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Prison Slavery Upheld, Again

By Ed Mead

Prisoners in various Minnesota correctional facilities filed a class action suit in an effort to secure minimum wages for the work they performed in the many prison industries. The industries in question produce items such as furniture, truck and auto body products, mattresses, textiles, and notebooks; they also provide services such as data entry, assembly, market research, and printing to private companies with whom the state has contracts. The plaintiff prisoners also alleged that prison officials sell prison industry products in interstate commerce to governmental entities and to the private sector. The plaintiffs alleged that in 1991, total sales for prison industries exceeded $11 million, and forty percent of the sales were in the private sector.

The prisoners are paid between fifty and seventy-five cents per hour, and they may earn good time credits on those days they work. The substance of their complaint consisted of an alleged violation of their statutory and constitutional rights by the state's failure to pay them minimum or prevailing wages for the work performed in prison industries, and by punishing prisoners who refuse to work in industries by depriving them of good time credits.

This case, like so many others filed on the prison employment issue, boils down to the thirteenth amendment's sanctioning of slavery for this segment of society. Regarding prisoners, the district judge said, "they are in fact engaged in involuntary servitude, not employment." "The law is clear," the court continued, "that prisoners may be required to work and that any compensation for their labor exists by the grace of the state." The bottom line, it was held, is that "the Thirteenth Amendment's exclusion of prisoner labor from the prohibition on involuntary servitude is a[n] economic reality"

Title 18 U.S.C. § 1761, the Ashurst-Sumners Act, provides that: "[w]hoever knowingly transports in interstate commerce any goods, wares, or merchandise manufactured, produced, or mined, wholly or in part by convicts or prisoners shall be fined or imprisoned or both." Even though it was alleged that prisoners working in prison industries produced products sold in interstate commerce, the court ruled that prisoners could not enforce the provisions of the law.

The Fair Labor Standards Act (FLSA), 29 U.S.C. §§ 201-219, requires employers to pay their employees a minimum hourly wage, which is currently $4.25. The Act defines "employer" as "any person acting directly or indirectly in the interest of an employer in relation to an employee," and defines "employee" as "any individual employed by an employer." Courts were ordered to construe these terms expansively in order to further the congressional goal of outlawing from interstate commerce goods produced in violation of the Act. Where the employee/employer status is uncertain, the law requires that the economic realities of the relationship, and not technical concepts of employment, are to control. The court in the instant case ruled that "[w]here inmates work in the prison pursuant to penalogical work assignments, the economic reality is that they are not employees." The district judge then launched off into some technical concepts (ignoring the economic realities) to justify his ruling that the FLSA does not apply to prison industrial workers.

This case also addresses constitutional and even a RICO claim. But all were lost when the court granted that state's motion to dismiss. Readers are urged to independently study each aspect of this case, as all are important in working to expand this field of the law. Although it is necessary to keep knocking on the judicial door in an effort to secure relief in this area (and to educate the courts on the futility of expecting some good to come from maintaining a segment of society in a perpetual state of irresponsibility, dependency, and slavery), the ultimate solution must be a political one. The courts will recognize political strength. Strength is gained though a nation-wide organization of class conscious prisoners and their supporters. And this organization must, at the very least, be prepared to wage an ongoing fight for the abolishment of the thirteenth amendment to the U.S. constitution.

Comrades interested in working on the cutting edge of the prisoners rights struggle should carefully study cases such as this. Learn how the plaintiffs lost, expand and perfect their arguments, and then file again. See: McMaster v. State of Minn. , 819 F.Supp. 1492 (D. Minn. 1993).

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Related legal case

McMaster v. State of Minnesota

The benefits of this program are numerous, with the reduction of the cost of incarceration being the most notable. It is also an effective way of occupying the growing prison population and reducing idleness, while at the same time expanding the available supply of goods and services. For the victims of crime, it is a means of partial reparation. For the inmates, the program provides them with a marketable skill, offering a chance of rehabilitation, as well as a way of meeting financial obligations while incarcerated.
H.R.Rep. No. 101-681(I), reprinted in 1990 U.S.C.C.A.N. 6472, 6608-09 (1990).

Plaintiffs rely upon the legislative history of the 1984 and 1990 amendments to argue that Congress specifically intended the prevailing wage provision of section 1761 to benefit them. The Court reads the legislative history differently. The enactment of the prevailing wage provision is consistent with the original goal of section 1761: it allowed states to develop meaningful prison industry programs, while continuing to protect private business from unfair competition resulting from low-cost, prison-made goods. The legislative history cited by plaintiffs does indicate that in enacting the prevailing wage provision, Congress had more in mind than merely safeguarding against unfair competition; Congress also intended the Prison Industry Certification Program and its prevailing wage requirement to help reduce inmate idleness, recidivism rates, and the costs of incarceration. Those benefits, however, accrue not specifically to inmates, but to prison administrators and to society in general. Moreover, although the prevailing wage provisions were intended to help inmates meet their financial obligations while incarcerated, it is again society in general that benefits from the inmates' ability to do so: society gains if prisoners pay taxes, support their families, and compensate their victims.

In short, the legislative history cited by plaintiffs indicates that the primary purpose of the prevailing wage provision was to benefit society in general by eliminating unfair competition, reducing the direct and indirect costs of incarceration, and enhancing rehabilitation efforts. The prevailing wage provision may also benefit prisoners such as plaintiffs, but the fact that a statute has the subsidiary purpose of benefiting a given class of persons does not establish that it creates enforceable rights in their favor. Cort, 422 U.S. at 80-81. Because plaintiffs have failed to demonstrate that the prevailing wage provision was enacted for their especial benefit, the Court holds that they may not enforce the provision under section 1983.

B. The Constitutional Claims

Plaintiffs allege that by requiring them to work in prison industries under threat of losing good time and by failing to pay them minimum or prevailing wages for their work, defendants have violated the Fifth, Eighth, Thirteenth and Fourteenth Amendments. Plaintiffs' Eighth and Thirteenth Amendment claims can be easily resolved. The Thirteenth Amendment provides that "[n]either 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" (emphasis added). Because the prohibition on involuntary servitude does not extend to *1442 those who have been convicted of crimes, compelling prison inmates to work does not violate the Thirteenth Amendment. United States v. Reynolds, 235 U.S. 133, 149, 35 S.Ct. 86, 90, 59 L.Ed. 162 (1914); Mosby v. Mabry, 697 F.2d 213 (8th Cir.1982). See also Sigler v. Lowrie, 404 F.2d 659, 661 (8th Cir.1968), cert. denied, 395 U.S. 940, 89 S.Ct. 2010, 23 L.Ed.2d 456 (1969) (there exists no constitutional right to be paid for work performed during imprisonment).

Prison work requirements may constitute cruel and unusual punishment in violation of the Eighth Amendment if prison officials knowingly compel convicts to perform labor that is beyond their strength, endangers their lives or health, or is unduly painful. Ray v. Mabry, 556 F.2d 881, 882 (8th Cir.1977); Franklin v. Banks, 979 F.2d 1330 (8th Cir.1992). However, plaintiffs have alleged no facts suggesting that any of these circumstances exist. Rather, they assert that it is cruel and unusual punishment for prison officials to force them to engage in work that violates section 1761. This argument merely repeats plaintiffs' section 1761 arguments, which the Court has already rejected. Moreover, plaintiffs have cited no authority to support such a reading of the Eighth Amendment. Because the Thirteenth Amendment specifically countenances forced labor during incarceration, and because plaintiffs have alleged no facts indicating that the circumstances under which they performed their labor constitute cruel and unusual punishment, the Court will dismiss the Eighth and Thirteenth Amendment claims.

Although plaintiffs' due process claims have not been well-articulated, they appear to raise not a procedural due process claim, but a takings claim: they assert that defendants' failure to pay them the wages required by the FLSA and section 1761 is a taking for which they have not been compensated. In order to maintain either a procedural due process claim or a takings claim plaintiffs must first establish that they have a protected property interest. Education Assistance Corp. v. Cavazos, 902 F.2d 617, 626 (8th Cir.), cert. denied, 498 U.S. 896, 111 S.Ct. 246, 112 L.Ed.2d 205 (1990). Defendants contend that plaintiffs' due process claim must fail because neither state nor federal law gives plaintiffs a protected property interest in receiving minimum or prevailing wages for work performed in the prison industries. Plaintiffs apparently concede that they have no property interest in receiving a given wage under state law. [FN7] They assert, however, that the FLSA and section 1761 give them a protected property interest in receiving minimum or prevailing wages. The Court has already concluded that plaintiffs have no enforceable right to receive minimum or prevailing wages under the FLSA or section 1761; therefore, plaintiffs may not rely on those provisions to establish a due process claim.

FN7. Any claim to a state-created property interest in a given wage would likely fail, because decisions regarding whether to pay inmates for their work in prison industries and what amount to pay them are committed to the discretion of the commissioner of the DOC. Minn.Stat. § 243.23, subd. 1. In a case involving similar statutes, the Eighth Circuit has held that inmates have no state-created property interest in receiving wages. Hrbek v. Farrier, 787 F.2d 414 (8th Cir.1986).

IV. The RICO Claim

Count 5 of plaintiffs' complaint alleges that defendants have violated RICO because "through a pattern of deception and the use of the mails, the wires, and through interstate commerce, [they] have developed an enterprise for the purpose of selling goods in interstate commerce produced by persons who are paid unlawful wages." Compl. 55. Generally, RICO prohibits four types of activity: (1) investing income derived from a pattern of racketeering activity in an enterprise that affects interstate or foreign commerce, (2) acquiring an interest in such an enterprise through a pattern of racketeering activity, (3) conducting the affairs of such an enterprise through a pattern of racketeering activity, and (4) conspiring to engage in any of the first three activities. 18 U.S.C. § 1962. The statute defines "racketeering activity" as "any act or threat involving" specified state law crimes, any "act" indictable under various specified federal statutes, *1443 and certain federal "offenses." H.J., Inc. v. Northwestern Bell Telephone Co., 492 U.S. 229, 232, 109 S.Ct. 2893, 2897, 106 L.Ed.2d 195 (1989) (citing 18 U.S.C. § 1961(1)). Defendants assert that plaintiffs' RICO claim must be dismissed because plaintiffs have failed to adequately allege that defendants have engaged in any sort of racketeering activity within the meaning of RICO.

Defendants first point out that although plaintiffs state in the jurisdictional section of their complaint that their RICO claim is based on defendants' violations of criminal statutes regarding obstruction of criminal investigations (18 U.S.C. § 1510) and interference with commerce by threats of violence (18 U.S.C. § 1951), neither those statutes nor any facts suggesting a violation of those statutes appear in the substantive allegations of the complaint. Thus, defendants argue that any RICO claim predicated on violations of sections 1510 and 1951 must be dismissed because plaintiffs have failed to make allegations that would give defendants fair notice of such a claim.

Federal Rule of Civil Procedure 8 requires plaintiffs to provide a statement of facts sufficient to give defendants notice of the plaintiffs' claim and the grounds upon which the claim rests. Connelly v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957); Baxley-DeLamar Monuments v. American Cemetery Ass'n, 843 F.2d 1154, 1156 (8th Cir.1988). The Court finds that plaintiffs have failed to meet this minimal pleading requirement with regard to their section 1510 and section 1951 claims. Neither the complaint nor plaintiffs' memorandum provides any indication that defendants have interfered with commerce by threats or violence or have obstructed a criminal investigation. Therefore, the Court will dismiss plaintiffs' RICO claim insofar as plaintiffs base that claim on violations of sections 1510 and 1951.

Defendants next argue that plaintiffs' conclusory allegation that defendants have used the mails and wires to advance an unlawful enterprise is insufficient to sustain a RICO claim based on mail or wire fraud. Federal Rules of Civil Procedure 9(b) provides that where a plaintiff alleges fraud, the circumstances constituting that fraud must be pled with particularity. Thus, litigants pleading RICO violations must allege the time, place, and content of all false representations. Lange v. Hocker, 940 F.2d 359, 362 (8th Cir.1991) (quoting Lally v. Crawford County Trust & Savings Bank, 863 F.2d 612, 613 (8th Cir.1988)). In Lange, the plaintiffs alleged that the defendants had violated RICO by illegally obtaining control of a closely-held corporation engaged in equestrian training and equine research. The complaint alleged that the defendants had executed their scheme by contacting various horse owners through the use of interstate mail and telephone systems. The court held that this allegation was too vague and conclusory to be the basis of a RICO claim, and therefore affirmed the district court's dismissal of the complaint.

In this case, as in Lange, plaintiffs' allegations regarding mail and wire fraud are simply too vague to meet the particularity requirements of Rule 9(b). Plaintiffs have asserted that the defendants have used the mails and wires to further their allegedly fraudulent scheme, but have provided no details regarding the alleged violation. Because the plaintiffs have failed to plead their mail and wire fraud claim with the required specificity, it will be dismissed.

Finally, defendants assert that plaintiffs cannot base their RICO claim on defendants' failure to pay them prevailing wages because even if defendants had violated 18 U.S.C. § 1761, such a violation would not constitute "racketeering activity" within the meaning of RICO. As noted above, RICO defines "racketeering activity" in terms of violations of certain specified state and federal laws. 18 U.S.C. § 1961(1). Section 1761 is not one of the specified federal laws. Therefore, plaintiffs may not premise their RICO claim upon a section 1761 violation. Because plaintiffs have failed to adequately allege a RICO claim, the claim will be dismissed.

V. The Retaliation Claim

Count 3 of the complaint alleges that defendants have retaliated against some inmates *1444 for their participation in this lawsuit. The complaint alleges two types of retaliatory activity. First, the complaint alleges that the defendants laid off inmate workers and announced that the lay-offs were caused by plaintiffs' threatened challenge to defendants' failure to pay minimum or prevailing wages. This conduct, according to plaintiffs, put them in physical danger. Second, the complaint alleges that defendants have retaliated against some of the named plaintiffs by ransacking their cells while they were meeting with their attorneys regarding this lawsuit. The complaint alleges that defendants engaged in this conduct in order to dissuade plaintiffs from exercising their legal and constitutional rights.

Defendants first argue that these allegations are too conclusory to state a claim for retaliation. The Court is not persuaded by this argument. Although neither party has addressed the law on which plaintiffs' retaliation claim is based, it appears that plaintiffs are claiming that defendants have interfered with their constitutional right of access to the courts. A claim that state officials have taken retaliatory action against individuals to punish them for having exercised their constitutional right to seek judicial relief or to intimidate them from exercising their rights in the future clearly states a claim upon which relief may be granted. Harrison v. Springdale Water & Sewer Comm'n, 780 F.2d 1422, 1427-28 (8th Cir.1986). In the instant case, plaintiffs have alleged that defendants have taken specific actions that were intended to dissuade them from exercising their right to seek a ruling on their wage claims. Those allegations are sufficient to withstand a motion to dismiss.

Alternatively, defendants argue that they are entitled to summary judgment on the retaliation claim. A movant is not entitled to summary judgment unless the movant can show that no genuine issue exists as to any material fact. Fed.R.Civ.P. 56(c). In considering a summary judgment motion, a court must determine whether "there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). The role of a court is not to weigh the evidence but instead to determine whether, as a matter of law, a genuine factual conflict exists. AgriStor Leasing v. Farrow, 826 F.2d 732, 734 (8th Cir.1987). "In making this determination, the court is required to view the evidence in the light most favorable to the nonmoving party and to give that party the benefit of all reasonable inferences to be drawn from the facts." AgriStor Leasing, 826 F.2d at 734. When a motion for summary judgment is properly made and supported with affidavits or other evidence as provided in Fed.R.Civ.P. 56(c), then the nonmoving party may not merely rest upon the allegations or denials of the party's pleading, but must set forth specific facts, by affidavits or otherwise, showing that there is a genuine issue for trial. Lomar Wholesale Grocery, Inc. v. Dieter's Gourmet Foods, Inc., 824 F.2d 582, 585 (8th Cir.1987), cert. denied, 484 U.S. 1010, 108 S.Ct. 707, 98 L.Ed.2d 658 (1988). Moreover, summary judgment must be entered against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986).

To support their retaliation claim, plaintiffs proffer affidavits of two of the named plaintiffs in this action. The first, Ricky J. Sistad, was incarcerated at the Minnesota Correctional Facility--Oak Park Heights (MCF-OPH) until October 1, 1992, when he was extradited to Wisconsin. He asserts that three weeks prior to his extradition, and before prison officials were aware that he was going to be transferred to Wisconsin, his supervisor informed him that another inmate was going to be trained for his job as a shop clerk. Sistad asserts that his supervisor "clearly intended to replace me because of [my] participation in the pending inmate litigation." Affidavit of Ricky J. Sistad 2. The affidavit does not provide the facts underlying this conclusion. Sistad further alleges that on September 23, 1992, approximately two hours after he met with his attorneys regarding this action, his cell was *1445 searched. He states, "I was given the strong message by MCF-OPH staff that said action was the direct result of my participation in the then pending litigation." Id. at 3. Again, the affidavit does not provide the facts underlying this conclusion.

The second inmate, James L. Scott, is currently incarcerated at MCF-OPH. He states that in July 1992 he and his fellow inmates Ron Moten and Juan Gatlin were informed that they were being laid off. According to Scott, Moten asked why he was being laid off and stated that he was not involved in any lawsuit involving inmate wages. Scott states that the MCF-OPH resident program manager replied that it was true that Moten was not involved in a lawsuit but that Scott was involved in such a suit. Scott asserts that the resident program manager's statement "placed me in the position of having other inmates apply pressure on me not to pursue this litigation and of having other inmates blame me for being laid-off from work." Affidavit of James L. Scott 5.

Defendants do not dispute that the acts Sistad and Scott complain of occurred; however, they contend that none of the actions were taken in retaliation for the inmates' participation in this lawsuit. Defendants assert that another inmate was trained for Sistad's position as a shop clerk not because Sistad was challenging the defendants' failure to pay minimum or prevailing wages, but because in August 1992 Sistad told his foreman that he might be extradited to Wisconsin and that he wanted a less demanding position than that of shop clerk. Affidavit of Richard E. Traynor 3. Defendants also assert that because of frequent turnover within the prison industries, it is common practice to train potential replacements for inmates and to maintain a reserve of at least two inmates who are qualified to assume any given position. Id. 5. Finally, defendants state that after the other inmate was trained to perform Sistad's former job, Sistad was given work as a slitter, and was told that when he returned from Wisconsin he would be restored to his former position as a shop clerk if he so chose. Id. 4. Given these facts, defendants argue, plaintiffs' allegation that the training of a replacement worker was a retaliatory act is simply unsupportable.

Defendants maintain that Sistad's allegations that his cell was searched because he is involved in this litigation is similarly unsupportable. They point out that MCF-OPH has a random "shakedown" policy, under which a computer randomly selects two rooms per week in each complex for a thorough search. Affidavit of Lynn Dingle 2 & Ex. A. The purpose of this policy is to purge the institution of weapons, drugs, and other contraband. Id. 2. Defendants assert that on September 23, 1992, Sistad's cell was randomly selected for a shakedown. Id. 3. As proof of this assertion, defendants submit the captain's report from September 23, 1992, which contains an entry for a "computer selected random shakedown" of Sistad's cell. Id. Ex. B.

Finally, defendants assert that the facts do not support plaintiffs' allegation that Scott was laid off in retaliation for his involvement in this lawsuit. Defendants assert that in the spring of 1992 two inmates who are not named plaintiffs in this action brought lawsuits in state court against nine private companies who are customers of Oak Park Heights Prison Industries. One of the companies named in the lawsuit was Argosy Electronics, Inc. (Argosy), which purchased hearing aid pouches from Oak Park Heights Prison Industries. Jan. 19, 1992 Affidavit of Guy Piras 2. On July 30, 1992, Argosy canceled its orders; the cancellation was confirmed in a letter from Argosy's attorney who stated that Argosy was "cancelling [sic] any further purchases of hearing aid pouches until the litigation regarding the sale of these items is resolved." Id. 3 & Ex. A. Because Oak Park Heights Prison Industries no longer had a customer to purchase its hearing aid pouches, it was forced to lay off inmates assigned to the Argosy production line. The inmates whose positions were made superfluous by the cancellation included Moten, Gatlin, and Scott, and those inmates were informed of the layoffs on the same day that Argosy canceled its orders. Id. 4-5. Shortly after informing the three inmates that they had been laid off, prison industry personnel determined that the layoffs *1446 should be accomplished in a more egalitarian manner, and therefore solicited volunteers to be laid off in place of Moten, Gatlin, and Scott. Three inmates volunteered, and Moten, Gatlin, and Scott returned to work the next morning. Moten, Gatlin, and Scott missed only one afternoon of work, and were paid for that afternoon. Id. 6.

Based upon this record, the Court finds that plaintiffs have failed to establish a genuine issue of material fact regarding their retaliation claim. Defendants' evidence establishes that defendants had legitimate reasons for the actions they took regarding Sistad and Scott. Plaintiffs have produced no evidence to rebut defendants' explanations for the challenged actions; instead, plaintiffs rely on conclusory allegations that the actions were motivated by defendants' desire to retaliate. However, "conclusive assertions of ultimate fact are entitled to little weight when determining whether a nonmovant has shown a genuine issue of fact sufficient to overcome a summary judgment motion." Miller v. Solem, 728 F.2d 1020, 1024 (8th Cir.), cert. denied, 469 U.S. 841, 105 S.Ct. 145, 83 L.Ed.2d 84 (1984). Moreover, in order to establish a claim for denial of access to the courts, plaintiffs must make some showing that they were in fact denied access to the courts or were otherwise prejudiced by defendants' actions. McMaster v. Pung, 984 F.2d 948, 953 (8th Cir.1993). Plaintiffs have failed to make such a showing. Therefore, the Court will grant summary judgment for defendants on Count 3 of the complaint.

Accordingly, based on the foregoing, and upon all the files, records and proceedings herein,


1. defendant's motion to dismiss Counts 1, 2, 4, 5, and 6 of the complaint is granted; and

2. defendants' motion for summary judgment on Count 3 of the complaint is granted.


819 F.Supp. 1429, RICO Bus.Disp.Guide 8317, 1 Wage & Hour Cas.2d (BNA) 616