                                                                           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                             NOT FOR PUBLICATION                            JUN 14 2013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.




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