Unpublished Disposition, 923 F.2d 864 (9th Cir. 1991)

MEMORANDUM^** 

Alberto Valenzuela, an Arizona state prisoner, appeals pro se the district court's grant of judgment on the pleadings in this 42 U.S.C. § 1983 action based on Adkin's defense that the complaint failed to state a claim upon which relief can be granted.¹  In his complaint, Valenzuela contended that Adkins used excessive force against him in violation of the eighth amendment when Adkins closed a food trap door onto his arm and kicked it twice, entrapping his wrist. We review de novo, Pejic v. Hughes Helicopters, Inc., 840 F.2d 667, 671 (9th Cir. 1988), and affirm.

A complaint fails to state a claim only if the plaintiff "can prove no set of facts which would entitle him to relief." Gibson v. United States, 781 F.2d 1334, 1337 (9th Cir. 1986), cert. denied, 479 U.S. 1054 (1987). The district court must afford a pro se plaintiff notice of the deficiencies of the complaint and an opportunity to amend unless it is absolutely clear that the deficiencies of the complaint cannot be cured. Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987); see Aldabe v. Aldabe, 616 F.2d 1089, 1092-93 (9th Cir. 1980).

The use of excessive force by a prison guard constitutes a violation of the eighth amendment. See Spain v. Procunier, 600 F.2d 189, 194 (9th Cir. 1979). Nevertheless, "not every push or shove, even if it may later seem unnecessary in the peace of a judge's chambers, violates a prisoner's constitutional rights." Meredith v. Arizona, 523 F.2d 481, 483 (9th Cir. 1975). Determining whether there has been a violation of the eighth amendment turns upon whether force was applied in a good faith effort to maintain or restore discipline or maliciously and sadistically for the very purpose of causing harm. Whitley v. Albers, 475 U.S. 312, 321 (1986) (quotations omitted). Such factors as the need for the application of force, the relationship between the need and the amount of force that was used, and the extent of injury inflicted are relevant to that determination. Id.

It is undisputed that Adkins warned Valenzuela to remove his arm from the food trap door before closing the door on his wrist. This action, which resulted only in minor bruising, does not constitute an eighth amendment violation.² 

Valenzuela also contends the district court erred in denying his request for appointment of counsel. This contention lacks merit. Reviewing for an abuse of discretion, McElyea v. Babbitt, 833 F.2d 196, 199-200 (9th Cir. 1987), we find that the absence of "exceptional circumstances" justified the district court's denial of Valenzuela's motion for appointment of counsel. Wilborn v. Escalderon, 789 F.2d 1328 (9th Cir. 1986).

AFFIRMED.