                        United States Court of Appeals,

                                Eleventh Circuit.

                                      No. 96-2146.

                   Frutoso VILLARREAL, Plaintiff-Appellant,

                                           v.

   William A. WOODMAN, Sheriff, Gadsden County, Gadsden County,
Defendants-Appellees.

                                  May 29, 1997.

Appeal from the United States District Court for the Northern
District of Florida. (No. 94-CV-40583-WS), William Stafford, Judge.

Before DUBINA and            BLACK,    Circuit   Judges,   and   COHILL*,     Senior
District Judge.

       DUBINA, Circuit Judge:

       Appellant      Frutoso    Villarreal      ("Villarreal")        appeals     the

district court's order dismissing his complaint for failure to

state a claim under either the Fair Labor Standards Act ("FLSA"),

29 U.S.C. §§ 201-209, or 42 U.S.C. § 1983.              Villarreal alleges that

when he was a pretrial detainee in the Gadsden County Correctional

Facility         ("GCCF"),   Sheriff     Woodham     required    him    to   perform

translation services for other inmates, medical personnel, and

court personnel. Villarreal contends that Sheriff Woodham told him

that       the   Sheriff's    Department    would     compensate       him   for   his

services, but he never received any compensation.                  In an issue of

first impression for our circuit, we hold that pretrial detainees

who perform services at the direction of correction officials and

for the benefit of the correctional facility are not covered under


       *
      Honorable Maurice B. Cohill, Jr., Senior U.S. District
Judge for the Western District of Pennsylvania, sitting by
designation.
the FLSA.        Accordingly, we affirm the judgment of the district

court.

                                   DISCUSSION

         This court reviews de novo the dismissal of a complaint for

failure     to   state    a   claim,    accepting   all   allegations   in   the

complaint     as   true    and   construing   the   facts   in   a   light   most

favorable to the plaintiff.            Harper v. Thomas, 988 F.2d 101, 103

(11th Cir.1993).          A district court may not dismiss a complaint

"unless it appears beyond doubt that the plaintiff can prove no set

of facts in support of his claim which would entitle him to

relief."     Pataula Elec. Membership Corp. v. Whitworth, 951 F.2d

1238, 1240 (11th Cir.1992) (quotations omitted).                 Additionally,

"[a] determination of employment status under the FLSA ... is a

question of law subject to             de novo review."     Antenor v. D & S

Farms, 88 F.3d 925, 929 (11th Cir.1996).1

FLSA Claim

         Congress enacted the FLSA to eliminate "in industries engaged

in commerce or in the production of goods for commerce, ... labor

conditions detrimental to the maintenance of the minimum standard

of living necessary for health, efficiency, and general well-being

     1
      After hearing oral argument, we raised sua sponte the
question of whether we had jurisdiction over this appeal. See
Zatler v. Wainwright, 802 F.2d 397, 399 (11th Cir.1986). We
specifically questioned our jurisdiction over the County and the
sheriff in his individual capacity. After requesting
supplemental briefing by the parties, we are convinced that we
have jurisdiction. See Mt. Healthy City Board of Educ. v. Doyle,
429 U.S. 274, 280, 97 S.Ct. 568, 572-73, 50 L.Ed.2d 471 (1977)
(jurisdiction over the County); Hufford v. Rodgers, 912 F.2d
1338, 1341-42 (11th Cir.1990) (jurisdiction over the sheriff);
and Pembaur v. City of Cincinnati, 475 U.S. 469, 480-85, 106
S.Ct. 1292, 1298-1301, 89 L.Ed.2d 452 (1986) (jurisdiction over
the parties with respect to Villarreal's § 1983 claim).
of workers" because such conditions "constitute[ ] an unfair method

of competition in commerce[.]"          29 U.S.C. § 202(a).           In general,

work constitutes employment when there is an expectation of in-kind

benefits    in   exchange    for    services.    See    Tony     &    Susan   Alamo

Foundation v. Secretary of Labor, 471 U.S. 290, 301 & 303-04, 105

S.Ct. 1953, 1961 & 1962-63, 85 L.Ed.2d 278 (1985).

     The minimum wage provisions of the FLSA apply only to workers

who are "employees" within the meaning of the Act.                    29 U.S.C. §

206(a)(1).       Under the FLSA, an "employee" is defined as "any

individual employed by an employer."            29 U.S.C. § 203(e)(1).           An

"employer" includes "any person acting directly or indirectly in

the interest of an employer in relation to an employee and includes

a public agency,...." 29 U.S.C. § 203(d).           To "employ" is defined

as to "suffer or permit to work."         29 U.S.C. § 203(g).         The Supreme

Court has held that courts should apply these terms in light of the

"economic    reality"   of    the    relationship      between       the   parties.

Goldberg v. Whitaker House Co-op., Inc., 366 U.S. 28, 33, 81 S.Ct.

933, 936-37, 6 L.Ed.2d 100 (1961).

      The economic reality test includes inquiries into:

     whether the alleged employer (1) had the power to hire and
     fire the employees, (2) supervised and controlled employee
     work schedules or conditions of employment, (3) determined the
     rate and method of payment, and (4) maintained employment
     records.

Bonnette v. California Health & Welfare Agency, 704 F.2d 1465, 1470

(9th Cir.1983).     In Garcia v. San Antonio Metro. Transit Authority,

469 U.S. 528, 546-47, 105 S.Ct. 1005, 1015-16, 83 L.Ed.2d 1016

(1985), the Supreme Court overruled National League of Cities v.

Usery, 426 U.S. 833, 852, 96 S.Ct. 2465, 2474, 49 L.Ed.2d 245
(1976), which had erected a bar to the application of the federal

minimum wage to state employees.         In overruling Usery, the Court

opened the possibility that prison authorities might be deemed FLSA

employers if the Bonnette factors were literally applied.                    The

first   post-Garcia      court   of   appeals     decision    addressing     the

relationship between prison labor and the FLSA applied an economic

reality test to the facts of its case in light of the policies

behind the FLSA and held that the labor in question was covered by

the Act.     See Watson v. Graves, 909 F.2d 1549, 1554 (5th Cir.1990).

      In Watson, inmates in a sheriff's custody were assigned to

work for a construction company owned by the sheriff's daughter and

son-in-law.       The   construction    company    used    inmate    labor   and

subcontractors to perform the work.          The inmates were paid twenty

dollars a day.     The district court applied theBonnette factors and

concluded that the inmates were not employees under the FLSA.                The

Fifth Circuit reversed, concentrating on the economic reality of

the relationship in light of the policies underlying the FLSA. The

court noted that the construction company received the benefit of

the labor in the private economy without having to pay FLSA wages.

The   court    found    that   such   competition    tended    to    undermine

compliance with the FLSA.        "Such a situation is fraught with the

very problems that FLSA was drafted to prevent—grossly unfair

competition among employers and employees alike." Watson, 909 F.2d

at 1555.

      Decisions subsequent to Watson universally have denied FLSA

wages   to    prisoners,   although    the   factual      contexts   of   those

decisions differ from that in Watson.           These cases generally have
involved inmates working for prison authorities or for private

employers within the prison compound.               See, e.g., Gambetta v.

Prison Rehabilitative Industries and Diversified Enterprises, Inc.,

No. 96-4253 ___ F.3d ___ (11th Cir., May 15, 1997); Danneskjold v.

Hausrath, 82 F.3d 37, 43 (2nd 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);    Gilbreath v. Cutter Biological, Inc., 931 F.2d 1320,

1325 (9th Cir.1991).

         Our sister circuits have concluded that the underlying

policies of the FLSA mandate that prisoners not be included as

"employees" under the FLSA.          Moreover, these decisions recognize

that, although prisoners do not fall within the FLSA's list of

exempted workers,2 there is no evidence of Congressional intent to

include prisoners as employees. Finally, these decisions note that

the "economic reality" test does not apply in the inmate-jailer

context    because   the   FLSA    presupposes      a   free-labor   situation

constrained by the Thirteenth Amendment, which does not apply to

convicted inmates. By so holding, our sister circuits have adopted

a broader approach to situations involving the FLSA and prisoners.

This approach focuses on the economic reality of the situation as

     2
      See 29 U.S.C. § 213.
a whole.     We agree with this approach and adopt the reasoning

articulated by the Seventh Circuit in Vanskike, 974 F.2d at 809-12,

in rejecting the       Bonnette four factor standard in the prison

context.

     Thus, numerous courts have addressed the issue of whether a

convicted prisoner is an "employee" under the FLSA.               However, no

court of appeals has addressed the specific issue with which we are

presented:   whether a pretrial detainee is an "employee" under the

FLSA.   Nevertheless, we find these cases helpful because pretrial

detainees are similar to convicted prisoners in that they are

incarcerated    and    are   under   the   supervision    and   control    of    a

governmental entity. Alvarado Guevara v. I.N.S., 902 F.2d 394, 396

(5th Cir.1990).        Clearly, pretrial detainees are in a custodial

relationship like convicted prisoners.              Correctional facilities

provide pretrial detainees with their everyday needs such as food,

shelter, and clothing.         Convicted prisoners are likewise provided

these same basic needs.         Additionally, like convicted prisoners,

pretrial detainees suffer from loss of freedom of choice and

privacy due to the nature of their confinement.              In light of these

similarities,     we    deem    persuasive    the    cases    addressing      the

applicability of the FLSA to convicted inmates.

     One case which is analogous to the present one is Danneskjold,

82 F.3d 37 (2d Cir.1996).        In that case, a consortium hired inmate

Danneskjold to tutor other inmates. For his work, the correctional

facility   paid   Danneskjold      between   $.95   and   $1.45   per   day     in

accordance with the facility's inmate wage system.                Danneskjold

filed suit alleging that he was a FLSA employee and was entitled to
receive the federal minimum wage.           The district court granted the

facility's motion for summary judgment and the court of appeals

affirmed.   The Second Circuit rejected the four-part
                                                    Bonnette test,

finding   that    it   did    not    involve      prison   labor   and   was   not

well-suited to determining the status of prison labor under the

FLSA.   The court concluded that prison labor for the prison is not

subject to the FLSA.         The court stated:

     The relationship is not one of employment;     prisoners are
     taken out of the national economy; ...; 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.

Id. at 42-43.      The court concluded that as long as the labor

produces goods and services utilized by the prison, prisoners'

labor is not subject to the FLSA.            Id. at 43.

     As in Danneskjold, Villarreal's translation services were

performed   for    the   benefit       of   the    correctional    institution.

Villarreal's job, like Danneskjold's, was cerebral in nature and

posed no risk of harm to him.          Moreover, Villarreal's relationship

with the Sheriff and the GCCF was a custodial relationship, not an

employment relationship.            Villarreal could not walk off the job

site at the end of the day.          Villarreal performed his services for
the    benefit   of   the    correctional       facility      and     other   pretrial

detainees and convicted prisoners.               There was no "bargained-for"

exchange    of   labor      which   occurs      in    a    true     employer—employee

relationship.       Gilbreath, 931 F.2d at 1325.

        Focusing on the economic reality of the situation in its

entirety, we conclude that Villarreal 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 likely it is that the FLSA

will govern the employment relationship."                    Henthorn, 29 F.3d at

686.      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.

Eighth Amendment violation

       Villarreal     also    claims     that    his       forced    performance     of

translation services constitutes cruel and unusual punishment in

violation of the Eighth Amendment.                   His claim is more properly

analyzed under the Fourteenth Amendment following the Supreme

Court's pronouncement on the treatment of pretrial detainees in

Bell v. Wolfish, 441 U.S. 520, 535 & n. 16, 99 S.Ct. 1861, 1871-72

& n. 16, 60 L.Ed.2d 447 (1979).

        Whether a restriction or condition accompanying pretrial
detention    is    punishment    turns   on   whether     the   restriction    or

condition     is    reasonably   related      to   a    legitimate     government

objective.    Id. at 538-39, 99 S.Ct. at 1873-74.            "[A]s a matter of

due process, pre[ ]trial detainees may suffer no more restrictions

than are reasonably necessary to ensure their presence at trial."

Duran v. Elrod, 542 F.2d 998, 999 (7th Cir.1976).                     A necessary

restriction is the confinement of the pretrial detainee. Bell, 441

U.S. at 537, 99 S.Ct. at 1873.           "Loss of freedom of choice and

privacy are inherent incidents of confinement in such a facility."

Id.     A court "must decide whether the disability [placed on the

pretrial detainee] is imposed for the purpose of punishment or

whether it is but an incident of some other legitimate governmental

purpose."     Id. at 538, 99 S.Ct. at 1873.                "[I]f a particular

condition    or    restriction   of   pretrial     detention     is    reasonably

related to a legitimate governmental objective, it does not,

without more, amount to "punishment.' "                Id. at 539, 99 S.Ct. at

1874.

        To qualify as cruel and unusual punishment, conduct that is

not inherently punitive must involve more than an ordinary lack of

due care for a prisoner's safety or welfare.                    See Whitley v.

Albers, 475 U.S. 312, 320-22, 106 S.Ct. 1078, 1084-86, 89 L.Ed.2d

251 (1986).       There is no evidence that Sheriff Woodham's intent in

requesting that Villarreal perform these translation services was

punitive in nature.        Also, these services were not restrictions

placed upon Villarreal.          We can assume that the performance of

these services actually served to occupy Villarreal's time, keep

him out of trouble, and allow him interaction with other inmates
and various individuals (e.g., doctors, probation officers, and

other court personnel).       Most significantly, the cerebral task of

language translation posed no risk to Villarreal's safety or

welfare.3     Accordingly, we see no Eighth Amendment violation in

this case.4

                                 CONCLUSION

     We agree with the district court that Villarreal does not

state    a   claim   under   either   the   FLSA   or   42   U.S.C.   §   1983.

Accordingly, we affirm the district court's judgment of dismissal.

     AFFIRMED.




     3
      Villarreal claims that while engaging in translation
services, other inmates could threaten him or impose harm on him;
however, Villarreal fails to support this allegation with any
specific instance of threat.
     4
      Villarreal also alleges that his forced translation
services constitute involuntary servitude and therefore violate
his rights under the Thirteenth Amendment. This issue was not
presented to the district court and is therefore not properly
preserved for our review. FDIC v. Verex Assur., Inc., 3 F.3d
391, 395 (11th Cir.1993).
