                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT
                           __________________

                             No. 95-60092
                         Conference Calendar
                          __________________

ROBERT E. TUBWELL,

                                        Plaintiff-Appellant,

versus

EDWARD M. HARGETT, Superintendent,
Miss. State Penitentiary, ET AL.,

                                        Defendants-Appellees.

                        - - - - - - - - - -
           Appeal from the United States District Court
             for the Northern District of Mississippi
                        USDC No. 4:94-CV-45
                        - - - - - - - - - -
                           June 29, 1995
Before JONES, WIENER, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

     Because it had no arguable basis in law, we hold that the

district court did not abuse its discretion in dismissing Robert

E. Tubwell's complaint as frivolous pursuant to 28 U.S.C.

§ 1915(d).     Booker v. Koonce, 2 F.3d 114, 115 (5th Cir. 1993).

The negligent act of an official causing loss or injury will not,

standing alone, state a claim under § 1983.     Daniels v. Williams,

474 U.S. 327, 328 (1986); Rhodes v. Chapman, 452 U.S. 337, 347-48

(1981); see Hause v. Vaught, 993 F.2d 1079, 1084 (4th Cir. 1993),

cert. denied, 114 S. Ct. 702 (1994).     Although a constitutional

     *
          Local Rule 47.5 provides: "The publication of opinions
that have no precedential value and merely decide particular
cases on the basis of well-settled principles of law imposes
needless expense on the public and burdens on the legal
profession." Pursuant to that Rule, the court has determined
that this opinion should not be published.
                            No. 95-60092
                                 -2-


deprivation can result from "tortious conduct exceeding mere

negligence but not quite rising to the level of intentional,

e.g., deliberate (or conscious) indifference, recklessness, or

gross negligence," Salas v. Carpenter, 980 F.2d 299, 307 (5th

Cir. 1992) (internal citations and quotations omitted), Tubwell

has not alleged conduct on the part of the defendants which

approaches this standard.

     The magistrate judge did not abuse his discretion in

permitting counsel for the Respondents to question Tubwell about

his claim at the Spears** hearing.   See Wilson v. Barrientos, 926

F.2d 480, 482 (5th Cir. 1991).

     Because it is unclear whether the Mississippi courts would

hold that a subsequent state court tort suit is barred by res

judicata by the federal court's § 1915(d) dismissal, we MODIFY

the district court's judgment to provide that it is without

prejudice to Tubwell's state law claims.   See Denton v.

Hernandez, 504 U.S. 25, 34 (1992).

     APPEAL DISMISSED.   Fed. R. App. P. 34(a)(1).




     **
          Spears v. McCotter, 766 F.2d 179, 181-82 (5th Cir.
1985).
