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Roy v. Hanks

United States District Court, D. New Hampshire

October 24, 2018

Steven J. Roy, Michael Cheney, Kevin Laurent, Matthew L. Tsopas, Daniel T. Rainville, and Jason R. Nolan
v.
New Hampshire Department of Corrections Commissioner Helen Hanks; Director of Forensic Services Paula Mattis; Bernadette Campbell; Centurion of New Hampshire LLC; MHM Solutions, Inc.; Jose Aviles; Edward Dransite; FNU Anzel; Keith Batchelder; Raj Pande; and Kathy Belisle

          Steven J. Roy, pro se

          Michael Cheney, pro se

          Kevin Laurent, pro se

          Matthew L. Tsopas, pro se

          Daniel T. Rainville, pro se

          Jason R. Nolan, pro se

          REPORT AND RECOMMENDATION

          Andrea K. Johnstone United States Magistrate Judge

         Before the court is the complaint (Doc. No. 1), filed by plaintiffs, Steven J. Roy, Michael Cheney, Kevin Laurent, Matthew L. Tsopas, Daniel T. Rainville, and Jason R. Nolan, inmates at the Northern New Hampshire Correctional Facility (“NCF”). Plaintiffs assert violations of their Eighth and Fourteenth Amendment rights relating to their unmet oral health needs, and NCF dental care practices that they allege amount to dental malpractice under state law. Plaintiffs, who have appeared in this case without counsel to represent them, also seek to have their case certified as a class action, brought on behalf of all NCF inmates who may have dental health needs. Defendants named in their individual and official capacities are New Hampshire Department of Corrections (“DOC”) Commissioner Helen Hanks; DOC Director of Medical and Forensic Services Paula Mattis; DOC Deputy Director of Medical Services Bernadette Campbell; (former) NCF Dental Administrator Kathy Belisle; supervising dentists Dr. Jose Aviles, Dr. FNU Anzel, and Dr. Edward Dransite; dental care providers Dr. Keith Batchelder and Dr. Raj Pande; Centurion of New Hampshire LLC (“Centurion”); and MHM Solutions, Inc. (“MHM”).[1]

         This matter has been referred to the magistrate judge to conduct preliminary review, pursuant to 28 U.S.C. § 1915A; LR 4.3(d)(1). That review is pending. As this case involves multiple pro se plaintiffs requesting class certification, the court subjects the instant complaint to a pre-screening to determine whether class certification might be appropriate in this case, whether the case should be maintained as a joint action, or whether the matter should be severed into multiple suits. See generally Fed.R.Civ.P. 21 (“On motion or on its own, the court may at any time, on just terms, add or drop a party. The court may also sever any claim against a party.”); see also Wheeler v. Wexford Health Sources, Inc., 689 F.3d 680, 683 (7th Cir. 2012) (district judges “should be able to spot a complaint” with misjoined claims or defendants “within days of its filing, ” and then “solve the problem by severance (creating multiple suits that can be separately screened)” or by “dismissing the excess defendants”).

         Background

         I. Overview

         The six named plaintiffs have appeared together in a single case, for which they paid a single filing fee. They each signed the complaint (Doc. No. 1) individually, initiating this action without counsel. These pro se plaintiffs assert claims arising under state tort law and 42 U.S.C. § 1983 against the defendant dental care providers and prison administrators, based on the matters asserted in the complaint and summarized below.

         Plaintiffs specifically assert that they have received inadequate treatment for dental, endodontal, and periodontal issues while at NCF, under the care of defendant dentists, dental care providers, and (former) NCF dental administrator Kathy Belisle, subject to the supervision of the defendant prison administrators. Plaintiffs allege generally that the dental department at NCF is understaffed and underfunded, and that the dental care plaintiffs received has been inadequately reactive, not appropriately preventive or proactive, and manifests malpractice and deliberate indifference to their dental health needs. In the prayer for relief in the complaint (Doc. No. 1), plaintiffs ask for damages, declaratory relief, and injunctive relief, [2] and seek to have their case certified as a class action under Federal Rule of Civil Procedure 23.

         II. Steven Roy

         A. 2007 and 2009 Lawsuits

         In 2007, plaintiff Steven Roy filed a lawsuit against a number of prison officials, corrections officers, and dental care providers, claiming, among other things, that defendants had failed to provide him with adequate or appropriate dental care, in violation of his Eighth Amendment rights. See Roy v. N.H. Dep't of Corr. Comm'r, No. 1:07-cv-353-PB (D.N.H.) (“Roy I”). Roy, who filed that case pro se, moved for an appointment of counsel to represent him, and the court granted that motion. See Aug. 18, 2008 Order, Roy I (ECF No. 64). That case settled. See Dec. 24, 2009 Stip. of Dismissal, Roy I (ECF No. 70).

         In 2009, plaintiff Roy was the lead plaintiff in a group of eight prisoner plaintiffs who, through counsel, jointly filed a case challenging the adequacy of the dental care each of those plaintiffs received while in DOC custody. See Roy v. N.H. Dep't of Corr. Comm'r, No. 1:09-cv-00075-SM (D.N.H.) (“Roy II”).[3] That case also settled. See Jan. 20, 2011 Stip. of Dismissal, Roy II (ECF No. 47). Roy asserts that, pursuant to the settlement agreement in the 2009 case, the defendants agreed to provide him with semi-annual teeth cleanings, and to “fast-track” the provision of upper and lower partial dentures to Roy.

         Roy asserts here that the DOC has failed to uphold those commitments. Roy alleges that his teeth cleanings have not occurred regularly each year. He further asserts he received an upper partial in 2014, and a lower partial in December 2016, four to six years after the 2009 case settled. He contends that delays in his receipt of the lower partial caused him to lose a number of his bottom teeth.

         B. Recent Dental Care Issues

         Roy asserts that the lower partial Dr. Anzel provided to him in 2016 was anchored to a tooth (#28) that “disintegrated” a week later, and that neither Dr. Anzel, nor any other provider in the NCF dental department, responded to Roy's requests relating to the loss of that tooth. Roy further alleges that although Dr. Anzel diagnosed abscesses in his teeth (#2, #3, #23, #24, and #25) in October 2016, none of those abscesses were promptly treated. In July 2017, Roy went to dental sick call for missing fillings in teeth #11 and #20, the disintegration of tooth #28, the “break up” of tooth #23, and the loss of tooth #27 from his lower partial. Dr. Anzel prescribed antibiotics for abscesses in his teeth and recommended that tooth #24 and tooth #25 be extracted. Dr. Batchelder subsequently extracted teeth #23, #24, and #25. Roy Aff. (Nov. 15, 2017), Doc. No. 1, at 47. Roy asserts that the NCF dental department delayed or cancelled his semi-annual cleanings on a number of ...


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