PER CURIAM. In Hudson v. McMillian, 503 U.S. 1, 4, 112 S.Ct. 995, 117 L.Ed.2d 156 (1992), this Court held that “the use of excessive physical force against a prisoner may constitute cruel and unusual punishment [even] when the inmate does not suffer serious injury.” In this case, the District Court dismissed a prisoner's excessive force claim based entirely on its determination that his injuries were “de minimis.”

The Cruel and Unusual Punishments Clause of the Eighth Amendment prohibits the "unnecessary and wanton infliction of pain" on prisoners. See Hudson v. McMillian, 503 U.S. 1, 5 (1992); Estelle v. Gamble, 429 U.S. 97, 102-03 (1976). What constitutes an "unnecessary and wanton infliction of pain," however, "varies according to the nature of the alleged constitutional violation."

While the Eighth Amendment's protection does not apply "until after conviction and sentence," Graham v. Connor, 490 U.S. 386, 392 n. 6 (1989), the right of pretrial detainees to be free from excessive force amounting to punishment is protected by the Due Process Clause of the Fourteenth Amendment, see Bell v. Wolfish, 441 U.S. 520, 535 (1979). Hudson v. McMillian, 503 U.S. 1 (1992), establishes the minimum standards for whether abuse by a prison guard states a constitutional claim in contexts other than prison disturbances. Hudson held that a claim of excessive force may be established even if the victim does not suffer "serious," id. at 7-9 (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)), or "significant" injury, Hudson, 503 U.S. at 9, provided that the amount of force used is more than " de minimis," or involves force that is "repugnant to the conscience of mankind," id. at 9-10.

In order to establish a constitutional violation under the Eighth Amendment, a plaintiff must satisfy both an objective and a subjective component. See Hudson v. McMillian, 503 U.S. 1, 9-10 (1992). The objective component requires that the alleged violation be "sufficiently serious" by objective standards.

See Johnson v. Morel, 876 F.2d 477 (5th Cir. 1989). However, in Hudson v. McMillian, 503 U.S. ___, 112 S.Ct. 995, 117 L.Ed.2d 156 (1992), the Supreme Court overturned the Fifth Circuit's "significant injury" requirement.Johnson v. Morel is representative of the Fifth Circuit's long-established mandate that a plaintiff may prevail on a constitutional excessive force claim only by proving each of the following three elements:

” The amount of force used must be more than de minimis , “provided that the use of force is not of a sort ‘repugnant to the conscience of mankind.’ ” A plaintiff need not show significant injury, although the extent of the injury may supply insight as to the amount of force applied.Hudson v. McMillian , 503 U.S. 1, 6–7, 112 S.Ct. 995, 117 L.Ed.2d 156 (1992).Valencia v. Wiggins , 981 F.2d 1440, 1449 (5th Cir. 1993).

To determine whether the officer applied the force maliciously and sadistically, we consider the following factors: "[1] the need for application of force, [2] the relationship between that need and the amount of force used, [3] the threat 'reasonably perceived by the responsible officials,' . . . [4] 'any efforts made to temper the severity of a forceful response,'" and "[5] [t]he absence of serious injury." Hudson v. McMillian, 503 U.S. 1, 7, 112 S. Ct. 995, 999 (1992) (quoting Whitley, 475 U.S. at 321, 106 S. Ct. at 1085). In doing that we "give a wide range of deference to prison officials acting to preserve discipline and security, including when considering decisions made at the scene of a disturbance."

Under the objective component, which is at issue here, a reviewing court is to ask whether "the alleged wrongdoing was objectively `harmful enough' to establish a constitutional violation." Hudson v. McMillian, 503 U.S. 1, ___, 112 S.Ct. 995, 999, 117 L.Ed.2d 156 (1992) (quoting Wilson v. Seiter, 501 U.S. 294, 302, 111 S.Ct. 2321, 2326, 115 L.Ed.2d 271 (1991)). Prior to the Supreme Court's decision in Hudson, some courts had held that in the excessive force context, the Eighth Amendment required a prisoner to prove that he had suffered "significant injury" at the hands of prison officials.

The Supreme Court overruled the significant injury prong in an Eighth Amendment excessive use of force context. Hudson v. McMillian, ___ U.S. ___, ___, 112 S.Ct. 995, 1000, 117 L.Ed.2d 156, 167 (1992). We now hold that the Johnson standard is no longer valid in the wake of Hudson v. McMillian, ___ U.S. ___, 112 S.Ct. 995, 117 L.Ed.2d 156 (1992), to assess whether plaintiff has alleged a constitutional violation.

Those decisions tug strongly away from classifying suits about prison guards' use of excessive force, one or many times, as anything other than actions "with respect to prison conditions." Nussle misplaces principal reliance on Hudson v. McMillian, 503 U.S. 1, 8-9, and Farmer v. Brennan, 511 U.S. 825, 835-836. Although those cases did distinguish excessive force claims from conditions of confinement claims, they did so in the context of proof requirements: what injury must a plaintiff allege and show; what mental state must a plaintiff plead and prove.