Jeffery Broadway v. Lynn , 523 F. App'x 465 ( 2013 )

FILED
NOT FOR PUBLICATION JUN 14 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
JEFFERY BROADWAY, No. 09-17108
Plaintiff - Appellant, D.C. No. 2:09-cv-00192-GGH
v.
MEMORANDUM *
LYNN, Correctional Sergeant; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the Eastern District of California
Gregory G. Hollows, Magistrate Judge, Presiding **
Submitted June 10, 2013 ***
Before: HAWKINS, McKEOWN, and BERZON, Circuit Judges.
California state prisoner Jeffery Broadway appeals pro se from the district
court’s judgment dismissing his 42 U.S.C. § 1983 action alleging excessive force
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
Broadway consented to proceed before a magistrate judge. See 28
U.S.C. § 636(c).
***
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
and other claims. We have jurisdiction under 28 U.S.C. § 1291. We review de
novo a dismissal under 28 U.S.C. § 1915(A), Resnick v Hayes, 213 F.3d 443, 447
(9th Cir. 2000), and we affirm.
The district court properly dismissed Broadway’s excessive force claim
because Broadway failed to allege facts sufficient to show that defendants
maliciously and sadistically used force against him for the very purpose of causing
him harm. See Whitley v. Albers, 475 U.S. 312, 319-21 (1986) (setting forth
elements of excessive force claim).
Broadway’s contentions regarding alleged due process violations are
unpersuasive.
Broadway’s motion for appointment of counsel, submitted with his opening
brief, is denied.
AFFIRMED.
2 09-17108