Torres-Viera v. Laboy-Alvarado

          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-