Calabria v. DuBois

Opinion

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May 24, 1994          [NOT FOR PUBLICATION]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
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            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.

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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,

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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
                                         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
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            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
                                          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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