USCA1 Opinion
February 7, 1994 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 93-1454
RAMON TORRES GONZALEZ, ET AL.,
Plaintiffs, Appellants,
v.
SARGENTO BENITO, ET AL.,
Defendants, Appellees.
.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Raymond L. Acosta, U.S. District Judge]
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Before
Breyer, Chief Judge,
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Torruella and Boudin, Circuit Judges.
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Frederic Chardon Dubos for appellants.
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Silvia Carreno Coll, Assistant United States Attorney, with whom
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Charles E. Fitzwilliam, United States Attorney, was on brief for
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appellees Thomas M. Telles and Cruz Cordero, Jr.
Vannessa Ramirez, Assistant Solicitor General, Department of
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Justice, with whom Carlos Lugo Fiol, Acting Solicitor General, and
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Reina Colon De Rodriguez, Acting Deputy Solicitor General, were on
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brief for state defendants-appellees Benito and Lopez-Feliciano.
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Per Curiam. Ramon Torres Gonzalez ("Torres") was
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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
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v. Six Unknown Named Agents of the Federal Bureau of
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Narcotics, 403 U.S. 388 (1971). Related pendent claims were
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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.
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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.,
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Hudson v. McMillian, 112 S. Ct. 995 (1992) (prison
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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
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Worcester, 924 F.2d 364, 369 (1st Cir. 1991). Torres himself
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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
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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-
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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.
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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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