Wallen v. Olsen ( 2004 )

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opinion should not be published and is not precedent except under the limited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.
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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
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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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