Dextram Louis Harris v. TIM SALLEY, Sergeant, Deputy Sheriff, Personal and Official Capacity

UNPUBLISHED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Affirmed by unpublished per curiam opinion.

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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Unpublished opinions are not binding precedent in this circuit.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).
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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
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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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