Walton v. Texas Department of Criminal Justice , 146 F. App'x 717 ( 2005 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT August 16, 2005
Charles R. Fulbruge III
Clerk
No. 04-41130
Conference Calendar
RONALD DEAN WALTON,
Plaintiff-Appellant,
versus
TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
INSTITUTIONAL DIVISION,
Defendant-Appellee.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC Nos. 2:04-CV-307
2:04-CV-280
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Before BENAVIDES, CLEMENT, and PRADO, Circuit Judges.
PER CURIAM:*
Ronald Dean Walton, Texas prisoner # 624405, appeals the
district court’s dismissal of his 42 U.S.C. § 1983 action as
frivolous. Walton argues that his Thirteenth and Fourteenth
Amendment rights were violated because he was forced to work at
the McConnell Unit garment factory without compensation and
despite the fact that he was not sentenced to hard labor. He
asserts that some inmates received disciplinary violations for
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
No. 04-41130
-2-
refusing to work. Walton also contends that his equal protection
rights were violated because other Texas inmates and inmates in
other states receive pay for work done while incarcerated.
Compelling an inmate to work without pay does not violate
the Constitution even if the inmate is not specifically sentenced
to hard labor. See Ali v. Johnson, 259 F.3d 317, 318 (5th Cir.
2001); Murray v. Miss. Dep’t of Corr., 911 F.2d 1167, 1167 (5th
Cir. 1990). The State maintains discretion to determine whether
and under what circumstances inmates will be paid for their
labor. Wendt v. Lynaugh, 841 F.2d 619, 621 (5th Cir. 1988). The
mere allegation that some prisoners are paid for work, while
others are not, does not establish unlawful discrimination. Id.
Walton has failed to support his 42 U.S.C. § 1983 action by
showing that he was deprived of a right or interest secured by
the Constitution and laws of the United States. See Doe v. Rains
County Ind. Sch. Dist., 66 F.3d 1402, 1406 (5th Cir. 1995).
Accordingly, he has not shown that the district court erred under
28 U.S.C. § 1915A, or abused its discretion under 28 U.S.C.
§ 1915(e)(2), by dismissing his complaint as frivolous. See Ruiz
v. United States, 160 F.3d 273, 275 (5th Cir. 1998).
Walton’s appeal is without arguable merit and is dismissed
as frivolous. See Howard v. King, 707 F.2d 215, 219-20 (5th Cir.
1983); 5TH CIR. R. 42.2. The dismissal of this appeal as
frivolous counts as a strike under 28 U.S.C. § 1915(g), as does
the district court’s dismissal of Walton’s complaint. See
No. 04-41130
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Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996).
Walton is cautioned that, if he accumulates three strikes under
28 U.S.C. § 1915(g), he will not be permitted to proceed in forma
pauperis in any civil action or appeal filed while he is
incarcerated or detained in any facility unless he is under
imminent danger of serious physical injury. See 28 U.S.C.
§ 1915(g).
APPEAL DISMISSED AS FRIVOLOUS; SANCTION WARNING ISSUED.