Bowring v. Bonner , 561 F. App'x 778 ( 2014 )

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS May 28, 2014
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
JOHN BOYD BOWRING,
Plaintiff - Appellant,
v. No.13-1465
(D.C. No. 1:13-CV-01707-LTB)
BOBBY BONNER, Warden (D. Colo.)
KCCC/CCA.
Defendant - Appellee.
ORDER AND JUDGMENT *
Before HARTZ, McKAY, and MATHESON, Circuit Judges.
After examining the briefs and the appellate record, this panel has
determined unanimously that oral argument would not materially assist in the
determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G).
This case is therefore ordered submitted without oral argument.
This is a pro se civil rights appeal brought by a person who is in state
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
custody. 1 Appellant John Bowring filed a § 1983 complaint underlying this
appeal in the U.S. District Court for the District of Colorado. Liberally
construed, the complaint alleges claims under the Fair Labor Standards Act for
unpaid services provided to the private prison where he is housed, violations of
his civil rights for confiscating personal property, and other claims attacking his
state court conviction and sentence. The district court reviewed the complaint on
screening and determined that none of the claims asserted were viable. The case
was dismissed, with the FLSA and constitutional claims deemed legally frivolous.
The district court denied Appellant leave to proceed on appeal without
prepayment of the filing fee. However, because we have never addressed the
issue of whether the FLSA applies to labor performed by a prisoner assigned to a
privately run prison under contract with a state’s department of corrections, we
grant Appellant ifp status and address the merits of that issue.
Following the well-reasoned opinion in Bennett v. Frank, 395 F.3d 409 (7th
Cir. 2005), we conclude that the rule denying FLSA coverage to prisoners in
government operated facilities applies to the private contract prisons as well. We
1
Throughout his appeal, Appellant seems to assert that he is no longer in
state custody, arguing that the state relinquished custody over him when it
transferred him to the custody of the private prison where he now resides. This
repeated assertion lacks merit since “confinement in a private prison . . . [is]
within the normal limits or range of custody which the conviction has authorized
the State to impose.” Montez v. McKinna, 208 F.3d 862, 866 n.4 (10th Cir. 2000)
(internal quotation marks omitted).
2
therefore affirm the district court’s conclusion on that issue. Because we have
elected to address this previously unaddressed issue, we decline to impose a strike
under the Prison Litigation Reform Act.
Regarding the remaining issues on appeal, after reviewing the pleadings,
the record, and the trial court’s Order of Dismissal, we have determined the
district court was correct and affirm for the reasons stated in its order.
It is therefore ordered that the trial court’s Order of Dismissal is
AFFIRMED. We DENY Appellant’s renewed motion to appoint counsel.
However, as mentioned above, we GRANT Appellant’s motion to proceed ifp and
we remind Appellant that he must complete payment of the entire fee in
accordance with the order previously entered by the clerk of the court.
Entered for the Court
Monroe G. McKay
Circuit Judge
3