CLD-010                                                         NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                       No. 16-2601
                                       ___________

                                  DEMAR EDWARDS,
                                            Appellant

                                             v.

NORTHAMPTON COUNTY; NORTHAMPTON COUNTY COUNCIL MEMBERS 1-
9; NORTHAMPTON COUNTY EXECUTIVE; NORTHAMPTON COUNTY PRISON;
    PRIMECARE INC.; TODD L. BURKIRK; MICHAEL BATEMAN; NANCY
  CUNNINGHAM; VICTORIA GESSNER; EMILIA CAPUTO; THERESA NAGLE;
                 JENNIFER MROZ; JENNIFER KELLER
                ____________________________________

                     On Appeal from the United States District Court
                         for the Eastern District of Pennsylvania
                             (D.C. Civil No. 5-12-cv-05323)
                        District Judge: Honorable Jan E. DuBois
                      ____________________________________

       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
                                  October 13, 2016

               Before: FISHER, SHWARTZ and BARRY, Circuit Judges

                             (Opinion filed October 24, 2016)
                                        _________

                                        OPINION*

*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
                                        _________

PER CURIAM

       Demar Edwards (“Edwards”) appeals from an order of the District Court granting

summary judgment to defendants. We will summarily affirm.

       In November 2012, Edwards, proceeding pro se, filed a complaint pursuant to 42

U.S.C. § 1983 in the Eastern District of Pennsylvania. Edwards averred violations of his

Eighth Amendment right against cruel and unusual punishment and his First, Eighth, and

Fourteenth Amendment rights to have “vital medical knowledge.” Edwards had recently

undergone ankle surgery prior to his pretrial detention at Northampton County Prison in

September 2010. Within a short period of time, a methicillin-resistant Staphylococcus

aureus (“MRSA”) infection developed in his leg, requiring lengthy surgeries in which

muscle and skin were removed from his leg. Edwards claimed that his MRSA infection

was the result of his placement in an unclean cell, the prison’s failure to implement and

enforce appropriate MRSA precautions, and inadequate medical treatment. Edwards

named two groups of defendants: (1) entities and persons associated with Northampton

County, including the County itself, Northampton County Council members, the

Northampton County Executive, Northampton County Prison, Warden Todd L. Buskirk,

and Deputy Warden Michael Bateman (“Northampton defendants”); and (2) entities and

persons involved in the medical treatment provided at Northampton County Prison,

including PrimeCare, Inc. and PrimeCare employees – Theresa Nagle, M.A., Jennifer

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Mroz, P.A., Nancy Cunningham, R.N., Emilia Caputo, R.N., Jennifer Keller, R.N., and

Victoria Gessner, M.D. (“medical defendants”).

       In January 2013, the medical defendants filed a motion to dismiss for failure to

state a claim. Edwards subsequently filed an amended complaint in April 2013,

rendering the motion to dismiss moot. Shortly thereafter, the medical defendants filed a

motion to dismiss Edwards’ amended complaint. By Order entered on June 21, 2013, the

District Court granted the motion with prejudice as to the claims against Nagle, Caputo,

Keller, and Gessner on the ground that the amended complaint did not allege that these

defendants played any role in Edwards’ care or created any policy that affected Edwards.

The motion was denied as to the other medical defendants. Edwards filed a second

amended complaint in July 2013, in which he pleaded additional facts involving

defendants Nagle, Caputo, Keller, and Gessner.

       In June 2014, the Northampton and medical defendants filed motions for summary

judgment. In July 2014, Edwards moved for an extension of time to complete discovery

in order to obtain the testimony of an expert. The District Court granted his motion, and

denied defendants’ motions for summary judgment without prejudice by order entered on

August 26, 2014. At the close of discovery, the medical and Northampton defendants

again filed motions for summary judgment in April and May 2016, respectively. In an

order entered on April 29, 2016, the District Court granted summary judgment in favor of

all defendants.

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       Edwards appeals. We have jurisdiction pursuant to 28 U.S.C. § 1291. Because

Edwards has been granted in forma pauperis status pursuant to 28 U.S.C. § 1915, we

review this appeal for possible dismissal pursuant to 28 U.S.C. § 1915(e)(2)(B). We may

summarily affirm under Third Circuit LAR 27.4 and I.O.P. 10.6 if the appeal lacks

substantial merit. We exercise plenary review over a district court order for summary

judgment. Giles v. Kearney, 

, 322 (3d Cir. 2009). Summary judgment is

appropriate “if the movant shows that there is no genuine dispute as to any material fact

and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The

moving party “bears the initial responsibility of informing the district court of the basis

for its motion, and identifying those portions” of the record which demonstrate the

absence of a genuine dispute of material fact. Celotex Corp. v. Catrett, 

, 323

(1986). If the moving party meets its burden, the nonmoving party then must present

specific facts that show there is a genuine issue for trial. Fed. R. Civ. P. 56(c)(1), (e)(2);

Anderson v. Liberty Lobby, Inc., 

, 248 (1986). A court should grant

summary judgment where the non-movant’s evidence is merely colorable or not

significantly probative, 

, because “[w]here the record taken

as a whole could not lead a rational trier of fact to find for the nonmoving party, there is

no ‘genuine issue for trial,’” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 

, 587 (1986) (citation omitted).

                                               I.

                                               4
       We agree with the analysis of the District Court and, accordingly, conclude that

summary judgment was appropriate with regard to Edwards’ conditions of confinement

and denial of medical treatment claims. Edwards alleged two bases for his conditions of

confinement claims: that his MRSA infection was caused by (1) defendants’ reckless

disregard for the unclean conditions of his cell; and (2) defendants’ reckless failure to

implement and enforce adequate MRSA precautions.

       Typically, a prisoner challenging the conditions of his confinement asserts claims

under the Eighth Amendment’s prohibition of cruel and unusual punishment. See, e.g.,

Hamilton v. Leavy, 

, 746 (3d Cir. 1997). To prevail, a prisoner must

demonstrate a defendant acted with “deliberate indifference” to those conditions. Farmer

v. Brennan, 

, 828 (1994). Deliberate indifference is established if a

defendant (1) “knows that inmates face a substantial risk of serious harm”; and (2)

“disregards that risk by failing to take reasonable measures to abate it.” 

“[A]cting or failing to act with deliberate indifference to a substantial risk of serious harm

to a prisoner is the equivalent of recklessly disregarding that risk.” 

As the

District Court noted, however, Edwards was a pretrial detainee whose claim should be

evaluated under the Due Process Clause of the Fourteenth Amendment, as opposed to the

Eighth Amendment. See Hubbard v. Taylor, 

, 166 (3d Cir. 2005) (citing

Bell v. Wolfish, 

, 535–36 (1979)). Under the Due Process Clause, “the




                                              5
proper inquiry is whether [the challenged] conditions amount to punishment of the

detainee.” 

.

       While we have not previously addressed the standard governing a pretrial

detainee’s conditions of confinement claim such as Edwards’ in a precedential opinion,

we have stated in dicta that the state of mind requirement for prisoners’ failure to protect

claims – “deliberate indifference” – applies also to pretrial detainees’ claims. See

Colburn v. Upper Darby Twp., 

, 1024 (3d Cir. 1991). Thus, we agree with

the District Court and find no reason to apply a different standard here as we have applied

the “deliberate indifference” standard both in cases involving prisoners, see, e.g.,

(failure to protect), and pretrial detainees, see, e.g., 

(detainee suicide). This is consistent with the holdings of our sister

circuits, see, e.g., Caiozzo v. Koreman, 

, 71 (2d Cir. 2009); Tesch v. County

of Green Lake, 

, 474-75 (7th Cir. 1998); Hare v. City of Corinth, 

, 643 (5th Cir. 1996), as well as with the dictates of Bell.

       Here, the District Court properly concluded that even though Edwards testified

that he was placed in a “filthy cell,” with a sticky, food-covered floor and urine-soaked

toilet, he failed to present evidence that the Northampton defendants were aware of the

alleged conditions. Although Edwards submitted several letters to Buskirk and

personally complained to Bateman about his medical care, there is no record that he

complained of unclean cell conditions to either defendant. Moreover, as the District

                                              6
Court concluded, the record does not show that the conditions of Edwards’ cell or the

actions of the prison personnel caused his MRSA infection. See Best v. Essex County,

, 57 (3d Cir. 1993) (finding no causal link between prison overcrowding and

assault of plaintiff-detainee by fellow detainee). We further conclude that the District

Court properly rejected Edwards’ claim that the doctrine of res ipsa loquitur supports an

inference of causation, as his allegations were not grounded in negligence. See Smith v.

Spina, 

, 1143 (3d Cir. 1973) (“It is, of course, fundamental that the Civil

Rights Act permits recovery for only ‘deprivations of any rights, privileges, or

immunities secured by the [federal] Constitution and [federal] laws.’”).

       We are equally unpersuaded by Edwards’ claim that Buskirk recklessly

disregarded a threat to all Northampton County Prison inmates by failing to implement

and enforce adequate MRSA precautions, because Buskirk had enhanced the prison’s

MRSA precautions in 2009, prior to Edwards’ detention, by consulting a sanitation expert

and upgrading the laundry system, and instituting manufacturer inspections of laundry,

kitchen, heating, and cooling equipment.

       Edwards’ conditions of confinement claims against the remaining Northampton

defendants are equally without merit and were appropriately disposed of by the District

Court, as to Northampton County, see, e.g., Monell v. Dep’t of Social Servs., 

, 694 (1978) (finding municipality liable under § 1983 only when “execution of a

government’s policy or custom, whether made by its lawmakers or by those whose edicts

                                             7
or acts may fairly be said to represent official policy, inflicts the injury”); Northampton

County Counsel Members and Northampton County Executive (Edwards failed to

identify defendants and demonstrate that they acted with indifference); and Northampton

County Prison, see, e.g., Fischer v. Cahill, 

, 992 (3d Cir. 1973) (holding

prison not a “person” subject to suit under § 1983). No reasonable jury, after considering

the evidence of record, could conclude that the Northampton defendants knew of or acted

with “deliberate indifference” to conditions of Edwards’ confinement. See Farmer, 511

US. at 847. Thus, the District Court properly granted summary judgment on these

claims.

                                              II.

          Because Edwards is a pretrial detainee, his claim for inadequate medical care is

also adjudicated under the Due Process Clause of the Fourteenth Amendment. See

. However, “we determined that pretrial detainees are entitled

to at least as much protection as convicted prisoners and that decisions interpreting the

Eighth Amendment serve as ‘useful analogies.’” Boring v. Kozakiewicz, 

,

472 (3d Cir. 1987) (quoting Hampton v. Holmesburg Prison Officials, 

,

1080 (3d Cir. 1976)); see also Natale v. Camden Cty. Corr. Facility, 

, 581

(3d Cir. 2003) (finding “no reason to apply a different standard than that set forth in

Estelle (pertaining to prisoners’ claims of inadequate medical care under the Eighth

Amendment)”); In Inmates of Allegheny Cty. Jail v. Pierce, 

, 762 (3d Cir.

                                               8
1979) (concluding that “at a minimum, the ‘deliberate indifference’ standard of Estelle v.

Gamble, must be met” at an institution housing pretrial detainees).

         The standard established in Estelle v. Gamble, 

, 106 (1976), requires

that a prisoner plead facts that demonstrate “deliberate indifference to serious medical

needs.” Deliberate indifference requires the “unnecessary and wanton infliction of pain.”

(quoting Gregg v. Georgia, 

, 173 (1976)). Negligence and

malpractice do not constitute Eighth Amendment violations. See 

Moreover, “[w]here 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 County, 

, 575 n.2 (3d Cir. 1979) (internal

quotations and citation omitted); see also Spruill v. Gillis, 

, 235 (3d Cir.

2004).

         Here, Edwards’ allegations make it clear that he received some medical treatment.

As the District Court aptly noted, the undisputed medical record shows that the medical

defendants tailored Edwards’ treatment to the symptoms he was displaying at the time,

pursuant to their professional judgment. For example, Mroz noted that the wound was

“resolving” shortly before medical isolation was discontinued on October 28, 2010. She

also noted “excellent healing” prior to the order for dressing changes expired on April 22,

2011. In June 2011, after Edwards’ MRSA resurfaced, the medical team promptly

                                              9
followed up with additional medications, requested x-rays, and moved Edwards to the

medical unit. Gessner examined Edwards several times, prescribed antibiotics, and

referred him to an outside doctor after surgery.1

          We agree with the District Court that neither Edwards’ disagreement with this

treatment nor its alleged inadequacy raises an inference of deliberate indifference. See,

e.g., 

(explaining that “[a] medical decision not to order [a

diagnostic test] does not represent cruel and unusual punishment” because, at most, it

constitutes malpractice). Edwards has offered no evidence from which a reasonable juror

could conclude that the defendants intentionally refused to provide needed treatment,

delayed necessary treatment for a non-medical reason, prevented Edwards from receiving

needed or recommended treatment, or persisted in a particular course of treatment “in the

face of resultant pain and risk of permanent injury.” Rouse v. Plantier, 

, 197

(3d Cir. 1999) (quoting White v. Napoleon, 

, 109-11 (3d Cir. 1990)).

Accordingly, Edward’s Eighth Amendment deliberate indifference claim fails on the

merits.

                                              III.




1
  Moreover, the District Court properly concluded that Edwards failed to provide how the
remaining medical defendants played any role in treating him or supervising the medical
decisions of those who did, or that PrimeCare had any policy or custom to deprive
prisoners of adequate healthcare in violation of their constitutional rights.
                                             10
      For the foregoing reasons, we conclude that there is no substantial question

presented by this appeal, and will thus summarily affirm the District Court’s orders

granting summary judgment to the defendants.




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