NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

___________ No. 18-3258

___________ DONALD F. BASS, Appellant

v. CARL DANBERG, Commissioner; PERRY PHELPS, Warden; Lt. DRACE; GILL, Sgt.; MADIGAN, Sgt.; SERGEANT CHARLES WOLOSZYN, a/ k/a Sgt. Wallace; C/O GREEN; BRADL, C/O; OFFICER HICKS; FITZGERALD, C/O; CASSIDY, C/O

___________________ _________________ On Appeal from the United States District Court for the District of Delaware (D.C. Civil No. 1-13-cv-00249) District Judge: Honorable Leonard P. Stark

___________________ _________________ Submitted Pursuant to Thir d Circuit L.A.R. 34.1(a) August 20, 2019 Before: KRAUSE, SCIRICA an d NYGAARD, Circuit Judges (Opinion filed: August 22, 2019)

___________

OPINION *

___________ PER CURIAM

* This disposition is not an op inion of the full Court and pu rsuant to I.O.P. 5.7 does not constitute binding precedent.2 Pro se appellant Donald Bass appeals from the District Court’s order granting summary judgment in favor of several defendan ts in an action that Bass brought pursuant to 42 U.S.C. § 1983. For the reas ons discussed below, we will affirm.
I. Because we write primarily for the partie s, we will recite only the facts necessary for our discussion. Bass is a Delaware state prisoner who, at the time relevant to this matter, was incarcerated at the James T. Vaugh n Correctional Center. In February 2013, he filed a complaint in the District Cour t, raising claims that stemmed from his allegations that excessive force was used ag ainst him during an altercation in December 2012. The District Court screened the co mplaint and dismissed many of the claims pursuant to 28 U.S.C. § 1 915(e)(2)(B). The District Court permitted the Eighth Amendment excessive force, failure to prot ect, and medical needs claims to proceed. After discovery, the remaining defendants moved for summary judgment. The undisputed facts in the reco rd showed that, on December 13, 2012, Sergeant Gill and Correctional Officer Green condu cted recreation. When it wa s Bass’ turn, he asked for indoor recreation. Green denied the request , and Gill escorted Bass in handcuffs to an outdoor recreation yard. Bass admitted that he was cold, fru strated, and angry that he could not recreate indoors. Gill began removing Bass’ handcuffs thro ugh the outdoor yard ’s handcuff flap. The left cuff was removed, but Bass pulled away while the handcuffs we re still secured to his right wrist, causing the handcuff key to fall into his possession. Bass then started kicking the fence, threatening Gill, and demanding to see a lieutenant.3 Lieutenant Drace assembled a Quick Resp onse Team (QRT), including several of the other defendants, to enter the yard and su bdue Bass because they feared that he might use the handcuffs as a weapon. Bass admitt ed that the QRT members approached him slowly with their arms outstre tched, and that he pushed a QRT member. The remaining QRT members then took Bass to the ground and shackled his legs, but they had trouble restraining his arms because he was resisting. Drace secured a grip over Bass’ face, and other QRT members attempted to pin Bass dow n, but, as Bass admitted, he continued resisting and struggling to break free. Dr ace then deployed capstun (pepper spray) to Bass’ face twice, which succeeded in subduing him. The QRT th en lifted Bass to his feet and escorted him to medical for an examin ation. Bass was cleared by medical and escorted back to his cell. The District Court granted summary ju dgment in favor of the remaining defendants. This appeal ensued.
II. We have jurisdiction under 28 U.S.C. § 1291. We exercise plenary review over the District Court’s order granting summary ju dgment. See Kaucher v. County of Bucks, 455 F.3d 418, 422 (3d Cir. 2006). Summary judgment is proper when, viewing the evidence in the light most favorable to the no nmoving party and drawing all inferences in favor of that party, there is no genuine dis pute as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56 (a); Kaucher, 455 F.3d at 422–23. A genuine dispute of material fact exists if the eviden ce is sufficient for a4 reasonable factfinder to return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
III. Bass argues that there was a genuine disp ute of material fact regarding his excessive force and failure-to-protect claims. 1 In assessing a prisoner’s excessive force claim under the Eighth Amendment, we focus on “whether force was applied in a goodfaith effort to maintain or restore disciplin e, or maliciously and sadistically to cause harm.” Hudson v. McMillian, 503 U.S. 1, 6-7 (1992). We consider “several factors including: (1) the need for the application of force; (2) the relationship between the need and the amount of force used; (3) the extent of injury inflicted; (4) th e extent of the threat to the safety of staff and inmates, as reas onably perceived by responsible officials on the basis of the facts known to them; and (5) any efforts made to temper the severity of a forceful response.” Brooks v. Kyler, 204 F.3d 102, 106 (3d Cir. 2000) (quotation marks and citation omitted). Here, we agree with the District Court that the evidence is insufficient for a reasonable factfinder to determine that any offi cer used excessive force. In particular, Bass was angry, threatening, and in possession of handcuffs which c ould have been used as a weapon. Bass admitted that he pushed a QRT memb er who was moving slowly towards him in an atte mpt to restrain him, and that he continued struggling against the

1 While Bass raised some other issues in hi s brief, he did not argue them. See United States v. Pelullo, 399 F.3d 197, 222 (3d Cir. 2005) (“[A]n ap pellant’s failure to identify or argue an issue in his opening brief constitute s waiver of that issue on appeal.”). In any event, we have considered those issues and we conclude that they are meritless.5 QRT members until he was s ubdued by Drace’s use of pe pper spray. Bass was immediately taken to medical and cleared. On this record, a reasonable factfinder could conclude only that the “force was applied in a good-faith effo rt to maintain or restore discipline,” and therefore that the force was not excessive. Hudson, 503 U.S. at 6–7. Because Bass’ failure-to-prot ect claims require a showing that his constitutional rights were violated by the use of excessive for ce, those claims also fail. See Smith v. Mensinger, 293 F.3d 641, 650 (3d Cir. 2002). Accordingly, we will affirm the judgment of the District Court. In light of our disposition, we deny Bass’ motion for appoin tment of counsel. S ee Tabron v. Grace, 6 F.3d 147, 158 (3d Cir. 1993).