* Pursuant to Local Rule 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that this opinion should not be published and is not precedent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 Local Rule

47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 96-60317

Summary Calendar

 

JAMES M. LYLE, IV,

Plaintiff-Appellant,

v.

MAGNOLIA STATE ENTERPRISE, INC.; 

AVERY WOODS, CEO, of Magnolia State

Enterprises; LOUIS VAUGHN, Supervisor;

LARRY HOLLEY, Supervisor,

Defendants-Appellees.

_________________________________________________________________

Appeal from the United States District Court

for the Northern District of Mississippi

(4:94-CV-326-B-A)

_________________________________________________________________

December 12, 1996

Before KING, HIGGINBOTHAM, and STEWART, Circuit Judges.

PER CURIAM:*

Proceeding pro se and in forma pauperis, James M. Lyle IV,

an inmate in the Mississippi Department of Corrections (MDOC) at

Parchman, filed a civil rights complaint pursuant to 42 U.S.C.

§ 1983 against Magnolia State Enterprises (MSE) and three of its
1 See Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985).

2

employees. Lyle now appeals the district court’s dismissal of

his complaint as frivolous under 28 U.S.C. § 1915(d). We affirm

in part and vacate and remand in part.

I. BACKGROUND

MSE is a private corporation that operates facilities at

Parchman under contract with MDOC. In his complaint, Lyle

asserts four distinct causes of action under the umbrella of

§ 1983. First, Lyle claims that all inmates who work for MSE are

employees and as such have a constitutional right to earn at

least minimum wage under the Fair Labor Standards Act (FLSA). 

Second, Lyle claims that MSE’s failure to provide workers’

compensation for inmate employees violates state and federal law. 

Third, Lyle asserts that MSE subjects its inmate employees to

unsafe and unhealthy working conditions in violation of the

Occupational Safety and Health Act (OSHA), which in turn

constitutes a violation of the inmates’ constitutional right to

equal protection. Finally, Lyle alleges that two MSE supervisors

verbally threatened him, ultimately causing him to resign his

job.

The magistrate judge conducted a Spears1 hearing on

September 27, 1995, and subsequently issued his report and

recommendation that Lyle’s suit be dismissed as frivolous under
3

§ 1915(d). Lyle sought and was granted an extension of time to

file his objections to the magistrate judge’s report. Lyle did

not file his objections within the extended period, and the

district court entered final judgment adopting the findings and

conclusions of the magistrate judge and dismissing the case. 

Lyle subsequently filed his objections. The district court

construed these objections as a motion to alter or amend the

judgment under Rule 59(e) of the Federal Rules of Civil

Procedure. The district court denied the motion, and Lyle timely

filed a notice of appeal.

II. ANALYSIS

Section 1915(d) authorizes a district court to dismiss an in

forma pauperis complaint “if the allegation of poverty is untrue,

or if satisfied that the action is frivolous or malicious.” 28

U.S.C. § 1915(d). A complaint is frivolous if “it lacks an

arguable basis either in law or in fact.” Neitzke v. Williams,

490 U.S. 319, 325 (1989). A complaint lacks an arguable basis in

law if it is “based on an indisputably meritless legal theory,”

such as where defendants are clearly immune from suit or where

the complaint alleges infringement of a legal interest that

clearly does not exist. Id. at 327. We review a § 1915(d)

dismissal for abuse of discretion. Denton v. Hernandez, 504 U.S.

25, 33 (1992).
2 Although Lyle brought this claim under § 1983, he has not

alleged violation of a specific constitutional right nor has he

alleged that MSE is a state actor for § 1983 purposes. The

district court did not dismiss the action on this basis, but

apparently construed the claim liberally as one brought under the

FLSA.

4

A. Fair Labor Standards Act

Lyle argues that the district court abused its discretion in

dismissing his FLSA claim2 as being without an arguable basis in

fact or law. Lyle contends that the district court improperly

based its decision on the misconception that Lyle’s work for MSE

was part of his prison sentence, and he cites Watson v. Graves,

909 F.2d 1549 (5th Cir. 1990), for the proposition that inmates

who work for a private business are employees within the meaning

of the FLSA.

Watson involved two prisoners in Louisiana who had not been

sentenced to hard labor, but who, under a work-release program,

were contracted out by a sheriff for trusty labor at a flat rate

of $20 per day. Id. at 1551. The court explained that

determination of “employee” status for purposes of the FLSA

focuses on “economic reality and economic dependence.” Id. at

1553. The “economic reality” test includes inquiry into:

‘whether the alleged employer (1) has the power to hire

and fire the employees, (2) supervised and controlled

employee work schedules or conditions of employment,

(3) determined the rate and method of payment, and (4)

maintained employment records.’

Id. (quoting Carter v. Dutchess Community College, 735 F.2d 8, 12

(2d Cir. 1984)). The court stated that an inmate’s employee
5

status should be assessed by applying the above factors to the

facts of the case in light of the FLSA policies “to improve

living conditions, bargaining strength vis-a-vis employers, and

the general well-being of the American worker, [and] also to

eliminate unfair competition among employers competing for

business in the market and among workers looking for jobs.” Id.

at 1554.

The court distinguished between situations in which a

private, for-profit firm conducts operations on prison grounds,

typically utilizing prisoners who have been sentenced to hard

labor, and those in which inmates work outside the prison for and

under the supervision of private contractors. Id. at 1553. The

court stated that in most of the former situations, the economic

reality test has led courts to conclude that inmates were not

entitled to FLSA protection because “primary control over the

inmates, and determination of the hours to be worked and the

nature of the work to be performed rested with the prison.” Id.

In a footnote, the court made an explicit distinction between

prisoners who are sentenced to labor as part of their sentences

and those who are not. In the former case, “[the prisoner’s]

labor belongs to the prison and is at the disposal of the prison

officials.” Id. at 1553 n.7. However, “[i]n the latter case,

there is no bar to a FLSA claim because the prisoner’s work

belongs to him and not to the prison.” Id.

The district court based its conclusion that Lyle was not an
6

employee of MSE for FLSA purposes on a determination that Lyle

was required to work as part of his sentence. This determination

rested on a provision in the Mississippi Code which states that

“[a]ll inmates, unless physically unable, shall be required to

perform such work as may be set out in the policy-making board of

the institution.” Miss. Code Ann. § 47-5-126 (1981).

It is not apparent from this record whether Lyle’s work for

MSE is required by § 47-5-126. The statute expressly

incorporates the policies of the institution, but the record

discloses no factual allegations concerning such policies. 

Accordingly, we cannot conclude that this claim is frivolous on

the ground that the work at issue is required as part of Lyle’s

sentence.

The magistrate judge also stated in his report that our

decision in Alexander v. Sara, Inc., 721 F.2d 149 (5th Cir.

1983), mandates the conclusion that Lyle is not an “employee”

under the FLSA. While we recognize many factual similarities

between this case and Alexander, our subsequent decision in

Watson establishes that the inquiry into employee status is more

complex than may have been suggested by Alexander.

We intimate no view as to the ultimate merits of this claim. 

We hold merely that on the record before us we cannot conclude

that this claim has no “arguable basis either in law or in fact.”

B. Workers’ Compensation
7

In disposing of Lyle’s workers’ compensation claim, the

district court concluded that the claim lacked a basis in law

because the Mississippi workers’ compensation statute

specifically excludes inmates from coverage. See Miss. Code Ann.

§ 47-5-567. Lyle argues that this statute does not apply to a

private, for-profit corporation such as MSE. Lyle makes no

attempt, however, to reconcile his position with express language

in § 47-5-567 to the contrary:

No inmate shall be eligible for unemployment

compensation or workmen’s compensation whether employed

by the corporation or by any other private enterprise

operating on the grounds of a correctional institution

or elsewhere where such employment shall be part of a

correctional work program or work release program of

either the corporation or the department.

Id. (emphasis added). Further, Lyle does not assert that he has

suffered any injury that would entitle him to compensation, nor

does he advance any argument in support of a violation of federal

law. The district court did not abuse its discretion in

dismissing this claim as legally frivolous.

C. OSHA

The district court concluded that Lyle’s OSHA claim was

frivolous because OSHA does not establish a constitutional

standard and Lyle did not allege facts either in his complaint or

at the Spears hearing which would constitute “deliberate

indifference” under the Eighth Amendment. On appeal, Lyle argues

that he could make a specific showing of deliberate indifference
3 The district court analyzed this claim as a potential

constitutional violation under § 1983. We note that this claim

would have been properly dismissed if construed as a direct

challenge under OSHA, because OSHA does not give rise to a

private cause of action. See Barrera v. E.I. Du Pont de Nemours

and Co., Inc., 653 F.2d 915, 920 (5th Cir. 1981).

8

due to OSHA violations. Lyle does not argue that he in fact made

such a showing to the district court. Accordingly, the district

court did not abuse its discretion in dismissing this claim as

frivolous.3

D. Verbal threats

Lyle asserts that the district court abused its discretion

in dismissing his § 1983 claim against two MSE supervisors, Louis

Vaughn and Larry Holley. Lyle alleged that Vaughn and Holley

verbally threatened him during his month of employment with MSE. 

Even assuming that the supervisors are state actors for purposes

of § 1983, mere allegations of verbal abuse and threats do not

state a claim under § 1983. McFadden v. Lucas, 713 F.2d 143, 146

(5th Cir.), cert. denied, 464 U.S. 998 (1983).

Lyle argues that the alleged threats constitute violations

of various state statutes. Lyle did not, however, make any such

claims in his complaint. Even assuming that Lyle made this

argument below and that the behavior in question does violate

state law, a violation of state law does not automatically give

rise to a claim of constitutional significance under § 1983. 

Moreover, if construed purely as claims pursuant to state law,
9

pendent jurisdiction does not attach because these claims do not

arise from the same nucleus of operative facts as Lyle’s federal

causes of action. See 28 U.S.C. § 1367. The district court did

not abuse its discretion in dismissing this claim as frivolous.

III. CONCLUSION

For the foregoing reasons, we AFFIRM the district court’s

dismissal of this action as to Lyle’s workers’ compensation,

OSHA, and verbal threat claims, and VACATE the order of dismissal

and REMAND for further proceedings as to Lyle’s FLSA claim.