                                                                         F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                           NOV 5 2002
                         FOR THE TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                               Clerk

 BRIAN CHARLES GARGAN,

             Plaintiff-Appellant,

 v.                                                             No. 02-1059
                                                            (D.C. No. 00-M-2526)
 DAVID GABRIEL, KEN SOLHOL, JOHN                                  (D. Colo.)
 SABEC, BRYAN MILBURN, MARY CARTER,
 WILLIAM RUSHER, DALE O’CONNOR,
 THOMAS KERSTIENS, TRIGG, PIPER, PINEDA,
 SUTTON, SMELSER, REYES, DIVIDO,
 NURSE GRISWOULD, NURSE ROGICH,
 WARDEN SOARES, ASST. WARDEN TAYLOR,
 MAJOR TORANOWSKI, ORVILLE NEUFELD,
 and P.A. ENGLUND, in their individual and
 official capacities; KIM BURFORD, Adm. Asst. in
 her individual and official capacity; LINDA
 ERICSON, Nurse, in her individual and official
 capacity; J. DALTON, Capt. in his individual and
 official capacity; SGT. MONTOYA, and FRANK
 RUYBALID, in their individual and official
 capacities; 8 JOHN DOES, to be amended later,

             Defendants-Appellees.




                          ORDER AND JUDGMENT            *




      *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Before KELLY and BALDOCK , Circuit Judges, and          BRORBY , Senior Circuit
Judge.



      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.



      Brian Gargan, a state prisoner appearing pro se, brought suit under 42

U.S.C. § 1983 against twenty-seven named prison officials and eight John Does

for violating his Eighth Amendment rights. The district court granted the

defendants’ motion to dismiss for failure to state a claim. We exercise

jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.



      Mr. Gargan allegedly suffers from “chronic heart disease.” He argues the

defendants, knowing of his heart condition, violated his Eighth Amendment rights

by their excessive use of force and deliberate indifference to his serious medical

needs. Mr. Gargan claims the defendants used excessive force by spraying him

with four cans of oleoresin capsicum, commonly known as pepper spray, while

extracting him from his cell. The spray caused him to “suffer severly [sic],” and

the defendants subsequently upgraded him to a medical 4 rating. Mr. Gargan also

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claims the defendants were deliberately indifferent to his serious medical needs

by exposing him to secondhand pepper spray and refusing to treat his injuries.



      The defendants filed a motion to dismiss Mr. Gargan’s complaint under

Federal Rule of Civil Procedure 12(b)(6). In their motion, the defendants argued

Mr. Gargan failed to allege facts sufficient to show a violation of his Eighth

Amendment rights and, even if he did make such a showing, they were

nonetheless entitled to qualified immunity. The district court granted the

defendants’ motion to dismiss, stating Mr. Gargan failed “to sufficiently allege

claims for relief under 42 U.S.C. § 1983.” 1 Since we are in agreement with the

district court’s conclusion, we do not address the defendants’ claim of qualified

immunity.




      1
          Mr. Gargan amended his complaint once as a matter of right. Although
the district court never granted Mr. Gargan permission to file additional amended
complaints, Mr. Gargan later tendered second and third amended complaints. In
its order to dismiss, the district court did not identify the specific complaint it was
dismissing. As Mr. Gargan does not appeal the district court’s failure to grant
permission to amend, this issue is waived, see Krastev v. Immigration &
Naturalization Service, 292 F.3d 1268, 1280 (10th Cir. 2002), and we will
examine the last complaint filed, or the first amended complaint. We also note it
would have been futile for the district court to grant permission to amend, as Mr.
Gargan’s second and third amended complaints suffer from the same deficiencies
as his first amended complaint.


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      We review the district court’s dismissal de novo, accepting as true all well-

pled factual allegations and construing those facts in a light most favorable to Mr.

Gargan as the non-moving party. See Sutton v. Utah State Sch. for the Deaf &

Blind, 173 F.3d 1226, 1236 (10th Cir. 1999). Dismissal under Fed. R. Civ. P.

12(b)(6) is appropriate only if “it appears beyond doubt that the plaintiff can

prove no set of facts in support of his claim which would entitle him to relief.”

Id. (quotation marks omitted). Although a pro se litigant’s pleadings are

construed liberally, see Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991),

this court “will not supply additional factual allegations to round out a plaintiff’s

complaint or construct a legal theory on a plaintiff’s behalf,” Whitney v. New

Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997).



      To state a valid claim under 42 U.S.C. § 1983, a plaintiff must allege the

defendants deprived him of a constitutional right under color of state law. See

Northington v. Jackson, 973 F.2d 1518, 1523 (10th Cir. 1992). Mr. Gargan

argues the defendants deprived him of his Eighth Amendment rights under color

of state law by (1) spraying him with four cans of pepper spray during a cell

extraction; (2) exposing him on two occasions to secondhand pepper spray; and

(3) refusing to provide medical care for his injuries. The Eighth Amendment to

the United States Constitution provides: “Excessive bail shall not be required,


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nor excessive fines imposed, nor cruel and unusual punishments inflicted.” U.S.

Const. amend. VIII. The Eighth Amendment applies to the states through the

Fourteenth Amendment. See Rhodes v. Chapman, 452 U.S. 337, 344-345 (1981).



      We first turn to Mr. Gargan’s claim the defendants’ violated the Eighth

Amendment by using excessive force in spraying him with pepper spray during a

cell extraction. In order to state a claim for excessive use of force, Mr. Gargan

must show the defendants “acted maliciously and sadistically for the very purpose

of causing harm rather than in a good-faith effort to maintain or restore

discipline.” Mitchell v. Maynard, 80 F.3d 1433, 1440 (10th Cir. 1996). This

standard is appropriate “regardless of whether the corrections officers are

quelling a prison disturbance or merely trying to maintain order.” Id. (quotation

marks nd citation omitted). A plaintiff need not allege “significant physical

injury to state a cause of action.” Id.



      Mr. Gargan alleges the defendants, knowing of his heart condition, sprayed

him “4 times with 4 whole cans of [pepper spray] while [he was] unarmed, alone

and secured in a segregation cell.” The defendants then ordered Mr. Gargan back

into his cell to clean up the residue “while naked and burned.” Id. at 8. As a

result of this incident, Mr. Gargan “suffered severly [sic] and was upgraded to a


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medical 4 rating.” The district court determined these factual allegations failed to

state a claim for relief. We agree. Nowhere does the complaint allege facts

sufficient to support a reliable inference that pepper spray was used on Mr.

Gargan unnecessarily, excessively, or wantonly. There are simply no facts at all

discussing the need, or lack thereof, to use pepper spray in extracting Mr. Gargan

from his cell. The complaint also fails to allege exposure to pepper spray

aggravates Mr. Gargan’s heart condition or the defendants knew pepper spray

aggravates his heart condition.



      We now turn to Mr. Gargan’s claims of deliberate indifference. These

claims fail for similar reasons. Mr. Gargan argues the defendants were

deliberately indifferent to his serious medical needs in exposing him to

secondhand pepper spray. A deliberate indifference claim has two components:

(1) an objective component requiring the pain or deprivation be sufficiently

serious, and (2) a subjective component requiring the offending officials act with

a sufficiently culpable state of mind. See Perkins v. Kansas Dep’t of Corr., 165

F.3d 803, 809 (10th Cir. 1999). A medical need is serious enough to meet the

objective component “if it is one that has been diagnosed by a physician as

mandating treatment or one that is so obvious that even a lay person would easily

recognize the necessity for a doctor’s attention.” Ramos v. Lamm, 639 F.2d 559,


                                         -6-
575 (10th Cir. 1980) (quotation marks and citation omitted). The subjective

component is met if a prison “official knows of and disregards an excessive risk

to inmate health or safety; the official must both be aware of facts from which the

inference could be drawn that a substantial risk of serious harm exists, and he

must also draw the inference.” Farmer v. Brennan, 511 U.S. 825, 837 (1994).



      Mr. Gargan alleges the defendants, knowing of his heart condition, exposed

him to pepper spray on two occasions when spraying neighboring prisoners. On

at least the second incident, exposure to the pepper spray caused Mr. Gargan to

suffer “from vomiting, chest pain, dizziness and shortness of breath.” Mr. Gargan

fails to allege, however, that the defendants acted with a sufficiently culpable

state of mind. Nowhere does Mr. Gargan state that exposure to pepper spray

aggravates his heart condition, that the defendants knew such exposure would

aggravate his heart condition, or that, despite such knowledge, the defendants

deliberately exposed him to pepper spray. Mr. Gargan states only that a nurse,

following the second incident, remarked to him she should have removed him

from the area prior to using the spray. At most, this states a claim of negligence

insufficient to constitute an Eighth Amendment violation. See Whitley v. Albers,

475 U.S. 312, 319 (1986).




                                         -7-
      Mr. Gargan also argues the defendants were deliberately indifferent to his

serious medical needs by refusing medical care subsequent to at least two

incidents of pepper spray exposure. Mr. Gargan alleges a nurse on one occasion

“refused me medical attention and would not listen to my complaints when I told

her I had heart disease.” Another defendant later “denied I was a high risk for

cardiac arrest when he answered my step 3 grievance.” Mr. Gargan once again

fails to allege facts supporting a reliable inference of culpability on the part of the

defendants. There are simply no facts indicating whether the medical refusals

were wanton, negligent, or reasonable. There are also no facts indicating whether

Mr. Gargan’s alleged injuries are the result of an aggravation of his heart

condition or mere exposure to pepper spray. Absent these factual allegations, Mr.

Gargan cannot state a claim for deliberate indifference to serious medical needs.

Although Mr. Gargan appears to disagree with the defendants’ medical judgment,

mere disagreement with medical judgment does not rise to the level of an Eighth

Amendment violation. See Estelle v. Gamble, 429 U.S. 97, 106 (1976). It also

appears from Mr. Gargan’s briefs filed in this court and the district court that he

has been receiving treatment for his heart condition and other maladies since first

being exposed to pepper spray.




                                          -8-
      Mr. Gargan’s motion to proceed   in forma pauperis is granted, and the

judgment of the United States District Court for the District of Colorado is

AFFIRMED .



                                       Entered for the Court


                                       WADE BRORBY
                                       United States Circuit Judge




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