* 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this opinion should not be published and is not precedent except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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 95-40404

Summary Calendar

_____________________

CHRISTOPHER JAMES MURPHY,

Plaintiff-Appellant,

versus

J. JOHNSON; D. HOWARD; R. MATA,

Defendants-Appellees.

_________________________________________________________________

Appeal from the United States District Court for the

Northern District of Texas

(9:90-CV-152)

_________________________________________________________________

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 crossexamine a particular witness. After an initial dismissal, an

appeal to this court, and remand by this court, the magistrate
 

1Hugest 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superseded Shillingford for Eighth Amendment claims, was not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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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
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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 crossexamine 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
 

2The appellant has moved for an appointment of counsel. That

motion is DENIED AS MOOT.

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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