                                                                NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                _________________

                                      No. 12-1665
                                   _________________

                                ALFREDO MESTRE, JR.,
                                               Appellant

                                             v.

                          WARDEN GEORGE A. WAGNER
                       ____________________________________

                     On Appeal from the United States District Court
                         for the Eastern District of Pennsylvania
                              (D.C. Civ. No. 5:11-cv-02480)
                      District Judge: Honorable Timothy J. Savage
                      ____________________________________

                     Submitted Pursuant to Third Circuit LAR 34.1(a)
                                    October 18, 2012

               Before: AMBRO, HARDIMAN and ROTH, Circuit Judges

                            (Opinion filed: November 8, 2012)
                                  _________________

                                       OPINION
                                   _________________

PER CURIAM

       Alfredo Mestre, Jr., a Pennsylvania state prisoner proceeding pro se, appeals from

the District Court’s dismissal of his civil rights complaint filed pursuant to 42 U.S.C.

§ 1983. For the reasons that follow, we will affirm.
                                            I.

       Because we write primarily for the parties, who are familiar with the background

of this case, we discuss that background only briefly here. In April 2011, Mestre filed a

pro se complaint in the District Court against George Wagner, Warden of the Berks

County Jail System (“BCJS”). The complaint, which sought injunctive relief and

damages, took issue with Mestre’s conditions of confinement while housed in the BCJS.

Specifically, Mestre alleged that, after he attempted suicide in December 2010, he was

placed on a Nutriloaf-only diet for 40 days, and his mattress was removed from his cell

between the hours of 6 a.m. and 9 p.m. for a 14-day period.

       In June 2011, Wagner moved to dismiss the complaint for failure to state a claim

upon which relief can be granted. See Fed. R. Civ. P. 12(b)(6). On February 1, 2012, the

District Court entered an order granting that motion and dismissing the complaint. As an

initial matter, the court noted that, because Mestre had been transferred out of the BCJS

— he was now incarcerated at the State Correctional Institution at Camp Hill — his

request for injunctive relief was moot. As for his request for damages, the court noted

that it was unclear whether he was a pretrial detainee or a convicted prisoner when the

alleged events took place. Because the Fourteenth Amendment would govern his claims

if he were a pretrial detainee, see Hubbard v. Taylor, 538 F.3d 229, 231 (3d Cir. 2008),

and the Eighth Amendment would govern his claims if he were a convicted prisoner, see

Hubbard v. Taylor, 399 F.3d 150, 164 (3d Cir. 2005) [hereinafter Hubbard I], the court

analyzed his claims under both constitutional provisions. The court concluded that, under
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either provision, his claims failed on the merits, and that amendment of his complaint

would be futile.

       Mestre now seeks review of the District Court’s decision.

                                              II.

       We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. “We exercise

plenary review over a district court’s grant of a motion to dismiss pursuant to Rule

12(b)(6).” Fleisher v. Standard Ins. Co., 679 F.3d 116, 120 (3d Cir. 2012). In conducting

this review, “we must accept all factual allegations as true, construe the complaint in the

light most favorable to the plaintiff, and determine whether, under any reasonable reading

of the complaint, the plaintiff may be entitled to relief.” Id. (internal quotation marks and

citation omitted).

       As noted above, the District Court analyzed Mestre’s claims under both the Eighth

and Fourteenth Amendments because it was unclear whether he was a convicted prisoner

or a pretrial detainee during the relevant time period. It is now clear that, “at all relevant

times to Mestre’s Complaint, he was a pretrial detainee.” (Wagner’s Br. 9 n.2.)

Accordingly, we review his complaint under the Fourteenth Amendment only.1

       For substantially the reasons provided by the District Court, we agree with that

court that the allegations in Mestre’s complaint failed to state a claim under the


1
 We note that the constitutional protections afforded to a pretrial detainee under the
Fourteenth Amendment are greater than those provided by the Eighth Amendment. See
Hubbard I, 399 F.3d at 167 n.23.

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Fourteenth Amendment. Although we afforded Mestre an opportunity to identify in his

appellate brief any amendments to his claims that might enable him to survive dismissal

under Rule 12(b)(6), he has not identified any such amendments. Accordingly, we agree

with the District Court that amendment of his complaint would be futile.

       Having found no error in the District Court’s dismissal of Mestre’s complaint, we

will affirm.




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