                                                               United States Court of Appeals
                                                                        Fifth Circuit
                                                                     F I L E D
                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT                         June 21, 2004

                                                                 Charles R. Fulbruge III
                                                                         Clerk
                               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 # 341807, 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 Spears1 hearing to more fully develop

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

      *
            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opinion should not be published and is not precedent except under the limited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.
     1
           Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985).
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 the magistrate

judge correctly dismissed Wallen’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.      Will 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 prison records in determining

whether to dismiss his complaint.     See Banuelos v. McFarland,

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

480, 483 (5th Cir. 1991).    After a de 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.        See Ruiz v. United

States, 160 F.3d 273, 275 (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.   See Farmer v. Brennan,

511 U.S. 825, 847 (1994); Estelle v. Gamble, 429 U.S. 97, 106

(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 infested

                                2
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   treatment.       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 contaminated.

Taken in context, his allegations reflect negligence rather than

the   much   higher    standard   of    deliberate   indifference    that   is

required to impose liability for adverse prison conditions. Harper

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.




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