
USCA1 Opinion

	




          May 24, 1994          [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                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                                          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.                                         -3-                                          II                                          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,                                         -4-            reflects, under Hudson, 112 S. Ct. at 1000, a  de minimis use                            ______                         __ _______            of physical force excluded from Eighth Amendment recognition.                                         III                                         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                                         -5-            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                                                                 ___ ____                                         -6-            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                                          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.                                                       ________                                         -7-
