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Haverstick v. New Hampshire State Prison Warden Richard Gerry

United States District Court, D. New Hampshire

March 10, 2016

Davian L. Haverstick
New Hampshire State Prison Warden Richard Gerry et al.[1] Opinion No. 2016 DNH 050


          PAUL BARBADORA, District Judge.

         Plaintiff, 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.

         Before 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 that motion.

         For 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.


         Haverstick 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 dentures. Id.

         The DOC 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).

         Haverstick 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.

         On 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.

         On 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"[2] 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.

         Based 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.

         Since 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).

         On 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).

         In 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. 26-2).


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