Notice: First Circuit Local Rule 36.2(b)6 States Unpublished Opinions May Be Cited Only in Related Cases.ramon Torres Gonzalez, et al., Plaintiffs, Appellants, v. Sargento Benito, et al., Defendants, Appellees, 27 F.3d 554 (1st Cir. 1994)

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 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 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 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.