                                                         United States Court of Appeals
                                                                  Fifth Circuit
                                                               F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT                 August 16, 2005

                                                            Charles R. Fulbruge III
                                                                    Clerk
                              No. 04-41130
                          Conference Calendar



RONALD DEAN WALTON,

                                      Plaintiff-Appellant,

versus

TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
INSTITUTIONAL DIVISION,

                                      Defendant-Appellee.

                          --------------------
             Appeal from the United States District Court
                  for the Southern District of Texas
                         USDC Nos. 2:04-CV-307
                              2:04-CV-280
                          --------------------

Before BENAVIDES, CLEMENT, and PRADO, Circuit Judges.

PER CURIAM:*

     Ronald Dean Walton, Texas prisoner # 624405, appeals the

district court’s dismissal of his 42 U.S.C. § 1983 action as

frivolous.     Walton argues that his Thirteenth and Fourteenth

Amendment rights were violated because he was forced to work at

the McConnell Unit garment factory without compensation and

despite the fact that he was not sentenced to hard labor.         He

asserts that some inmates received disciplinary violations for


     *
       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this opinion should not be published and is not precedent except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.
                            No. 04-41130
                                 -2-

refusing to work.   Walton also contends that his equal protection

rights were violated because other Texas inmates and inmates in

other states receive pay for work done while incarcerated.

     Compelling an inmate to work without pay does not violate

the Constitution even if the inmate is not specifically sentenced

to hard labor.   See Ali v. Johnson, 259 F.3d 317, 318 (5th Cir.

2001); Murray v. Miss. Dep’t of Corr., 911 F.2d 1167, 1167 (5th

Cir. 1990).   The State maintains discretion to determine whether

and under what circumstances inmates will be paid for their

labor.   Wendt v. Lynaugh, 841 F.2d 619, 621 (5th Cir. 1988).    The

mere allegation that some prisoners are paid for work, while

others are not, does not establish unlawful discrimination.     Id.

Walton has failed to support his 42 U.S.C. § 1983 action by

showing that he was deprived of a right or interest secured by

the Constitution and laws of the United States.    See Doe v. Rains

County Ind. Sch. Dist., 66 F.3d 1402, 1406 (5th Cir. 1995).

Accordingly, he has not shown that the district court erred under

28 U.S.C. § 1915A, or abused its discretion under 28 U.S.C.

§ 1915(e)(2), by dismissing his complaint as frivolous.      See Ruiz

v. United States, 160 F.3d 273, 275 (5th Cir. 1998).

     Walton’s appeal is without arguable merit and is dismissed

as frivolous.    See Howard v. King, 707 F.2d 215, 219-20 (5th Cir.

1983); 5TH CIR. R. 42.2.   The dismissal of this appeal as

frivolous counts as a strike under 28 U.S.C. § 1915(g), as does

the district court’s dismissal of Walton’s complaint.     See
                          No. 04-41130
                               -3-

Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996).

Walton is cautioned that, if he accumulates three strikes under

28 U.S.C. § 1915(g), he will not be permitted to proceed in forma

pauperis 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 28 U.S.C.

§ 1915(g).

     APPEAL DISMISSED AS FRIVOLOUS; SANCTION WARNING ISSUED.
