                                 UNPUBLISHED

                     UNITED STATES COURT OF APPEALS
                         FOR THE FOURTH CIRCUIT


                                 No. 09-6345


DEXTRAM LOUIS HARRIS,

                   Plaintiff – Appellant,

             v.

TIM SALLEY, Sergeant, Deputy Sheriff, Personal and Official
Capacity,

                   Defendant – Appellant,

             and

MECKLENBURG COUNTY JAIL; JOHN DOE, Magistrate Personal and
Official Capacity; E.E. COLEMAN, JR., Clerk of Court,
Personal and Official Capacity; LESLIE MORTON OSBORN, Judge,
Personal   and    Official   Capacity;   NORA   J.   MILLER,
Commonwealth’s Attorney, Personal and Official Capacity;
DANNY FOX, Sheriff, Personal and Official Capacity,

                   Defendants.



Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Richard L. Williams, Senior
District Judge. (3:06-cv-00837-RLW)


Submitted:    July 21, 2009                    Decided:   August 3, 2009


Before MOTZ and       KING,   Circuit   Judges,   and   HAMILTON,   Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.
Dextram Louis Harris, Appellant Pro Se. John Adrian Gibney,
Jr., Thomas Douglas Lane, THOMPSON MCMULLAN, PC, Richmond,
Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

              Dextram Louis Harris, a Virginia prisoner, filed this

42 U.S.C. § 1983 (2006) civil rights action against Tim Salley,

a   deputy    sheriff     at    the    Mecklenburg         County     Jail,      alleging    a

violation of his Eighth and Fourteenth Amendment rights.                                    On

June   11,    2007,     Harris       moved    to       amend    his   complaint       to   add

Commonwealth’s         Attorney       Nora    Miller,          Magistrate     “John    Doe,”

Sheriff Danny Fox, Judge Leslie M. Osborn, and Clerk of Court

E.E. Coleman, Jr., to the action, alleging violations of his

Fourteenth Amendment right to equal protection for their alleged

failure      to     assist     him    in   bringing        assault       charges    against

Salley.      On October 17, 2007, the district court dismissed the

Mecklenburg County Jail from the suit and dismissed Harris’s

equal protection claim as futile, allowing Harris’s action to

proceed      solely    against       Salley       on    the     Eighth     and   Fourteenth

Amendment claim.             The district court subsequently denied three

more motions from Harris to amend his complaint.

              The     district        court       granted        summary     judgment       in

Salley’s favor on January 28, 2009, finding that Harris’s injury

was de minimis.         Harris now appeals the district court’s denial

of his motions to amend his complaint, his motions to appoint

counsel, and the grant of summary judgment in Salley’s favor.

Finding no error, we affirm.



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                                              I.

               Harris first contends that the district court erred in

denying his motions to amend his 42 U.S.C. § 1983 complaint to

add     an     equal       protection        claim        against       several       putative

defendants.         The district court’s denial of a motion to amend is

reviewed for abuse of discretion.                        See Shealy v. Winston, 929

F.2d 1009, 1013 (4th Cir. 1991).                        Pursuant to Federal Rule of

Civil Procedure 15(a)(2), a party may only amend its pleading a

second or subsequent time with the opposing party’s consent or

leave    of    court.         “The    court     should      freely       give       leave   when

justice      so     requires.”        Fed.    R.    Civ.     P.    15(a)(2).          However,

futility      is     a    proper    ground    for       denying     a    motion      to   amend.

United States v. Pittman, 209 F.3d 314, 317 (4th Cir. 2000).

               The district court denied Harris’s various motions to

amend his complaint in which he sought to add equal protection

claims because Harris had no right to insist that the several

putative       defendants          cooperate       to     ensure        Salley’s      criminal

prosecution.             Because     “a   private       citizen        lacks   a    judicially

cognizable         interest    in     the    prosecution          or    nonprosecution       of

another,”          Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973),

Harris       does    not     have     a     constitutional         right       to    institute

criminal proceedings against Salley or to sue the defendants for

failing       to    use    their     authority       to    do     so.      Thus,      Harris’s



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proposed amendments were futile, and the district court did not

abuse its discretion in denying the motions to amend.

                                        II.

             Harris also contends that the district court erred in

granting    summary    judgment    in    Salley’s      favor.      We    review   a

district court’s grant of summary judgment de novo, “viewing the

facts and the reasonable inferences drawn therefrom in the light

most favorable to the nonmoving party.”                Emmett v. Johnson, 532

F.3d 291, 297 (4th Cir. 2008).              Summary judgment is proper “if

the pleadings, the discovery and disclosure materials on file,

and any affidavits show that there is no genuine issue as to any

material fact and that the movant is entitled to judgment as a

matter of law.”       Fed. R. Civ. P. 56(c).

            The   Eighth     Amendment        prohibits     the   infliction      of

“cruel and unusual punishments” on prisoners, which includes the

“unnecessary and wanton infliction of pain.”                 Whitley v. Albers,

475 U.S. 312, 319 (1986) (internal quotation marks and citations

omitted).     To succeed on an Eighth Amendment claim, a prisoner

must show that “the prison official acted with a sufficiently

culpable state of mind (subjective component) and . . . the

injury     inflicted    on   the    inmate       was      sufficiently    serious

(objective component).”        Iko v. Shreve, 535 F.3d 225, 238 (4th

Cir. 2008).



                                        5
            With regard to the objective component, “[t]he Eighth

Amendment’s       prohibition         .     .       .        necessarily     excludes       from

constitutional recognition de minimis uses of physical force,

provided that the use of force is not of a sort repugnant to the

conscience of mankind.”               Hudson v. McMillan, 503 U.S. 1, 9-10

(1992) (internal quotation marks and citations omitted).                                        We

have held that “absent the most extraordinary circumstances, a

plaintiff cannot prevail on an Eighth Amendment excessive force

claim if his injury is de minimis.”                           Norman v. Taylor, 25 F.3d

1259, 1263 (4th Cir. 1994) (en banc); see also Iko, 535 F.3d at

238    (holding    that       “[a]n    injury           is     sufficiently       serious      for

purposes    of    the    objective          component           of   an    Eighth      Amendment

excessive force claim as long as it rises above the level of de

minimis harm”).         Extraordinary circumstances exist where the use

of force is “repugnant to the conscience of mankind . . . or the

pain   itself     will    be    such      that          it    can    properly     be    said    to

constitute more than de minimis injury.”                               Norman, 25 F.3d at

1263 n.4 (internal quotation marks and citation omitted).

            It is undisputed that there was some physical contact

between Harris and Salley.                  However, we conclude that Harris’s

injury was de minimis.                Harris admits that he suffered only

swelling and soreness beneath his left eye as a result of the

contact    between      himself       and    Salley.             Seward,     the    nurse      who

examined    Harris       at    the     Brunswick              County      Jail,    noted    only

                                                6
tenderness       below    Harris’s      left      eye.     Harris      never      requested

medical treatment during his stay at the Brunswick County Jail.

We also conclude that there are no extraordinary circumstances

that would allow Harris to prevail on his claim.                                Thus, since

Harris     fails    to    demonstrate      the      objective        component        of   his

claim,     the    district     court      did     not    err    in   granting         summary

judgment in Salley’s favor.

                                          III.

             Finally, Harris challenges the district court’s denial

of   his   motions       to   appoint     counsel.         Pursuant        to    28    U.S.C.

§ 1915(e)(1) (2006), “[t]he court may request an attorney to

represent any person unable to afford counsel.”                            However, there

is no absolute right to appointment of counsel; a plaintiff must

present    “exceptional        circumstances.”             Miller     v.    Simmons,       814

F.2d 962, 966 (4th Cir. 1987).                    Exceptional circumstances exist

where “a pro se litigant has a colorable claim but lacks the

capacity to present it.”             Whisenant v. Yuam, 739 F.2d 160, 163

(4th Cir. 1984), abrogated on other grounds by Mallard v. U.S.

Dist. Ct., 490 U.S. 296, 298 (1989) (holding that 28 U.S.C. §

1915 does not authorize compulsory appointment of counsel).                                 A

district     court’s      denial     of   a       motion   to    appoint        counsel    is

reviewed for abuse of discretion.                   Miller, 814 F.2d at 966.                We

find that the claims presented in Harris’s complaint are not

complicated and that Harris has demonstrated the capacity to

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present    those   claims    adequately   in    his    court     filings.

Therefore, the district court did not abuse its discretion in

denying Harris’s motions for appointment of counsel.

           Accordingly, we affirm the district court’s judgment

and deny Harris’s pending motion for appointment of counsel.           We

dispense   with    oral   argument   because   the    facts    and   legal

contentions are adequately presented in the materials before the

court and argument would not aid the decisional process.



                                                                 AFFIRMED




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