Torres-Gonzalez v. Benito ( 1994 )

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          February 7, 1994      [NOT FOR PUBLICATION]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.


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                 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
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            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



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            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
            ______


                                
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                 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.

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            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



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            Torres, to retaliate against him, or to do anything unrelated

            to ordinary security  measures in aid of an  arrest.  Compare
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            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.
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