Alejandro GUTIERREZ, Plaintiff-Appellant, v. G. SALAS; et al., Defendants-Appellees, 211 F. App'x 558

MEMORANDUM California state prisoner Alejandro Gutierrez appeals pro se from the district court’s

summary judgment in favor of prison officials in his 42 U.S.C. § 1983 action alleging Eighth Amendment violations. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo, Beene v. Terhune, 380 F.3d 1149, 1150 (9th Cir.2004), and we affirm. The district court properly granted

summary judgment to defendants on Gutierrez’s excessive force claim because Gutierrez failed to raise a genuine issue of material fact as to whether force was applied during a cell extraction in a good faith effort to maintain or restore discipline or used maliciously to cause him harm. See Clement v. Gomez, 298 F.3d 898, 903 (9th Cir.2002) citing Whitley v. Albers, 475 U.S. 312, 320-21, 106 S.Ct. 1078, 89 L.Ed.2d 251 (1986). The district court properly granted

summary judgment on Gutierrez’s claim that he suffered cruel and unusual punishment for three months because his cell was too cold. See Farmer v. Brennan, 511 U.S. 825, 837, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994). In light of evidence that defendants were aware of the heating problem, that maintenance was attempting to fix it, and that inmates were offered extra blankets in the meantime, Gutierrez failed to raise a genuine issue of material fact as to whether defendants deliberately inflicted unnecessary and wanton infliction of pain. See id. The district court also properly granted

summary judgment to defendants on Gutierrez’s claim that he suffered for three to five days due to minimal clothing following the cell extraction, because Gutierrez failed to raise a genuine issue of material fact that defendants acted with deliberate indifference to his health or safety. Id. The district court did not abuse its discretion in denying Gutierrez’s request for appointment of counsel because Gutierrez failed to demonstrate exceptional circumstances. See Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir.1991). AFFIRMED. This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3.