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Fantauzzi v. Wetzel

United States District Court, E.D. Pennsylvania

September 18, 2019

REINALDO FANTAUZZI
v.
JOHN E. WETZEL, et al.

          MEMORANDUM

          KEARNEY, J.

         An unknown fellow inmate assaulted inmate Reinaldo Fantauzzi as he played chess in a Pennsylvania prison while the correctional officer slept at his post. Mr. Fantauzzi suffered serious physical injury and alleged ongoing emotional distress. Mr. Fantauzzi grieved the correctional officer's failure to protect him but after investigation, the prison officials denied the grievance finding no evidence of the correctional officer sleeping. Mr. Fantauzzi now pro se seeks damages, injunctive and declaratory relief from Pennsylvania Department of Corrections employees Secretary John E. Wetzel, Superintendent Cynthia Link, Correctional Officer Ferraci, Lieutenant Reber, Captain Terra, and Chief Grievance Officer Donna Varner in their official and individual capacities. He claims these state actors violated his civil rights by failing to protect him from another inmate and for depriving him of due process through a faulty grievance procedure. We must dismiss his complaint for failing to plead a claim. We dismiss his claims with prejudice for official capacity liability, for equitable relief as he is no longer held at the same prison, and damages challenging the grievance procedures and rulings under the Due Process Clause. We dismiss his claims for cruel and unusual punishment arising from the assault and supplemental state law claims without prejudice to timely file an amended Complaint consistent with this Memorandum.

         I. Alleged facts.

         From at least October 2015 until September 2016, Pennsylvania's Department of Corrections held Reinaldo Fantauzzi in custody at State Correctional Institution-Graterford.

         State actors place Mr. Fantauzzi in a high security block in October 2015.

         In October 2015, Captain Terra labelled Mr. Fantauzzi "gang and drug affiliated" and placed him on a high security block with other "known and proven" gang members.[1] Captain Terra labelled Mr. Fantauzzi after an investigation confirmed him innocent of wrongdoing related to selling or using illegal drugs in the prison.[2] He warned Captain Tice about the "gang or drug affiliated" label's seriousness and expressed his fear of potential harm stemming from the label, including life-threatening injuries.[3] Captain Tice ignored Mr. Fantauzzi's warnings and continued labeling Mr. Fantauzzi as "gang affiliated" while housing him in the high security block.[4]

         Assault by another inmate almost a year later.

         Eleven months later, on September 24, 2016, while Mr. Fantauzzi played chess in the Upper I Block Dayroom, an unknown inmate approached him multiple times.[5] After approaching Mr. Fantauzzi several times, the unknown inmate assaulted him while in view of the Block Office area and the Correctional Officer's unmanned desk.[6]

         Correctional Officer Ferraci failed to man his Upper I Block dayroom post during the assault.[7] Instead, he slept in his office.[8] Correctional Officer Ferraci did not, nor did another Correctional Officer, make required rounds, supervise inmates, or conduct block safety checks before or during Mr. Fantauzzi's assault.[9]

         Mr. Fantauzzi suffered a slash wound across his face and cheek from the assault requiring almost forty stitches.[10] An outside hospital treated Mr. Fantauzzi's injury and stitched the facial wound.[11] The state actors placed Mr. Fantauzzi on "increased control" after returning from the hospital until they conducted an incident investigation.[12] This assault led to Mr. Fantauzzi suffering from severe Post Traumatic Stress Disorder coupled with regular "flashback nightmares" of the attack, and he treats with a psychiatrist relating to this extreme trauma's aftermath.[13] On October 7, 2016, the prison acknowledged an inmate assaulted Mr. Fantauzzi "in Gen. Pop. and currently [Mr. Fantauzzi's] safety remains at risk if released."[14]

         Mr. Fantauzzi grieves the assault.

         On October 3, 2016, Mr. Fantauzzi grieved his assault.[15] He argued Correctional Officer Ferraci failed to man his post, made no rounds on the Upper I Block as required, and remained in his office for at least ninety minutes.[16] On December 20, 2016, Captain Terra denied Mr. Fantauzzi's grievance because Correctional Officer Ferraci denied he slept during the assault and the camera angle could not reach the area to show Correctional Officer Ferraci sleeping.[17] Mr. Fantauzzi appealed the initial grievance's denial to Superintendent Link, claiming again Correctional Officer Ferraci's failure to man his post by remaining in his office for ninety minutes.[18] On February 10, 2017, Superintendent Link denied his appeal because she could not substantiate Mr. Fantauzzi's claim Correctional Officer Ferraci slept during his shift.[19]

         Mr. Fantauzzi submitted a final appeal to Chief Grievance Officer Varner, using an extra (third) sheet of paper to fully state his grievance.[20] Chief Grievance Officer Varner denied his claims immediately for exceeding the two-page limit allowed for filing grievance appeals.[21] Chief Grievance Officer Varner did not allow Mr. Fantauzzi to re-submit his appeal conforming to the two-page requirement.[22] Captain Terra and Lieutenant Reber investigated the matter, but denied Mr. Fantauzzi's claims.

         Mr. Fantauzzi sued state actors Secretary Wetzel, Superintendent Link, Correctional Officer Ferraci, Lieutenant Reber, Captain Terra, and Chief Grievance Officer Varner in their individual and official capacities under 42 U.S.C. § 1983. He alleges Secretary Wetzel, Superintendent Link, Lieutenant Reber, Captain Terra, and Chief Grievance Officer Varner denied him due process by denying his grievances and grievance appeals and violated his Eighth Amendment by causing severe and extreme emotional distress constituting cruel and unusual punishment. He alleges Correctional Officer Ferraci violated the Eighth Amendment by being deliberately indifferent to a serious and unreasonable risk of physical harm to Mr. Fantauzzi and failing to protect Mr. Fantauzzi from another inmate's assault when Correctional Officer Ferraci slept in his office rather than man his post. He alleges all state actors, including Correctional Officer Ferraci, violated Pennsylvania state law by being negligent and intentionally inflicting emotional distress from their actions/inactions contributing to Mr. Fantauzzi's assault.

         II. Analysis.

         Secretary Wetzel, Superintendent Link, Correctional Officer Ferraci, Lieutenant Reber, Captain Terra, and Chief Grievance Officer Varner move to dismiss Mr. Fantauzzi's Amended Complaint arguing: (1) we lack subject matter jurisdiction over damages claims against the individual actors in their official capacities under Eleventh Amendment immunity; (2) Mr. Fantauzzi fails to plead denial of due process; (3) Mr. Fantauzzi fails to plead personal involvement of Secretary Wetzel; (4) Mr. Fantauzzi fails to plead Correctional Officer Ferraci's deliberate indifference to a serious risk of harm; and, (5) Mr. Fantauzzi has no right to injunctive or declaratory relief as his claims are moot. They also request we decline to exercise supplemental jurisdiction over Mr. Fantauzzi's remaining state law claims of negligence and intentional infliction of emotional distress.

         A. We lack subject matter jurisdiction over Mr. Fantauzzi's civil rights claims against state actors in their official capacities.[23]

         Secretary Wetzel, Superintendent Link, Correctional Officer Ferraci, Lieutenant Reber, Captain Terra, and Chief Grievance Officer Varner argue Mr. Fantauzzi's civil rights "official capacity" claims are barred under the Eleventh Amendment. We agree.

         "[A]bsent waiver by the State or valid congressional override, the Eleventh Amendment bars a damages action against a State in federal court."[24] Though states may consent to being sued in federal court, the Commonwealth specifically withholds consent to lawsuits under section 1983.[25] "This bar remains in effect when [Commonwealth] officials are sued for damages in their official capacity."[26] Because the Department of Corrections "is quintessentially an arm of the state and is funded by, controlled by, and accountable to the state,"[27] the Eleventh Amendment bars suit against it and its employees in their official capacities in federal court.[28] No. bases of jurisdiction, pendent or otherwise, override this Eleventh Amendment bar.[29]

         The Department of Corrections employed Secretary Wetzel, Superintendent Link, Correctional Officer Ferraci, Lieutenant Reber, Captain Terra, and Chief Grievance Officer Varner.[30] The Commonwealth's Department of Corrections is part of the Commonwealth's executive department.[31] The Department of Corrections is immune to claims for damages in federal court under the Eleventh Amendment, and its above-named officials "share[] in the Commonwealth's Eleventh Amendment Immunity."[32] Because there is no subject matter jurisdiction over these civil rights damages claims against the state actors in their official capacities,[33] all claims for damages based on their official capacity must be dismissed with prejudice unless there is an exception.

         One exception to Eleventh Amendment immunity under 42 U.S.C. § 1983 exists in specific circumstances permitting injunctive or declaratory relief against Commonwealth officials in their official capacities.[34] This narrow exception "applies only to prospective relief, [and] does not permit judgments against [Commonwealth] officers declaring [] they violated federal law in the past. . . ."[35] This exception stemming from Ex parte Young "ensures [Commonwealth] officials do not employ the Eleventh Amendment [to avoid] compliance with federal law ...," and allows federal courts to "enjoin [Commonwealth] officials to conform their future conduct to the requirements of federal law. . . ."[36] To determine whether this exception to Eleventh Amendment immunity applies, the court must "conduct a 'straightforward inquiry into whether [the] complaint alleges an ongoing violation of federal law and seeks relief properly characterized as prospective.'"[37]

         In Mcllmail v. Pennsylvania, Judge Joyner "focus[ed] on the substance of the relief sought in" the complaint to determine whether it is prospective and thus excepted from the Eleventh Amendment's bar.[38] Judge Joyner emphasized "the applicability of the Eleventh Amendment depends on the substance rather than form of the requested relief."[39] When a plaintiff solely seeks redress for past wrongs rather than relief to control or prohibit future violative conduct, such relief is not prospective in nature and "Pennsylvania, its agencies, and its officers enjoy sovereign immunity pursuant to the Eleventh Amendment."[40]

         Mr. Fantauzzi seeks declaratory and injunctive relief and compensatory punitive damages.[41] He alleges the state actors failed to protect him at the time of the September 24, 2016 assault, failed to follow procedures preventing safety breaches, and wrongfully resolved or denied his grievances and appeals.[42] Mr. Fantauzzi's compensatory and punitive damages are neither prospective nor injunctive.[43] They relate to past conduct. His claims for injunctive relief are moot. Mr. Fantauzzi is no longer incarcerated at SCI-Graterford and does not allege having existing contact with the state actors. He alleges no ongoing federal law violation by the state actors allowing prospective relief. Mr. Fantauzzi focuses on past wrongs committed by state actors not excepted from Eleventh Amendment immunity.[44] Because he did not, and could not, seek to clarify what type of relief would correct future instances of these state actors' violative practices against him, Mr. Fantauzzi fails to identify specific prospective relief not barred by the Eleventh Amendment and his claims against the state actors in their official capacity must be dismissed with prejudice.

         B. We dismiss Mr. Fantauzzi claims Secretary Wetzel, Superintendent Link, Lieutenant Reber, Captain Terra, and Chief Grievance Officer Varner denied him due process in the prison's grievance procedure with prejudice.

         1. Mr. Fantauzzi has no procedural due process right to specific prison grievance procedures.

         Secretary Wetzel, Superintendent Link, Lieutenant Reber, Captain Terra, and Chief Grievance Officer Varner argue they did not infringe on Mr. Fantauzzi's procedural due process rights, as Mr. Fantauzzi does not have a constitutionally protected right to the Department of Corrections' grievance procedures. We agree.

         The first step in analyzing a procedural due process claim "is [determining] whether the nature of the interest is one within the contemplation of the 'liberty or property' language of the Fourteenth Amendment."[45] To present a cognizable procedural due process claim under the Fourteenth Amendment, the claim must involve a protected interest.[46] For inmates, the Due Process Clause's safeguards are triggered only when circumstances "impose[] atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life."[47] Where an inmate has no protected interest relating to his claim, there cannot be deprivation of due process requiring constitutional redress.[48]

         "[A]lthough prisoners have a constitutional right to seek redress of grievances as part of their right of access to courts, this right is not compromised by [prison officials' failure] to address these grievances."[49] "Access to prison grievance procedures is not a constitutionally-mandated right, and allegations of improprieties in the handling of grievances do not state a cognizable claim under [section] 1983."[50] In Bumside v. Moser, our Court of Appeals affirmed "[i]nmates do not have a constitutionally protected right to the prison grievance process."[51] Our Court of Appeals in Burnside did not commend failure to process grievances, but noted such behavior by prison officials "does not rise to the level of [violating] a constitutional right."[52] "[A prison official's failure] to provide a favorable response to an inmate grievance is not a federal constitutional violation."[53]

         2. Mr. Fantauzzi fails to plead the state actors denied him procedural due process by adversely resolving his grievances.

         Secretary Wetzel, Superintendent Link, Captain Terra, Lieutenant Reber and Chief Grievance Officer Varner argue they did not infringe on Mr. Fantauzzi's due process rights as Mr. Fantauzzi does not have a constitutionally protected right to the Department of Corrections' grievance procedures. As described above, we agree.

         Mr. Fantauzzi fails to plead any conduct by Secretary Wetzel. Even if he could plead Secretary Wetzel had some role in the grievance process, we would dismiss this claim as described above.

         No basis to plead Superintendent Link's liability for denying his grievance.

         Superintendent Link argues Mr. Fantauzzi cannot plead she violated his due process rights as Mr. Fantauzzi does not have a constitutionally protected right to the Department of Corrections' grievance procedures. We agree. Mr. Fantauzzi's allegations against Superintendent Link are grounded in her improper handling of Mr. Fantauzzi's grievances. Mr. Fantauzzi alleges Superintendent Link denied his first grievance's appeal, "again in the face of video showing [his] claims to be in fact-true."[54] Though Mr. Fantauzzi provides reasoning for why he believes Superintendent Link's "actions/inactions . . . contributed to and proximately caused the violation and denial of [his] Due Process of Law in violation of the Fourteenth Amendment. . .,"[55] such rationalizations are not relevant today as he has no constitutionally protected right to specific prison grievance procedures. Mr. Fantauzzi cannot succeed on his claims simply because Superintendent Link did not handle his grievance appeal the way Mr. Fantauzzi believed she should. Mr. Fantauzzi's claims against Superintendent Link allegedly denying his grievance appeal "because 'sleeping while on shift,' could not be substantiated"[56] do not trigger the Due Process Clause's safeguards as they relate to the prison's handling of grievance procedures-a non-constitutionally protected right. Because Mr. Fantauzzi's due process allegations against Superintendent Link are solely based on Superintendent Link denying Mr. Fantauzzi's grievance appeal, they must be denied with prejudice.

         No basis to plead Captain Terra's liability for denying his grievance.

         Mr. Fantauzzi's allegations against Captain Terra are grounded in his improper handling of Mr. Fantauzzi's grievances. Mr. Fantauzzi alleges Captain Terra denied his first grievance.[57]Though Mr. Fantauzzi provides reasoning for why he believes Captain Terra's "actions/inactions ... contributed to and proximately caused the violation and denial of [his] Due Process of Law in violation of the Fourteenth Amendment. . .,"[58] such rationalizations are not relevant today as he has no constitutionally protected right to specific prison grievance procedures. Mr. Fantauzzi cannot succeed on his claims simply because Captain Terra did not handle his grievances the way Mr. Fantauzzi believed he should. Mr. Fantauzzi's claims against Captain Terra allegedly denying his grievances "because [Correctional Officer] Ferraci denied he was sleeping and [the] 'camera angle' could not show if [Correctional Officer] Ferraci was sleeping"[59] do not trigger the Due Process Clause's safeguards as they relate to the prison's handling of grievance procedures-a non-constitutionally protected right. Because Mr. Fantauzzi's due process allegations against Captain Terra are solely based on Captain Terra denying Mr. Fantauzzi's grievances, they must be denied with prejudice.

         No basis to plead Lieutenant Reber's liability for denying his grievance.

         Lieutenant Reber argues Mr. Fantauzzi cannot plead a due process claim against him as the allegations against Lieutenant Reber are grounded in his improper handling of Mr. Fantauzzi's grievances. We agree. Mr. Fantauzzi alleges Lieutenant Reber "deliberately failed to address [his claims Correctional Officer Ferraci failed to man his post, make required rounds on the block, and remained in his office before and during the assault] in the face of all the video [depicting his allegations]."[60] Though Mr. Fantauzzi provides reasoning for why he believes Lieutenant Reber's "actions/inactions . . . contributed to and proximately caused the violation and denial of [his] Due Process of Law in violation of the Fourteenth Amendment . . .,"[61] such rationalizations are not relevant today as he has no constitutionally protected right to specific prison grievance procedures. Mr. Fantauzzi cannot succeed on his claims simply because Lieutenant Reber did not handle his grievances the way Mr. Fantauzzi believed he should. Mr. Fantauzzi's claims against Lieutenant Reber allegedly investigating and denying his grievances "in the face of the [video] evidence"[62]do not trigger the Due Process Clause's safeguards as they relate to the prison's handling of grievance procedures not protected by the Due Process Clause. Because Mr. Fantauzzi's due process allegations against Lieutenant Reber are based on denying Mr. Fantauzzi's grievances, they must be denied with prejudice.

         No basis to plead Chief Grievance Officer Varner's liability for denying his grievance.

         Chief Grievance Officer Varner argues Mr. Fantauzzi did not plead she violated his due process rights as Mr. Fantauzzi does not have a constitutionally protected right to the Department of Corrections' grievance procedures. We agree. Mr. Fantauzzi's allegations against Chief Grievance Officer Varner are grounded in her improper handling of Mr. Fantauzzi's grievances. Mr. Fantauzzi alleges Chief Grievance Officer Varner "denied [his final grievance appeal] without allowing [him] to resubmit his appeal [] because he exceeded the two page limit."[63] Though Mr. Fantauzzi pleads why he believes Chief Grievance Officer Varner's "actions/inactions . . . contributed to and proximately caused the violation and denial of [his] Due Process of Law in violation of the Fourteenth Amendment. . .,"[64] such rationalizations are not relevant today as he has no constitutionally protected right to specific prison grievance procedures. Mr. Fantauzzi cannot succeed on his claims simply because Chief Grievance Officer Vamer did not handle his final grievance appeal the way Mr. Fantauzzi believed she should. Mr. Fantauzzi's claims against Chief Grievance Officer Varner allegedly denying his final grievance appeal because she "chose in the face of the facts and a life threatening injury to dismiss [his] claims due to [him] using an extra sheet of paper [] to fully state his grievance"[65] do not trigger the Due Process Clause's safeguards as they relate to the prison's handling of grievance procedures-a non-constitutionally protected right. Because Mr. Fantauzzi's due process allegations against Chief Grievance Officer Varner are solely based on Chief Grievance Officer Varner denying Mr. Fantauzzi's final grievance appeal, they must be denied with prejudice.

         C. We dismiss the civil rights claims relating to the September 24, 2016 assault with leave to amend.

         1. We review Mr. Fantauzzi's deliberate indifference claims relating to the September 24, 2016 assault under the Eighth Amendment's cruel and unusual punishment framework, not under the Fourteenth Amendment's substantive due process framework.

         Secretary Wetzel, Superintendent Link, Lieutenant Reber, Captain Terra, and Chief Grievance Officer Varner argue Mr. Fantauzzi cannot allege they violated his substantive due process rights relating to the September 24, 2016 incident, as the "more-specific-provision" rule requires he bring these claims under the Eighth Amendment rather than the Fourteenth Amendment. They are correct.

         Under the Supreme Court's "more-specific-provision" rule, "if a constitutional claim is covered by a specific constitutional provision, such as the ... Eighth Amendment, the claim must be analyzed under the standard appropriate to [the] specific provision, not under the rubric of substantive due process."[66] In Betts v. New Castle Youth Development Center, our Court of Appeals specified when an inmate plaintiffs "claims concern his conditions of confinement and an alleged failure by [d]efendants to ensure his safety," the "allegations fit squarely within the Eighth Amendment's prohibition on cruel and unusual punishment" and "the more-specific-provision rule forecloses [the plaintiffs] substantive due process claims."[67] Because Mr. Fantauzzi offers no support for proposing his ability to bring both a substantive due process and Eighth Amendment claim challenging the same conduct by state actors on September 24, 2016, the more-specific-provision rule requires Mr. Fantauzzi bring his deliberate indifference claims against Secretary Wetzel, Superintendent Link, Lieutenant Reber, Captain Terra, and Chief Grievance Officer Varner under the Eighth Amendment, not under the Fourteenth Amendment's substantive due process framework.

         2. Mr. Fantauzzi fails to plead Secretary Wetzel's personal involvement.[68]

         Secretary Wetzel, the Secretary of Corrections, argues Mr. Fantauzzi fails to plead his personal involvement in failing to protect Mr. Fantauzzi from another inmate's assault as Mr. Fantauzzi pleads no facts linking Secretary Wetzel to the assault nor alleges causes of action against Secretary Wetzel. We agree.

         "A[n individual government] defendant in a civil rights action must have personal involvement in the alleged wrongdoing .... Personal involvement can be shown through allegations of personal direction or of actual knowledge and acquiescence."[69] "A civil rights complaint is adequate where it states the conduct, time, place, and persons responsible."[70] Under 42 U.S.C. § 1983, individual liability is only warranted where an individual personally directed or knowingly acquiesced to the alleged misconduct.[71]

         Mr. Fantauzzi makes no allegations against Secretary Wetzel. Secretary Wetzel's name appears only in the "Parties" section of the Amended Complaint.[72] Without specific allegations Secretary Wetzel personally contributed to Mr. Fantauzzi's alleged harm, there is no basis for Mr. Fantauzzi to proceed against him on any claim. Mr. Fantauzzi fails to plead Secretary Wetzel's personal involvement in his alleged harm. His claims against Secretary Wetzel must be dismissed without prejudice.

         3. Mr. Fantauzzi fails to plead Correctional Officer Ferraci's deliberate indifference to a serious risk of harm relating to the assault.

         Correctional Officer Ferraci argues Mr. Fantauzzi pleads no facts about his-or any other state actor's-personal knowledge of the particular risk to Mr. Fantauzzi on or before September 24, 2016. Correctional Officer Ferraci argues Mr. Fantauzzi fails to meet the "deliberate indifference" standard under the Eighth Amendment as he only pleads allegations amounting to mere negligence. We agree.

         The Constitution neither "mandates comfortable prisons" nor "permit[s] inhumane ones."[73]The Eighth Amendment prohibits cruel and unusual punishment, imposing a duty on prison officials "to provide humane conditions of confinement."[74] This duty requires prison officials to "take reasonable measures to guarantee [inmate safety]" by protecting them from potential violence committed by other inmates.[75] Failure to protect claims involve an alleged deprivation of an inmate's Eighth Amendment right focused on the particular basic necessity of personal safety.[76] "Still, not 'every injury suffered by one prisoner at the hands of another . . . translates into constitutional liability for prison officials responsible for the victim's safety.'"[77]

         "An Eighth Amendment claim against a prison official must meet two requirements: (1) 'the deprivation alleged must be, objectively, sufficiently serious;' and, (2) the 'prison official must have a sufficiently culpable state of mind.'"[78] Our Court of Appeals instructs:

To state a claim for damages against a prison official for failure to protect from inmate violence, an inmate must plead facts [showing] (1) he was incarcerated under conditions posing a substantial risk of serious harm, (2) the official was deliberately indifferent to [the] substantial risk to his health and safety, and (3) the official's deliberate indifference caused him harm.[79]

         This "deliberate indifference" standard is a subjective one in the Eighth Amendment context, requiring "the prison official-defendant must actually have known or been aware of the excessive risk to inmate safety."[80] "It is well established [] merely negligent misconduct will not give rise to a claim under [section] 1983; the [Commonwealth] defendant must act with a higher degree of intent."[81] Judge Smith in E.D. v. Sharkey details the governing law in our Circuit confirming merely alleging "a defendant knew of a risk to the plaintiff is insufficient to support an inference of deliberate indifference absent any factual allegations supporting that conclusion, and thus cannot alone establish facial plausibility."[82] Judge Smith dismissed the inmate's "failure to protect" allegations against the prison guard as the inmate's "conclusory statements [the prison official] noticed the attention [another inmate] directed towards her and knew about their intimate relationship are not entitled to a presumption of truth."[83] A fair comparison is found in Bistrian v. Levi where our Court of Appeals concluded the inmate plead a plausible failure to protect claim by alleging he advised prison officials of a specific violent threat made by an identified inmate and the officers still placed him "in the recreation yard with . . . [inmates] who knew of his prior complicity with prison authorities."[84]

         Mr. Fantauzzi fails to allege Correctional Officer Ferraci personally knew of the particular risk for inmate assaults against him in the high security block. He alleges Officer Ferraci's negligence, including sleeping at his post at the time of the assault. But sleeping is not deliberate indifference absent a more specific connection to the harm. Unlike in Sharkey where the inmate at least made a conclusory statement about the prison official's knowledge, Mr. Fantauzzi fails to plead facts relating to Correctional Officer Ferraci's knowledge of his label or potential danger. Mr. Fantauzzi concludes Correctional Officer Ferraci's deliberate indifference to his safety without pleading he knew of a risk of assault harm-circumstantial or otherwise.[85] There is no specificity in Mr. Fantauzzi's allegations allowing an inference Correctional Officer Ferraci personally knew of any risk to Mr. Fantauzzi's safety and failed to protect him from the known risk. A correctional officer sleeping on the job may be negligence under Pennsylvania law but, absent pleading he knew of the risk from other inmates and ignored the risk by choosing to sleep rather than monitor his work station, Mr. Fantauzzi cannot convert Officer Ferraci's alleged sleeping on the job to a constitutional deprivation of civil rights.

         Unlike in Bistrian where the inmate told many prison officials he feared for his safety and officials knew he received specific threats from identified inmates,[86] Mr. Fantauzzi alleges Captain Terra labeled him as "gang and drug affiliated" in October 2015, and Mr. Fantauzzi only warned Captain Tice about the label's dangerousness.[87] Mr. Fantauzzi does not allege he told anyone else about his concerns nor alleges anyone else-prison officials, inmates, or otherwise-knew about the label. He does not explain how Correctional Officer Ferraci would personally know of the label and/or any increased risk of potential violence to Mr. Fantauzzi by other inmates because of the label. He does not plead threats of violence other inmates made against him putting Correctional Officer Ferraci on notice of an increased risk to Mr. Fantauzzi's safety.[88]

         Mr. Fantauzzi's assault also occurred on September 24,2016, eleven months following Mr. Fantauzzi's alleged conversations with Captain Terra and Captain Tice about his concerns regarding this label.[89] Mr. Fantauzzi alleges no threats to his safety or conversations with other prison officials about this label concern within the eleven-month time gap. Without alleging Correctional Officer Ferraci's personal knowledge of an objectively serious risk to Mr. Fantauzzi's safety, Mr. Fantauzzi pleads mere negligence.[90] Mr. Fantauzzi fails to plead Correctional Officer Ferraci's "deliberate indifference" to a serious risk of harm as the Eighth Amendment ...


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