                                                 NOT PRECEDENTIAL

          UNITED STATES COURT OF APPEALS
               FOR THE THIRD CIRCUIT
                    ___________

                       No. 12-2559
                       ___________

             TRI THANH NGUYEN, Appellant

                             v.

     FRANKLIN COUNTY SHERIFFS DEPARTMENT;
        DEPUTY STROBLE; DEPUTY CARTER;
      DEPUTY HALL; SHERIFF DUANE ANTHONY;
OTHER UNKNOWN COUNTY OFFICERS; FRANKLIN COUNTY
        ____________________________________

       On Appeal from the United States District Court
           for the Middle District of Pennsylvania
            (D.C. Civil Action No. 10-cv-01866)
        District Judge: Honorable A. Richard Caputo
        ____________________________________

        Submitted Pursuant to Third Circuit LAR 34.1(a)
                       January 2, 2013
 Before: SCIRICA, JORDAN and GREENBERG, Circuit Judges

              (Opinion filed January 29, 2013)
                       ___________

                        OPINION
                       ___________
PER CURIAM

       Appellant, Tri Thanh Nguyen, appeals pro se from the judgment entered against

him by the United States District Court for the Middle District of Pennsylvania. For the

following reasons, we will affirm.

                                              I.

       Nguyen is a Pennsylvania inmate who was incarcerated at the Franklin County Jail

(“FCL”). In September 2010, he commenced a civil rights action under 42 U.S.C. § 1983

in the District Court against the Franklin County Sheriff’s Department and four of its

employees—Sheriff Anthony, and Deputies Stroble, Carter, and Hall. In the complaint,

Nguyen alleged that, in October 2008, while detained at the FCJ pending trial on sexual

assault charges, he was escorted by Franklin County deputies to the Franklin County

Courthouse, placed in a group holding cell, and left unattended. While in the group cell,

one of the other inmates slipped out of his handcuffs and assaulted Nguyen. Nguyen

claimed that he was assaulted due to the “lax transportation practices of the Franklin

County Sheriffs, which was known to and ratified by the defendants.” (Compl., Dist. Ct.

Dkt. # 1, at ¶ 34.) Specifically, Nguyen alleged that the defendants had customs and

policies in place that disregarded an excessive risk to inmates in protected classes, and

that, despite being on notice of their deficient polices, the defendants failed to properly

train and supervise deputies with respect to inmate safety. Nguyen claimed that the




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defendants’ conduct violated his rights under the Fifth, Eighth, and Fourteenth

Amendments.

         The matter was referred to a Magistrate Judge who recommended that: (1) the

District Court dismiss Nguyen’s claims under the Fifth Amendment because the

defendants are not federal actors; (2) the District Court dismiss Nguyen’s claims under

the Eighth Amendment because he had not yet been adjudicated guilty of a crime, see

Bell v. Wolfish, 441 U.S. 520, 535-37 & n.16 (1979); (3) the District Court dismiss

without prejudice Nguyen’s claims against Deputies Stroble, Carter, and Hall because

Nguyen did not claim that they were personally involved in the alleged misconduct, see

Baker v. Monroe Twp., 50 F.3d 1186, 1190-91 (3d Cir. 1995); and (4) Franklin County

be substituted as a defendant in place of the Franklin County Sheriff’s Department

because the Sheriff’s Department is not a separate entity.1 The District Court adopted the

Magistrate Judge’s Report and Recommendation, and ordered Nguyen to proceed solely

on his Fourteenth Amendment claims against Franklin County and Sheriff Anthony.

         The remaining defendants moved for summary judgment. The Magistrate Judge

recommended that their motion be granted on the grounds that: (1) Nguyen failed to

establish liability against Franklin County and Sheriff Anthony in his official capacity

because he did not demonstrate that they maintained an unconstitutional custom or policy

that caused the alleged injury, see Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978);


1
    The Magistrate Judge also recommended that the District Court dismiss without
                                           3
(2) Nguyen failed to establish liability under a “failure to train” theory because he did not

submit any evidence concerning inadequate training, see Carter v. City of Phila., 181

F.3d 339, 357 (3d Cir. 1999); and (3) Nguyen failed to establish liability under the “state-

created danger” doctrine because he did not show that his injury was foreseeable or that

the defendants acted with sufficient culpability, see Bright v. Westmoreland Cnty., 443

F.3d 276, 281 (3d Cir. 2006). The District Court agreed, and, by order entered April 20,

2012, entered summary judgment in favor of the defendants. This appeal followed.

                                             II.

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

plenary review over the District Court’s order dismissing a complaint under 28 U.S.C.

§ 1915(e)(2)(b). See Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993). We likewise

exercise plenary review over the District Court’s order granting summary judgment. See

Kaucher v. Cnty. of Bucks, 455 F.3d 418, 422 (3d Cir. 2006).

       On appeal, Nguyen argues that he produced sufficient evidence to withstand

dismissal of his Eighth Amendment claims against Franklin County and Sheriff Anthony.

As noted above, however, the District Court dismissed Nguyen’s Eighth Amendment

claims on the ground that pre-trial detainees like Nguyen are protected by the Due

Process Clause of the Fourteenth Amendment, not the Eighth Amendment. We see no

error in the District Court’s conclusion. As the District Court correctly noted, the Eighth


prejudice several John Doe defendants that Nguyen named in the complaint.
                                           4
Amendment applies only after the state “has secured a formal adjudication of guilt”

because, prior to that time, it has not acquired “the power to punish with which the Eighth

Amendment is concerned.” Ingraham v. Wright, 430 U.S. 651, 671 n.40 (1977). To the

extent that Nguyen’s arguments can be construed as challenging the District Court’s

conclusion that he did not establish a Fourteenth Amendment violation because he did

not demonstrate the existence of a state-created danger, we agree with the District Court

that Nguyen failed to show that the defendants acted with sufficient culpability. See

Bright, 443 F.3d at 281.

       We have reviewed the record and discern no error in the reasoning of either the

Magistrate Judge or the District Court regarding Nguyen’s other claims.

                                           III.

       For these reasons, we will affirm the judgment of the District Court.




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