United States District Court, D. New Hampshire
Davian L. Haverstick
New Hampshire State Prison Warden Richard Gerry et al. Opinion No. 2016 DNH 050
BARBADORA, District Judge.
Davian L. Haverstick, an inmate in the New Hampshire State
Prison ("NHSP"), brings this action pursuant to 42
U.S.C. § 1983 against current and former NHSP and New
Hampshire Department of Corrections ("DOC")
officials, in their individual and official capacities.
Haverstick alleges that defendants have violated his Eighth
Amendment rights through their deliberate indifference to his
serious medical and dental needs, and that they have violated
his equal protection rights by refusing to provide him with
dentures. Haverstick seeks damages and injunctive relief, and
has specifically requested that the court issue a preliminary
injunction, requiring the NHSP Dental Department to provide
him with a complete set of dentures.
the court is defendants' motion for summary judgment
(doc. no. 9) on all claims, through which they object to
Haverstick's request for a preliminary injunction.
Haverstick objects to defendants' motion for summary
judgment. See Obj. (doc. no. 12); Suppl. Obj. (doc. no. 23).
Also pending is Haverstick's discovery motion (doc. no.
24), which this court took under advisement, see Feb. 19,
2016, Order (doc. no. 25). Defendants have not objected to
reasons stated below, defendants' motion for summary
judgment (doc. no. 9) is granted in part and denied in part,
and Haverstick's request for a preliminary injunction is
denied. As set forth in the Conclusion of this Order, the
parties are directed to respond to the February 19, 2016,
Order (doc. no. 25) by March 25, 2016.
entered the NHSP in May 2014. Dransite Decl., May 6, 2015, ¶
2 (doc. no. 9-2). All incoming NHSP inmates undergo a dental
intake examination. Id . Haverstick's dental
intake examination, conducted on May 12, 2014, revealed that
he entered the prison fully edentulous - meaning that he had
no teeth. Id .; DOC Dental Chart (doc. no 9-3).
Haverstick's dental chart from the May 12 evaluation
revealed that, other than having no teeth, his oral hygiene
was "good." DOC Dental Chart (doc. no 9-3). The
dental chart noted that Haverstick's teeth had been
missing since 2011, and that he expressed a desire for
written policy concerning dentures and dental care is found
in Policy and Procedure Directive ("PPD") 6.28 and
6.11. PPD 6.28 states that DOC "[d]ental treatment
includes the range of services that in the supervising
dentist's judgment are necessary for proper mastication
and maintaining the inmate's/patient's health
status." PPD 6.28 ¶ IV(A)(5) (doc. no. 9-7). For dental
prosthetics, such as dentures, a medical "practitioner
will determine when a prosthetic device is indicated, "
based on criteria including the level of functional
impairment, the benefits and side effects of the proposed
prosthesis, and the length of the inmate's sentence that
remains. PPD 6.11 ¶ IV(A)-(B) (doc. no. 9-8). "Decisions
will be made on a case by case basis, " and if
prosthetics are approved, "[p]ractitioners will approve
the least costly prosthetic device that will accomplish
restoration of the basic functioning determined to be
necessary." Id. at ¶ IV(C)-(D). However,
"[c]osmetic services will not be provided, nor will any
device not necessary for accomplishment of ordinary living
tasks[, ] nor will devices... which will only marginally
improve abilities." Id. at ¶ IV(E).
was told during his dental intake examination that inmates
are not eligible for dentures unless it is medically
necessary. Dransite Decl., May 6, 2015, ¶ 3 (doc. no. 9-2).
Several months later, on November 5, 2014, Haverstick
submitted an inmate request slip "requesting an
appointment to be seen by a dentist" in order to receive
dentures, as he had no teeth and reported having had issues
"eating certain things because of my gums." Inmate
Req. Slip (doc. no. 9-9). On November 14, 2014, a NHSP dental
staff member replied to Haverstick's request, stating
that Haverstick had been "told [at his] dental intake
that [he] did not qualify for dentures." Id.
November 15, 2014, Haverstick filed a grievance claiming that
his gums had been bleeding and, without dentures, he was
"not able to chew any food properly." Grievance
Form, Nov. 15, 2014 (doc. no. 9-10). Helen Hanks, who was the
DOC Director of Medical and Forensic Services at that time,
replied that Haverstick had been referred for "a dietary
consultation to assess [Haverstick's] nutritional status
to determine if [he] qualif[ied] [for dentures] under the
[DOC] policy." Id . She also noted that the
dietician might offer an altered diet to assist Haverstick
with chewing. Id.
November 21, 2014, at Dr. Dransite's orders, Haverstick
underwent a nutritional assessment by Timothy Popovich, a
nutrition consultant for NHSP. Popovich Decl. ¶ 2 (doc. no.
9-13); Dransite Decl., May 6, 2015, ¶ 3 (doc. no. 9-2).
Popovich's assessment confirmed that Haverstick was
edentulous, but he showed no signs of malnutrition. Popovich
Decl. ¶ 3 (doc. no. 9-13). During the assessment, Haverstick
reported that he had difficulty chewing and had lacked teeth
for about ten years, but was able to eat "OK."
Id . ¶¶ 3, 5; DOC Nutr. Assess. (doc. no. 9-15).
Haverstick denied problems "with swallowing,
constipation, diarrhea, nausea, vomiting, or appetite."
Popovich Decl. ¶ 5 (doc. no. 9-13). Haverstick also rejected
being placed on a "chopped" diet. Id .
Popovich concluded that Haverstick was an "obese male in
no acute distress" and displayed no signs of
malnutrition. DOC Nutr. Assess, (doc. no. 9-15). As part of
the assessment, Popovich reviewed Haverstick's NHSP food
purchases. Popovich Decl. ¶ 6 (doc. no. 9-13). Popovich found
that Haverstick, prior to the assessment, had purchased whole
or spear pickles and sausages. Id .; DOC Nutr.
Assess. (doc. no. 9-15). Popovich has explained that these
foods cannot be "cut into pieces before consuming
them" because "inmates have no access to
knives." Popovich Decl. ¶ 6 (doc. no. 9-13). Therefore,
Popovich concluded, and reported to Dr. Dransite, Haverstick
had "no medical need for dentures or any other dental
prosthesis." Id . ¶ 7.
in part on Popovich's assessment and on Dr.
Dransite's opinion that Haverstick had no medical need
for dentures or dental prosthetics, in December 2014, Dr.
Dransite rejected Haverstick's request for dentures.
Dransite Decl., May 6, 2015, ¶ 5 (doc. no. 9-2). On December
17, 2014, Haverstick submitted another grievance, stating
that Popovich's assessment was "no help at all"
and "being able to chew my food properly or be[ing] able
to digest properly is indeed a medical issue" that can
cause medical problems "down the road." Grievance
Form, Dec. 17, 2014 (doc. no. 9-11). The next day, the DOC
Commissioner's office denied Haverstick's grievance
stating that the DOC "support[ed] the former Medical
Director's decision." Id.
November 24, 2014, Haverstick's canteen purchases have
included "solid food items" such as cookies and
potato chips. Hagar Decl. ¶ 4 (doc. no. 9-17); Canteen Sale
R. (doc. no. 9-18). Edward Hagar, NHSP canteen supervisor,
states that these "food items are hard and dry."
Hagar Decl. ¶ 4 (doc. no. 9-17).
March 28, 2015, Haverstick commenced this action alleging
violations of his Eighth and Fourteenth Amendment rights, and
seeking a preliminary injunction requiring the prison to give
him dentures. Compl. (doc. no. 1). Defendants moved for
summary judgment (doc. no. 9).
Haverstick's initial response (doc. no. 12) to the
summary judgment motion, he asserted that the motion for
summary judgment was premature, and that he needed additional
time for discovery. Haverstick clarified during the December
7, 2015, preliminary pretrial conference that he needed an
opportunity to meet with three inmates he believed could
provide statements to support his claims before he could
respond fully to the summary judgment motion. Pursuant to
Fed.R.Civ.P. 56(d), this court directed the DOC to provide
Haverstick with an opportunity to meet with those inmates, if
the inmates were willing. See Feb. 3, 2016, Order (doc. no.
22). Pursuant to that Order, Haverstick filed a supplemental
objection (doc. no. 23), to which he attached, as an exhibit
(doc. no. 23-1), a statement from inmate James Lapre
concerning Lapre's experience obtaining dentures at the
NHSP. Defendants filed a reply to that supplemental
objection, including a declaration of Dr. Dransite,
distinguishing Lapre's circumstances from
Haverstick's. See Dransite Decl., Feb. 19, 2016 (doc. no.