CLD-077 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

___________ No. 20-2536

___________ RAMON VASQUEZ, Appellant

v. TREVOR A. WINGARD, Regional Depu ty Secretary; MELISSA HAINSWORTH, Superintendent; MARK PRICE, Former Major; MARK BROTHERS, Captain; DOUGLAS ABBOTT, Lieutenant; ALLEN JOSE PH, former Corrections Classification Program Manager; JENNIFER MCCLELLAND , Unit Manager; DA VID L. ONSTEAD,

Unit Manager; TREY SLEDGE, C.O.; S HAWN KIRKPATRICK, C.O.; JAMES FEY, former C.O.; DONALD SKOVIRA, C.O.; LORRIE EARNESTY, Psychological Services Specialist; STEP HEN MORAN; KERI MOORE

___________________ _________________ On Appeal from the United States District Court for the Western District of Pennsylvania (D.C. Civil Action No. 3-19-cv-00040) District Judge: Honorable Kim R. Gibson

___________________ _________________ Submitted for Possible Dismissal Pursua nt to 28 U.S.C. § 1915(e)(2)(B) or Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6 January 21, 2021 Before: RESTREPO, MATEY, and SCIRICA, Circuit Judges (Opinion filed: February 23, 2021)

__________

OPINION *

* 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 PER CURIAM Appellant Ramon Vasquez appeals the Distri ct Court’s dismissal of his civil rights complaint and denial of his motion to reconsid er. In his complaint, Vasquez alleged that he had requested to be confined in a singl e cell without a cellmate due to his fears of being sexually assaulted but was instea d placed in a cell with a cellmate. 1 Vasquez claimed that he was then sexually assaulted by his cellmate, which he reported to prison employees and the police. After an investiga tion, the prison official determined that the assault did not happen. Later, Vasquez was placed with a different cellmate, but not before expressing to prison guards that he “d id not feel comfortable” about being housed with his new cellmate. He alleged that hi s new cellmate sexually assaulted him. After Vasquez reported the assault, the cellmate was removed from the cell. Vasquez also stated his dissatisfaction with the way that his grievances we re handled and about the way he was treated by the prison psychologist a nd certain officers who made disparaging remarks toward him. He asserted various cl aims under the Eighth Amendment, as well as claims of negligence, slander, intentional in fliction of emotional distress, and medical malpractice. After Vasquez tw ice amended his complaint, the District Court screened the complaint and dismissed it for failure to state a claim. Vasquez then filed a motion for recons ideration under Federal Rule of Civil Procedure 59(e). In it, Vasquez averred that the District Court mist akenly stated in its

1 Because we write primarily for the benefit of the parties, we have included only those facts that are pertinent to the discussion.3 opinion that he had amended his complaint th ree times while, according to Vasquez, he only amended his complaint twice. The Dist rict Court denied the motion and Vasquez timely appealed. Pursuant to 28 U.S.C. § 12 91, we have jurisdiction to review the District Court’s dismissal of Vasquez’s complaint and its denial of the Rule 59(e) motion for reconsideration. 2 We review the dismissal of th e complaint under the same de novo standard that we apply to a dismissal under Federal Rule of Civil Procedure 12(b)(6), see Allah v. Seiverling, 229 F.3d 220, 223 (3d Cir. 2000), and the denial of a motion for reconsideration for abuse of discretion, Cure ton v. Nat’l Collegiate Athletic Ass’n, 252 F.3d 267, 272 (3d Cir. 2001). To state a claim, a civil compla int must set out “sufficient factual matter” to show that its claims are faci ally plausible. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). We accept all factual allegations in the complaint as true and construe those facts in the light most favorable to the plaintiff, Fleisher v. Standard Ins. Co., 679 F.3d 116, 120 (3d Ci r. 2012), and we construe Vasquez’s pro se complaint liberally, see Erickson v. Pardus, 551 U. S. 89, 94 (2007) (per curiam). We may summarily affirm if the appeal fails to pr esent a substantial question. See Murray v. Bledsoe, 650 F.3d 246, 247 (3d Cir. 2011) (per curiam); 3d Cir. L.A.R. 27.4; I.O.P. 10.6.

2 Because the timely filing of the motion for reconsiderati on tolled the time for filing a notice of appeal, see Blystone v. Horn, 66 4 F.3d 397, 414 (3d Ci r. 2011), Vasquez’s notice of appeal was timely with respect to both the u nderlying order dismissing the complaint and the motion for reconsideration.4 The District Court properly dismisse d Vasquez’s Eighth Amendment claims. Under the Eighth Amendment, a prison official may be liabl e for deliberate indifference only where “the official knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exis ts, and he must also draw the inference.” Farmer v. Brennan, 511 U.S. 825, 837 (1994). Vasquez did not allege that the prison officials knew of any substantial risk to Vasq uez’s health or safety by placing him in a cell with another inmate. His first request fo r a single cell was based on a sexual assault that occurred at a different institution an d his second request was based on rumors about his prospective cellmate that he had “heard fr om other inmates.” On those alleged facts, it is not plausible to assume that prison o fficials knew whether Vasquez’s concerns were legitimate. See Jackson v. Everett, 140 F.3d 1149, 1152 (8th Ci r. 1998) (“[T]hreats between inmates are common and do not, unde r all circumstances, serve to impute actual knowledge of a substantial risk of harm.”). Vasquez thus failed to state a claim under the Eighth Amendment. The District Court also properly dismi ssed Vasquez’s remaining state law claims. Regarding his negligence claims, Vasquez did not state how the offi cials charged with administrative review of his grievances, the prison guards, or a mental health counselor breached a statutory standard of care or how they caused his alleged injuries. See Kleinknecht v. Gettysburg Coll., 989 F.2d 1360, 1366 (3d Cir. 1993) (“In order to prevail on a cause of action in negligence under Pennsy lvania law, a plaintiff must establish: (1) a duty or obligation recognized by law, requiring the acto r to conform to a certain5 standard of conduct; (2) a failure to confor m to the standard required; (3) a causal connection between the conduct and the resu lting injury; and (4) actual loss or damage resulting to the interests of another.”). His intentional infliction of emotional distress claim fails because Vasquez di d not show that the conduct was sufficiently “extreme and outrageous” or that the resulting emotion distress was “severe.” See Chuy v. Phila. Eagles Football Club, 595 F.2d 1265, 1273 ( 3d Cir. 1979). And, Vasquez has not alleged any harm from that conduct. See 42 Pa. Cons . Stat. § 8343(a)(6) (requ iring a plaintiff to establish, among other th ings, “special harm” to state a claim for slander). 3 Finally, the District Court correctly deni ed Vasquez’s motion for reconsideration. Under Rule 59(e), a motion for reconsideration should be granted on ly when the movant shows “(1) an intervening ch ange in the controlling law; (2) the availability of new evidence . . .; or (3) th e need to correct a clear error of la w or fact or to prevent manifest injustice.” Max’s Seafood Café ex rel. Lou- Ann, Inc. v. Quintero s, 176 F.3d 669, 677 (3d Cir. 1999). In his motion, Vasquez presented no change in law or new evidence. He stated only that the District Court miscalcula ted the number of times that he was allowed to amend his complaint. If true, such a fact ual error was immaterial to the disposition of

3 The claims of malpractice against the pr ison psychologist were properly dismissed as Vasquez failed to file a certific ate of merit. See Liggon-Redd ing v. Estate of Sugarman, 659 F.3d 258, 265 (3d Cir. 2011) . However, the claim fails on the merits regardless. To state a claim for medical malpractice, Vasque z had to allege that (1) the psychologist owed a duty to the pa tient; (2) the psychologist breached the duty; (3) the breach was the proximate cause of the harm suffered; and (4 ) the damages suffered were a direct result of the harm. Hightower–Warren v. Silk, 69 8 A.2d 52, 54 (Pa. 1997). Vasquez has not alleged that the psychologist breached an es tablished duty and it is unclear what damages he suffered as a “direct result” of his disagr eement with the psychi atrist’s diagnosis.6 the case, especially where Vasquez was given leave to amend his first amended complaint before it was dismissed. See Gray son v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002). The Distri ct Court did not abuse its disc retion in denying the motion. Accordingly, we will affirm the j udgment of the District Court.