Tyler v. Hathaway, et al

* 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that this opinion should not be published and is not precedent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.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-30063
Conference Calendar
HUMPHREY TYLER,
Plaintiff-Appellant,
versus
DON HATHAWAY; JOHN SEAL; SOLOMAN, Mr.; SHEILA WHITE,
Defendants-Appellees.
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Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 99-CV-164
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October 17, 2000
Before SMITH, BARKSDALE, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Humphrey Tyler, Louisiana prisoner # 318515, appeals the
district court’s dismissal of his 42 U.S.C. § 1983 complaint as
frivolous. Tyler argues that he is allergic to seafood, that he
is on a no-fish diet, and that he was served a meal with fish
seven times over a period of two months at the Caddo Correctional
Center. He contends that the nurse (Sheila White) should have
better informed the kitchen about his diet, that the manager of
the kitchen (Soloman) refused to provide an alternative meal on
days the kitchen served fish, and that Sheriff Hathaway and Seal,

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No. 00-30063
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the administrator of the prison, were liable in their supervisory
capacities.
We review a district court’s dismissal of a complaint as
frivolous for an abuse of discretion. A district court may
dismiss an IFP complaint as frivolous if it lacks an arguable
basis either in law or in fact. Siglar v. Hightower, 112 F.3d
191, 193 (5th Cir. 1997). A complaint lacks an arguable basis in
law if it is based on an "indisputably meritless legal theory."
Id. (citing Neitzke v. Williams 490 U.S. 319, 325 (1989)).
Tyler’s complaint that he had to forego a meal on seven
occasions over a two-month period does not rise to the level of a
Eighth Amendment constitutional claim. See Berry v. Brady, 192
F.3d 504, 507-08 (5th Cir. 1999). Furthermore, his claims do not
allege deliberate indifference but, rather, negligence. See
Neals v. Norwood, 59 F.3d 530, 533 (5th Cir. 1995). The district
court’s dismissal of Tyler’s claims as frivolous was not an abuse
of discretion.
AFFIRMED.

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