further punishment
to his sentence in violation of the prohibition against double jeopardy and his
due process rights. The Double Jeopardy Clause “protects only against the impo-
sition of multiple criminal punishments for the same offense . . . and then only
when such occurs in successive proceedings . . . .” Hudson v. United States, 522
U.S. 93, 98-99 (1997) (internal citations and emphasis omitted). The statutorily
authorized labor in Texas is part of a convict’s punishment in Texas, not an
additional criminal punishment imposed in a separate proceeding. See Ali, 259
F.3d at 317-18; Hudson, 522 U.S. at 98-99.
       Villarreal additionally contends that imposing labor on him pursuant to
a statute enacted after he was sentenced violates the Ex Post Facto Clause. Al-
though application to Villarreal of the law specifically permitting compulsory la-
bor was retrospective treatment, it neither altered the definition of criminal con-
duct nor increased his punishment. See Lynce v. Mathis, 519 U.S. 433, 441
(1997); Ali, 259 F.3d at 318; Mikeska, 900 F.2d at 837.
       Villarreal has failed to show that the district court abused its discretion
in dismissing his complaint as frivolous. See Harper, 174 F.3d at 718. This ap-


       2
         See United States v. Lipscomb, 299 F.3d 303, 361 (5th Cir. 2002) (noting that the
amendment addresses the “proper balance between the States and the Federal Government”
under which, generally, the “states possess the primary authority to define and enforce crim-
inal law”).
       3
         See Sweezy v. New Hampshire, 354 U.S. 234, 255 (1957) (“T]his Court has held that
the concept of separation of powers embodied in the United States Constitution is not manda-
tory in state governments.”).

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                                 No. 09-50266

peal, likewise, is frivolous. See 5 TH C IR. R. 42.2. Both the district court’s dis-
missal of Villarreal’s complaint as frivolous and our dismissal of this appeal as
frivolous count as strikes for purposes of 28 U.S.C. § 1915(g). See Adepegba v.
Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996). Villarreal is warned that, if he
accumulates three strikes under § 1915(g), he will not be allowed to proceed in
forma pauperis in any civil action or appeal unless he is under imminent danger
of serious physical injury. See § 1915(g).
      APPEAL DISMISSED; SANCTION WARNING ISSUED.




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