Delville BENNETT, Plaintiff-Appellant, v. Ted NESMITH, Physician's Assistant, Lester Wright, Medical Doctor, Deputy Commissioner and Chief Medical Officer, sued in his individual and official capacity, Timothy Whalen, Medical Provider, Dr., sued in his individual and official capacity, Defendants-Appellees, 546 F. App'x 29

SUMMARY ORDER Plaintiff-appellant Delville Bennett (“plaintiff’), proceeding pro se, appeals from the District Court’s grant of

summary judgment entered in favor of defendant-appellees Timothy Whalen and Ted Nesmith (“defendants”) on plaintiffs 42 U.S.C. § 1983 claim. Plaintiff alleged that defendants acted with deliberate indifference to his serious medical needs in violation of the Eighth Amendment by refusing to respond to his complaints of persistent pain after he fell down some stairs. We assume the parties’ familiarity with the underlying facts and the procedural history of the case, to which we refer only as necessary to explain our decision to affirm. We review a grant of

summary judgment de novo, viewing the facts “in the light most favorable to the non-moving party and drawing] 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 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, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (citation omitted). An independent review of the record and relevant case law reveals that the District Court properly adopted the Magistrate Judge’s recommendation to grant the motion for

summary judgment. Plaintiff was required to exhaust his administrative remedies by filing a grievance addressing the claims alleged in the complaint before commencing this lawsuit; however, the grievance upon which plaintiff relies in his brief was filed six months before the injury giving rise to the instant claims. With regard to the merits, plaintiff has failed to show a genuine dispute over either prong of his deliberate indifference claim: his injury was not sufficiently serious to constitute an Eighth Amendment violation, and defendants did not consciously disregard an excessive risk to plaintiffs health.

Accordingly, we affirm for substantially the reasons stated by the Magistrate Judge in his comprehensive February 28, 2011 report and recommendation. CONCLUSION We have considered all of the plaintiffs arguments on appeal and find them to be without merit. For the reasons stated above, we AFFIRM the July 21, 2011 judgment of the District Court. . Plaintiff also alleged in his complaint that the defendants retaliated against him for filing grievances and that defendant Wright was deliberately indifferent to his medical needs. However, these claims were not raised in his appellate brief and are deemed abandoned.

See LoSacco v. City of Middletown, 71 F.3d 88, 92-93 (2d Cir.1995) (holding, in a civil appeal filed by a pro se appellant, that issues not raised in an appellate brief are abandoned).