           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                            July 28, 2009
                                     No. 08-40869
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

GUADALUPE LERMA

                                                   Plaintiff-Appellant

v.

C FALKS, Warehouse Supervisor; N MONTEMAYOR, Maintenance Manager;
B YOUNG, Production Superintendent; J FAHRENTHOLD, Plant Manager; W
NIX, Operations Manager; TEXAS DEPARTMENT OF CRIMINAL JUSTICE

                                                   Defendants-Appellees


                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 3:08-CV-109


Before HIGGINBOTHAM, WIENER, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Guadalupe Lerma, Texas prisoner # 1353185, appeals the dismissal of his
42 U.S.C. § 1983 complaint. He argues that the district court dismissed his
complaint under the incorrect statute and that the district court erred in
dismissing his complaint for failure to state a claim. We find no error in the
district court’s decision to dismiss. We conclude, though, that the dismissal of



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 08-40869

Lerma’s complaint should have been without prejudice. We REVERSE and
REMAND so that a new order of dismissal may be entered.
      Lerma first argues that the district court abused its discretion by
dismissing his complaint under a statutory subsection that covers in forma
pauperis filings. See 28 U.S.C. § 1915(e)(2)(B). Lerma paid his filing fee and
was not proceeding in forma pauperis. We agree with Lerma that Section 1915
did not apply here. See Bazrowx v. Scott, 136 F.3d 1053, 1054 (5th Cir. 1998).
However, the district court’s dismissal of Lerma’s petition under this section is
harmless.    A different statute required the district court to review civil
complaints “in which a prisoner seeks redress from a governmental entity or an
officer or employee of a governmental entity.” 28 U.S.C. § 1915A(a). The district
court may dismiss a complaint that fails to state a claim. Id. § 1915A(b)(1).
Payment of filing fees is irrelevant to the applicability of the last-cited statute.
See Ruiz v. United States, 160 F.3d 273, 274 (5th Cir. 1998). Therefore, the
district court’s reference to an incorrect statute was irrelevant.
      Lerma also argues that the district court erred in dismissing his complaint
because the facts set forth in his complaint were sufficient to state a claim for
deliberate indifference.   Dismissals for failure to state a claim under both
Section 1915(e)(2)(B) and Section 1915A are reviewed de novo, using the same
standard of review applicable to Federal Rule of Civil Procedure 12(b)(6)
dismissals. See Hart v. Hairston, 343 F.3d 762, 763-64 (5th Cir. 2003); Berry v.
Grady, 192 F.3d 504, 507 (5th Cir. 1999).
      To establish deliberate indifference in the context of the Eighth
Amendment, an inmate must show that the defendants (1) were aware of facts
from which an inference of an excessive risk to an inmate’s health or safety could
be drawn and (2) drew an inference that such potential for harm existed.
Farmer v. Brennan, 511 U.S. 825, 837 (1994). Thus, a prison official acts with
deliberate indifference “only if he knows that inmates face a substantial risk of



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serious harm and disregards that risk by failing to take reasonable measures to
abate it.” Id. at 847.
      The district court did not err in dismissing Lerma’s original complaint for
failure to state a claim. Lerma failed to allege that the defendants were aware
of any facts from which an inference of an excessive risk of harm could be drawn
or that defendants actually drew an inference that a potential for harm existed.
See id. at 837. Lerma was injured by a canning machine he was forced to
operate while in prison. He has alleged that the defendants knew that the
machine was malfunctioning, but he has not claimed that the defendants
realized that it posed an excessive risk of harm to Lerma.
      Lerma argues that if his original complaint was insufficient, the district
court should have allowed him the opportunity to develop the facts. He asserts
that if the district court had given him this opportunity, he would have shown
that the defendants knew the machine that caused his injury had caused
injuries in the past. Even if true, these claims were not before the district court,
and Lerma was not seeking to amend his complaint.
      We conclude that this pro se litigant was not following the right process.
However, as we noted in an appeal by a pro se prisoner whose suit was dismissed
sua sponte for failure to state a claim, “[g]enerally a district court errs in
dismissing a pro se complaint for failure to state a claim under Rule 12(b)(6)
without giving the plaintiff an opportunity to amend.” Bazrowx, 136 F.3d at
1054 (citing Moawad v. Childs, 673 F.2d 850, 851-52 (5th Cir. 1982)). On the
other hand, when a pro se petitioner has been given several opportunities to
amend his claims, dismissal is proper. Castro Romero v. Becken, 256 F.3d 349,
353 (5th Cir. 2001). In Bazrowx, we implied that it is harmless error to dismiss
a case for failure to state a claim without giving the plaintiff an opportunity to
amend if the plaintiff has alleged his best case or if the dismissal is without
prejudice. 136 F.3d at 1054. It does not appear that Lerma has alleged his best



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case, as he claims in his brief before this court that the defendants knew that the
machine had caused injuries in the past.
      Because Lerma did not seek to amend, we find no procedural error in the
district court’s dismissal when the complaint did not allege a claim. The district
court’s dismissal, though, will be construed as a dismissal with prejudice because
it was silent on the issue. See Nationwide Mut. Ins. Co. v. Unauthorized Practice
of Law Comm., of State Bar of Tex., 283 F.3d 650, 656 n.26 (5th Cir. 2002). That
presumed characterization of the dismissal creates the only error. We reverse
for that reason.     Lerma’s complaint should have been dismissed without
prejudice to allow him to clarify or amend his pro se complaint.
      We REVERSE the district court and REMAND for the entry of a dismissal
without prejudice.




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