N.D. Cal. Notes Split Re Eighth Amendment Recognition of De Minimis Uses of Force against Prisoners

Per Sweets v. Contra Costa County Bd. of Supervisors, Slip Copy, 2008 WL 728551 (N.D. Cal. Mar. 17, 2008:

Every malevolent touch by a prison guard does not give rise to a federal cause of action. The Eighth Amendment's prohibition of cruel and unusual punishment necessarily excludes from constitutional recognition de minimis uses of physical force. Hudson, 503 U.S. at 9-10. The circuits are split regarding 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 F.3d 102, 108 (3d Cir.2000) (holding that “absence of objective proof of non- de minimis injury does not alone warrant dismissal.”) and Moore v. Holbrook, 2 F.3d 697, 700 (6th Cir.1993) (“No actual injury needs to be proven to state a viable Eighth Amendment claim.”) with Gomez v. Chandler, 163 F.3d 921, 924 (5th Cir.1999) (holding that “a prisoner must have suffered from the excessive force a more than de minimis injury”) and Norman v. Taylor, 25 F.3d 1259, 1263 (4th Cir.1994) ( en banc ) (absent most extraordinary circumstances plaintiff cannot prevail if his inury is de minimis ), cert denied, 513 U.S. 1114 (1995). The Ninth Circuit has not addressed directly this issue. However, it has suggested that a prisoner need not demonstrate more than de minimis injury to state an Eighth Amendment claim. See Oliver v.. Keller, 289 F.3d 623, 628 (9th Cir2002) (clarifying that adoption of the physical injury standard under 42 U.S.C. § 1997e(e) does not require that “the injury must be more than de minimis” ).