No. 99-20708 -1-

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 99-20708 Conference Calendar

ADOLPHUS HILL,

Plaintiff-Appellant,

versus

GARY L. JOHNSON, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION; JERRY WILSON,

Defendants-Appellees.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. H-99-CV-1386 -------------------- February 17, 2000

Before EMILIO M. GARZA, BENAVIDES, and DENNIS, Circuit Judges.

PER CURIAM:*

Adolphus Hill appeals the district court’s dismissal of his

complaint as frivolous pursuant to

(e)(2)(B)(i). A complaint is legally frivolous if it is

based on an indisputably meritless legal theory. Neitzke v.

Williams,

(1989). We review a

§ 1915(e)(2)(B)(i) dismissal for abuse of discretion. Siglar v.

Hightower,

(5th Cir. 1997).

Hill argues that he is being denied equal protection under

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. No. 99-20708 -2-

the law by the state’s failure to pay him for his prison labor.

In Wendt v. Lynaugh,

(5th Cir. 1988), we noted

that the mere fact that some prisoners are paid while others are

not does not violate equal protection. To state a claim under

the Fourteenth Amendment, a prisoner must show “some specific

kind of outlawed discrimination.”

Hill has alleged no such

thing. In his complaint, he observed that black prisoners

constitute “more than 60%” of the prison workforce. By this

statement, Hill implicitly concedes that nonblack prisoners are

also required to work without pay in Texas prisons. Accordingly,

Hill pointed to no “specific kind of outlawed discrimination,”

and the district court did not abuse its discretion in dismissing

this claim as frivolous.

Hill argues that the district court erred in concluding that

he was not entitled to pay under the Fair Labor Standards Act

(FLSA). In Watson v. Graves,

(5th Cir.

1990), we held that “status as an inmate does not foreclose

inquiry into FLSA coverage.” Nevertheless, we also noted that

when a prisoner has been sentenced to labor, “his labor belongs

to the prison and is at the disposal of the prison officials.”

at 1553 n.7. Texas prisoners, like Hill, who were sentenced

prior to 1989 were sentenced to hard labor by virtue of former

article 6166x of the Texas Revised Civil Statutes. Wendt,

. Because Hill’s labor “belongs to the prison,” he is

not protected by the FLSA. Watson,

n.7;

Alexander v. Sara, Inc.,

(5th Cir. 1983)

(holding that there is “no employer-employee relationship” when No. 99-20708 -3-

the prisoner’s labor is owed to the penitentiary). There was no

abuse of discretion in the district court’s dismissal of this

claim.1

AFFIRMED.

1 Hill’s other statutory and constitutional arguments were not briefed on appeal and are waived. Yohey v. Collins,

(5th Cir. 1993).