
USCA1 Opinion

	




          February 7, 1994      [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 93-1454                            RAMON TORRES GONZALEZ, ET AL.,                               Plaintiffs, Appellants,                                          v.                               SARGENTO BENITO, ET AL.,                                Defendants, Appellees.        .                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                    [Hon. Raymond L. Acosta, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                                 Breyer, Chief Judge,                                         ___________                        Torruella and Boudin, Circuit Judges.                                              ______________                                 ____________________            Frederic Chardon Dubos for appellants.            ______________________            Silvia Carreno Coll, Assistant United  States Attorney, with  whom            ___________________        Charles  E. Fitzwilliam,  United  States Attorney,  was  on brief  for        _______________________        appellees Thomas M. Telles and Cruz Cordero, Jr.            Vannessa  Ramirez,  Assistant  Solicitor  General,  Department  of            _________________        Justice,  with whom  Carlos Lugo  Fiol, Acting Solicitor  General, and                             _________________        Reina Colon  De Rodriguez,  Acting Deputy  Solicitor General,  were on        _________________________        brief for state defendants-appellees Benito and Lopez-Feliciano.                                 ____________________                                 ____________________                 Per  Curiam.    Ramon  Torres  Gonzalez  ("Torres")  was                 ___________            arrested by  federal agents and  local police at his  home in            Puerto Rico  on  the night  of September  18, 1987.   He  was            charged with  possessing cocaine with  intent to  distribute.            21  U.S.C.     841(a)(1).    He  was  subsequently tried  and            acquitted by  the jury.   On September 19, 1988,  Torres, his            wife,  and two  children  brought  a  civil  action  charging            various  federal  and  local law  enforcement  officers  with            violating  the plaintiffs'  constitutional rights,  primarily            based  upon alleged  rough  treatment  meted  out  to  Torres            incident to his arrest.                 The  named  defendants  were  two  agents  of  the  Drug            Enforcement Administration,  a Puerto Rico police sergeant, a            local police detective,  and the superintendent of  police in            Puerto Rico  (who was  charged with  inadequately supervising            the police).   The  constitutional claims  against the  local            officials  were  based  on 42  U.S.C.      1983,  1985; those            against the federal officials were apparently based on Bivens                                                                   ______            v.  Six  Unknown  Named  Agents  of  the  Federal  Bureau  of                _________________________________________________________            Narcotics, 403 U.S. 388 (1971).   Related pendent claims were            _________            asserted under Puerto Rican law.                   After  a number of motions and deposition discovery, the            defendants  moved for summary judgment.  The magistrate judge            recommended that the defendants' motions for summary judgment            be  granted  and  that  the  pendant  state   claims  not  be                                         -2-                                         -2-            entertained.  The district  court adopted the recommendation,            granting summary judgment on the merits on the federal claims            and  declining  to  proceed  with  the  state  claims.    The            plaintiffs appeal.  We affirm.                 In their brief on appeal, the only claim that plaintiffs            try seriously to develop is Torres' own claim that the agents            used  excessive force incident  to the arrest.1   Although he            says that the agents used vile language, we do not think this            makes  out  a constitutional  claim, nor  can much  weight be            given to Torres'  terse statement that he was  grabbed by the            chest and pushed onto a sofa.  He does not claim to have been            struck.  The only allegation that arouses some concern is his            claim that  his hands were  handcuffed behind him  during his            transportation in such a way  that his hands swelled and were            sore for several days.                 Although Torres' brief on appeal cites only to his right            to "substantive" due process, the Supreme Court has said that            abuse  incident  to   arrest  is  tested  under   the  Fourth            Amendment's  more  specific   provisions  governing  seizure.            Graham  v.  Connor, 490  U.S.  386  (1989); cf.  Albright  v.            ______      ______                          ___  ________            Oliver,  62 U.S.L.W.  4078 (U.S.  Jan.  24, 1994)  (plurality            ______                                            ____________________                 1The  amended complaint charged that the arrest was made            without a  warrant but in  due course a warrant  was produced            and is not challenged on  appeal.  The complaint also alleged            that Torres' car and apartment were searched but the brief on            appeal  makes  no  effort  to show  that  the  searches  were            unlawful.                                         -3-                                         -3-            opinion).  Whatever the  constitutional source of protection,            trying to determine when physical force is so excessive as to            amount to unconstitutional official action is a recurrent and            vexing  problem that  arises in  various  situations.   E.g.,                                                                    ____            Hudson   v.  McMillian,  112   S.  Ct.  995   (1992)  (prison            ______       _________            discipline).                 Accepting  all  of   Torres'  allegations  as  true--for            purposes of  summary judgment--we  agree with  the magistrate            judge  and the district  court that tight  handcuffs standing            alone are not enough to  proceed to trial on a constitutional            claim.  "[M]inor physical injuries simply are insufficient to            support an  inference that  .  . .  officers used  inordinate            force to effect the intended arrest . . . ."  Dean v. City of                                                          ____    _______            Worcester, 924 F.2d 364, 369 (1st Cir. 1991).  Torres himself            _________            said  in deposition that he had never asked a doctor to treat            the injury  and never  visited a hospital,  nor is  there any            claim of permanent damage.  Compare Hansen v. Black, 885 F.2d                                        _______ ______    _____            642 (9th Cir. 1989).                 The Supreme Court has cautioned against using subjective            tests  or looking to motivation in appraising excessive force            claims under the Fourth Amendment.   Graham, 490 U.S. at 397-                                                 ______            99.  Yet  Torres' claim fares  no better  even if one  thinks            that why an  action was taken might cast  some indirect light            on  the objective reasonableness of  the action.  Here, there            is no evidence that the police deliberately aimed to mistreat                                         -4-                                         -4-            Torres, to retaliate against him, or to do anything unrelated            to ordinary security  measures in aid of an  arrest.  Compare                                                                  _______            Hansen, 885 F.2d at 645.            ______                 This  conclusion disposes  of the  case as  it has  been            briefed  on appeal.    Torres' children  claim  to have  been            scared during the arrest but, with nothing more alleged, this            is  hardly actionable conduct.   Torres' wife  was apparently            searched at another location but nothing in the appeals brief            even hints at the supposed  wrong.  Finally, the brief refers            in passing to testimony given by  one of the agents at  trial            but  the brief  does not  explain what  was unlawful,  and we            treat the issue as abandoned.                   Affirmed.                 ________                                         -5-                                         -5-
