Serra v. Lappin

• Citation: 600 F.3d 1191
• Decision Date: 09 April 2010
• Docket Number: No. 08-15969.,08-15969.
• Parties: J. Tony SERRA; Jeanine Santiago; Victor J. Cordero, and all others similarly situated, Plaintiffs-Appellants, v. Harley LAPPIN, Director of the Bureau of Prisons; B.G. Compton, Warden of Lompoc Prison; Robert F. McFadden, head of the Western Regional Office of the Bureau of Prisons, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

600 F.3d 1191

J. Tony SERRA; Jeanine Santiago; Victor J. Cordero, and all others similarly situated, Plaintiffs-Appellants, v. Harley LAPPIN, Director of the Bureau of Prisons; B.G. Compton, Warden of Lompoc Prison; Robert F. McFadden, head of the Western Regional Office of the Bureau of Prisons, Defendants-Appellees.

No. 08-15969.

United States Court of Appeals, Ninth Circuit.

Submitted January 14, 2010.^*

Filed April 9, 2010.

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John Murcko and William M. Simpich, Oakland, CA, Stephen Perelson, Mill Valley, CA, for the plaintiffs-appellants.

Gregory G. Katsas, Assistant Attorney General, Joseph P. Russoniello, United States Attorney, Michael S. Raab, and Alexander K. Haas, U.S. Department of Justice, Civil Division, Washington, D.C., for the defendants-appellees.

Before: ALEX KOZINSKI, Chief Judge, J. CLIFFORD WALLACE and RICHARD R. CLIFTON, Circuit Judges.

CLIFTON, Circuit Judge:

Current and former federal prisoners allege that the low wages they were paid for work performed in prison violated their rights under the Fifth Amendment and various sources of international law. Plaintiffs sued officials of the Bureau of Prisons for damages and injunctive and declaratory relief. We conclude that prisoners have no enforceable right to be paid for their work under the Constitution or international law, and we affirm the district court's dismissal of the action.

I. Background

Plaintiffs Tony Serra, Jeanine Santiago, and Victor Cordero are current and former inmates of federal prisons in California, who were sentenced to terms of incarceration after being convicted of federal crimes.¹ While serving their sentences, they worked under the auspices of either Federal Prison Industries, a wholly owned government corporation known by the trade name UNICOR, see 18 U.S.C. §§ 4121-29; 31 U.S.C. § 9101(3)(E), or the Inmate Work and Performance Pay Program, see 18 U.S.C. § 4125. Federal Prison Industries is authorized to pay its inmate-workers wages set by its Board of Directors pursuant to a delegation of authority from the Attorney General. See 18 U.S.C. § 4126(c)(4); 28 C.F.R. § 345.10. Under the Inmate Work and Performance Pay Program, wages are determined according to regulations promulgated by the Bureau of Prisons under the authority of the Attorney General. See 18 U.S.C. § 4125(d); 28 C.F.R. § 545.26.

Plaintiffs earned between $19.00 and $145.00 per month at rates as low as nineteen cents per hour. Plaintiffs contend that by paying them such low wages, Defendants Harley Lappin, Director of the Bureau of Prisons; B.G. Compton, Warden of Lompoc Prison; and Robert McFadden, Director of the Western Regional Office of the Bureau of Prisons, violated Plaintiffs' rights under the Fifth Amendment to the United States Constitution; articles 7 through 9 of the International Covenant on Civil and Political Rights ("ICCPR"), Dec. 16, 1966, 999 U.N.T.S. 171; a U.N. document entitled "Standard Minimum Rules for the Treatment of Prisoners;"² and the law of nations.³

The district court granted Defendants' motion to dismiss the action in its entirety and denied Plaintiffs' motion for leave to amend their complaint to name Defendants in their individual capacities and to state a cause of action under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 1346(b).

II. Discussion

We review de novo a dismissal for failure to state a claim and for lack of subject matter jurisdiction, and we review a denial of leave to amend for abuse of discretion. Papa v. United States, 281 F.3d 1004, 1008-09 (9th Cir.2002). We conclude that neither the Fifth Amendment nor international law grants Plaintiffs a judicially enforceable right to any level of compensation for work performed in prison. We also conclude that the district court did not abuse its discretion in denying Plaintiffs' request for leave to amend.

A. Due Process

Plaintiffs allege that Defendants violated their due process rights under the Fifth Amendment by denying them fair wages. This claim fails because prisoners do not have a legal entitlement to payment for their work, and the Due Process Clause protects only against deprivation of existing interests in life, liberty, or property. See Stanley v. Gonzales, 476 F.3d 653, 660 (9th Cir.2007) ("To assert a procedural due process claim under the Fifth Amendment, a plaintiff must first establish a constitutionally protected interest.The plaintiff must have more than a unilateral expectation of it; instead, she must have a legitimate claim of entitlement." (citing Board of Regents of State Colleges v. Roth, 408 U.S. 564, 569-70, 577, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972))).

The Constitution does not provide prisoners any substantive entitlement to compensation for their labor. See Piatt v. MacDougall, 773 F.2d 1032, 1035 (9th Cir. 1985) (holding that the state does not deprive a prisoner of a constitutionally protected liberty interest by forcing him to work without pay). Although the Constitution includes, in the Thirteenth Amendment, a general prohibition against involuntary servitude, it expressly excepts from that general prohibition forced labor "as a punishment for crime whereof the party shall have been duly convicted." U.S. Const. amend. XIII, § 1; see Piatt, 773 F.2d at 1035 ("The Thirteenth Amendment does not prohibit involuntary servitude as part of imprisonment for a crime.").

Plaintiffs do not challenge their underlying convictions or allege that their sentences were cruel and unusual. A prisoner has no basis for asserting a violation of due process simply because he is made or allowed to work for low pay as punishment for a crime of which he was lawfully convicted. See Draper v. Rhay, 315 F.2d 193, 197 (9th Cir.1963) ("Where a person is duly tried, convicted, sentenced and imprisoned for crime in accordance with law, no issue of peonage or involuntary servitude arises.").

Nor do Plaintiffs claim that they were paid less than the applicable regulations require.⁴ If, without due process, they were deprived of pay to which they were entitled under the regulations, Plaintiffs might have a colorable claim. See Vance v. Barrett, 345 F.3d 1083, 1091 (9th Cir. 2003) (concluding that due process was violated when a prisoner's future employment was conditioned on his giving up "his statutory right to accrued net interest"). Here Plaintiffs have no constitutionally protected property interest because they lack a statutory or otherwise established right to the higher wages they demand.

B. International Law

Plaintiffs also cite sources of international law as a basis for the right they assert to higher wages for work performed in prison. The individual documents that Plaintiffs cite, however, do not confer judicially enforceable rights, and Plaintiffs are unable to bring a claim under the law of nations.

Plaintiffs fail to state a viable claim under the International Covenant on Civil and Political Rights. "For any treaty to be susceptible to judicial enforcement it must both confer individual rights and be self-executing." Cornejo v. County of San Diego, 504 F.3d 853, 856 (9th Cir.2007). A treaty is self-executing when it is automatically enforceable in domestic courts without implementing legislation. See Medellin v. Texas, 552 U.S. 491, 504-05 & n. 2, 128 S.Ct. 1346, 170 L.Ed.2d 190 (2008); Khan v. Holder, 584 F.3d 773, 783 (9th Cir.2009). The ICCPR fails to satisfy either requirement because it was ratified "on the express understanding that it was not self-executing and so did not itself create obligations enforceable in the federal courts." Sosa v. Alvarez-Machain, 542 U.S. 692, 735, 124 S.Ct. 2739, 159 L.Ed.2d 718 (2004).⁵

The Standard Minimum Rules for the Treatment of Prisoners ("Standard Minimum Rules")⁶ similarly fail as a source of justiciable rights. This document was adopted by the First United Nations Congress on the Prevention of Crime and the Treatment of Offenders in 1955 "to set out what is generally accepted as being good principle and practice in the treatment of prisoners and the management of institutions." Standard Minimum Rules ¶ 1. It is not a treaty, and it is not binding on the United States. Even if it were a self-executing treaty, the document does not purport to serve as a source of private rights. The "Rules" themselves acknowledge that they are not all "capable of application in all places and at all times," id. ¶ 2, and are "not intended to preclude experiment," id. ¶ 3. Moreover, the specific rule identified by Plaintiffs as a source of rights declares only that "there shall be a system of equitable remuneration of the work of prisoners" without specifying what wages would qualify. Id. ¶ 76(1).

Finally, Plaintiffs assert that "the customs and usages" of the nations of the world, as revealed in these and other sources, form customary international law entitling them to higher wages. This claim fails because customary international law is not a source of judicially enforceable private rights in the absence of a statute conferring jurisdiction over such claims. See Princz v. Federal Republic of Germany, 26 F.3d 1166, 1174 n. 1 (D.C.Cir.1994) ("While it is true that `international law is part of our law,' it is also our law that a federal court is not competent to hear a claim arising under international law absent a statute granting such jurisdiction." (citation omitted)); see also Sosa, 542 U.S. at 720, 124 S.Ct. 2739 ("`Offences against this law of nations are principally incident to whole states or nations,' and not individuals seeking relief in court." (quoting Blackstone, 4 Commentaries 68) (alteration omitted)). Plaintiffs can point to no statute that brings their claim within our purview.

The Alien Tort Statute ("ATS"), 28 U.S.C. § 1350, is the only possible vehicle for a claim like Plaintiffs' because no other statute recognizes a general cause of action under the law of nations.⁷ The ATS grants to the district courts "original...