UNITED STATES DISTRICT COURT

FOR THE

MIDDLE DISTRICT OF PENNSYLVANIA

LUIS FERREIRAS, :

Plaintiff :

:

v. : CIVIL NO. 4:CV-04-1799

:

: (Judge McClure) 

YORK COUNTY, PENNSYLVANIA, :

ET AL., :

Defendants :

MEMORANDUM AND ORDER

March 1, 2006

Background

This civil rights action was initiated by Luis Ferreiras (“Plaintiff”) regarding

his prior detention by the Bureau of Immigration and Customs Enforcement (ICE)

at the York County Prison, York, Pennsylvania. Ferreiras is represented by

counsel. 

As a result of a March 15, 2005 case management conference, the Plaintiff’s

motion for leave to file an amended complaint was granted and his proposed

amended complaint (Record document no. 18) was accepted. By Memorandum

and Order dated July 18, 2005, Secretary Tom Ridge’s motion to dismiss was

granted.

The remaining Defendants named in the amended complaint are York

Case 4:04-cv-01799-JFM-JVW Document 59 Filed 03/01/06 Page 1 of 18
2

County; Commissioner James Donahue of the York County Prison Board of

Inspectors; and the following officials of the York County Prison: Warden

Thomas Hogan, Deputy Warden Roger Thomas, and Complaint Supervisor Beata

Erni (hereinafter the “York County Defendants”). Ferreiras is also proceeding

against Prison Health Services (“PHS”), a correctional healthcare services

organization. All of the York County Defendants are named in their individual and

official capacities. 

Ferreiras is a former ICE detainee who was confined in the York County

Prison from “approximately October, 2002 to March, 2003.” Record document

no. 18, ¶ 11. The Plaintiff was released from ICE custody in July, 2004. While

housed at the York County Prison, Ferreiras requested treatment “for broken and

decayed teeth that were causing him pain” and to have “a broken partial replaced.” 

Id. at ¶ 14. As a result of his dental problems, Plaintiff contends that he had

difficulty eating, a problem purportedly heightened by the fact that he is HIV

positive.

During early December, 2002, Ferreiras maintains that his request for dental

treatment was denied. As a result, Plaintiff initiated an institutional grievance. In a

December 13, 2002 response to the grievance, Complaint Supervisor Erni

informed Plaintiff that due to his federal detainee status, he would have to wait one

Case 4:04-cv-01799-JFM-JVW Document 59 Filed 03/01/06 Page 2 of 18
1

 This Court previously concluded that as a result of Plaintiff’s release from

confinement, his requests for injunctive and declaratory relief were moot.

3

year before becoming eligible for dental services. Following an administrative

appeal, Deputy Warden Thomas issued a reply on December 20, 2002 noting that

Plaintiff had insisted on having his partial replaced and refused to have it repaired. 

Thomas’ response also stated that a request for a denture filling had been sent to

the ICE for approval. Furthermore, Thomas purportedly added that because

Ferreiras’ condition was not serious it did not require immediate attention and that

he would have to be incarcerated for one (1) year before the ICE would consider

approval of his request for dental work. 

Plaintiff filed a further administrative appeal with the York County

Commissioners. On January 15, 2003, the Assistant York County Solicitor

partially granted this appeal by referring Ferreiras’ request for dental treatment to

the Complaint Review Board. Before any further action could be taken, Plaintiff

was transferred to a different correctional facility.

The amended complaint contends that the policy or practice of requiring the

Plaintiff to wait one (1) year before being afforded dental treatment violates the

Eighth Amendment. As relief, Ferreiras seeks compensatory and punitive damages

as well as declaratory and injunctive relief.1

Presently pending is a summary judgment motion filed by the York County

Case 4:04-cv-01799-JFM-JVW Document 59 Filed 03/01/06 Page 3 of 18
4

Defendants. See Record document no. 19. Plaintiff was granted until November

28, 2005 in which to file a response to that dispositive motion. By Order dated

November 14, 2005, Plaintiff’s obligation of filing a response to the York County

Defendants’ motion for summary judgment insofar as it pertains to Defendant

York County was deferred pending further order of Court. The motion (with

exception of the arguments pertaining to Defendant York County) has been briefed

and is ripe for consideration.

Discussion

A. Standard of Review

Summary judgment is appropriate if the "pleadings, depositions, answers to

interrogatories, admissions on file, together with affidavits, if any, show that there

is no genuine issue as to any material fact and that the moving party is entitled to

judgment as a matter of law." Fed.R.Civ.P. 56(c).

[T]he plain language of Rule 56(c) mandates the entry of summary

judgment, after adequate time for discovery and upon motion, against

a party who fails to make a showing sufficient to establish the

existence of an element essential to that party's case, and on which

that party will bear the burden of proof at trial. In such a situation,

there can be "no genuine issue as to any material fact," since a

complete failure of proof concerning an essential element of the

nonmoving party's case necessarily renders all other facts immaterial. 

The moving party is "entitled to a judgment as a matter of law"

because the nonmoving party has failed to make a sufficient showing

on an essential element of her case with respect to which she has the

burden of proof. "[T]he standard [for granting summary judgment]

Case 4:04-cv-01799-JFM-JVW Document 59 Filed 03/01/06 Page 4 of 18
5

mirrors the standard for a directed verdict under Federal Rule of Civil

Procedure 50(a)...." 

Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, (1986).

The moving party bears the initial responsibility of stating the basis for its

motion and identifying those portions of the record which demonstrate the absence

of a genuine issue of material fact. The moving party can discharge that burden by

"'showing' . . . that there is an absence of evidence to support the nonmoving

party's case." Celotex, supra, 106 S.Ct. at 2553 and 2554. Once the moving party

has satisfied its burden, the nonmoving party must present "affirmative evidence"

to defeat the motion, consisting of verified or documented materials. Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 257 (1986). Issues of fact are "genuine only if

a reasonable jury, considering the evidence presented could find for the

nonmoving party.” Childers v. Joseph, 842 F.2d 689, 693-94 (3d Cir. 1988). 

Only disputes over facts that might affect the outcome of the suit will preclude the

entry of summary judgment. Id. In evaluating a motion for summary judgment,

the entire record must be examined in the light most favorable to the nonmoving

party.

B. Defendants Donahue, Hogan, and Erni

Ferreiras’ opposing brief states, “Plaintiff no longer seeks to pursue claims

against James Donahue, Thomas Hogan, and Beata Erni.” Record document no.

Case 4:04-cv-01799-JFM-JVW Document 59 Filed 03/01/06 Page 5 of 18
6

42, p.2. Plaintiff’s statement will be construed as a request seeking voluntary

dismissal pursuant to Federal Rule of Civil Procedure 41(a)(2). Ferreiras’ request

will be granted and the claims against Defendants Commissioner Donahue,

Complaint Supervisor Erni, and Warden Hogan will be dismissed without

prejudice. The Court will discuss the summary judgment motion only to the extent

that it pertains to Deputy Warden Thomas.

C. Absolute Immunity 

It is undisputed that Deputy Warden Thomas investigated and ultimately

denied the Plaintiff’s administrative appeal from the denial of his dental care related

grievance. The York County Defendants relying on Borzych v. Frank, 340

F.Supp.2d 955 (W.D. Wi. 2004), argue that Thomas is entitled to absolute

immunity because the claims against him are based on actions taken while acting in

“an adjudicatory function.” Record document no. 20, p. 12.

Plaintiff contends that the York County Defendants’ reliance on Borzych is

misplaced because that decision has been overruled. Ferreiras adds that Thomas’

actions in reviewing the Plaintiff’s administrative grievance does not fall within the

limited circumstances protected by quasi judicial absolute immunity. This Court

agrees.

Absolute immunity extends only to officials exercising adjudicatory or

Case 4:04-cv-01799-JFM-JVW Document 59 Filed 03/01/06 Page 6 of 18
7

otherwise judgmental functions. Prentice v. Hodge, 1992 WL 209135 (E.D. Pa.

Aug. 18, 1992). In Harper v. Jeffries, 808 F.2d 281, 284 (3d Cir. 1986), the Court

of Appeals for the Third Circuit recognized that state Parole Board members are

not judicial officers but, rather, they are executive officers who are not entitled to

absolute immunity. The United States Supreme Court has held that members of a

prison disciplinary committee who preside over cases in which prisoners are

charged with disciplinary infractions are entitled to qualified, not absolute

immunity. Cleavinger v. Saxner, 474 U.S. 193, 205-6 (1985). 

With respect to the York County Defendants’ argument, in Lindell v.

O’Donnell, 2005 WL 2740999 * 14 (W.D.WI Oct. 21, 2005), the district court

judge who authored Borzych acknowledged that “my earlier holding in Borzych

and other cases was erroneous.” The court in Lindell added that although

correctional officials within the inmate complaint review system act as fact gathers

and finders, they “fail to meet the prevailing standard for absolute immunity as set

forth in Cleavinger.” Id. at *15. 

The actions attributed to Thomas clearly did not transpire during a hearing

or adversarial proceeding. In light of the standards announced in Cleavinger and

Lindell, the York County Defendants have not offered any competent authority to

support their argument that Deputy Warden Thomas is entitled to absolute

Case 4:04-cv-01799-JFM-JVW Document 59 Filed 03/01/06 Page 7 of 18
8

immunity with respect to actions taken during his review of Plaintiff’s

administrative appeal. Consequently, based on an application of the Cleavinger

and Lindell standards, the request for absolute immunity in favor of Deputy

Warden Thomas will be denied.

D. Eighth Amendment

The York County Defendants next contend that there are no facts asserted

which show that Defendant Thomas violated the Eighth Amendment by being 

deliberately indifferent to Thomas’ medical needs. Plaintiff argues that his dental

condition constituted a serious medical need. He adds that his complaint asserts

that Deputy Warden Thomas was aware that he had a serious dental problem

which required immediate treatment and failed to act despite having knowledge of a

substantial risk of serious harm.

Pursuant to the Supreme Court's decision in Estelle v. Gamble, 429 U.S. 97

(1976), an inmate plaintiff must demonstrate that prison officials have breached the

standard of medical treatment to which he was entitled. The government has an

"obligation to provide medical care for those whom it is punishing by

incarceration." Id. at 103. 

 However, a constitutional violation does not arise unless there is "deliberate

Case 4:04-cv-01799-JFM-JVW Document 59 Filed 03/01/06 Page 8 of 18
9

indifference to serious medical needs of prisoners" which constitutes "unnecessary

and wanton infliction of pain." Id. at 104 (citation omitted). The Court of Appeals

for the Third Circuit has held that not every injury or illness enjoys constitutional

protection; only serious medical needs are actionable. Colburn v. Upper Darby

Township, 946 F.2d 1017, 1023 (3d Cir. 1991); West v. Keve, 571 F.2d 158, 161

(3d Cir. 1978). Furthermore, a complaint that a physician or a medical department

"has been negligent in diagnosing or treating a medical condition does not state a

valid claim of medical mistreatment under the Eighth Amendment [as] medical

malpractice does not become a constitutional violation merely because the victim is

a prisoner." Estelle, 429 U.S. at 106.

A later decision by the Supreme Court addressed the issue of what standard

should be applied in determining deliberate indifference in Eighth Amendment

cases. The Court established that the proper analysis is whether a prison official

"acted or failed to act despite his knowledge of a substantial risk of serious harm." 

Farmer v. Brennan, 511 U.S. 825, 841 (1994). As noted earlier, the Court of

Appeals for the Third Circuit in Durmer, added that a non-physician defendant

cannot be considered deliberately indifferent for failing to respond to an inmate's

medical complaints when he is already receiving treatment by the prison's medical

staff. However, where a failure or delay in providing prescribed treatment is

Case 4:04-cv-01799-JFM-JVW Document 59 Filed 03/01/06 Page 9 of 18
10

deliberate and motivated by non-medical factors, a constitutional claim may be

presented. See id. 

Under Farmer, deliberate indifference is a subjective standard in that the

prison official must actually have known or been aware of the excessive risk to

inmate safety. Beers-Capitol v. Whetzel, 256 F. 3d 120, 125 (3d Cir. 2001). This

requirement of actual knowledge means that “the official must both be aware of

facts from which the inference could be drawn that a substantial risk of serious

harm exists, and he must also draw the inference.” Farmer, 511 U.S. at 837. In

Beers-Capitol it was also recognized that a defendant’s knowledge of a risk can be

proved indirectly by circumstantial evidence. 

Pursuant to the above discussion, a prisoner plaintiff must establish that he

had a serious medical need. Ferreiras states that he had “broken and decayed

teeth,” and “a broken partial” which made it difficult for him to eat, a condition

which was propounded by his HIV. Record document no. 42, p. 8. The moving

Defendants indicate that Ferreiras did not have a serious medical need because he

was not in pain, refused the option of a tooth extraction, and would not accept any

treatment except for a new partial or denture.

A copy of a January 15, 2003 dental authorization issued by the United

States Public Health Service submitted by Ferreiras provides that the inmate had a

Case 4:04-cv-01799-JFM-JVW Document 59 Filed 03/01/06 Page 10 of 18
11

partial denture which replaced four (4) teeth. See Record document 46, Exhibit P,

p. 16. The partial denture was “fractured.” Id. According to the submitted dental

records, a treating dentist “has recommended extractions, a new denture will not

be made if these teeth are not extracted because they will not be suitable abutments

for a partial denture.” Id. However, Ferreiras was not in favor of extractions but

was requesting a new denture. The Public Health Service gave approval for repair

of the partial denture, if possible, and other treatment. It is noted that Plaintiff was

transferred before the authorized dental work could be done. 

It is undisputed that Ferreiras had broken teeth and cavities and a broken

partial denture. As a result of his condition, the York County Prison Dental

Department requested and was eventually given authorization to provide treatment. 

Based on those undisputed facts, this Court is satisfied that Plaintiff has

sufficiently established that he was suffering from a serious medical need.

Beata Erni, the Complaint Supervisor at the York County Prison denied a

grievance by the Plaintiff on December 13, 2002. Erni’s response stated in

relevant part, “[w]ithout INS approval the dental department does not provide

services to detainees.” Record document no. 54, ¶ 4. On or about December 20,

2002, Deputy Warden Thomas denied the Plaintiff’s administrative appeal. A

further appeal was taken to the prison’s Solicitor. The Solicitor concluded that

Case 4:04-cv-01799-JFM-JVW Document 59 Filed 03/01/06 Page 11 of 18
12

because Plaintiff was infected with HIV, and stating that he was in pain due to a

broken denture, his request for immediate dental care should be reviewed by the

prison’s Complaint Review Board.

Thomas is clearly a non-medical defendant. Hence, the Durmer standards

are applicable to Plaintiff’s claims against him. It is undisputed that after receiving

Ferreiras’ administrative appeal, the Deputy Warden sent a request to the prison’s

Dental Department on December 18, 2002 asking for a determination as to whether

Plaintiff’s dental problem was so serious that it required immediate attention and

could not wait for the one year conditional rule. See Record document no. 54,

Exhibit E, p. 22. 

 In a response (which was set forth on the same request form) dated the

following day, the Dental Department acknowledged that Plaintiff had cavities,

broken teeth and a broken partial. The response added that Ferreiras was in no

pain, didn’t want treatment unless he could get a new partial or denture, was told

he could have the tooth removed, and “in my medical opinion patient is not in any

immediate serious condition.” Id. The response additionally noted that a request

for approval of a denture filling had been sent to the ICE and the prisoner had

declined an offer for removal of the tooth. 

In a sworn affidavit, Christopher W. Paluch, D.M.D. states that he

Case 4:04-cv-01799-JFM-JVW Document 59 Filed 03/01/06 Page 12 of 18
13

performed a full dental examination of the Plaintiff on December 16, 2002. 

According to Doctor Paluch, the inmate did not complain of pain, had a broken

partial denture, two teeth which could not be restored, and two cavities. See id. at 

¶ 8. In addition, “Ferreiras decided if his existing denture was not going to be

repaired, and a new denture was not going to be put in, he did not want his teeth

extracted.” Id. at ¶ 14. Doctor Paluch acknowledges that he explained to the

prisoner that under ICE policy no prosthetic work including dentures could be

performed until he was in prison for at least one year. The declarant adds that in

his opinion the Plaintiff did not have an ‘immediate, serious medical or dental

condition.” Id. at ¶ 11.

One day after receiving a response from the Dental Department, Deputy

Warden Thomas denied the Plaintiff’s appeal. It is noted that Thomas acted in a

timely fashion with respect to his disposition of the administrative appeal. 

Furthermore, Defendant Thomas also acted properly by seeking an evaluation of

the Plaintiff’s present condition from the prison’s Dental Department. 

There are material issues of act in existence with respect to the handling of

the Plaintiff’s request for dental care. First, Erni’s December 13, 2002 response,

which took place prior to the examination by Doctor Paluch, noted that dental

treatment could not be provided to Ferreiras without ICE approval. Thomas’

Case 4:04-cv-01799-JFM-JVW Document 59 Filed 03/01/06 Page 13 of 18
14

subsequent response contains no clarification that emergency dental treatment

could be provided regardless of ICE policy. Second, the dentist acknowledges

informing the Plaintiff that he was not eligible for any prosthetic work including

dentures under ICE policy. See id. at ¶ 14. The record also contains evidence

that despite Doctor Paluch’s averment that immediate treatment was not required, a

request for a denture filing was sent to, and ultimately approved by federal

officials. As a result, it is unclear whether certain dental treatment was not

provided to the Plaintiff because it was not warranted or rather, because it was

contrary to ICE policy.

Thomas’s inquiry to the prison’s Dental Department asked whether

Ferreiras’ condition was so serious that it could not wait for the one year period. 

Clearly, the wording of that question shows that Thomas was aware of the ICE’s

aforementioned one year dental policy. It is noted that the Deputy Warden’s

inquiry is dated two days after Doctor Paluch’s examination (which occurred after

Ferreiras’ initiation of an institutional grievance). Deputy Warden Thomas’

response echoed Doctor Paluch’s opinion that there was no need for immediate

treatment. It also added that although a request for a denture filling was sent to the

INS, it was unlikely that the request would be approved. 

Based on this Court’s review of the record, there is an issue as to whether

Case 4:04-cv-01799-JFM-JVW Document 59 Filed 03/01/06 Page 14 of 18
15

the Plaintiff was not provided with needed dental treatment because said care was

precluded by ICE policy or because the prisoner did not wish to undergo the

recommended course of treatment. While Doctor Paluch states that there was no

immediate need for treatment, a request for authorization to provide certain dental

care was sent to federal officials. Paluch’s affidavit could also be construed as

establishing that the dentist was under the impression that he could not perform

any immediate prosthetic work. Furthermore, nowhere in Thomas’ inquiry is there

any statement advising the dental department that any needed treatment could be

provided regardless of ICE policy. 

In conclusion, there is clearly a material issue of fact as to whether Doctor

Paluch’s recommended treatment was generated or influenced by the ICE policy. 

Based on the references to the ICE policy made by Complaint Supervisor Erni,

Doctor Paluch, and Thomas, it is conceivable that a failure to recommend or

provide needed treatment by the prison Dental Department was based on a nonmedical reason. As a result of this Court’s application of the Durmer standards to

the record, it cannot be conclusively determined at this juncture that Deputy

Warden Thomas’ actions did not constitute deliberate indifference.

E. Qualified Immunity

The final argument for summary judgment raised on behalf of Deputy

Case 4:04-cv-01799-JFM-JVW Document 59 Filed 03/01/06 Page 15 of 18
16

Warden Thomas is that he is entitled to qualified immunity. Ferreiras’ opposing

brief counters that there is no entitlement to qualified immunity because he has

alleged the deprivation of a clearly established constitutional right.

Qualified immunity is an affirmative defense which must be pleaded by the

defendant official. Id.; Verney v. Pennsylvania Turnpike Comm'n, 881 F. Supp.

145, 149 (M.D. Pa. 1995). In Harlow v. Fitzgerald, 457 U.S. 800 (1982), the

United States Supreme Court held "that government officials performing

discretionary functions generally are shielded from liability for civil damages

insofar as their conduct does not violate clearly established statutory or

constitutional rights of which a reasonable person would have known." Id. at 818;

Sherwood v. Mulvihill, 113 F.3d 396, 398-99 (3d Cir. 1997); Showers v. Spangler,

957 F. Supp. 584, 589 (M.D. Pa. 1997). It has also been held that "qualified

immunity is coextensive for suits brought against state officials under 42 U.S.C. §

1983 (1982), and for suits brought directly under the Constitution against federal

officials." People of Three Mile Island v. Nuclear Regulatory Commissioners, 747

F.2d 139, 144 n.9 (3d Cir. 1984) (citing Butz v. Economou, 438 U.S. 478, 504

(1978)). 

The United States Supreme Court in Saucier v. Katz, 533 U.S. 194 (2001),

established a two part test for analyzing qualified immunity claims. See also Curley

Case 4:04-cv-01799-JFM-JVW Document 59 Filed 03/01/06 Page 16 of 18
17

v. Klem, 298 F.3d 271 (3d Cir. 2002); Bennett v. Murphy, 274 F.3d 133 (3d Cir.

2002). The initial inquiry in a qualified immunity examination is whether “the facts

taken in the light most favorable to the plaintiff show a constitutional violation.” 

Bennett, 274 F.3d at 136. 

With respect to the first prong of Saucier, this Court has concluded that

Plaintiff’s contention that the Deputy Warden’s actions with respect to his request

for dental treatment could set forth a viable constitutional claim under the

standards announced in Durmer. The second prong requires a determination as to

whether the constitutional right at issue was clearly established. If so, then a court

must inquire as to “whether it would be clear to a reasonable officer that his

conduct was unlawful in the situation he confronted.” Saucier, 533 U.S. at 201. A

determination that the conduct violated a clearly established constitutional right

precludes the granting of qualified immunity.

The standard for deliberate indifference to medical needs under Estelle and

Durmer is well established. It would be clear to a reasonable prison official that

denial or delay of needed dental treatment for a non-medical reason states a viable

claim of a clearly established constitutional right. Based on an application of both

prongs of Saucier, it is the conclusion of this Court that Deputy Warden Thomas’

request for qualified immunity should be denied at this juncture. Consequently,

Case 4:04-cv-01799-JFM-JVW Document 59 Filed 03/01/06 Page 17 of 18
18

IT IS HEREBY ORDERED THAT:

1. The York County Defendants’ motion for summary judgment 

(Record document no. 19) is GRANTED IN PART.

2. Plaintiff’s opposing brief is construed in part as requesting

voluntary dismissal of his claims against Defendant Donahue,

Hogan and Erni.

3. The Plaintiff’s request to voluntarily dismiss his claims against

Defendants Donahue, Hogan, and Erni (Record document no.

42, p. 2) is GRANTED.

4. Deputy Warden Thomas’ request for summary judgment is

DENIED.

 s/ James F. McClure, Jr. 

JAMES F. McCLURE, JR.

United States District Judge

Case 4:04-cv-01799-JFM-JVW Document 59 Filed 03/01/06 Page 18 of 18