    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 JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED 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 (WITH THE NOTATION ASUMMARY 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 10th 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 District of New York, sitting
    by designation.
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 court’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 case, 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 genuine dispute as to any material fact 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 respectfully requested to amend the official caption as set forth above. 
                                                    2
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 relevant case law reveals that the district court

properly granted summary judgment to the defendants. Berry failed to demonstrate that the

defendants were deliberately indifferent to a substantial risk of harm to support 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 entitled 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 its 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




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