* This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### NOV 5 2002 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

BRIAN CHARLES GARGAN,

Plaintiff-Appellant,

v. DAVID GABRIEL, KEN SOLHOL, JOHN SABEC, BRYAN MILBURN, MARY CARTER, WILLIAM RUSHER, DALE O’CONNOR, THOMAS KERSTIENS, TRIGG, PIPER, PINEDA, SUTTON, SMELSER, REYES, DIVIDO, NURSE GRISWOULD, NURSE ROGICH, WARDEN SOARES, ASST. WARDEN TAYLOR, MAJOR TORANOWSKI, ORVILLE NEUFELD, and P.A. ENGLUND, in their individual and official capacities; KIM BURFORD, Adm. Asst. in her individual and official capacity; LINDA ERICSON, Nurse, in her individual and official capacity; J. DALTON, Capt. in his individual and official capacity; SGT. MONTOYA, and FRANK RUYBALID, in their individual and official capacities; 8 JOHN DOES, to be amended later,

Defendants-Appellees. No. 02-1059 (D.C. No. 00-M-2526) (D. Colo.)

ORDER AND JUDGMENT *-2-

Before KELLY and BALDOCK , Circuit Judges, and BRORBY , Senior Circuit Judge.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument.

Brian Gargan, a state prisoner appearing pro se, br ought suit under 42 U.S.C. § 1983 against twenty-seven named prison off icials and eight John Does for violating his Eighth Amendment rights. The dis trict court granted the defendants’ motion to dismiss for failure to state a claim. We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.

Mr. Gargan allegedly suffers from “chronic heart di sease.” He argues the defendants, knowing of his heart condition, violate d his Eighth Amendment rights by their excessive use of force and deliberate indi fference to his serious medical needs. Mr. Gargan claims the defendants used exces sive force by spraying him with four cans of oleoresin capsicum, commonly know n as pepper spray, while extracting him from his cell. The spray caused him to “suffer severly [sic],” and the defendants subsequently upgraded him to a medic al 4 rating. Mr. Gargan also1 Mr. Gargan amended his complaint once as a matterof right. Although

the district court never granted Mr. Gargan permiss ion to file additional amended complaints, Mr. Gargan later tendered second and th ird amended complaints. In its order to dismiss, the district court did not id entify the specific complaint it was dismissing. As Mr. Gargan does not appeal the district court’s failure to grant permission to amend, this issue is waived, see Krastev v. Immigration & Naturalization Service , 292 F.3d 1268, 1280 (10th Cir. 2002), and we will examine the last complaint filed, or the first amen ded complaint. We also note it would have been futile for the district court to gr ant permission to amend, as Mr. Gargan’s second and third amended complaints sufferfrom the same deficiencies as his first amended complaint.

-3- claims the defendants were deliberately indifferentto his serious medical needs by exposing him to secondhand pepper spray and refu sing to treat his injuries.

The defendants filed a motion to dismiss Mr. Gargan ’s complaint under Federal Rule of Civil Procedure 12(b)(6). In theirmotion, the defendants argued Mr. Gargan failed to allege facts sufficient to sho w a violation of his Eighth Amendment rights and, even if he did make such a sh owing, they were nonetheless entitled to qualified immunity. The di strict court granted the defendants’ motion to dismiss, stating Mr. Gargan f ailed “to sufficiently allege claims for relief under 42 U.S.C. § 1983.” 1 Since we are in agreement with the district court’s conclusion, we do not address the defendants’ claim of qualified immunity.-4-

We review the district court’s dismissal de novo, a ccepting as true all wellpled factual allegations and construing those facts in a light most favorable to Mr. Gargan as the non-moving party. See Sutton v. Utah State Sch. for the Deaf & Blind, 173 F.3d 1226, 1236 (10th Cir. 1999). Dismissal under Fed. R. Civ. P. 12(b)(6) is appropriate only if “it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim whichwould entitle him to relief.” Id . (quotation marks omitted). Although a pro se li tigant’s pleadings are construed liberally, see Hall v. Bellmon , 935 F.2d 1106, 1110 (10th Cir. 1991), this court “will not supply additional factual alle gations to round out a plaintiff’s complaint or construct a legal theory on a plaintif f’s behalf,” Whitney v. New
Mexico , 113 F.3d 1170, 1173-74 (10th Cir. 1997).

To state a valid claim under 42 U.S.C. § 1983, a pl aintiff must allege the defendants deprived him of a constitutional right u nder color of state law. See Northington v. Jackson , 973 F.2d 1518, 1523 (10th Cir. 1992). Mr. Gargan argues the defendants deprived him of his Eighth Am endment rights under color of state law by (1) spraying him with four cans of pepper spray during a cell extraction; (2) exposing him on two occasions to se condhand pepper spray; and (3) refusing to provide medical care for his injuri es. The Eighth Amendment to the United States Constitution provides: “Excessiv e bail shall not be required,-5-

nor excessive fines imposed, nor cruel and unusual punishments inflicted.” U.S. Const. amend. VIII. The Eighth Amendment applies t o the states through the Fourteenth Amendment. See Rhodes v. Chapman , 452 U.S. 337, 344-345 (1981).

We first turn to Mr. Gargan’s claim the defendants’ violated the Eighth Amendment by using excessive force in spraying him with pepper spray during a cell extraction. In order to state a claim for exc essive use of force, Mr. Gargan must show the defendants “acted maliciously and sad istically for the very purpose of causing harm rather than in a good-faith effort to maintain or restore discipline.” Mitchell v. Maynard, 80 F.3d 1433, 1440 (10th Cir. 1996). This standard is appropriate “regardless of whether the corrections officers are quelling a prison disturbance or merely trying to m aintain order.” Id . (quotation marks nd citation omitted). A plaintiff need not a llege “significant physical injury to state a cause of action.” Id

.

Mr. Gargan alleges the defendants, knowing of his h eart condition, sprayed him “4 times with 4 whole cans of [pepper spray] wh ile [he was] unarmed, alone and secured in a segregation cell.” The defendants then ordered Mr. Gargan back into his cell to clean up the residue “while naked and burned.” Id . at 8. As a result of this incident, Mr. Gargan “suffered sever ly [sic] and was upgraded to a-6-

medical 4 rating.” The district court determined t hese factual allegations failed to state a claim for relief. We agree. Nowhere does the complaint allege facts sufficient to support a reliable inference that pep per spray was used on Mr. Gargan unnecessarily, excessively, or wantonly. Th ere are simply no facts at all discussing the need, or lack thereof, to use pepperspray in extracting Mr. Gargan from his cell. The complaint also fails to allege exposure to pepper spray aggravates Mr. Gargan’s heart condition or the defe ndants knew pepper spray aggravates his heart condition.

We now turn to Mr. Gargan’s claims of deliberate in difference. These claims fail for similar reasons. Mr. Gargan argues the defendants were deliberately indifferent to his serious medical nee ds in exposing him to secondhand pepper spray. A deliberate indifference claim has two components: (1) an objective component requiring the pain or de privation be sufficiently serious, and (2) a subjective component requiring the offending officials act with a sufficiently culpable state of mind. See Perkins v. Kansas Dep’t of Corr. , 165 F.3d 803, 809 (10th Cir. 1999). A medical need is serious enough to meet the objective component “if it is one that has been dia gnosed by a physician as mandating treatment or one that is so obvious that even a lay person would easily recognize the necessity for a doctor’s attention.” Ramos v. Lamm , 639 F.2d 559,-7-

575 (10th Cir. 1980) (quotation marks and citation omitted). The subjective component is met if a prison “official knows of anddisregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.” Farmer v. Brennan , 511 U.S. 825, 837 (1994).

Mr. Gargan alleges the defendants, knowing of his h eart condition, exposed him to pepper spray on two occasions when spraying neighboring prisoners. On at least the second incident, exposure to the peppe r spray caused Mr. Gargan to suffer “from vomiting, chest pain, dizziness and sh ortness of breath.” Mr. Gargan fails to allege, however, that the defendants acted with a sufficiently culpable state of mind. Nowhere does Mr. Gargan state that exposure to pepper spray aggravates his heart condition, that the defendants knew such exposure would aggravate his heart condition, or that, despite suc h knowledge, the defendants deliberately exposed him to pepper spray. Mr. Garg an states only that a nurse, following the second incident, remarked to him she should have removed him from the area prior to using the spray. At most, t his states a claim of negligence insufficient to constitute an Eighth Amendment viol ation. See Whitley v. Albers , 475 U.S. 312, 319 (1986).-8-

Mr. Gargan also argues the defendants were deliberately indifferent to his serious medical needs by refusing medical care subs equent to at least two incidents of pepper spray exposure. Mr. Gargan all eges a nurse on one occasion “refused me medical attention and would not listen to my complaints when I told her I had heart disease.” Another defendant later “denied I was a high risk for cardiac arrest when he answered my step 3 grievance .” Mr. Gargan once again fails to allege facts supporting a reliable inferen ce of culpability on the part of the defendants. There are simply no facts indicating w hether the medical refusals were wanton, negligent, or reasonable. There are a lso no facts indicating whether Mr. Gargan’s alleged injuries are the result of an aggravation of his heart condition or mere exposure to pepper spray. Absentthese factual allegations, Mr. Gargan cannot state a claim for deliberate indiffer ence to serious medical needs. Although Mr. Gargan appears to disagree with the de fendants’ medical judgment, mere disagreement with medical judgment does not ri se to the level of an Eighth Amendment violation. See Estelle v. Gamble , 429 U.S. 97, 106 (1976). It also appears from Mr. Gargan’s briefs filed in this court and the district court that he has been receiving treatment for his heart conditio n and other maladies since first being exposed to pepper spray.-9-

Mr. Gargan’s motion to proceed in forma pauperis is granted, and the judgment of the United States District Court for th e District of Colorado is
AFFIRMED

.

Entered for the Court

WADE BRORBY United States Circuit Judge