* 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.

1 Crawford’s motion to voluntarily dismiss defendants James A. Lynaugh, Billy Ray

Crawford, and Wendell Banks was granted.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 96-20676

Summary Calendar

DONALD WAYNE CRAWFORD,

Plaintiff-Appellant,

versus

JAMES A. COLLINS, ET AL,

Defendants

MICHAEL DAVENPORT,

Defendant-Appellee.

- - - - - - - - - - Appeal from the United States District Court

for the Southern District of Texas

USDC No. CA-H-90-3190

- - - - - - - - - -

May 22, 1997

Before HIGGINBOTHAM, WIENER, and BENAVIDES, Circuit Judges.

PER CURIAM: *

Donald Wayne Crawford, Texas prisoner # 511098, sued prison guard Michael Davenport

and others 1 under 42 U.S.C. § 1983, alleging that Davenport violated his civil rights by placing himNo. 96-20676

- 2 -

2 Huguet v. Barnett , 900 F.2d 838 (5th Cir. 1990), which superseded Shillingford for Eighth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. This court noted in Wesson v. Oglesby , 910 F.2d 278, 283 n.4 (5th Cir. 1990), that the

Eighth Amendment standard prior to Huguet was the Shillingford standard. in a “head lock” and “jabbing” him in the side with an ink pen. Following a jury trial, the district

court entered a judgment as a matter of law in favor of Davenport, finding that (1) Crawford failed

to show a violation of his constitutional rights under contemporary standards, and (2) that Davenport

was entitled to qualified immunit y. We review t he district court’s disposition of a judgment as a

matter of law de novo

. P orti s v. First Nat'l Bank of New Albany, Miss. , 34 F.3d 325, 327 (5th Cir.

1994). Because we find t hat Davenport is entitled to qualified immunity, we decline to address

whether Crawford’s injury is sufficient to prove a violation of his constitutional rights under current

standards.

The district court correctly noted that because the standard by which an Eighth Amendment

excessive force claim is judged changed between the incident and t rial, the standard applicable to

Crawford’s substantive claim is differen t t han t he standard applicable to Davenport’s qualified

immunit y defense. 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. P almer v. Lares

, 42 F.3d 975, 978-79 (5th Cir. 1995). Here, because the incident took

place before Hudson v. McMillan

, 503 U.S. 1 (1992), was decided, the qualified immunit y standard

for measuring excessive force differs from the appropriate standard used to determine whether Eighth

Amendment violation has been shown. The officer’s immunity must therefore be evaluated under the

standard for excessive force existing at the time of the incident. Id.

The incident occurred on October 3, 1989. 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). 2 S ee Palmer

,No. 96-20676

- 3 -

42 F.3d at 977-78 (applying Shillingford to 1985 incident); Valencia v. Wiggins

, 981 F.2d 1440, 1449

(5th Cir. 1993) (same, 1987 incident). The S hillingford test requires that an inmate clai m ing that

excessive force has been used against him in violation of the Eighth Amendment must show that the

force used caused severe injuries, was grossly disproportio nate to the need for acti on under the

circumstances, and was inspired by malice rather than merely careless or unwise excess of zeal so that

it amounted to an abuse of official power that shocks the conscience. S hillingford

, 634 F.2d at 265;

Palmer

, 42 F.3d at 978. In S hillingford

, for example, a laceration to the plaint iff's forehead was found

to be a "severe" injury. 634 F.2d at 266. However, Raly v. Fraser

, 747 F.2d 287, 288-89 (5th Cir.

1984), held that bruises on the plaint iff's arms, scrapes on his face, welts on his wrists caused by the

handcuffs, and a

so re t hro at and hoarse voice caused by a chokehold were not "severe" injuries.

Considering all of the evidence and reasonable inferences in the light most favorable to Crawford, see

Por tis , 34 F.3d at 328, Crawford's injuries did not rise to the level of a severe injury. Because

Crawford failed to prove that Davenport caused him any severe inj ury, as required by the clearly

established law at th e t ime of the incident, Davenport is qualifiedly immune from liability under §

1983. The district court correctly granted judgment as a matter of law.

Crawford’s argument that Davenport failed to raise t imely his motion for judgment as a matter

of law is not supported by the record. Davenport timely raised the motion at the close of Crawford’s

evidence and at the close of all evidence. See Fed. R. Civ. P. 50(a)(2). The district court deferred

it s ruling and, by agreement of the parties and the court, and without objection by Crawford,

Davenport was allowed to argue the motion after the case was submitted to the jury. Davenport

timely renewed his motion after trial. See Rule 50(b).

Crawford also argues that the district court abused its discretion by denying his motion for

the entry of a default judgment on the issue of damages when Davenport failed to file an answer. S eeNo. 96-20676

- 4 -

Fed. R. Civ. P. 55(b)(2). “Default judgments are a drastic remedy, not favored by the Federal Rules

and resorted to by courts only in extreme situations.” Sun Bank of Ocala v. Pelican Homestead &

Savings Ass'n

, 874 F.2d 274, 276 (5th Cir. 1989). Although the district court could have entered a

default judgment for failing to meet the procedural time requirement, the district court did not abuse

its discretion by choosing not to do so because Crawford failed to make any showing of prejudice.

AFFIRMED.