* Pursuant to 5 TH C IR

. R. 47.5, t he court has determined that this

opinion should not be published and is not precedent except under th e limited

circumstances set forth in 5 TH C IR

. R. 47.5.4.

1 Spears v. McCotter , 766 F.2d 179 (5th Cir. 1985). United States Court of Appeals

Fifth Circuit



## FILED

June 21, 2004

Charles R. Fulbruge III

Clerk IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 03-40514

DAVID LYNN WALLEN,

Plaintiff-Appellant,

versus

MICHAEL J. OLSEN, Sergeant; ROBERT A WALKER, Sergeant;

GILBERT ENNIS, Lieutenant; JOHN R. MCDANIEL, Lieutenant;

CHRISTOPHER W. AGAPIOU, Sergeant; CORNELIUS E. SMITH, Captain;

NEAL D. WEBB, Assistant Warden; ERIC L. FRUGE, Correctional

Officer III; KEVIN L. CARLVIN, Sergeant; TALIESIN R. STERN,

Sergeant; GARY L. JOHNSON; STATE OF TEXAS,

Defendants-Appellees.

Appeal from the United States District Court

for the Eastern District of Texas

USDC No. 6:02-CV-323

Before JOLLY, DAVIS and JONES, Circuit Judges.

PER CURIAM: *

David Lynn Wallen, Texas prisoner # 34180 7, proceeding

in forma pauperis , filed a pro se complaint pursuant to 42 U.S.C.

§ 1983 and consented to have his case determined by a magistrate

judge. After conducting a Spears 1 hearing to more fully develop

Wallen’s claims, the magistrate judge dismissed the complaint with2

regard to all defendants as frivolous and for failure to state a

claim pursuant to 28 U.S.C. § 1915A(b)(1).

As a threshold matter, we conclude that t he magistrate

judge correctly dismissed W allen’s claims against the State of

Texas because the state is not a “person” who may be sued for

purposes of liability under 42 U.S. C. § 1983. W ill v. Michigan

Dep’t of State Police , 491 U.S. 58, 71 (1989).

Wallen has not shown any error with respect to the

magistrate’s consideration of his pris on records in determining

whether to dismiss his complaint. S ee Banuelos v. McFarland

,

41 F.3d 232, 235 (5th Cir. 1995); W ilson v. Barrientos , 926 F.2d

480, 483 (5th Cir. 1991). After a d e novo review, we further

conclude that the magistrate judge correctly found that Wallen, an

insulin-dependent diabetic, failed to state a claim that the

defendants were deliberately indifferent to his serious medical

needs based on his allegation that he was served non-diabetic food

loaf for two separate seven-day periods. S ee Ruiz v. United

States

, 160 F.3d 273, 2 75 (5th Cir. 1998). This conclusion is

based on Wallen’s failure to allege that any of the defendants knew

that he was receiving non-diabetic food loaf or that receiving such

would place Wallen at risk of serious harm. S ee Farmer v. Brennan

,

511 U.S. 825, 847 (1994); E stelle v. Gamble

, 429 U.S. 97, 1 0 6

(1976); Giddings v. Chandler

, 979 F.2d 1104, 1106 (5th Cir. 1992).

Wallen, however, also alleged that the food loaves that

he was served were spoiled, rotten, green with mildew, and infested3

with insects. He alleged that the consumption of the food loaves

caused a physical injury, in the form of vomiting and diarrhea that

required medical treatmen t. Wallen further alleged that he

personally informed the defendants who served him the food of these

facts and that he notified the supervisory defendants of these

facts in writing. Liberally construed, Wallen alleges at most two

seven-day periods in which the food loaves were so contamin ated.

Taken in context, his allegations ref lect negligence rather than

the much hig her standard of deliberate indifference that is

required to impose liability for adverse prison conditions. H arper

v. Showers , 174 F.3d 716, 720 (5th Cir. 1999).

For these reasons, the magistrate judge’s dismissal of

Wallen’s claims was correct. The judgment is AFFIRMED

.