IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
__________________
No. 95-30142
Conference Calendar
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WALTER SMITH,
Plaintiff-Appellant,
versus
JAMES SAMPLES,
Defendant-Appellee.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. 94-CV-1356
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August 22, 1995
Before KING, JOLLY, and WIENER, Circuit Judges.
PER CURIAM:*
Louisiana state prisoner Walter Smith filed a pro se, in
forma pauperis complaint alleging an Eighth Amendment violation
because he was denied his evening meal on one occasion. The
district court dismissed the complaint as frivolous under 28
U.S.C. § 1915(d).
This court reviews a prisoner's allegations challenging the
conditions of confinement under the "deliberate indifference"
standard. Wilson v. Seiter, 501 U.S. 294, 303 (1991).
*
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that this opinion should not be published.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. 95-30142
-2-
Conditions of confinement which do not lead to deprivations of
essential food, medical care, or sanitation do not amount to an
Eighth Amendment violation. Rhodes v. Chapman, 452 U.S. 337, 348
(1981). The denial of a single meal due to inadvertence or even
neglect does not rise to the level of deprivation of essential
food and is insufficient to allege a cognizable Eighth Amendment
claim.
A party is permitted to amend his pleadings once as a matter
of right before a responsive pleading is filed. See Fed. R. Civ.
P. 15(a); McGruder v. Phelps, 608 F.2d 1023, 1025 (5th Cir.
1979). The defendants were not served and no responsive pleading
was filed and, therefore, under Rule 15(a) Smith was not required
to seek leave of court to amend. This court, however, cannot
review the denial of Smith's unnecessary motion to amend because
Smith did not appeal the magistrate judge's denial of the motion
to the district court. Colburn v. Bunge Towing, Inc., 883 F.2d
372, 379 (5th Cir. 1989).
In his amended complaint Smith alleged he was again denied
an evening meal. An additional missed meal, six months later, is
insufficient to rise to the level of a constitutional claim.
APPEAL DISMISSED AS FRIVOLOUS. See 5th Cir. R. 42.2. Smith
is warned that filing further frivolous appeals will result in
imposition of sanctions.