                                                         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
                                  -2-

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
                                 -3-

     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
                                  -4-

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.
