DLD-157                                                        NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                      No. 10-4795
                                      ___________

                                   JUAN PAULINO,
                                      Appellant

                                            v.

               BURLINGTON COUNTY JAIL; MR. COLE, WARDEN;
                MR. CAPT. ARTIST, ACTING DEPUTY WARDEN;
                  MS. CAPT. SCHOLTZ, CHIEF OF SECURITY;
                       J. CAIN, OFFICER; DR. EDWARDS
                    ____________________________________

                    On Appeal from the United States District Court
                             for the District of New Jersey
                            (D.C. Civil No. 1-07-cv-05315)
                     District Judge: Honorable Robert B. Kugler
                     ____________________________________

        Submitted for Possible Dismissal Pursuant 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
                                    April 7, 2011

                 Before: BARRY, FISHER and ROTH, Circuit Judges.

                                  (Filed: July 21, 2011)
                                       _________

                                       OPINION
                                       _________

PER CURIAM

      Pro se appellant Juan Paulino, currently an inmate at the Moshannon Valley

Correctional Center in Philipsburg, Pennsylvania, appeals from the District Court’s final
judgment in this action under 42 U.S.C. § 1983. For the reasons that follow, we will

summarily affirm.

                                              I.

       Paulino filed the underlying suit in the United States District Court for the District

of New Jersey asserting violations of his constitutional rights while incarcerated as a pre-

trial detainee at the Burlington County Jail in Mount Holly, New Jersey. Named as

defendants in his amended complaint filed on January 28, 2008, are the Burlington

County Jail, Warden Juel Cole, Acting Deputy Warden Lawrence Artis, 1 Chief of

Security Captain Scholtz, and Corrections Officer Jonathan Cain. Paulino asserts that, on

March 16, 2007, he was assaulted by several other inmates inside a cell on the E-Wing of

the Burlington County Jail. Paulino contends that the inmates involved in the attack are

members of the “Bloods” gang, who had previously tried to extort him and with whom he

had experienced a problem earlier in the afternoon on the day of the attack. Paulino

states that he informed Officer Cain that he “had a problem with a few of these inmates,”

but that Cain did nothing.

       As a result of the assault, Paulino suffered lacerations to his face and his left leg

was broken in three places at the ankle. After reporting the attack and being “written up”

for the fighting incident, Paulino was taken to Virtua Hospital in Mount Holly, New


       1
         It appears that defendant Artis’ name is misspelled in the caption, despite the fact
that the Magistrate Judge granted Paulino’s motion to correct the spelling of defendant
Artis’ name in his complaint. See Magistrate Judge’s Order entered 11/6/09 at 1 n.1.


                                              2
Jersey, for treatment. At the hospital, Paulino received several stitches to the head, was

given a CT scan of the brain – which indicated no abnormality – and was scheduled for

surgery on March 22, 2007, for his fractured ankle. Paulino was returned to Burlington

County Jail that same day and was placed in a medical holding cell, where he was

administered Motrin for several days for pain relief. In his amended complaint, Paulino

claims that prison administrators and officials knew that “gang issues” were a security

problem at the jail, but refused to remedy the situation. He further asserts that the assault

went “unnoticed” because Officer Cain did not make rounds on that particular wing as

required. Finally, Paulina contends that Dr. Evans provided him with “inadequate

treatment” by only giving him low doses of Motrin on the days prior to his surgery. 2

       Defendants Cole, Artis, Scholtz, Cain, and Burlington County Jail answered the

amended complaint, deposed Paulino, and subsequently filed a motion for summary

judgment. The District Court entered summary judgment in favor of these defendants,

holding that Paulino’s failure to protect claim failed insofar as defendants could not be

said to have known of or disregarded an excessive risk to his safety, and that Paulino

failed to show deliberate indifference on the part of defendants to his post-assault

injuries. Paulino timely filed this appeal.



       2
         As the District Court noted, Dr. Evans was not named as a defendant. Rather,
Paulino listed a “Dr. Edwards” as a defendant. However, Paulino’s summons was
returned unexecuted as to Dr. Edwards, and the District Court dismissed him from the
action in an order entered on April 16, 2010.


                                              3
                                             II.

       We have appellate jurisdiction under 28 U.S.C. § 1291. Our review is plenary of

the District Court’s order entering summary judgment. See Fed. Home Loan Mortg.

Corp. v. Scottsdale Ins. Co., 316 F.3d 431, 443 (3d Cir. 2003). We view the underlying

facts, and all reasonable inferences therefrom, in a light most favorable to the non-

moving party. Fasold v. Justice, 409 F.3d 178, 180 (3d Cir. 2005). After a careful

review of the record, we will summarily affirm the District Court’s judgment in

accordance with Third Circuit Internal Operating Procedure Chapter 10.6.

                                             III.

       a.     Failure-to-protect claim

       Paulino alleges that defendants failed to protect him from the attack by members

of the Bloods. Typically, a prisoner raises a failure to protect claim under the Eighth

Amendment. See, e.g., Hamilton v. Leavy, 117 F.3d 742, 746 (3d Cir. 1997). The legal

framework for such a claim is clear: to establish a failure-to-protect claim, an inmate

must demonstrate that (1) he is “incarcerated under conditions posing a substantial risk of

serious harm”; and (2) the prison official acted with “deliberate indifference” to his

health and safety. Farmer v. Brennan, 511 U.S. 825, 834 (1994). As the District Court

recognized, however, Paulino is situated differently in that he is a pretrial detainee as

opposed to a prisoner who has been convicted and sentenced. As a pretrial detainee,

Paulino’s claim is analyzed under the Due Process Clause of the Fourteenth Amendment,

as opposed to the Eighth Amendment. See Bell v. Wolfish, 441 U.S. 520, 535-36 (1979).

                                              4
Under the Due Process Clause, “the proper inquiry is whether [the challenged] conditions

amount to punishment of the detainee.” Id. at 535. Thus, sentenced prisoners are

protected from punishment that is “cruel and unusual,” while pretrial detainees are

protected from any punishment. See Hubbard v. Taylor, 399 F.3d 150, 166-67 (3d Cir.

2005).

         While we have not previously addressed the standard governing a pretrial

detainee’s failure-to-protect claim in a precedential opinion, we have stated in dicta that

the state of mind requirement for prisoners’ claims – “deliberate indifference” – applies

also to pretrial detainees’ claims. See Colburn v. Upper Darby Twp., 946 F.2d 1017,

1024 (3d Cir. 1991). We agree with the District Court and discern no basis to apply a

different standard here as we have settled on “deliberate indifference” both in cases

involving prisoners, see, e.g., Hamilton, 117 F.3d at 746 (failure to protect), and pretrial

detainees, see Colburn, 946 F.2d at 1024 (detainee suicide). This conclusion is consistent

with the holdings of numerous of our sister circuits, see, e.g., Caiozzo v. Koreman, 581

F.3d 63, 71 (2d Cir. 2009) (citing cases), as well as with the dictates of Bell.

         Here, the District Court correctly concluded that Paulino made no showing of

deliberate indifference by defendants. There was simply no record evidence that

defendants were aware that Paulino was at risk of attack by any member of the Bloods

gang, or any other inmate for that matter. See Farmer, 511 U.S. at 842; Hamilton, 117

F.3d at 747-48. Paulino’s deposition testimony itself shows that he did little more than

make a comment to Officer Cain about members of the Bloods attempting to control the

                                              5
television in the Common Area. See Defs.’ Summ. J. Mot, Exh. D., Dep. Tr. at p. 19,

line 25, p. 20, lines 1-6. Paulino never advised any prison official of a problem with any

particular inmate or group of inmates, nor did he ever submit a complaint about his

attacker. See id. at p. 32, lines 4-16. Paulino’s failure to put forth any evidence that the

defendant prison officials were aware of any danger to him, let alone one posing a

substantial risk of harm to him, is fatal to his failure to protect claim.

       b.     Claim based on medical needs

       As noted previously, after the attack, Paulino was taken to the prison infirmary

and then to the local area hospital where he received a diagnosis and treatment for his

facial lacerations, head trauma, and broken leg. He was returned to the prison infirmary,

where he remained in a private or semi-private cell until such time as he was returned to

the hospital for surgery. After surgery, Paulino received treatment in the jail clinic by an

outside physician, was provided with a brace and crutches, and received physical therapy

which Paulino himself considered beneficial. See id. at p. 43, line 20.

       “To act with deliberate indifference to serious medical needs is to recklessly

disregard a substantial risk of serious harm.” Giles v. Kearney, 571 F.3d 318, 330 (3d

Cir. 2009). “Deliberate indifference may be shown by intentionally denying or delaying

medical care.” Id. (quotation marks omitted). “Where a prisoner has received some

medical attention and the dispute is over the adequacy of the treatment, federal courts are

generally reluctant to second guess medical judgments and to constitutionalize claims

which sound in state tort law.” United States ex rel. Walker v. Fayette Cnty., 599 F.2d

                                               6
573, 575 n.2 (3d Cir. 1979) (quotation marks omitted). We agree with the District Court

that Paulino’s contention that the hospital physician prescribed Percocet and advised him

to avoid Motrin, but that the jail clinic only provided him Motrin, failed to set forth a

claim of deliberate indifference. Consequently, the District Court properly entered

summary judgment on this claim.

                                             IV.

       Because we conclude that this appeal presents “no substantial question,” 3d Cir.

I.O.P. Ch. 10.6, the District Court’s judgment will be affirmed.




                                              7
