United States Court of Appeals,

Fifth Circuit.

No. 91-4897,

Summary Calendar.

Harry L. JACKSON, Plaintiff-Appellant,

v.

R.E. CULBERTSON, Sheriff, et al., Defendants-Appellees.

March 4, 1993.

Appeal from the United States District Court for the Eastern District of Texas.

Before HIGGINBOTHAM, SMITH, and DeMOSS, Circuit Judges.

PER CURIAM:

The district court adopted the report and recommendation of the magistrate judge dismissing

plaint iff's pro se and in forma pauperis § 1983 complaint as frivolous under 28 U.S.C. § 1915(d).

We affirm, relying on the reasons stated by the magistrate and adopted by the district court as to all

claims, except plaintiff's use of force claim.

Jackson, previously a prisoner confined in the Jefferson County Jail, based his excessive use

of force claim on the following fact s. While in prison, Jackson started a fire with a match and the

core of a role of toilet paper. The fire alarm went off, prompting prison officials to take action. One

official ar rived wit h a fire extinguisher. The fire had already gone out by the time he arrived;

nonetheless, the official sprayed the re maining ashes, as well as Jackson and two other inmates.

Jackson testifi$ed at his Spears hearing that he did not receive any injuries.

Because our precedent at the time of the magistrate's decision required a "significant injury,"

see Johnson v. Morel, 876 F.2d 477, 480 (5th Cir.1989) (en banc) (under the Fourth Amendment);

Oliver v. Collins, 914 F.2d 56, 59 (5th Cir.1990) (under t he Eighth Amendment); S hillingford v.

Holmes, 634 F.2d 263 (5th Cir.1981) (under the Due Process Clause), the magistrate found this claim

to be frivolous. However, after the magistrate's decision, the Supreme Court held that a significant

injury is not required for an excessive force claim under the Eighth Amendment. H udson v.McMillian,

--- U.S.

----, 112 S.Ct. 995, 117 L.Ed.2d 156 (1992). Although, Jackson need not show

a significant injury, he must have suffered at least some injury. The Court in H udson also stated that

The Eighth Amendment's prohibition of "cruel and unusual" punishment necessarily excludes

from constitutional recognition de minimis uses of physical force, provided that the use of

force is not of a sort "repugnant to the conscience of mankind."

Id.

--- U.S. at ----, 112 S.Ct. at 1000. Apparently, Jackson was a pretrial detainee so that his claim

is governed by the Due Process Clause rather than the Eighth Amendment. Regardless, the standard

is the same. S ee Valencia v. Wiggins, 981 F.2d 1440 (5th Cir.1993) (holding that Hudson's test for

excessive force under the Eighth Amendment applies to a pretrial detainee's excessive force claim

under the Due Process Clause).

Because he suffered no injury, we find that the spraying of Jackson with the fire extinguisher

was a de minimis use o f physical force and was not repugnant to the conscience of mankind. C f.

Olson v. Coleman, 804 F.Supp. 148, 150 (D.Kan.1992) (finding a single blow to the head causing

a contusion to be de minimis and not repugnant); C andelaria v. Coughlin, 787 F.Supp. 368, 374

(S.D.N.Y.1992) (allegation of single incident of guard using force to choke inmate was de minimis ),

aff'd, 979 F.2d 845 (2d Cir.1992). The dismissal of Jackson's claims under § 1915(d) is therefore

AFFIRMED.