May 24, 1994 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 93-1742
DANTE CALABRIA,
Plaintiff, Appellant,
v.
LARRY E. DUBOIS, ETC., ET AL.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. A. David Mazzone, U.S. District Judge]
Before
Torruella, Selya and Cyr,
Circuit Judges.
Dante Calabria on brief pro se.
Nancy Ankers White, Special Assistant Attorney General, and
Kathleen J. Moore on brief for appellees.
Per Curiam. Plaintiff Dante Calabria, a
Massachusetts inmate, appeals the dismissal of his pro se
1983 action for failure to state a claim. These facts appear
from the face of the complaint.
I
In November 1992, Calabria, a cook's helper at the
Old Colony Correctional Center ("OCCS"), was placing potatoes
in pans preparing to bake them as directed by correction
officer Borges, the head cook, when another correction
officer, Hurst, suggested to Calabria that, as the chicken
was to be baked, the potatoes be boiled. Calabria responded
that he had been ordered to bake the potatoes and resumed
work. Hurst repaired to Borges' office, to which Calabria
was soon summoned, whereupon Borges ordered Calabria to boil
the potatoes and then threw a radio belt at Calabria causing
blood to appear at the corner of his mouth. Calabria
received medical attention soon afterwards, during which time
Calabria claims to have been informed that Borges had a
significant history of assaultive behavior towards inmates.
Upon this recital, Calabria sued Borges, Dubois, the
Commissioner of the Department of Correction, and Murphy, the
superintendent of the OCCC, in their individual and official
capacities. The principal charge is that defendants
inflicted unnecessary and unjustified force and cruel and
unusual punishment in violation of the Eighth Amendment.
Calabria claims that Dubois and Murphy knew about Borges'
propensity for assaulting inmates, but were deliberately
indifferent to the danger in which plaintiff was placed
because Borges was allowed to work with inmates in an
unsupervised environment. Calabria seeks declaratory and
injunctive relief, and compensatory and punitive damages for
physical pain, stress, and mental anguish.
Defendants' motion to dismiss or, in the
alternative, for summary judgment, presented a slightly
different version of the precipitating event, but the basic
facts were undisputed: while working in the kitchen, Calabria
was struck on the mouth by an object thrown by Borges; blood
appeared and medical attention was had. There was no
disturbance and no disciplinary report was filed. The
district court acknowledged some conflict in the parties'
versions of the event, but concluded that even if the court
were to assume that plaintiff's account was true, Calabria
had failed to state a claim for which relief could be
granted. We agree that the single blow described does not
state a cognizable cause of action under the Eighth Amendment
and Calabria could not possibly prove an excessive force
violation based on that recitation, indulging all reasonable
and plausible inferences in his favor.
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II
Calabria's chief premise on appeal is that the
district court, in dismissing his complaint, misapplied the
standard for Eighth Amendment excessive force claims
enunciated in Hudson v. McMillian, 112 S. Ct. 995 (1992), and
focused upon the extent of Calabria's injuries rather than
his allegations regarding the malicious and sadistic nature
of defendants' conduct. In this regard, Calabria appears to
argue that because institutional security was not at stake,
the force used was unnecessary, and the conduct alleged by
Calabria is sufficient to state a claim. Alternatively,
Calabria complains that the district court blindly accepted
defendants' version of the offending conduct, and that
because the parties' versions of that conduct vary greatly,
material issues of fact remain to be resolved. However, as
indicated above, the basic underlying facts are not disputed
and the district court accepted plaintiff's allegations as
true for the purpose of deciding the motion.
In arguing that dismissal for failure to state a
claim was proper, defendants chiefly rely on (1) the absence
of factual allegations showing unnecessary and wanton
infliction of pain; and (2) Calabria's bare recital that he
was struck once during the normal course of daily activities,
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reflects, under Hudson, 112 S. Ct. at 1000, a de minimis use
of physical force excluded from Eighth Amendment recognition.
III
Generally, an Eighth Amendment claimant must allege
and prove the unnecessary and wanton infliction of pain.
Whitley v. Albers, 475 U.S. 312, 320 (1986). Hudson v.
McMillian extended Whitley, which involved a prison riot, to
any excessive force claim and held: "the core judicial
inquiry is . . . whether force was applied in a good-faith
effort to maintain or restore discipline, or maliciously and
sadistically to cause harm." Hudson, 112 S. Ct. at 999.
Further, the Court decided that the "objectively harmful
enough" component of an Eighth Amendment claim is always
satisfied when prison officials use force maliciously and
sadistically to cause harm "whether or not significant injury
is evident." Id. at 999-1000. In deciding that the extent
of Hudson's injuries (bruises and swelling of face, mouth and
lip, loosened teeth and cracked dental plate) could result
from non-de minimis force for Eighth Amendment purposes, and
were relevant to (but not determinative of) the "unnecessary
and wanton" Whitley inquiry, the Court nonetheless indicated
that there was some quantum of physical force that was
necessarily excludable from Eighth Amendment recognition,
unless that use of force was otherwise repugnant. Id. at
1000. That not "every malevolent touch by a prison guard
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gives rise to a federal cause of action," id., suggests that
merely superficial injury permits a reliable inference that
the accompanying force was not "harmful enough," Wilson v.
Seiter, 111 S. Ct. 2321, 2326 (1991), and is constitutionally
de minimis. See Whitley, 475 U.S. at 321-22 (inferences may
be drawn from, among other factors, the extent of the injury
inflicted as to whether the use of force employed evidenced
wanton conduct); see also Moore v. Holbrook, 2 F.3d 697, 701
(6th Cir. 1993). Thus, to state a 1983 claim that he was
subjected to a malicious and sadistic attack in violation of
the Eighth Amendment, Calabria must allege wrongdoing that
reasonably and plausibly amounts to more than a de minimis
use of force.
The conduct presented here -- a single blow caused
by a thrown object and resulting only in a bloody lip -- was
clearly de minimis for Eighth Amendment purposes, and
Calabria's complaint was properly dismissed as legally
deficient. See, e.g., Jackson v. Culbertson, 984 F.2d 699,
700 (5th Cir. 1993) (spraying with fire extinguisher); Olson
v. Coleman, 804 F. Supp. 148, 150 (D. Kan. 1992), aff'd, 1993
U.S. App. Lexis 10086 (10th Cir. 1993) (single blow to head
while handcuffed); Gabai v. Jacoby, 800 F. Supp. 1149, 1154-
55 (S.D.N.Y. 1992) (shoved into chair); Candelaria v.
Coughlin, 787 F. Supp. 368, 374-75 (S.D.N.Y.), aff'd, 979
F.2d 845 (2d Cir 1992) (fist pushed against neck); see also
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Risdal v. Martin, 810 F. Supp. 1049, 1056 & n.12 (S.D. Iowa
1993); cf. Northington v. Jackson, 973 F.2d 1518, 1524 (10th
Cir. 1992) (putting gun to inmate's head could be malicious
and sadistic precluding dismissal for failure to state a
claim). Nor can we say that there is any "meaningful
indication" that further pleading at this stage would make
any "dispositive difference." Dartmouth Review v. Dartmouth
College, 889 F.2d 13, 23 (1st Cir. 1989).
IV
As a final matter, Calabria complains that the
district court erroneously removed a default judgment entered
against the defendants and permitted the late filing of an
answer. However, Calabria's motion for default was filed
three weeks after service on the defendants, the default
entered twelve days later, and defendants moved to remove the
default two weeks later, less than seven weeks from service
of the complaint. Under these circumstances, the district
court acted well within its discretion in allowing relief
from the default order. Cf., e.g., Clinkscales v. Chevron
U.S.A., 831 F.2d 1565, 1569 (11th Cir. 1987) (six month delay
in filing reply brief inexcusable).
The judgment of the district court is affirmed.
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