United States Court of Appeals
For the First Circuit
No. 01-2712
VICTOR TORRES-VIERA,
Plaintiff, Appellant,
v.
ZOE LABOY-ALVARADO, Administrator of Correction of the
Commonwealth of Puerto Rico; ALFREDO MURPHY-RIVERA, Bayamón
Regional Director for the Administration of Correction;
WILSON MORALES, Bayamón Regional Director of Security for the
Administration of Correction; CARLOS RODRIGUEZ-DELGADO, Complex
Director of the Bayamón Correctional Complex; PORFIRIO GREEN-
SANTIAGO, Director of Security at the Bayamón Correctional
Complex; RAFAEL LOPEZ-CINTRON, Warden/Superintendent at the
Bayamón Correctional Institution; Lieutenant JOSE A. RODRIGUEZ-
DE-LEON, Warden/Superintendent at the Bayamón Correctional
Institution; Lieutenant ELIEZER SANTIAGO, Commander of the Guards
at the Bayamón Correctional Institution; JOHN DOE 01CV1361,
Commander of the Disturbance Control Unit; RICHARD ROES 1 THROUGH
4 01CV1361, Supervisors at the Bayamón Correctional Institution;
WILLIAM WOE 01CV1361, Correctional Officer and/or Cadet employed
by the Administration of Correction,
Defendants, Appellees.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Carmen Consuelo Cerezo, U.S. District Judge]
Before
Boudin, Chief Judge, and
Lynch and Howard, Circuit Judges.
José R. Olmo-Rodríquez for the Appellant.
Roberto J. Sánchez Ramos, Solicitor General, with whom Vanessa
Lugo Flores, Deputy Solicitor General, and Irene S. Sorceta-Kodesh,
Assistant Solicitor General, were on brief for the Appellees.
November 20, 2002
LYNCH, Circuit Judge. In March 2000, Victor Torres-Viera
was incarcerated at the Bayamón Correctional Institution, in the
Bayamón region of Puerto Rico. He suffered serious injury while
there from being hit by a tear gas cannister fired by a prison
official during a disturbance. One year later, after his release,
Torres-Viera brought a 42 U.S.C. § 1983 (2000) claim for damages
against prison officials, alleging violation of his rights under
the Eighth Amendment. The district court judge ruled in favor of
the prison officials on a motion to dismiss for failure to state a
claim. Fed. R. Civ. P. 12(b)(6). Torres-Viera appeals. We
affirm.
I.
Our review of a district court's dismissal of a complaint
for failure to state a claim1 under Fed. R. Civ. P. 12(b)(6) is de
novo. Chute v. Walker, 281 F.3d 314, 318 (1st Cir. 2002). We
accept as true all well-pleaded facts alleged by the plaintiff in
his complaint, drawing in his favor all reasonable inferences
fitting his stated theory of liability. Calderón-Ortiz v. Laboy-
1
Defendants originally filed a motion to dismiss, arguing
that Torres-Viera had failed to exhaust the available
administrative remedies. They later filed a supplementary motion
arguing that Torres-Viera had failed to state a claim. The court
held that the requirement of exhaustion of remedies did not apply
because Torres-Viera was no longer incarcerated at the time of
filing. Torres-Viera v. Laboy-Alvardo, CIVIL 01-1361CCC, at 2
(D.P.R. Oct. 3, 2001) (order). This issue is not before us.
-3-
Alvarado, 300 F.3d 60, 63 (1st Cir. 2002); Rogan v. Menino, 175
F.3d 75, 77 (1st Cir. 1999).
The facts as described in Torres-Viera's complaint
follow. On or about March 28, 2000, in the early afternoon,
several dozen prison officials carried out a general search at the
Bayamón Correctional Institution. During that search, many inmates
were taken to a room, formerly used as a cafeteria, where they were
locked in while the search continued. An altercation subsequently
broke out between inmates and officials. In response, prison
guards began firing tear gas indiscriminately at inmates, both
those who were participating in the altercation and those who were
not. Guards opened the door to the former cafeteria where inmates
were being held. One officer fired a tear gas cannister directly
into the room and into the back of Torres-Viera's head. Torres-
Viera was knocked to the ground, stunned, and began bleeding
profusely from his wound, which later required eight stitches.
Since the incident, Torres-Viera has suffered from headaches and
discomfort.
II.
The Eighth Amendment prohibits cruel and unusual
punishment of prisoners. Farmer v. Brennan, 511 U.S. 825, 832
(1994). The Supreme Court has established a standard of deliberate
indifference for assessing whether a constitutional claim is
asserted that prison officials have a sufficiently culpable state
-4-
of mind in tolerating threats to inmate health or safety. Id. at
834.
The standard is very different, however, when courts
evaluate the behavior of prison officials during riots or other
disturbances. The Supreme Court has held that a deliberate
indifference standard does not apply in these situations. Whitley
v. Albers, 475 U.S. 312, 320 (1986). Instead, the standard is
whether unnecessary and wanton pain and suffering were inflicted,
with that question ultimately turning on "whether force was applied
in a good faith effort to maintain or restore discipline or
maliciously and sadistically for the very purpose of causing harm."
Id. at 320-21 (quoting Johnson v. Glick, 481 F.2d 1028, 1033 (2d
Cir. 1972)). Central to our inquiry is the directive that:
It is obduracy and wantonness, not inadvertence or error
in good faith, that characterize the conduct prohibited
by the Cruel and Unusual Punishments Clause . . . . The
infliction of pain in the course of a prison security
measure, therefore, does not amount to cruel and unusual
punishment simply because it may appear in retrospect
that the degree of force authorized or applied for
security purposes was unreasonable, and hence unnecessary
in the strict sense.
Id. at 319.
"[A] court may dismiss a complaint only if it is clear
that no relief could be granted under any set of facts that could
be proved consistent with the allegations." Swierkiewicz v. Sorema
N.A., 534 U.S. 506, 514 (2002) (quoting Hishon v. King & Spalding,
467 U.S. 69, 73 (1984)). But even working within this generous
-5-
framework, Torres-Viera's complaint falls short. The facts
consistent with the pleadings in the complaint are that there was
a general prison disturbance and officials responded with tear gas,
including in the room where plaintiff was held, and that he was
injured by a tear gas cannister. Nothing has been pled in the
complaint which permits a reasonable inference to be drawn that the
tear gas cannister was fired maliciously or sadistically for the
very purpose of causing harm. While plaintiffs are not held to
higher pleading standards in § 1983 actions, Leatherman v. Tarrant
County Narcotics Intelligence & Coordination Unit, 507 U.S. 163,
167-69 (1993), they must plead enough for a necessary inference to
be reasonably drawn.
To be sure, excessive use of tear gas by prison officials
can amount to an Eighth Amendment violation. See, e.g., Soto v.
Dickey, 744 F.2d 1260, 1270 (7th Cir. 1984). See generally Spain
v. Procunier, 600 F.2d 189, 195-96 (9th Cir. 1979)(listing cases
"condemn[ing] the use of tear gas in particular circumstances as
violative of the Eighth Amendment or of due process or both.").
Here, however, the allegations concerning the context in which the
gas was used establish that prison officials were responding to a
security disturbance. This means that plaintiff must meet a very
high standard in order to show that prison officials are culpable.
See 1 M.B. Mushlin, Rights of Prisoners § 2.05 at 64 (2d ed. 2001).
Prison officials are given "wide-ranging deference" in their
-6-
measures to restore order during disturbances. Whitley, 475 U.S.
at 321-22. Absent some facts from which a reasonable inference can
be drawn to meet that standard, the complaint fails to state a
claim.
Torres-Viera originally brought claims of supervisory
liability against prison officials as well, but failed to argue
them on appeal. Regardless, his failure to state any Eighth
Amendment claim whatsoever dooms his supervisory claim. Burrell v.
Hampshire County, 307 F.3d 1, 2002 WL 31218304 at *7-*8 (Oct. 4,
2002, 1st Cir.).
For these reasons, the judgment of the district court is
affirmed.
-7-