                                                         United States Court of Appeals
                                                                  Fifth Circuit
                                                               F I L E D
                 IN THE UNITED STATES COURT OF APPEALS           July 11, 2003

                         FOR THE FIFTH CIRCUIT             Charles R. Fulbruge III
                                                                   Clerk


                             No. 03-20049
                           Summary Calendar



THOMAS J. DURBIN,

                                      Plaintiff-Appellant,

versus

JOHN DOE, Officer; TEXAS DEPARTMENT OF CRIMINAL JUSTICE;
INTERNATIONAL HARVESTER CO; BLUE BIRD BUS CO; TEXAS
DEPARTMENT OF CRIMINAL JUSTICE BUS DRIVER; CO-WORKER
#1 - #2; FORD PICK-UP TRUCK DRIVER; CONSTRUCTION CO,
working on N Loop 6/0 E; CITY OF HOUSTON,

                                      Defendants-Appellees.

                       --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                      USDC No. H-02-CV-2289
                       --------------------

Before HIGGINBOTHAM, SMITH and CLEMENT, Circuit Judges.

PER CURIAM:*

     Thomas J. Durbin, Texas prisoner # 618341, appeals the

district court’s sua sponte dismissal under 28 U.S.C.

§ 1915(e)(2)(B)(ii) and 42 U.S.C. § 1997e(c) of his 42 U.S.C.

§ 1983 action.    The district court determined that Durbin failed

to state a claim for which relief could be granted under 42

     *
        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that this opinion should not be published and is not precedent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. 03-20049
                                -2-

U.S.C. § 1983 because he failed to allege the deprivation of a

constitutional right.

     Durbin first argues that the court erroneously dismissed his

action for failing to state a claim.    We review dismissals under

28 U.S.C. § 1915 and 42 U.S.C. § 1997e de novo.     Newsome v.

E.E.O.C., 301 F.3d 227, 231 (5th Cir. 2002), cert. denied, 123 S.

Ct. 660 (2002); Bazrowx v. Scott, 136 F.3d 1053, 1054 (5th Cir.

1998).

     To demonstrate an Eighth Amendment violation, a prisoner

must show the prison official had a “sufficiently culpable state

of mind,” that being “‘deliberate indifference’ to inmate health

or safety.”   Farmer v. Brennan, 511 U.S. 825, 834 (1994).   A

prison official cannot be liable for deliberate indifference

under the Eighth Amendment unless “the official knows of and

disregards an excessive risk to inmate health or safety; the

official must both be aware of facts from which the inference

could be drawn that a substantial risk of serious harm exists,

and he also must draw the inference.”     Domino v. Texas Dep’t of

Criminal Justice, 239 F.3d 752, 755 (5th Cir. 2001).    Durbin has

not made this requisite showing; the district court did not err

when it dismissed Durbin’s suit for failure to state a claim.

     Next, Durbin argues that the district court erred when it

dismissed his case on its merits under 28 U.S.C.

§ 1915, the in forma pauperis statute, which does not provide for

dismissal on the merits, but rather only dismissal of in forma
                             No. 03-20049
                                  -3-

pauperis status.    Not all dismissals under the in forma pauperis

statute are without prejudice.     See Marts v. Hines, 117 F.3d

1504, 1504 (5th Cir. 1997) (en banc) (holding that dismissals of

frivolous claims under 28 U.S.C. § 1915(e)(2)(B)(i) are presumed

to be with prejudice).    Further, 42 U.S.C. § 1997e is not an in

forma pauperis statute.     It is clear that Durbin’s suit was

dismissed on the merits under both statutes employed by the

district court.

     Durbin last argues that the district court erred by

dismissing his suit with prejudice without giving him notice of

its intent to dismiss and an opportunity to respond or amend his

complaint a second time.    Error of this nature is ameliorated

when the plaintiff has alleged his best case.     Bazrowx v. Scott,

136 F.3d at 1054.   Based on a review of Durbin’s original

complaint, his first amended complaint, and his proposed second

amended complaint, we conclude that any error was harmless

because Durbin had pleaded his best case.     See id.

      Because the district court committed no reversible error,

its judgment is AFFIRMED.
