                            No. 98-41140
                                 -1-

                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT



                            No. 98-41140
                          Summary Calendar


SIMPSON LANE,

                                           Plaintiff-Appellant,

versus

HERBERT BYNUM, Sergeant; DEBRA WELLBORN, Correctional
Officer III; CALVIN TUCKER, Building Lieutenant;
KENNETH SULEWSKI, Captain,

                                           Defendants-Appellees.

                        - - - - - - - - - -
          Appeal from the United States District Court
                for the Eastern District of Texas
                       USDC No. 9:96-CV-171
                        - - - - - - - - - -
                         September 13, 1999

Before GARWOOD, BENAVIDES, and DENNIS, Circuit Judges.

PER CURIAM:*

     Simpson Lane, Texas prisoner #541742, appeals from the

district court’s grant of summary judgment to Correctional

Officer Debra Wellborn on Lane’s lawsuit, filed pursuant to 42

U.S.C. § 1983, alleging that Wellborn had thrown a pitcher of hot

coffee at Lane, scalding his chest, stomach, and left forearm.

The district court had previously dismissed Lane’s claims with

prejudice against defendants Herbert Bynum, Calvin Tucker, and

Kenneth Sulewski as frivolous pursuant to 28 U.S.C.


     *
        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that this opinion should not be published and is not precedent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.
                            No. 98-41140
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§ 1915A(b)(1), and those claims are not now before us.     The

district court held that Lane’s alleged injuries from the coffee

incident were de minimis for Eighth Amendment purposes and

accordingly dismissed Lane’s instant lawsuit with prejudice.          We

review a grant of summary judgment de novo.     Green v. Touro

Infirmary, 992 F.2d 537, 538 (5th Cir. 1993).

       A prison official violates the Eighth Amendment’s

prohibition of “cruel and unusual” punishment when force is used

maliciously and sadistically to cause harm, “whether or not

significant injury is evident.”    Hudson v. McMillian, 503 U.S. 1,

9 (1992).    De minimis uses of physical force are excluded from

constitutional recognition, “provided that the use of force is

not of a sort ‘repugnant to the conscience of mankind.’”      Id. at

9-10 (citation omitted).    In Siglar v. Hightower, 112 F.3d 191,

193 (5th Cir. 1997), this court held that a prisoner’s bruised

ear, which allegedly hurt for only three days and for which the

prisoner did not seek or receive medical treatment, was a de

minimis injury.    In comparison, in Williams v. Blackburn, No. 91-

3373, slip op. at 3 (5th Cir. Dec. 29, 1993)(unpublished), a

prisoner alleged that prison officials failed to protect him on

two separate occasions when another inmate threw hot water on

him.    Finding that Williams suffered no significant injury, the

district court dismissed the action.    Id., slip op. at 2.      We

stated that as a result of the “steaming hot” water being thrown

on him “Williams suffered first degree burns (redness and

blisters) on his face and shoulders” and that “the burns

ultimately healed without medical treatment.”    Slip op at 3.
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                                 -3-

This court reversed and remanded the § 1983 claims for

reconsideration in light of the new standard set forth in Hudson

but also stated that it did “not believe conduct resulting in

first and second degree burns . . . may be considered de

minimis.”    Id., slip op. at 16.

       After the district court entered judgment in the instant

case, this court decided Gomez v. Chandler, 163 F.3d 921 (5th

Cir. 1999).    The prisoner in Gomez allegedly sustained injuries

when prison officials knocked him down, scraped his face against

the ground, and then repeatedly beat and kicked him.     Id. at 924-

25.    Noting the intense and extended use of force and that “by

contrast” to Siglar “Gomez did receive medical treatment for his

injury,” the Gomez court held that the prisoner’s alleged

injuries were not de minimis under the Eighth Amendment.       Id. at

924.

       Prison medical records indicate that Lane sought and

received medical treatment for blisters, which appeared on his

skin within two days after the incident with Wellborn.    Also,

Lane’s affidavit states that the coffee thrown on him was

“scalding hot” and “smoking” (and that Wellborn threw the

pitcher’s contents on him deliberately and intentionally, with

intent to harm him and without any provocation or reason).

       The district court dismissed the suit on the sole basis that

Lane’s injuries considered alone were de minimis and without any

evaluation of any of the other four factors set in our opinion in

Hudson following remand from the Supreme Court.    Hudson v.

McMillian, 962 F.2d 522, 523 (5th Cir. 1992).    Dismissal on the
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                               -4-

sole basis of the de minimis nature of a complained of injury is

warranted in certain circumstances.   Siglar; Gomez.   But the

summary judgment evidence here—at least on the present

record—supports a finding of more than such a de minimis injury.

Accordingly, we VACATE the district court’s grant of summary

judgment for Wellborn and REMAND the excessive force claim

against Wellborn for further proceedings not inconsistent

herewith.



                              VACATED and REMANDED
