                       IN THE SUPREME COURT OF THE STATE OF MONTANA
                                           1990



GARY L. QUIGG, DENNIS DONEY,
RAY OLSON, DAN GRANT and all
others similarly situated,
                       Plaintiffs and Appellants,


CARROL SOUTH, Administrator of the
MONTANA DEPARTMENT OF INSTITUTIONS,
and THE STATE OF MONTANA,
                       Defendants and Respondents.



APPEAL FROM:                District Court of the First Judicial District,
                            In and for the County of Lewis and Clark,
                            The Honorable Henry Loble Judge presiding.


COUNSEL OF RECORD:
                       For Appellant:
                           Jeffrey T. Renz, Attorney at Law, Billings, Montana
                       For Respondent:
          L-
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           -               James Scheier, Agency Legal Services Bureau, Helena,
3-
L        ..'               Montana
3              ,   t       James B. Obie, Department of Institutions, Helena,
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    --
    -
                           Montana


                                            Submitted on Briefs:         May 3, 1990
                                                              ~ecided:   June 7, 1990
                                                     ..   :
                                                          A
Justice John Conway Harrison delivered the Opinion of the Court.


      This appeal arises from a grant of summary judgment for
defendants in the First Judicial District, Lewis and Clark County,
Montana, on plaintiffs/appellants1 claims that defendants discrim-
inated against them on the basis of sex.        We affirm.
      As the District Court noted, this action lay dormant for
years, having first been filed in December, 1984, and it was not
until June, 1988 that an amended complaint was filed and various
motions thereafter were filed, involving certification as a class
action in summary judgment.       While the defendants did not file a
motion for summary judgment until after the appellants had filed
such a motion in March, 1989, the defendants also requested a grant
of summary judgment on the amended complaint.
      The appellants maintain that while inmates at the State Prison
at Deer Lodge, Montana, they were employed in various capacities
and   paid    wages   therefor.    Several of    the appellants   filed
affidavits which set forth the jobs that they held and the rates
of pay.      The appellants contend that the female inmates were paid
substantially more (the minimum wage of $3.35 per hour) than the
male inmates for essentially the same jobs.        The appellants here
request damages because they claim that as male prisoners they were
economically discriminated against in favor of female prisoners.
They also ask the court to describe conditions of work for the
appellants which will alleviate this sexual discrimination in the
State prison system.
     Under the facts alleged, were it not for the fact that the
appellants were prisoners of the State of Montana, it would appear,
prima facie, that the appellants were being sexually discriminated
against on the basis of pay for work required while serving their
sentences at the State prison.   Unfortunately for the appellants,
the legislature anticipated that prison inmates who are required
to work might seek to enforce employment rights tantamount to the
non-prisoner general population.       The legislature provided that
one of the penalties for being a prison inmate is that a prisoner
does not have those rights while serving his sentence at the State
prison.   section 53-30-151, MCA, states:
          An inmate of the Montana state prison may be
          required to:
           (1) keep his own living quarters clean and
           orderly;
          (2) perform general maintenance and repair
          work on prison grounds and facilities and
          assist in providing services essential to the
          administration of the prison, including but
          not limited to food and laundry services.
Section 53-30-152, MCA, provides:
          An inmate working pursuant to 53-30-151 is not
          an employee, either public or private, and
          employment rights accorded other classes of
          workers do not apply to such inmates.
    As concerns the State prison industries and training programs,
the legislature provided in 5 53-30-132(3) and (4), MCA:
          (3) Inmates working in the prison industries
          training program are not employees, either
          public or private, and employment rights
          accorded other classes of workers do not apply
          to such inmates.
           (4) Able-bodied   persons    committed   to   the
            Montana state prison as adult offenders shall
            be required to perform work as provided for by
            the department of institutions.
     We note in this action the appellants seek to avoid the effect
of the above-quoted statutes and Itend runt1 the intent of the
legislature by relying upon general anti-discrimination statutes
such as the following:    5 5 49-2-308, 49-3-201, 49-3-205 and 49-3-
206, MCA.
     As we have noted, the legislature specifically prohibited
appellants from receiving the relief they seek in their amended
complaint. The general statutes they cite are not applicable, and
were not intended to override the specific legislative intent set
forth in the above sections under Title 53.
     While this case appears to be one of first impression in
Montana, and is a unique fact situation, there is case law from
both the federal and state courts that have considered this point.
Worsley v. Lash (N.D. Ind. 1976), 421 F.Supp. 556, held that prison
inmates do not under the theory of civil rights deprivation,
recover minimum wages for labor since the work was authorized by
statute.
     In addition to Worslev, the case of Lavigne v. Sara, Inc.
(La.App. 1982), 424 So.2d 273, and several other federal cases that
have been brought against the same defendant Sara, Inc. (Alexander
v. Sara, Inc. (5th Cir. 1983), 721 F.2d 149; Alexander v. Sara,
Inc. (M.D. La. 1981), 505 F.Supp. 1080; Alexander v. Sara, Inc.
(M.D. La. 1983), 559 F.Supp. 42); and Woodall v. Partilla (N.D.111.
1984), 581 F.Supp. 1066; all support the finding in Worslev.    The
finding in Worslev holds that prison inmates cannot, under the
theory of a civil deprivation, recover minimum wages for labor
since the work has been authorized by the legislature by statutes
of the State of Montana in a different manner.
     While this action is brought both on minimum wage and sex
discrimination issues, the appellants are precluded under both sex
discrimination law and the Fair Labor Standards Act from recovering
in this action.
     The District Court is affirmed.




       Chief Justice
