The opinion of the court was delivered by: James F. McCLURE, Jr. United States District Judge
This civil rights action was filed on behalf of Luis Ferreiras ("Plaintiff") regarding his prior detention by the Bureau of Immigration and Customs Enforcement (ICE) at the York County Prison, York, Pennsylvania. Plaintiff's amended complaint (Record document no. 18) was previously accepted.
Named as Defendants in the amended complaint are ex-secretary Tom Ridge of the Department of Homeland Security; York 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 and Prison Health Services ("PHS"), a correctional healthcare services organization.
By Memorandum and Order dated July 18, 2005, Secretary Tom Ridge's motion to dismiss was granted. On March 1, 2006, Plaintiff's request to voluntarily dismiss his claims against defendants Donahue, Hogan, and Erni was granted. In addition, Deputy Warden Thomas's request for summary judgment was denied.
Ferreiras, a former ICE detainee, was confined in the York County Prison from "approximately October, 2002 to March, 2003." Record document no. 18, ¶ 11. During July, 2004, the Plaintiff was released from ICE custody. While detained 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. Those dental problems purportedly caused Plaintiff to have difficulty eating, a problem magnified by the fact that he is HIV positive.
In December, 2002, Ferreiras' request for dental treatment was denied. Plaintiff responded by filing an institutional grievance. A December 13, 2002 grievance response by Complaint Supervisor Erni advised Ferreiras that because he was a federal detainee, he would have to wait one year before becoming eligible for dental services. Following an administrative appeal, Deputy Warden Thomas issued a reply on December 20, 2002 which noted that Plaintiff had insisted on having his partial replaced and refused to have it repaired. Thomas' response added that a request for a denture filling had been sent to the ICE for approval. Thomas also indicated that because Ferreiras' condition was not serious he did not require immediate dental treatment and would have to be incarcerated for one
(1) year before the ICE would consider his request.
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. However, Plaintiff was transferred to a different correctional facility before any action could be taken. 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. Ferreiras seeks compensatory and punitive damages as well as declaratory and injunctive relief.*fn1
Presently pending is a motion to dismiss and/or for summary judgment motion filed by PHS. See Record document no. 54. Plaintiff responded by filing a response to the arguments for dismissal and requesting additional time in which to respond to the motion for summary judgment. See Record document no. 57.
PHS's pending dispositive motion asserts in part that the amended complaint fails to set forth an actionable Eighth Amendment claim. The moving Defendant argues that it was not deliberately indifferent to Plaintiff's dental condition because there was a timely response to the prisoner's dental needs and he was offered appropriate treatment.*fn2 PHS adds that the Plaintiff has failed to identify any policy or custom of PHS which constituted deliberate indifference. On the contrary, the only policy challenged by the amended complaint is an INS policy. Finally, in its supporting brief, PHS requests that attached affidavits be taken into consideration and that this Court should 'convert the within Motion to Dismiss to a Motion for Summary Judgment." Record document no. 55, p. 5.
This Court will grant the Defendant's request and will construe PHS' dispositive motion as solely seeking summary judgment. Ferreiras concedes that "[i]n order for PHS to be liable, Plaintiff must prove that PHS had a policy or custom that caused the constitutional violation that forms the basis of this action." Record document 56, p. 9. Plaintiff adds that the mere fact that INS would not authorize dental treatment did not mean that PHS did not have to treat Plaintiff's serious medical need. See id. at p. 10.
With respect to the Plaintiff's motion for an extension of time pursuant to Federal Rule of Civil Procedure 56(f), the Supreme Court has recognized that premature motions for summary judgment should be dealt with pursuant to Federal Rule of Civil Procedure Rule 56(f) if the opposing party has not made full ...