Murphy v. Johnson ( 1996 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 95-40404
Summary Calendar
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CHRISTOPHER JAMES MURPHY,
Plaintiff-Appellant,
versus
J. JOHNSON; D. HOWARD; R. MATA,
Defendants-Appellees.
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Appeal from the United States District Court for the
Northern District of Texas
(9:90-CV-152)
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February 7, 1996
Before JOLLY, JONES, and STEWART, Circuit Judges.
PER CURIAM:*
Christopher Murphy is a Texas Department of Criminal Justice
prison inmate. He filed this 42 U.S.C. § 1983 complaint alleging
that he was subjected, without provocation, to excessive force by
prison guards in retaliation for filing grievances against them.
He raises the further claim that he was denied due process when at
a subsequent disciplinary hearing he was not permitted to cross-
examine a particular witness. After an initial dismissal, an
appeal to this court, and remand by this court, the magistrate
*
Pursuant to Local Rule 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this opinion should not be published and is not precedent except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 Local Rule 47.5.4.
judge conducted a hearing. Following the hearing, the magistrate
judge dismissed the claim of excessive force on the grounds of
qualified immunity and dismissed the due process claim on grounds
that it was frivolous. We affirm.
The Fifth Circuit has expressly held that in determining
claims of qualified immunity, the objective reasonableness of the
officer's conduct must be measured with reference to the law as it
existed at the time of the conduct in question. King v. Chide, 974
F.2d 653 (5th Cir. 1992), citing Pfannstiel v. Marion, 918 F.2d
1178, 1885 (5th Cir. 1990). The conduct of the officers must
therefore be evaluated under the standard for excessive force
existing at the time of the incident. King, 974 F.2d at 655.
The incident occurred on February 15, 1990. At the time, the
standard for evaluating use of force claims was set forth in
Shillingford v. Holmes, 634 F.2d 263, 265 (5th Cir. 1981).1 See
Palmer v. Lares, 42 F.3d 975, 977-78 (5th Cir. 1995) (applying
Shillingford); Valencia v. Wiggins, 981 F.2d 1440, 1449 (5th Cir.),
cert. denied 113 S.Ct. 2998 (1993) (same). The Shillingford test
requires that an inmate claiming that excessive force had been used
against him in violation of the Eighth Amendment must show that the
force used caused severe injuries, was grossly disproportionate to
the need for action under the circumstances, and was inspired by
1
Hugest v. Barnett, 900 F.2d 838 (5th Cir. 1990), which
superseded Shillingford for Eighth Amendment claims, was not
decided until May 11, 1990, after the incident in this lawsuit took
place.
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malice rather than merely careless or unwise excess of zeal so that
it amounted to an abuse of official power that shocks the
conscience. Shillingford, 634 F.2d at 265; Palmer, 42 F.3d at 978.
In Shillingford, for example, a laceration to the plaintiff's
forehead was found to be a "severe" injury. 634 F.2d at 266.
However, Raly v. Fraser, 747 F.2d 287, 289 (5th Cir. 1984), held
that bruises on the plaintiff's arms, scrapes on his face, welts on
his wrists caused by the handcuffs, and a sore throat and hoarse
voice caused by a chokehold were not "severe" injuries. The
magistrate judge evaluated Murphy's claim under this standard and
determined that, taking Murphy's testimony as true and disregarding
all evidence that contradicted it, Murphy's injuries clearly did
not rise to the level of a severe injury. The magistrate judge did
not abuse his discretion in dismissing the excessive force claim
under § 1915(d).
With respect to the due process claim, the essence of his only
noteworthy claim is that he requested and was not allowed to cross-
examine Officer Perrin. Although the evidence clearly indicates
that Murphy did not request the right to cross-examine Perrin at
the disciplinary hearing, even when we assume that Murphy was in
fact denied the right to cross-examine Perrin, it is clear to us
that it does not amount to a possible violation of constitutional
rights to due process. Murphy had a full hearing and all witnesses
requested were present at the hearing either in person or by way of
telephone. The failure to allow cross-examination of this one
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witness about a nondeterminative matter clearly did not rise to the
level of a constitutional violation of due process.
For the reasons stated herein, the district court's dismissal
of this complaint is
A F F I R M E D.2
2
The appellant has moved for an appointment of counsel. That
motion is DENIED AS MOOT.
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