                 Not for publication in West's Federal Reporter
                Citation Limited Pursuant to 1st Cir. Loc. R. 32.3

              United States Court of Appeals
                         For the First Circuit
No. 02-1409

               PEDRO J. MONTES; ELIZABETH QUINONES;
           PEDRO MONTES-QUINONES; JOSUE MONTES-QUINONES,

                        Plaintiffs, Appellants,

                                       v.

           PONCE MUNICIPALITY; RAFAEL CORDERO SANTIAGO;
         GILBERTO COLON-RODRIGUEZ; MARCO MORALES-BARBOSA;
            RAMOS CRUZ-LOPEZ; JOSE M. GALARZA-CAPIELO,

                         Defendants, Appellees.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                 FOR THE DISTRICT OF PUERTO RICO
          [Hon. Jose Antonio Fuste, U.S. District Judge]


                                    Before

                           Boudin, Chief Judge,

                          Seyla, Circuit Judge,

                 and Siler,* Senior Circuit Judge.


     Jose R. Santiago Pereles, Santiago Pereles & Collazo, PSC, for
appellants.
     Leticia Casalduc-Rabell, Assistant Solicitor General, with
whom Roberto J. Sanchez-Ramos, Solicitor General, was on brief,
for appellees.

                             October 31, 2003



     *
      Of the    Sixth     Circuit      Court      of    Appeals,     sitting   by
designation.
     SILER, Senior Circuit Judge.       Plaintiff Pedro Montes appeals

the district court’s judgments on his various 42 U.S.C. § 1983

claims, and a jury verdict on his claim of excessive force.              We

AFFIRM.

     In 1999 in the City of Ponce, Puerto Rico, the police arrested

Montes after he got into a heated argument with his neighbor.

According to Montes, the arresting officers kicked and punched him

in the face repeatedly for over ten minutes.         The police took him

to the nearest precinct where they put him in a three-foot by

three-foot cell that smelled like a sewer.       Montes sued the City of

Ponce, its Mayor Santiago, the Police Commissioner Rodriguez, and

the three police officers effecting the arrest, asserting multiple

constitutional violations under 42 U.S.C. § 1983.               His family

joined his complaint asserting an emotional distress claim under

Puerto Rico law.

     At trial, after Montes presented his evidence, the district

court granted judgment as a matter of law, pursuant to Fed. R. Civ.

P. 50, for the City, Mayor, and Police Commissioner.             After the

remaining police defendants countered with their evidence, the

district   court   granted   judgment   as   a   matter   of   law   against

Montes’s claims of (1) arrest without probable cause, (2) unlawful

search and seizure, (3) unfit place of detention, and (4) failure

to provide prompt medical attention. The jury found for the police

defendants on the excessive force claim.


                                  -2-
      Montes (and his family) filed a notice of appeal from the

judgment entered on February 7, 2002; however, the notice made no

mention of the February 5, 2002 judgment dismissing the City,

Mayor, and Police Commissioner.

                               Notice of Appeal

      Since Montes’s notice of appeal failed to mention the February

5, 2002 judgment dismissing the claims against the City, Mayor, and

Police Commissioner, these defendants argue that this omission

waived any appeal.

      Fed.   R.   App.    P.   3(c)    requires    that    a   notice   of    appeal

“designate the judgment, order, or part thereof appealed from.”

Its   requirements       are   to     be    construed   liberally,      and   “mere

technicalities” will not defeat appellate jurisdiction so long as

the filing is the “functional equivalent.”                Blockel v. J.C. Penney

Co., 337 F.3d 17, 23-24 (1st Cir. 2003).            But First Circuit caselaw

as to when to allow deviations from the strict requirements of Rule

3 has evolved in a case by case basis, and articulating a definite

rule is difficult.       Compare In re Spookyworld, Inc., --- F.3d ---,

2003 WL 22210065 (1st Cir. Sept. 25, 2003) with Blockel, 337 F.3d

at 23-24.    In this instance there is no doubt that this court has

jurisdiction over the case in general – there was a timely appeal

filed for at least one order – and with respect to the other order

it turns out not to matter because the claim fails on the merits.




                                           -3-
Because it fails so clearly, we find it easier to assume without

deciding that the notice of appeal was adequate.

      Montes’s viable1 claims on appeal challenge the judgments as

a matter of law against him on (1) municipal and supervisory § 1983

claims against the City, Mayor, and Police Commissioner, (2) his

conditions of confinement claim, and (3) his denial of medical

treatment claim. He also asserts that the evidence did not support

the jury’s verdict against him on the excessive force claim.

                         Conditions of Confinement

      Montes makes a cruel and unusual punishment claim for his

detention in a poorly ventilated small cell for seventeen hours.

We review the judgment against Montes de novo, taking all evidence

in the light most favorable to him.        See Tang v. Rhode Island Dep’t

of Elderly Affairs, 163 F.3d 7, 11 (1st Cir. 1998).           We may affirm

if   there   was   “no   legally   sufficient   evidentiary   basis   for   a

reasonable jury” to find for Montes.         Fed. R. Civ. P. 50(a).

      Since pretrial detainees are not technically being punished,

their protection for Eighth Amendment-type claims springs from the

liberty component of the Fourteenth Amendment’s Due Process Clause.



      1
       Montes’s family’s claims under Puerto Rico tort law, and
Montes’s claims regarding the probable cause and unlawful search
and seizure are never mentioned in his brief; thus, they are
waived. See United States v. Zannino, 895 F.2d 1, 17 (1st Cir.
1990). Additionally, Montes’s claim under Puerto Rico tort law for
himself never appeared in his complaint, and we will not consider
the issue raised for the first time on appeal. Rocafort v. IBM
Corp., 334 F.3d 115, 121 (1st Cir. 2003).

                                     -4-
See Burrell v. Hamshire County, 307 F.3d 1, 7 (1st Cir. 2002).          No

unconstitutional     deprivation   of    liberty   occurs   unless     the

detainment amounts to punishment, which occurs when the condition

is imposed for the purpose of punishment rather than         some other

legitimate reason.    O’Connor v. Huard, 117 F.3d 12, 16 (1st Cir.

1997).   We will uphold legitimate administrative purposes offered,

unless there is “substantial evidence” it is an “exaggerated

response“   to some concern.     Id.

     The defendants’ proffered explanation is that the small cell

was the only cell located in the nearest precinct, and the police

have a policy of taking the arrestee to the closest precinct.         This

policy serves a legitimate government interest in safely detaining

a possibly dangerous arrested person as soon as possible.        Montes

offered no substantial evidence impeaching this reason. Given this

uncontroverted   rational    explanation,   the    detainment   did   not

constitute punishment.    Therefore, the judgment as a matter of law

on that issue is upheld.

                            Medical Attention

     Montes next complains about the lack of medical attention

during his confinement.        The Due Process Clause requires the

government to provide medical care to pretrial detainees injured

while being apprehended by the police.      Gaudreault v. Municipality

of Salem, 923 F.2d 203, 208 (1st Cir. 1990).         Officials violate

this requirement only if they exhibit “deliberate indifference” to


                                   -5-
“serious medical needs.”       Id.       A “serious” medical need is one

diagnosed by a physician as mandating immediate treatment, or one

that is “so obvious” that a layman would “easily” recognize the

necessity for medical treatment.           Id.

     Montes’s claim fails because he gave the lower court no

evidentiary basis for a reasonable jury to find he had a “serious

medical need.”      He had no cuts or bleeding.            His own doctor

testified that Montes only had swelling and some discoloration, and

simply treated him with over-the-counter pain killers.             Moreover,

Montes was quite active in his cell, smashing the chair they had

given him and pulling tiles off the walls.

     In Gaudreault, we upheld a summary judgment against an injured

detainee    who   only   required    a   sling,   an   eye-patch    and   some

disinfectant for abrasions.         See 923 F.2d at 208.     In that case,

the detainee suffered a “blow out fracture of the right orbit,

resulting in a deviated septum, a cyst in his sinus and some

transient nerve damage.”       Id. at 209 (internal quotation marks

omitted).   Here, Montes’s condition was significantly less serious

because he only needed over-the-counter pain killers.              Montes has

failed to give any evidentiary basis for a reasonable jury to find

a “serious medical need.”      Therefore, judgment as a matter of law

was properly granted on that claim.




                                     -6-
                                Excessive Force

        Montes next challenges the evidentiary basis for the jury’s

verdict finding no excessive force.             Claims of excessive police

force    derive   from    the   Fourth    Amendment’s   prohibition   against

unreasonable seizures. The test for excessive force is whether the

police     actions       were    “objectively     reasonable”   given    the

circumstances, ignoring the officers’ subjective intent.              Bastien

v. Goddard, 279 F.3d 10, 14 (1st Cir. 2002).                Since the jury

rendered a verdict for the police, we must affirm unless the

evidence was “so strongly and overwhelmingly inconsistent with the

[verdict] that no reasonable jury could have returned [it].”

Crowley v. L.L. Bean, 303 F.3d 387, 393 (1st Cir. 2002).              As part

of this determination, we view the evidence in the light most

favorable to the police and resolve all credibility issues in favor

of the jury’s verdict.          Id.

        The arrest occurred because Montes was attacking his disabled

neighbor.     The defense put on evidence that Montes screamed foul

words and was drunk and “aggressive.”             The police testified that

Montes attempted to assault one of them, and explained this turned

the arrest into a struggle.           Thus, the defense put forth evidence

of reasons for the force used and evidence showing the lack of any

serious injury.          Since we must accept all this testimony as

credible and view the evidence in the light most favorable to the




                                         -7-
jury’s verdict, we uphold the jury’s finding that the officers’

force was not excessive.

               Municipal and Supervisory Liability

     Having found no underlying constitutional violation by the

police, Montes’s municipal and supervisory § 1983 claims against

the City, Mayor, and Police Commissioner necessarily fail.   See

Wilson v. Town of Mendon, 294 F.3d 1, 6-7 (1st Cir. 2002).

                           CONCLUSION

     We AFFIRM the district court on all claims.




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