Opinion
CIV-22-379-PRW
06-07-2022
ADRIAN MONTOYA CARLOS, Plaintiff, v. THE GEO GROUP, INC., Defendant.
REPORT AND RECOMMENDATION
SHON T. ERWIN UNITED STATES MAGISTRATE JUDGE
Plaintiff, a prisoner identifying himself as a “deportable alien,” appearing pro se and in forma pauperis, brings this action pursuant to 42 U.S.C. § 1983 alleging violations of his federal and state statutory rights. (ECF No. 1). The matter has been referred to the undersigned magistrate judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B). Having reviewed the sufficiency of the Complaint pursuant to 28 U.S.C. §§ 1915(e)(2)(B), 1915A, the undersigned recommends Plaintiff's action be DISMISSED without prejudice.
I. BACKGROUND
Plaintiff is a “deportable alien” currently being held at the Federal Correctional Institution located in Edgefield, South Carolina. (ECF Nos. 1:1; 1-5). From April 2017 through April 2021, Plaintiff was held at the Great Plains Correctional Facility (“GPCF”) located in Hinton, Oklahoma. (ECF No. 1:1). Plaintiff's claims herein arise out of his prison employment during the time he was confined at GPCF. 1
In his Complaint, Plaintiff explains that GPCF is owned and operated by The Geo Group, Inc. (“GEO, Inc.”), a private company. (ECF No. 1:1). Though he does not describe the work he performed, he asserts that GEO, Inc. employed him in some fashion. Arising from said employment, Plaintiff alleges violations of the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201, et. seq. and the Oklahoma Minimum Wage Act, Okla. Stat. tit. 40, § 197.1, et. seq. (ECF No. 1:1-2). While Plaintiff is unclear in his Complaint whether GEO, Inc. paid him any wages as part of his employment, he clearly alleges it did not pay him minimum wage. (ECF No. 1:1-2). As a result, Plaintiff seeks monetary damages in the amount of $88,982.40 as well compulsory and punitive damages and any other relief allowed by law. (ECF No. 1:2-3).
II. SCREENING OF PRISONER COMPLAINTS
A federal district court must review complaints filed by prisoners seeking relief against a governmental entity or an officer or employee of a governmental entity. 28 U.S.C. § 1915A. The court must dismiss a complaint or any portion of it at any time if it determines the claims are frivolous, malicious, fail to state a claim upon which relief may be granted, or seek monetary relief from a defendant who is immune from such relief. Id.
In conducting this review, the reviewing court must accept the plaintiff's allegations as true and construe them, and any reasonable inferences to be drawn from the allegations, in the light most favorable to the plaintiff. Kay v. Bemis, 500 F.3d 1214, 1217 (10th Cir. 2007). Although a pro se litigant's pleadings are liberally 2 construed, see Haines v. Kerner, 404 U.S. 519, 520 (1972), “[t]he burden is on the plaintiff to frame a ‘complaint with enough factual matter (taken as true) to suggest' that he or she is entitled to relief.” Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007)). The allegations in a complaint must present “enough facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. Further, a claim is frivolous “where it lacks an arguable basis either in law or in fact” or is “based on an indisputably meritless legal theory[.]” Neitzke v. Williams, 490 U.S. 319, 325, 327 (1989).
III. FLSA
Pursuant to the FLSA, Plaintiff contends that he was an employee of GEO, Inc., and therefore, was “entitled to the rights and benefits of employment pursuant to the laws of the United States and the State of Oklahoma, including minimum wage.” (ECF No. 1:2). According to Plaintiff, “[a]n employee includes any individual permitted to work by an employer.” (ECF No. 1:2). However, as explained below, the law is well established that while confined at GPCF, Plaintiff was not considered an “employee” as that term is defined by the FLSA.
In Williams v. Meese, 926 F.2d 994, 997 (10th Cir. 1991), the Tenth Circuit held a federal prisoner was not an “employee” under Title VII, the Equal Pay Act, or the Age Discrimination in Employment Act. The Tenth Circuit reasoned:
We conclude that plaintiff is not an “employee” under either Title VII or the ADEA because his relationship with the Bureau of Prisons, and therefore, with the defendants, arises out of his status as an inmate, not an employee. Although his relationship with defendants may contain3
some elements commonly present in an employment relationship, it arises “from [plaintiff's] having been convicted and sentenced to imprisonment in the [defendant's] correctional institution. The primary purpose of their association [is] incarceration, not employment.” Prisoner Not Protected From Racial Job Bias, 2 Empl.Proc.Guide (CCH) ¶ 6865, at 7009 (April 18, 1986) (EEOC Decision No. 86-7).Id. at 997. See also Rhodes v. Schaefer, No. 98-3323-GTV, 2002 WL 826471 at *4-5 (D. Kan. March 20, 2002) (extending rationale of Williams to a prisoner's Title VII claims arising out of work in a private industry operated on prison premises).
The Tenth Circuit has applied Williams to an Oklahoma prisoner's FLSA claim. In Franks v. Oklahoma State Industries, 7 F.3d 971 (10th Cir. 1993), an Oklahoma prisoner sought a decree directing Oklahoma State Industries, a division of the Oklahoma Department of Corrections, to pay back wages and damages. Id. at 972. Generally, the Tenth Circuit recognized determining whether an individual is an “employee” for purposes of the FLSA requires application of the economic reality test. Id. at 973. However, the court held that “the economic reality test was not intended to apply to work performed in the prison by a prison inmate.” Id. Therefore, the court affirmed the dismissal of the prisoner's FLSA claim. In the present case, Plaintiff attempts to distinguish this case by relying on the fact that GEO, Inc. is a private company, rather than a state entity, that owns and operates GPCF. (ECF No. 1:2). His claim still fails. 4
In his Complaint, Plaintiff relies on the economic reality test to argue that he was an employee under the FLSA. (ECF No. 1:2).
In Bennett v. Frank, 395 F.3d 409 (7th Cir. 2005), the Seventh Circuit explained that, whether housed in a private or state-run facility, prisoners are not employees under the FLSA.
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.
We cannot see what difference it makes if the prison is private. Ideally, neither the rights nor the liabilities of a state agency should be affected by its decision to contract out a portion of the services that state law obligates it to provide. Otherwise the “make or buy” decision (the decision whether to furnish a service directly or obtain it in the market) would be distorted by considerations irrelevant to the only thing that should matter: the relative efficiency of internal versus contractual provision of services in particular circumstances. But a simpler and more fundamental point is that employment status doesn't depend on whether the alleged employer is a public or a private body. Both public agencies and private firms have employees. But prisoners are not employees.
Our conclusion that the FLSA does not apply to Whiteville's inmates is reinforced by decisions that hold that a state prison does not lose its immunity from liability under the FLSA merely because it has hired a private company to manage the prison labor. Gambetta v. Prison Rehabilitative Industries & Diversified Enterprises, Inc., 112 F.3d 1119, 1124-25 (11th Cir.1997); Danneskjold v. Hausrath, supra, 82 F.3d at 4344. A prison's decision to hire a catering firm to operate its cafeteria should not influence the entitlements of a prisoner who works in the cafeteria.Id. at 410. In Bowring v. Bonner, 561 Fed.Appx. 778, 779 (10th Cir. 2014), the Tenth Circuit explicitly followed Bennett's reasoning and held that “the rule denying FLSA 5 coverage to prisoners in government operated facilities applies to the private contract prisons as well.”
Thus, the law is well established that the FLSA does not apply to work performed by prisoners while they are confined in either a state-run or private prison. Accordingly, Plaintiff's claim for wages under the FLSA based on work allegedly performed for GEO, Inc., while he was confined at GPCF should be dismissed for failure to state a claim upon which relief can be granted. See Osorio v. The GEO Group, Inc., No. CIV-22-210-C, ECF No. 10, (W.D. Okla. Apr. 27, 2022) (recommending dismissal of prisoner complaint on screening which alleged violation of the FLSA for work performed while incarcerated at GPCF, stating that “Plaintiff was not an employee under the FLSA.”); Shaffer v. Direct Media, Inc., No. CIV-10-774-D, 2012 WL 681718, at *3 (W.D. Okla. Feb. 2, 2012) (report and recommendation) ('“Plaintiff is not an employee as intended by the purposes of the FLSA and, therefore, is not entitled to the protections of the Act.”); adopted, 2012 WL 676388, at *1 (W.D. Okla. Feb. 28, 2012).
IV. OKLAHOMA'S MINIMUM WAGE ACT
Plaintiff has also asserted a state law claim under the Oklahoma Minimum Wage Act. (ECF No. 1:2). Because Plaintiff has not asserted a viable federal claim herein and has not alleged or established any basis for jurisdiction for this claim other than supplemental jurisdiction, this Court should decline to exercise supplemental jurisdiction over Plaintiff's state law claim. 28 U.S.C. § 1367(c)(3); cf., Smith v. City of Enid ex rel. Enid City Comm'n, 149 F.3d 1151, 1156 (10th Cir. 1998) (“When all federal 6 claims have been dismissed, the court may, and usually should, decline to exercise jurisdiction over any remaining state claims.”).
V. RECOMMENDATION AND NOTICE OF RIGHT TO OBJECT
Based on the foregoing findings, it is recommended Plaintiff's claim under the Fair Labor Standards Act be dismissed without prejudice based on his failure to state a claim upon which relief can be granted. Additionally, the Court should decline to exercise supplemental jurisdiction over Plaintiff's remaining state law claim.
Plaintiff is hereby advised of his right to object to this Report and Recommendation. See 28 U.S.C. § 636. Any objection must be filed with the Clerk of the District Court by June 24, 2022. See 28 U.S.C. § 636(b)(1); and Fed.R.Civ.P. 72(b)(2). Failure to make timely objection to this Report and Recommendation waives the right to appellate review of both factual and legal questions contained herein. Casanova v. Ulibarri, 595 F.3d 1120, 1123 (10th Cir. 2010).
VI. STATUS OF THE REFERRAL
This Report and Recommendation disposes of all issues and terminates the referral to the undersigned magistrate judge in the captioned matter. 7