14-2142 Berry v. N.Y.C. Dep’t of Corr. et al. 

## UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT 

# SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JA NUARY 1, 2007, IS PE RMITTED AND IS GOVERNE D BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT = S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (W ITH THE NOTATION A SUMMARY ORDER @ ). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 10 th day of November, two thousand fifteen. PRESENT: PETER W. HALL, GERARD E. LYNCH, Circuit Judges , JED S. RAKOFF ,  District Judge.

_____________________________________ Shawn M. Berry, Plaintiff-Appellant , v. 14-2142-cv New York City Department of Correction, Correction Officer Castro, #7800, Correction Officer L. Beckwith, #1983, Defendants-Appellees , Correction Officer John Doe, who worked August 30th 2012 at Rikers Island GRVC in its Administrative Segregation MHAUII Punitive Box the 7 am to 3 pm shift as Barber Shop officer, Inmate Oscar

 The Honorable Jed S. Rakoff, United States District Judge for the Southern Dist rict of New York, sitting by designation.2 Punter, #210 10 01563, Defendants . 

_____________________________________ FOR PLAINTIFF-APPELLANT: Shawn M. Berry, pro se , Comstock, N.Y. FOR DEFENDANTS-APPELLEES: Michael J. Pastor (Richard Dearing, on the brief ), for Zachary Carter, Corporation Counsel of the City of New York, New York, N.Y.

Appeal from a judgment of the United States District Court for the Southern District of New York (Sweet, J .). UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED

. Plaintiff-Appellant Shawn M. Berry, pro se , appeals the district c ourt’s grant of summary judgment in favor of Defendants-Appellees the New York City Department of Correction and Correction Officers Beckwith and Castro in Berry’s 42 U.S.C. § 1983 action, which raises Eighth Amendment failure to protect and excessive force claims. We assume the parties’ familiarity with the underlying facts, the procedural history of the cas e, and the issues on appeal. We review a grant of summary judgment de novo , viewing the facts “in the light most favorable to the non-moving party and draw[ing] all reasonable inferences in that party’s favor.” Cox v. Warwick Valley Cent. Sch. Dist. , 654 F.3d 267, 271 (2d Cir. 2011). Summary judgment is appropriate where “there is no genu ine dispute as to any material fa ct and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56( a). “Where the record taken as a whole could

 The Clerk of Court is respectfull y requested to amend the offici al caption as set forth above.3 not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 587 (1986) (internal quotation marks omitted). An independent review of the record and rele vant case law reveals th at the district court properly granted summary judgment to the defenda nts. Berry failed to demonstrate that the defendants were deliberatel y indifferent to a substantial risk of harm to suppor t his failure to protect claim, see Hayes v. New York City Dep’t of Corrs. , 84 F.3d 614, 620-21 (2d Cir. 1996), or that Defendant-Appellant Beckwith’s use of pepper spray was excessive, see Hudson v. McMillian , 503 U.S. 1, 9 (1992); Sims v. Artuz , 230 F.3d 14, 21-22 (2d Cir. 2000). Beckwith and Castro, in any event, are enti tled to qualified immunity. See Harlow v. Fitzgerald , 457 U.S. 800, 818 (1982). We therefore affirm for the reasons stated by the district court in it s May 22, 2014 decision. We have considered all of Berry’s remaining arguments and find them to be without merit. Accordingly, we AFFIRM the judgment of the district court.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk