* 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that this opinion should not be published and is not precedent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. UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 95-20161

_____________________

FREDDIE JOHN DANIEL,

Plaintiff-Appellee/Cross-Appellant,

versus

THERON KEITH HARRISON,

Defendant-Appellant/Cross-Appellee.

_________________________________________________________________

Appeal from the United States District Court

for the Southern District of Texas

(CA-H-91-0225)

_________________________________________________________________ August 14, 1996

Before POLITZ, Chief Judge, JOLLY and BARKSDALE, Circuit Judges:

PER CURIAM: *

Contending that he is entitled to qualified immunity in this

42 U.S.C. § 1983 excessive force action, prison guard Theron Keith

Harrison appeals the judgment awarded Freddie John Daniel, a state

prisoner. Because Daniel did not sustain a “significant” injury,

as required by the clearly established law at the time of the

incident, we REVERSE the judgment in favor of Daniel and RENDER

judgment for Harrison.- 2 - I.

Daniel claimed that in September 1990, Harrison used excessive

force; Harrison claimed qualified immunity. Following a bench

trial, the district court held that Harrison used such force, and

entered judgment for Daniel, awarding nominal compensatory damages

of $10 and punitive damages of $800. Harrison was ordered to pay

Daniel’s attorney’s fees of $10,000, plus costs of $700.

II.

Harrison gro unds qualified immunity on the fact that Daniel

did not sustain objective physical injuries as a result of the use

of force. We conduct a bifurcated analysis to assess the

application of such immunity. E .g., Rankin v. Klevenhagen

, 5 F.3d

103, 105 (5th Cir. 1993).

The first step is to determine whether a violation of a

clearly established const itutional right is alleged. I d

.

“[C]urrently applicable constitutional standards [are used] to make

this assessment”. I d

. at 106. This step is satisfied by the

allegation that Harrison used exc essive force against Daniel, in

violation of the Eighth and Fourteenth Amendments. See Hudson v.

McMillian , 503 U.S. 1 (1992); see also Dunn v. Denk , 79 F.3d 401,

402 (5th Cir. 1996) (en banc).

Because the first step is satisfied, we next determine whether

Harrison’s “conduct was objectively reasonable”. R ankin

, 5 F.3d at

105. This assessment is made in light of the legal rules- 3 -

established at the time of the incident. I d

. at 108. At the time

of the September 1990 incident, the controlling law was Huguet v.

Barnett

, 900 F.2d 838 (5th Cir. 1990), decided in May 1990.

( Huguet controlled until late February 1992, when its significant

injury prong was overruled by Hudson v. McMillian

, 503 U.S. 1

(1992). See Rankin , 5 F.3d at 105 n.2.)

Under Huguet

, an excessive force claimant is required to prove

1. a significant injury , which

2. resulted directly and only from the use

of force that was clearly excessive to

the need, the excessiveness of which was

3. objectively unreasonable, and

4. the action constituted an unnecessary and

wanton infliction of pain.

900 F.2d at 841 (emphasis added).

T he district court held, erroneously, that S hillingford v.

Holmes

, 634 F.2d 263 (5th Cir. 1981), provided the controlling

legal standard at the time of the incident. Under Shillingford

,

[i]f the state officer’s action caused severe

injuries, was grossly disproportionate to the

need for action under the circumstances and

was inspired by malice rather than merely

careless or unwise excess of zeal so that it

a mounted to an abuse of official power that

shocks the conscience, it should be redressed

under Section 1983.

Id. at 265. The court found that no objective injuries were found

by the prison nurse who examined Dan iel immediately after the

incident, and that Daniel failed to prove that t he use of force

proximately caused a cerebral aneurysm rupture which occurred two- 4 -

and one-half years after the incident. (Although Daniel filed a

cross-appeal, he does not contend that any holding, including that

on the aneurysm, wa s erroneous. His cross-appeal is, therefore,

DISMISSED .)

Nevertheless, the court held that Harrison’ s actions were

objectively unreasonable. It stated that “[t]he physical abuse in

this case was suffici ently severe, disproportionate to the need

present ed, and so deliberate and unjustified to overcome the

defense of qualified immunity.” The court reasoned that “[t]he

fact that Daniel was not more seriously injured at the time of this

[September 1990] incident was merely `fortuitous’ and does not bar

Daniel’s cause of action for excessive force.”

It is not necessary to address whether the district court

applied Shillingford correctly, because, as discussed, Huguet

, not

Shillingford , provides the standard for determining the objective

reasonablen ess of Harrison’s conduct. Because the court applied

the incorrect legal standard, it did not make a finding on whether

Daniel sustained the “significant injury” required by Huguet

.

This notwithstanding, a r emand is unnecessary, because the

record contains no evidence to support a fi nding that Daniel

sustained such an injury. Although he testified that he had

several knots o n his head and experienced pain in his arm, neck,

head, and back for several days after the incident, the district

court found that Daniel was examined by a nurse immediately- 5 -

following the incident, and that no objective injuries were found.

This finding is supported not only by Daniel’s trial testimony, but

also by his medical records, photographs taken while he was at the

i nfirmary after the incident, and a videotape of the examinat ion

(covering Daniel proceeding to it, being examined and photographed,

and departing), all of which were admitted into evidence at trial.

III.

Because Daniel failed to prove that he sustained a significant

injury, as required by the clearly established law at the time of

the incident, Harrison is qualifiedly immune from liability under

§ 1983. Accordingly, we REVERSE the judgment in favor of Daniel,

and RENDER judgment in favor of Harrison.

REVERSED and RENDERED