Pursuant to 5TH CIR. R. 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 5TH CIR.

R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 09-50266

Summary Calendar

ARTUMUS GREGG VILLARREAL,

Plaintiff-Appellant,

versus

SENIOR WARDEN PAUL MORALES,

Defendant-Appellee.

Appeal from the United States District Court

for the Western District of Texas

USDC No. 5:09-CV-72

Before DAVIS, SMITH, and DENNIS, Circuit Judges.

PER CURIAM:*

Artumus Villarreal, Texas prisoner # 691769, contests the dismissal of his

42 U.S.C. § 1983 civil rights complaint as frivolous under 28 U.S.C. §§ 1915A

United States Court of Appeals

Fifth Circuit

F I L E D

March 25, 2010

Charles R. Fulbruge III

Clerk

Case: 09-50266 Document: 00511062181 Page: 1 Date Filed: 03/25/2010
No. 09-50266

See Mikeska v. Collins, 900 F.2d 833, 837 (5th Cir. 1990) (cited with approval in Ali,

1

259 F.3d at 318), opinion withdrawn and superseded on reh’g on jurisdictional grounds and

reinstated in relevant part, 928 F.2d 126, 126 (5th Cir. 1991), opinion on reh’g abrogated in

part on jurisdictional grounds by Wash v. Johnson, 343 F.3d 685, 687-88 (5th Cir. 2003) (per

curiam).

2

and 1915(e). Villarreal asserts that the Texas Department of Criminal Justice

SSCorrectional Institutions Division requires him to engage in prison labor or

face disciplinary charges and punishment in violation of his constitutional

rights. We review the dismissal as frivolous for abuse of discretion. See Geiger

v. Jowers, 404 F.3d 371, 373 (5th Cir. 2005). A complaint is “frivolous” if it lacks

“an arguable basis in law or fact.” Berry v. Brady, 192 F.3d 504, 507 (5th Cir.

1999). “A complaint lacks an arguable basis in law if it is based on an indisputably meritless legal theory[.]” Harper v. Showers, 174 F.3d 716, 718 (5th Cir.

1999) (internal quotation marks and citations omitted).

Villarreal argues that, because he was sentenced in 1994, when Texas law

did not provide specifically for the imposition of labor on convicted inmates, compelling him to work violates the Thirteenth Amendment prohibition on involuntary servitude. The Thirteenth Amendment, however, excepts, from the general

prohibition, compelled labor as punishment for a crime. See Ali v. Johnson, 259

F.3d 317, 318 (5th Cir. 2001). That exception applies even where the inmate, as

in Villarreal’s case, is not sentenced specifically to labor. See id. To the extent

that Villarreal argues that compulsory labor violates state law, he asserts a “separate, non-constitutional issue.” See id. at 318 n.2. Villarreal’s argument that

he is compelled to work by the threat of disciplinary proceedings is similarly

without merit.1

Moreover, Villarreal has failed to show that the district court abused its

discretion in dismissing as frivolous his Tenth Amendment claim. The legal conclusion that compulsory labor for convicted inmates is constitutional does not

contravene the Tenth Amendment’s directive that “powers not delegated to the

United States by the Constitution, nor prohibited by it to the States, are reCase: 09-50266 Document: 00511062181 Page: 2 Date Filed: 03/25/2010
No. 09-50266

See United States v. Lipscomb, 299 F.3d 303, 361 (5th Cir. 2002) (noting that the 2

amendment addresses the “proper balance between the States and the Federal Government”

under which, generally, the “states possess the primary authority to define and enforce criminal law”).

See Sweezy v. New Hampshire, 354 U.S. 234, 255 (1957) (“T]his Court has held that 3

the concept of separation of powers embodied in the United States Constitution is not mandatory in state governments.”).

3

served to the States respectively, or to the people.” Rather, the legal conclusion 2

supports the prerogative of the states to determine the appropriate punishment

for violations of their laws. Villarreal’s challenge that the state prison system,

as part of the executive branch of state government, is acting as part of the

judicial branch of government when it imposes labor as part of the punishment

for a crime is equally without merit.3

Villarreal argues that compelling him to work adds a further punishment

to his sentence in violation of the prohibition against double jeopardy and his

due process rights. The Double Jeopardy Clause “protects only against the imposition of multiple criminal punishments for the same offense . . . and then only

when such occurs in successive proceedings . . . .” Hudson v. United States, 522

U.S. 93, 98-99 (1997) (internal citations and emphasis omitted). The statutorily

authorized labor in Texas is part of a convict’s punishment in Texas, not an

additional criminal punishment imposed in a separate proceeding. See Ali, 259

F.3d at 317-18; Hudson, 522 U.S. at 98-99. 

Villarreal additionally contends that imposing labor on him pursuant to

a statute enacted after he was sentenced violates the Ex Post Facto Clause. Although application to Villarreal of the law specifically permitting compulsory labor was retrospective treatment, it neither altered the definition of criminal conduct nor increased his punishment. See Lynce v. Mathis, 519 U.S. 433, 441

(1997); Ali, 259 F.3d at 318; Mikeska, 900 F.2d at 837. 

Villarreal has failed to show that the district court abused its discretion

in dismissing his complaint as frivolous. See Harper, 174 F.3d at 718. This apCase: 09-50266 Document: 00511062181 Page: 3 Date Filed: 03/25/2010
No. 09-50266

4

peal, likewise, is frivolous. See 5TH CIR. R. 42.2. Both the district court’s dismissal of Villarreal’s complaint as frivolous and our dismissal of this appeal as

frivolous count as strikes for purposes of 28 U.S.C. § 1915(g). See Adepegba v.

Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996). Villarreal is warned that, if he

accumulates three strikes under § 1915(g), he will not be allowed to proceed in

forma pauperis in any civil action or appeal unless he is under imminent danger

of serious physical injury. See § 1915(g).

APPEAL DISMISSED; SANCTION WARNING ISSUED.

Case: 09-50266 Document: 00511062181 Page: 4 Date Filed: 03/25/2010