Tourscher v. McCullough

Opinions of the United

1999 Decisions States Court of Appeals

for the Third Circuit

7-12-1999

Tourscher v. McCullough

Precedential or Non-Precedential:

Docket 97-3671,98-3499

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Filed July 12, 1999

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

NO. 97-3671

MARK D. TOURSCHER,

Appellant

v.

JOHN MCCULLOUGH; KATHY EMIL;

COMMISSIONER HORN; JAY WHITESEL

(D.C. Civil No. 97-cv-00223J)

NO. 98-3499

MARK D. TOURSCHER,

Appellant

v.

MARTIN HORN, SECRETARY OF THE PA.

DEPT. OF CORRECTIONS; JOHN

MCCULLOUGH, SUPERINTENDENT

(D.C. Civil No. 98-cv-00176J)

ON APPEAL FROM THE

UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

District Judge: The Honorable D. Brooks Smith

Argued April 5, 1999

Before: SLOVITER and ALITO, Circuit Judges,

and ALARCON, Senior Circuit Judge*

(Opinion Filed July 12, 1999)

Stanley B. Edelstein (argued)

Jacoby Donner, P.C.

Suite 2000

1515 Market Street

Philadelphia, PA 19102

Attorney for Appellant

Calvin R. Koons (argued)

Senior Deputy Attorney General

D. Michael Fisher

Attorney General

John G. Knorr, III

Chief Deputy Attorney General

Office of Attorney General

Appellate Litigation Section

15th Fl. Strawberry Square

Harrisburg, PA 17120

Attorneys for Appellees

OPINION OF THE COURT

ALARCON, Senior Circuit Judge:

Mark D. Tourscher ("Tourscher") appeals from the district

court's order of November 25, 1997 dismissing his pro se

complaint ("first complaint") as frivolous under 28 U.S.C.

SS 1915(e)(2)(B) and 1915A. He also appeals from the

August 31, 1998 order dismissing a second pro se

complaint ("second complaint"). This court consolidated the

two appeals.

_________________________________________________________________

* Hon. Arthur L. Alarcon, Senior Judge, United States Court of Appeals

for the Ninth Circuit, sitting by designation.

2

In his first complaint, Tourscher alleged that he was

deprived of rights by Pennsylvania Department of

Corrections officials ("Prison Officials") that are guaranteed

under the Eighth, Thirteenth and Fourteenth Amendments

because they compelled him to work in the prison cafeteria

while he was a pretrial detainee. In his second complaint,

he asserted that the Prison Officials deprived him of

meaningful access to the courts in violation of the Due

Process Clause by compelling him to work in the prison

cafeteria while he was preparing his appeal from his second

state conviction. In addition, Tourscher maintained in each

complaint that he is entitled to be compensated pursuant

to the minimum wage provisions of the Fair Labor

Standards Act ("FLSA"), 29 U.S.C. S 206(a), for the work he

was compelled to do in the prison cafeteria.

We conclude that Tourscher was a duly convicted

prisoner who could be compelled to work in the prison

cafeteria until the date the Court of Common Pleas regained

jurisdiction following the Pennsylvania Supreme Court's

denial of the Commonwealth's petition for allowance of

appeal. Accordingly, we affirm in part the dismissal of the

first complaint. We vacate the dismissal of that portion of

the first complaint that alleges he was compelled to work in

violation of the Thirteenth Amendment between September

4, 1997 and September 18, 1997, and remand with

instructions. We also hold that the district court did not err

in dismissing the second complaint because Tourscher has

failed to show that the work he was required to perform

after his second conviction denied him meaningful access

to the courts. Additionally, we reject Tourscher's contention

that pretrial detainees and convicted prisoners are covered

by the FLSA minimum wage section for services performed

in intra-prison work.

I

In 1995, Tourscher was convicted of burglary, criminal

trespass, recklessly endangering another person, simple

assault, and terroristic threats in the Court of Common

Pleas of Lackawana County, Pennsylvania. He was

sentenced to serve three and one-half years to twenty-two

years. While his appeal from his first conviction was

3

pending, the Prison Officials ordered Tourscher to work in

the prison cafeteria or face administrative misconduct

charges.

On August 23, 1996, the Pennsylvania Superior Court

vacated his first conviction and remanded the case for a

new trial. See Commonwealth v. Tourscher, 682 A.2d 1275

(Pa. Super. Ct. 1996).

The Commonwealth filed a motion for reargument in the

Pennsylvania Superior Court. The Commonwealth's motion

was denied on October 21, 1996. The Commonwealth then

filed a timely petition for allowance of appeal with the

Pennsylvania Supreme Court on November 21, 1996. While

the petition for allowance of appeal was pending, the Court

of Common Pleas set bail for Tourscher at $25,000 on

December 6, 1996. Tourscher remained in custody,

however, because he was unable to post bail.

The Pennsylvania Supreme Court denied the petition for

allowance of appeal on August 21, 1997. Tourscher was not

excused from his work assignment in the prison cafeteria

until September 18, 1997.

Tourscher filed his first complaint pursuant to 28 U.S.C.

S 1983 on July 27, 1997. He alleged that the Prison

Officials, in both their individual and official capacities,

violated his right not to be compelled to work under the

Eighth, Thirteenth, and Fourteenth Amendments.

Tourscher also alleged that he should be paid the minimum

wage for his labor pursuant to the FLSA, 29 U.S.C.SS 201-

209. Tourscher prayed for compensatory damages, punitive

damages, and declaratory relief. He did not request

injunctive relief.

Tourscher alleged that "the defendants have been forcing

the Plaintiff to involuntary servitude, and threatening to

lock him up in the hole if he did not contie [sic] to labor for

the state." In documents filed with the district court,

Tourscher asserted that he was required to work in the

prison cafeteria, at a wage of 22 cents per hour. He further

stated that he was paid approximately $15 per month. At a

wage of 22 cents per hour, Tourscher worked approximately

69 hours per month or less than 17 hours per week. (22

cents x 69 hours = $15.18.)

4

In his report dated November 5, 1997, the magistrate

judge recommended that the district court consider either

dismissing the complaint for failing to state facts showing

a federal constitutional violation, or on the basis that the

Prison Officials are immune because the law regarding

whether a pretrial detainee can be compelled to work in a

prison cafeteria was "not so clearly established that

defendants could be considered to know that their conduct

is unlawful." On November 25, 1997, the district court

adopted the report and recommendation of the magistrate

judge as its opinion and dismissed the complaint pursuant

to 28 U.S.C. 1915(e)(2)(B), without indicating whether it

believed Tourscher had failed to state a claim, or that the

Prison Officials were immune.

Following the denial of the Commonwealth's petition for

allowance of appeal, Tourscher was retried for the same

offenses. On March 13, 1998, he was found guilty of

criminal trespass and sentenced to eleven and one-half

months to ten years.

Tourscher filed his second complaint against the Prison

Officials on July 27, 1998. In the second complaint,

Tourscher alleged that the Prison Officials had deprived

him of his rights under the Eighth, Thirteenth, and

Fourteenth Amendments. His complaint also alleged, inter

alia, that the requirement that he perform intra-prison

work assignments interfered with his ability to prepare the

appeal from his second criminal conviction. He also claimed

that he was entitled to be paid minimum wages under the

FLSA for the work he performed in the prison cafeteria.

Tourscher prayed for compensatory damages, punitive

damages, declaratory relief, and injunctive relief in his

second complaint. Tourscher failed to allege the number of

hours he was required to work during the pendency of his

March 13, 1998 state court conviction and his in forma

pauperis application did not set forth his monthly income.

The second complaint was also referred to a magistrate

judge for a report and recommendation. The magistrate

judge issued a recommendation that the complaint be

dismissed for "failure to state a claim," pursuant to 28

U.S.C. S 1915(e)(2)(B), "rely[ing] on the Report and

Recommendation" filed regarding the disposition of the first

5

complaint. The district court adopted the magistrate judge's

report and recommendation as its opinion and dismissed

the action on August 31, 1998.

We have jurisdiction over these consolidated appeals

pursuant to 28 U.S.C. S 1291. Our review of the dismissal

of each action is plenary. See Gibbs v. Roman, 116 F.3d 83,

85 (3d Cir. 1997); see also Jenkins v. Morton, 148 F.3d 257,

258 (3d Cir. 1998). "[W]e must accept as true the factual

allegations in the complaint and all reasonable inferences

that can be drawn therefrom." Nami v. Fauver , 82 F.3d 63,

65 (3d Cir. 1996). We may affirm the district court on any

ground supported by the record. See Central Penn.

Teamsters Fund v. McCormick Dray Line, Inc., 85 F.3d

1098, 1107 (3d Cir. 1996); see also Erickson v. United

States, 976 F.2d 1299, 1300-01 (9th Cir. 1992) (affirming

district court's judgment on the basis of qualified immunity

without deciding whether plaintiff had established a

constitutional violation, where district court had reached

constitutional issue).

II

Tourscher asserts that it is a violation of the Thirteenth

Amendment's prohibition against involuntary servitude to

require a party not duly convicted of a crime to work in a

prison cafeteria.1 This court has not previously considered

the question whether the Thirteenth Amendment precludes

prison authorities from compelling a prisoner to work

during the pendency of his or her appeal from a conviction.

Other circuits, however, have held that a person sentenced

to serve a term of imprisonment can be required to work

during the time his or her appeal is pending before a

reviewing court. See Stiltner v. Rhay, 322 F.2d 314, 315

(9th Cir. 1963) ("There is no federally protected right of a

state prisoner not to work while imprisoned after

_________________________________________________________________

1. Section 1 of the Thirteenth Amendment provides as follows:

Neither slavery nor involuntary servitude, except as a punishment

for crime whereof the party shall have been duly convicted, shall

exist within the United States, or any place subject to their

jurisdiction.

6

conviction, even though that conviction is being appealed.").

See also Plaisance v. Phelps, 845 F.2d 107, 108 (5th Cir.

1988) ("The fact that appellant is appealing does not require

the district court to assume that his conviction was other

than duly obtained."); Omasta v. Wainwright, 696 F.2d

1304, 1305 (11th Cir. 1983) (holding that "where a prisoner

is incarcerated pursuant to a presumptively valid judgment

. . . the thirteenth amendment's prohibition against

involuntary servitude is not implicated. . . . even though the

conviction may be subsequently reversed."). We agree with

our sister circuits that a duly convicted prisoner continues

in that status until his or her appeal becomes final even if

it results in a reversal of the conviction.

Tourscher contends that he ceased being a duly

convicted prisoner after the Pennsylvania Superior Court

reversed his original conviction on August 23, 1996. He

maintains that he reverted to the status of a pretrial

detainee on that date and could not be compelled to work

during the pendency of the Commonwealth's attempts to

overturn the Pennsylvania Superior Court's decision. To

support this contention, Tourscher points out that on

December 5, 1996, the Court of Common Pleas granted his

motion to post bail pending his retrial. The Prison Officials

maintain that the judgment of the Pennsylvania Superior

Court did not become effective until the Pennsylvania

Supreme Court's denial of the Commonwealth's petition for

allowance of appeal became final on September 4, 1997. To

resolve this dispute, we must decide when the judgment of

the Pennsylvania Superior Court reversing Tourscher's

original conviction became effective and restored Tourscher

to the status of a pretrial detainee.

The parties have not cited any authority to us that

defines "duly convicted," as that term is used in the

Thirteenth Amendment. We are persuaded that, in

determining whether a person incarcerated under state law

is a "duly convicted" prisoner, we must examine the state's

laws regarding the effective date of the judgments of its

courts. Under Rule 1736(b) of the Pennsylvania Rules of

Appellate Procedure, the taking of an appeal acts as an

automatic supersedeas.2 In Elizabeth Forward School

_________________________________________________________________

2. Rule 1736(b) reads in relevant part:

Supersedeas automatic. Unless otherwise ordered pursuant to this

7

District of Pennsylvania Labor Relations Board, 149 Pa.

Commw. 235, 613 A.2d 68 (1992), the court noted that the

term "appeal," as used in Rule 1736(b), includes petitions

"under any other provision of law." 149 Pa. Commw. at

240, 613 A.2d at 70. The court held in Elizabeth that a

petition for the allowance of an appeal filed by the

Commonwealth acted as an automatic supersedeas.3 See id.

A later case, relying on Elizabeth, reached the same result.

See Public Advocate v. Philadelphia Gas Commission , 177

Pa. Commw. 41, 45, 646 A.2d 19, 21 (1994). Although, as

Tourscher argues, Elizabeth and Public Advocate concern

civil matters, Rule 1764 of the Pennsylvania Rules of

Appellate Procedure provides that Rule 1736(b) applies to

criminal matters not involving capital punishment.4 Thus,

under Pennsylvania law, the filing of a petition for

allowance of appeal by the Commonwealth stayed the

effective date of the judgment of the Pennsylvania Superior

Court. The Commonwealth's petition for allowance of

appeal was not acted upon by the Pennsylvania Supreme

Court until August 21, 1997. Pursuant to Rule 2572(b)(2) of

the Pennsylvania Rules of Appellate Procedure, "the time for

_________________________________________________________________

chapter the taking of an appeal by any party specified in

Subdivision (a) [including the Commonwealth or any officer thereof,

acting in his official capacity] of this rule shall operate as a

supersedeas in favor of such party.

3. Although not defined in the Pennsylvania Rules, the term

"supersedeas" is defined as follows in Black's Law Dictionary: "In modern

times the term is often used synonymously with a"stay of proceedings,"

and is employed to designate the effect of an act or proceeding which of

itself suspends the enforcement of a judgment." Black's Law Dictionary

1437 -38 (6th ed. 1990).

4. The full text of Rule 1764 reads:

Other Stays in Criminal Matters

Except as otherwise prescribed by the Pennsylvania Rules of

Criminal Procedure, Rule 1731 (automatic supersedeas of orders

for the payment of money) et seq. shall be applicable to criminal

or quasi-criminal matters or orders relating thereto which are not

within the scope of Rule 1761 (capital cases) through Rule 1763

(vacation of supersedeas on affirmance of conviction). Pa. R.A.P.

1764.

8

the remand of Record" from an order of the Pennsylvania

Supreme Court is 14 days. Under this rule the record

should have been remanded on or before September 4,

1997. Accordingly, on that date he reverted to the status of

a pretrial detainee.

Tourscher, in his opening brief, "concedes that the

Commonwealth's attempt to appeal the Superior Court's

order may have kept that order from becoming final."

Appellant's Opening Brief at 18. He argues, however, that

"technical notions of finality must bow to the United States

Constitution . . . ." Id. Tourscher fails, however, to cite any

authority to support the proposition that the Thirteenth

Amendment requires us to hold that the decision of an

intermediate court reversing a conviction takes immediate

effect, notwithstanding the fact that the judgment is not

final under state law until its highest court has acted upon

a prosecutor's petition for review of an intermediate court's

adverse judgment. Tourscher was a duly convicted prisoner

until the automatic stay of the Pennsylvania Superior

Court's judgment expired on September 4, 1977. The

requirement that he work in the prison cafeteria prior to

September 4, 1997 did not violate the Thirteenth

Amendment.

III

It appears that Tourscher's status was equivalent to that

of a pretrial detainee in the period between September 4,

1997 and September 18, 1997. This does not necessarily

mean that Tourscher could not be compelled to perform

some service in the prison. In Hause v. Vaught, 993 F.2d

1079 (4th Cir. 1993), and Bijeol v. Nelson, 579 F.2d 423

(7th Cir. 1978) (per curiam), the courts held that pretrial

detainees may be required to perform "general

housekeeping responsibilities" consistently with the Due

Process Clause.

Because the District Court dismissed Tourscher's

complaint before filing and service, the nature of the

services that Tourscher was required to perform during that

period and the amount of time they took is not on record.

Such information is necessary before a court can determine

9

whether the prison officials deprived him of this Thirteenth

Amendment right to be free from involuntary servitude or

his rights under the Due Process Clause. Indeed, the

defendants have not even had the opportunity tofile an

answer.

Therefore, we must vacate the dismissal of that portion of

the complaint that alleges that Tourscher was compelled to

work between September 4, 1997 and September 18, 1997.

We will remand with instructions that the District Court

direct that Tourscher's complaint be filed and let the case

proceed thereafter.

IV

In his second complaint, Tourscher alleged that the

Prison Officials deprived him of his right to meaningful

access to the Pennsylvania courts by compelling him to

work in the prison cafeteria while his appeal from his

second conviction was pending in state court. In Lewis v.

Casey, 518 U.S. 343 (1996), the Court held that the Due

Process Clause prohibits prison officials from denying a

prisoner meaningful access to the courts. See id. at 350-55.

Tourscher failed to allege any facts that demonstrate that

the number of hours he was required to work denied him

sufficient time to prepare an appeal to the Pennsylvania

courts from his second criminal conviction. To state a

viable claim of the denial of meaningful access to the

courts, Tourscher was required to plead facts

demonstrating that the work he performed in the prison

cafeteria interfered with his ability to prosecute his appeal.

See id. at 351 (an inmate must demonstrate actual injury,

i.e., that state actors hindered his efforts to pursue a legal

claim.) Accordingly, we must reject Tourscher's due process

claim.

V

Tourscher asserts that each of his complaints alleged

valid claims under the Fair Labor Standards Act, 29 U.S.C.

SS 201-209. He argues that pretrial detainees and convicted

10

prisoners must be paid the minimum wage pursuant to

S 206 of the FLSA.5

The minimum wage provisions of the FLSA, however,

apply only to workers who are "employees" within the

meaning of the Act. See 29 U.S.C. S 206(a).6 This term must

be interpreted in light of the "economic reality" of the

relationship between the parties. Goldberg v. Whitaker

House Co-op., Inc., 366 U.S. 28, 33 (1961).

Each circuit that has addressed the question has

concluded that prisoners producing goods and services

used by the prison should not be considered employees

under the FLSA. See Gambetta v. Prison Rehabilitative

Industries, 112 F.3d 1119, 1124-25 (11th Cir. 1997);

Danneskjold v. Hausrath, 82 F.3d 37, 43 (2d 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); but cf. Watson v. Graves,

909 F.2d 1549, 1554-55 (5th Cir. 1990) (holding the FLSA

applicable where the prisoners worked for an outside

construction company in competition with other private

employers and where this competition tended to undermine

compliance with the FLSA).

In Danneskjold, the Second Circuit reasoned as follows:

The relationship is not one of employment; prisoners

are taken out of the national economy; prison work is

_________________________________________________________________

5. The minimum wage for the period specified in Tourscher's complaints

ranged from $4.25 per hour to $5.15 per hour. See 29 U.S.C. S 206(a)(1).

6. Section 206(a) reads in relevant part:

Every employer shall pay to each of his employees who in any

workweek is engaged in commerce or in the production of goods for

commerce, or is employed in an enterprise engaged in commerce or

in the production of goods for commerce, wages at the following

rates . . . . (emphasis added).

11

often designed to train and rehabilitate; 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.

82 F.3d at 42-43.

We agree with our sister circuits that prisoners who

perform intra-prison work are not entitled to minimum

wages under the FLSA.

Tourscher also claims that the minimum wage provision

of the FLSA should apply to the work he performed while

he was a pretrial detainee. The only circuit which has

examined this question held that the FLSA is inapplicable

to pretrial detainees working for prison authorities since,

like prisoners, they are not employees under the FLSA. See

Villareal v. Woodham, 113 F.3d 202, 206-07 (11th Cir.

1997).

The Eleventh Circuit reasoned as follows:

Focusing on the economic reality of the situation in its

entirety, we conclude that [a pretrial detainee] 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

12

likely it is that the FLSA will govern the employment

relationship." 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.

Id. at 207 (citations omitted).

We agree with this rationale. Tourscher's employment

bears no indicia of traditional free-market employment.

Therefore, we hold that the minimum wage requirements of

the FLSA do not apply to Tourscher or other similarly

situated pretrial detainees.

VI

After reviewing the record and the applicable law, we

conclude that Tourscher's remaining contentions are devoid

of merit.

Conclusion

We affirm the dismissal of that portion of thefirst

complaint that alleges that Tourscher was not a duly

convicted prisoner after the reversal of his state conviction

by the Pennsylvania Superior Court. We hold that

Tourscher was a duly convicted prisoner until the

automatic stay on the Pennsylvania Superior Court's

judgment expired on September 4, 1998, the date the Court

of Common Pleas regained jurisdiction following the

Pennsylvania Supreme Court's denial of the

Commonwealth's petition for allowance of appeal. We vacate

the dismissal of that portion of the complaint that alleges

that the Prison Officials deprived him of his right as a

pretrial detainee not to be subjected to involuntary

servitude between September 4, 1997 and September 18,

1997, with instructions that the district court direct the

clerk to file Tourscher's complaint and order that it be

served on the defendants, and, following appropriate

pretrial proceedings, make a determination concerning the

matter of the services Tourscher performed and the number

13

of hours he was compelled to work during that period. We

affirm the dismissal of Tourscher's second complaint

because he failed to allege sufficient facts to demonstrate

that he was denied access to the courts. Finally, we hold

that he is not entitled to be paid the minimum wage under

the FLSA for work he performed as a pretrial detainee or as

a duly convicted prisoner.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

14