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Haverstick v. Gerry

United States District Court, D. New Hampshire

August 25, 2016

Davian L. Haverstick
New Hampshire State Prison Warden Richard Gerry et al.[1] Opinion No. 2016 DNH 150


          Paul Barbadoro United States District Judge

         Before 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).


         Plaintiff 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.

         In the 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. 45).


         I. Standard for Motion to Reconsider

         LR 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).

         II. Haverstick's Motion to Reconsider

         A. Eighth Amendment Claim

         Haverstick 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 whole.[2]

         “[T]o 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.

         As this 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).

         Evidence 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. ΒΆ 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 ...

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