United States District Court, D. New Hampshire
Davian L. Haverstick
New Hampshire State Prison Warden Richard Gerry et al. Opinion No. 2016 DNH 150
Barbadoro United States District Judge
the court are two motions (doc. nos. 36 and
38) to reconsider the March 10, 2016, Order (doc.
no. 27) (“March 10 Order”), granting
summary judgment on some of the claims in this action. Also
before the court is plaintiff's motion to appoint counsel
(doc. no. 45).
Davian Haverstick entered the New Hampshire State Prison
(“NHSP”) in May 2014 with no dentures and no
teeth, having lived for a number of years in the community in
that manner. The NHSP, in December 2014, denied
Haverstick's request for dentures, based on the
determination of a prison dentist, recorded in a December 2,
2014, entry in Haverstick's dental progress notes (doc.
no. 9-4), that Haverstick lacked a medical need for
dentures. The dentist based that determination, in part, on a
November 21, 2014, nutritional assessment conducted by a
dietician. See Decl. of Edward W. Dransite, May 6, 2015
(“Dransite Decl.”), ¶ 5 (doc. no.
9-2, at 2). Haverstick challenged the decision to
deny him dentures first through the prison grievance system.
Haverstick then filed this action in March 2015, claiming
that, by refusing to provide him with dentures, defendants
are violating his Eighth Amendment rights to adequate medical
care while incarcerated, and his Fourteenth Amendment right
to equal protection.
March 10 Order (doc. no. 27), the court granted
summary judgment on Haverstick's Eighth Amendment claims,
and on some of Haverstick's equal protection claims. The
court denied defendants' motion for summary judgment, to
the extent the court found genuine issues of material fact on
Haverstick's equal protection claim asserting that
defendants discriminated against him based on the length of
his sentence, without having a rational basis for making that
factor determinative. In the March 10 Order, the court also
denied Haverstick's motion for a preliminary injunction.
Presently before this court are the parties'
cross-motions to reconsider (doc. nos. 36 and
38) this court's March 10, 2016, Order on
defendants' summary judgment motion, as well as
plaintiff's motion for appointment of counsel (doc. no.
Standard for Motion to Reconsider
7.2(d) provides that any party may seek reconsideration of an
interlocutory order upon showing that it was based on
“a manifest error of fact or law.”
Reconsideration here is sought with respect to interlocutory
rulings granting and denying summary judgment. Summary
judgment is properly granted when “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); see also Santangelo v.
N.Y. Life Ins. Co., 785 F.3d 65, 68 (1st Cir. 2015).
Haverstick's Motion to Reconsider
Eighth Amendment Claim
moves for reconsideration of the order granting summary
judgment in defendants' favor on his Eighth Amendment
claims. Haverstick argues that defendants did not reasonably
find that he had no medical need for dentures, in that he has
a medical history of diverticulitis, recorded in medical
records predating his incarceration, and noted in his NHSP
medical record in entries dated December 29, 2014, and
January 6, 2015. See Doc. No. 38-1, at 13; Id. at
14. Haverstick states that he cannot properly chew his food,
and he claims, without referring to any record evidence, that
diverticulitis is caused by swallowing food
prove an Eighth Amendment violation, a prisoner must satisfy
both of two prongs: (1) an objective prong that requires
proof of a serious medical need, and (2) a subjective prong
that mandates a showing of prison administrators'
deliberate indifference to that need.” Kosilek v.
Spencer, 774 F.3d 63, 82 (1st Cir. 2014), cert. denied,
135 S.Ct. 2059 (2015). Assuming without deciding that
evidence cited by Haverstick in support of his motion to
reconsider could generate a triable issue as to the objective
“serious medical need” prong of the Eighth
Amendment standard, reconsideration of the court's prior
order granting summary judgment on the Eighth Amendment claim
is not appropriate as Haverstick has failed to present a
triable issue of fact as to the subjective prong of the
Eighth Amendment standard.
court determined in the March 10 Order, the record lacks any
evidence to support a reasonable finding that any defendant
exhibited “deliberate indifference.”
Kosilek, 774 F.3d at 83. “‘Medical
malpractice does not become a constitutional violation merely
because the victim is a prisoner.'” Id.
(citation omitted). “[D]eliberate indifference . . .
requires evidence that the absence or inadequacy of treatment
is intentional.” Perry v. Roy, 782 F.3d 73, 79
(1st Cir. 2015).
of deliberate indifference among the decisionmakers named as
defendants here is completely missing from this record. It is
undisputed that after Haverstick complained about having
chewing difficulties, NHSP dentist Dr. Dransite ordered a
nutritional assessment. Dransite Decl., May 6, 2015, ¶ 3
(doc. no. 9-2). It is also undisputed that the
dietician who conducted the nutrition assessment based his
findings, in part, on Haverstick's report that he had
lacked teeth for about ten years. Decl. of Timothy L.
Popovich, May 5, 2015, ¶ 3 (doc. no. 9-13).
While it is undisputed that the dietician did not note any
facts relating to Haverstick's history of diverticulitis
in the nutrition assessment, it is also undisputed that the
dietician offered Haverstick a chopped diet, consisting of
all of the same food inmates are ordinarily served, cut up
into ¼-inch sized pieces, and that Haverstick rejected
the offer. Id. ¶ 5. Thus, assuming without
deciding that Haverstick could demonstrate that the
dietician's failure to note or consider his
diverticulitis in the nutrition assessment was intentional or
negligent, nothing in the court's record supports a
finding that any defendant with knowledge of Haverstick's
diverticulitis failed to take reasonable steps to address
Haverstick's medical problems relating to his inability
to chew his food properly. Therefore, Haverstick has not