N.D. Cal. Notes Split Re Whether a Prisoner Must Prove That He Suffered More Than a De Minimis Injury in Order to Prevail on an Excessive Force Claim

Per Henderson v. City and County of San Francisco, Slip Copy, 2006 WL 3507944 (N.D.Cal. Dec 01, 2006):

[N]ot every malevolent touch by a prison guard gives rise to a federal cause of action; indeed, the Eighth Amendment's prohibition of cruel and unusual punishment necessarily excludes from constitutional recognition de minimis uses of physical force.

The circuit courts are currently split over whether a prisoner must prove that he suffered more than a de minimis injury in order to prevail on an excessive force claim. Compare Brooks v. Kyler, 204 F3d 102, 108 (3d Cir2000) ("[A]bsence of objective proof of non-de minimis injury does not alone warrant dismissal.") and Moore v. Holbrook, 2 F3d 697, 700 (6th Cir1993) ("No actual injury needs to be proven to state a viable Eighth Amendment claim.") with Gomez v. Chandler, 163 F3d 921, 924 (5th Cir1999) ("[T]o support an Eighth Amendment excessive force claim a prisoner must have suffered from the excessive force a more than de minimis injury.") and Norman v. Taylor, 25 F3d 1259, 1263 (4th Cir1994) (en banc) (plaintiff must show more than de minimis injury), cert. denied, 513 U.S. 1114 (1995). Although the Ninth Circuit has not addressed the issue, it has strongly suggested that a prisoner need only prove that the use of physical force was more than de minimis. See Oliver v. Keller, 289 F3d 623, 628 (9th Cir2002) (clarifying that in embracing physical injury standard under 42 USC § 1997e(e) adopted by several circuits, Ninth Circuit does not subscribe to reasoning of some of those circuits that 8th Amendment claims require that "the injury must be more than de minimis;" the standard used for 8th Amendment excessive force claims only examines whether the use of physical force is more than de minimis); see also Schwenk, 204 F3d at 1196-97 n6 (prisoner need not prove any injury "where the assault is one, such as attempted rape, that lacks any legitimate penological justification and is 'offensive to human dignity' ").