Tourscher v. McCullough

Citation184 F.3d 236
Decision Date12 July 1999
Docket Number98-3499,No. 98-,Nos. 97-3671,98-,s. 97-3671
Parties(3rd Cir. 1999) MARK D. TOURSCHER, Appellant v. MARTIN HORN, SECRETARY OF THE PA. DEPT. OF CORRECTIONS; JOHN MCCULLOUGH, SUPERINTENDENT ,(D.C. Civilcv-00176J)
CourtUnited States Courts of Appeals. United States Court of Appeals (3rd Circuit)

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA District Judge: The Honorable D. Brooks Smith (D.C. Civil No. 97-cv-00223J) [Copyrighted Material Omitted]

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

Before: SLOVITER and ALITO, Circuit Judges, and ALARCON, Senior Circuit Judge*

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.

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 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.)

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 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 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...

To continue reading

Request your trial
3213 cases
  • Ruelas v. Cnty. of Alameda
    • United States
    • U.S. District Court — Northern District of California
    • February 9, 2021
    ...and Aramark cite are similar to Villarreal insofar as plaintiffs there were taken out of the national economy. In Tourscher v. McCullough , 184 F.3d 236, 243 (3d Cir. 1999), the economic reality was such that plaintiff's labor "did not compete with private employers." In Hale , where the la......
  • Ulrich v. Corbett
    • United States
    • U.S. District Court — Middle District of Pennsylvania
    • July 28, 2014
    ...at 1208. The Court uses the same standard to screen a complaint as it does for a 12(b)(6) motion to dismiss. See Tourscher v. McCullough, 184 F.3d 236, 240 (3d Cir. 1999). C. Motion to Dismiss In Reisinger v. Luzerne County, 712 F.Supp. 2d 332, 343-344 (M.D. Pa. 2010), the Court stated:The ......
  • Jama v. U.S.I.N.S.
    • United States
    • U.S. District Court — District of New Jersey
    • November 10, 2004
    ...are entitled to summary judgment on certain of plaintiffs' claims. In light of the Court of Appeals decision in Tourscher v. McCullough, 184 F.3d 236 (3d Cir.1999) summary judgment will be granted in favor of the Esmor Officers on the FLSA claim. In a similar vein summary judgment in favor ......
  • Wiest v. Lynch
    • United States
    • U.S. Court of Appeals — Third Circuit
    • March 19, 2013
    ...806, dismissal is still appropriate if Wiest nevertheless failed to plead sufficient facts to state a claim. See Tourscher v. McCullough, 184 F.3d 236, 240 (3d Cir.1999) (“We may affirm the district court on any ground supported by the record.”). “To survive a motion to dismiss, a complaint......
  • Request a trial to view additional results
1 books & journal articles
  • Prisoners' Rights
    • United States
    • Georgetown Law Journal No. 110-Annual Review, August 2022
    • August 1, 2022
    ...when prison interfered with prisoner’s mail, partly because prisoner’s legal proceedings not prejudiced); Tourscher v. McCullough, 184 F.3d 236, 242 (3d Cir. 1999) (no constitutional violation where prisoner compelled to work in cafeteria because prisoner failed to show work hours resulted ......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT