Calvin Phillips, Plaintiff-appellant, v. Eloy Mondragon, Secretary of Corrections; Canteencorporation, Defendants-appellees, 76 F.3d 393 (10th Cir. 1996)

Mr. Phillips appeals a remand judgment of the district court. In our initial opinion, we determined that the district court erred by dismissing Mr. Phillips' 42 U.S.C.1983 complaint pursuant to 28 U.S.C.1915(d), given his equal protection claim that he had been denied minimum wages while working at a private entity on prison grounds. See Phillips v. Mondragon, No. 94-2141, unpub. order and judgment (10th Cir. Nov. 30, 1994). Faithful to our judgment, the district court ordered a Martinez report and the Defendants thereafter moved for summary judgment. We have evaluated the summary judgment record de novo in accordance with the standards set forth in Fed. R. Civ. P. 56(c), Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986), and Celotex Corp. v. Catrett, 477 U.S. 317 (1986). The uncontroverted facts establish that Defendant Canteen, rather than operating as a private commercial industry on prison grounds, see N.M. Stat. Ann. 33-8-13 (Michie 1990), operates pursuant to a service contract with the Department of Corrections and subject to the New Mexico Procurement Code. The uncontroverted facts further establish that the prison, and not Canteen, was Mr. Phillips' employer, consequently, the Fair Labor Standards Act does not apply. Franks v. Oklahoma State Indus., 7 F.3d 971, 973 (10th Cir. 1993). Ergo, Mr. Phillips' equal protection claim cannot succeed.

AFFIRMED. The mandate shall issue forthwith.