United States District Court, D. New Hampshire
Steven J. Roy
New Hampshire Department of Corrections Commissioner Helen Hanks; Director of Medical and Forensic Services Paula Mattis; Bernadette Campbell, Administrator, Medical and Forensic Services; Centurion of New Hampshire LLC; MHM Solutions, Inc.; Dr. Jose Aviles; Dr. Edward Dransite; Dr. FNU Anzel; Dr. Keith Batchelder; Dr. Raj Pande; and Kathy Belisle
REPORT AND RECOMMENDATION
K. JOHNSTONE UNITED STATES MAGISTRATE JUDGE.
the court is plaintiff Steven J. Roy's complaint (Doc.
No. 1) and motion for a preliminary injunction (Doc. No. 18).
Roy, an inmate at the Northern New Hampshire Correctional
Facility (“NCF”), asserts claims relating to the
dental care he has received at NCF. Defendants, named in
their individual and official capacities, are New Hampshire
Department of Corrections (“DOC”) officials,
employees, and dentists Dr. Jose Aviles, Dr. FNU Anzel, Dr.
Edward Dransite, Dr. Keith Batchelder, and Dr. Raj Pande;
Centurion of New Hampshire LLC (“Centurion”); and
MHM Solutions, Inc. (“MHM”).
complaint (Doc. No. 1), as supplemented by the factual
allegations in the motion for a preliminary injunction (Doc.
No. 18), is before the court for preliminary review pursuant
to 28 U.S.C. § 1915A and LR 4.3(d)(1). The motion for a
preliminary injunction has been referred to the undersigned
magistrate judge for a report and recommendation, see April
10, 2019 Order.
asserts that he has received inadequate dental care while at
NCF. Roy alleges generally that the NCF Dental Department is
understaffed and underfunded, and that NCF dental care is
inadequately reactive and not appropriately preventive and
the lead plaintiff in a group of eight plaintiffs in 2009
who, through counsel, jointly filed a case against a set of
DOC officials, challenging the adequacy of the dental care
those plaintiffs received in DOC custody. See Roy v. N.H.
Dep't of Corr. Comm'r, No. 1:09-cv-00075-SM
(D.N.H.) (“Roy I”). That case settled. See Jan. 20,
2011 Stip., Roy I, ECF No. 47. Roy asserts here that the
settlement agreement required DOC dentists to provide him
with semi-annual teeth cleanings and to
“fast-track” his receipt of upper and lower
partial dentures. See Aff. of Steven Roy, Aug. 7,
2017 (“August 2017 Affidavit”) (Doc. No. 1, at
19). Roy asserts that the DOC breached that agreement by
failing to schedule teeth cleanings every six months and by
delaying the delivery of his partial dentures.
Teeth Cleanings and Partial Dentures
reports he received no teeth cleanings in 2014, and that the
two cleanings he received in 2015 (January and August), 2016
(April and October), 2017 (April and December), and 2018
(June and December), were scheduled on dates that diverged
from regular, six-month intervals. See Aff. of Steven Roy,
Aug. 22, 2018 (Doc. No. 1, at 24) (“August 2018
Affidavit”); Aff. of Steven Roy, Jan. 21, 2019
(“January 2019 Affidavit”) (Doc. No. 18, at 4).
alleges that both of his partial dentures (upper and lower)
had been authorized since 2010. He asserts that, on October
1, 2013, Dr. Aviles notified him that both sets had been
approved. See August 2018 Affidavit (Doc. No. 1, at 24). Roy
received an upper partial in 2014 and a lower partial on
December 22, 2016. August 2017 Affidavit (Doc. No. 1, at 20).
Delays Preceding Receipt of Lower Partial
contends that delays in his receipt of the lower partial
caused the deterioration of his remaining bottom teeth,
including front teeth #20 through #29, see Aff. of Steven
Roy, June 14, 2017 (“June 2017 Affidavit”) (Doc.
No. 1, at 15), and the “sequential failure of [his]
bottom molars, ” August 2017 Affidavit (Doc. No. 1, at
19). Roy asserts that in 2010 he needed a lower partial only
for teeth #19 and #30, but, by late 2016, he needed
replacements for lower teeth #18, #19, #29, #30, and #31. See
Id. Roy further asserts that in an appointment on
April 25, 2017, dentist Dr. Shyne said that his bottom front
teeth had suffered excessive wear due to the lack of bottom
molars, and that Dr. Anzel had expressed a similar opinion in
October or December 2016 as to bottom front teeth #20 and
#22. See June 2017 Affidavit (Doc. No. 1, at 15, 16).
Loss of Fillings on Tooth #28 and Consequences
asserts that the lower partial denture fitted by Dr. Anzel on
December 22, 2016 was anchored to teeth #20 and #28, and that
three of the four fillings on tooth #28 fell out on December
29, 2016, rendering the partial “useless.” June
2017 Affidavit (Doc. No. 1, at 15). Roy's January 2, 2017
Inmate Request Slip (“IRS”) addressed to dentist
Dr. Batchelder and copied to Dr. Anzel describes the damage
to tooth #28, and reports that Roy remained able to use the
lower partial to eat. See IRS to Dr. Batchelder, Jan. 2, 2017
(Doc. No. 1, at 33). Roy has asserted that denture adhesive
he purchased in July 2017 was marginally effective in holding
his lower partial in place. See August 2017 Affidavit (Doc.
No. 1, at 20).
alleges that he reported the loss of fillings on tooth #28 to
Dr. Anzel and Dr. Batchelder in January 2017, and again to
Dr. Anzel on July 20, 2017. See Aff. of Steven Roy, Nov. 15,
2017 (“November 2017 Affidavit”) (Doc. No. 1, at
47). Dr. Anzel characterized tooth #28 as irreparable in July
2017. See August 2017 Affidavit (Doc. No. 1, at 20). A
dentist applied a crown to tooth #28 on December 4, 2017,
which lasted three months, until March 19, 2018. See January
2019 Affidavit (Doc. No. 18, at 4). Dr. Pande examined tooth
#28 in April 2018, declared it to be free of decay, and
refused to perform any repair to it. See August 2018
Affidavit (Doc. No. 1, at 25). In response to Roy's
complaints of pain in tooth #28, a dentist applied composite,
which Roy asserts alleviated his pain, on September 24, 2018.
reported to the dental administrator in December 2018 that
Dr. Anzel had previously told Roy to request a new lower
partial, as Roy was eligible to do so. See January 2019
Affidavit (Doc. No. 18, at 4). The dental administrator told
Roy, however, that although he was no longer eligible for a
new lower partial, he could receive a full bottom denture if
his remaining bottom teeth were extracted. See id.
Abscesses, Decay, and Extractions
asserts that abscesses related to dental problems, if
untreated, can cause cardiovascular and immune system damage.
See June 2017 Affidavit (Doc. No. 1, at 16); August 2017
Affidavit (Doc. No. 1, at 19). Roy alleges that before Dr.
Aviles retired in 2016, he diagnosed Roy as having persistent
abscesses in teeth including teeth #2, #3, and several bottom
teeth, which he determined needed no immediate treatment, as
he considered the abscesses to be draining well. See June
2017 Affidavit (Doc. No. 1, at 15). Roy further alleges that
Dr. Anzel, on October 27, 2016 and December 22, 2016,
diagnosed abscesses in Roy's teeth #2, #3, #23, #24, and
#25. Id. at 15-16; August 2017 Affidavit (Doc. No.
1, at 20). Dr. Shyne diagnosed abscesses in the same teeth
and noted that a filling on tooth #11 was loose, in an
appointment on April 25, 2017. June 2017 Affidavit (Doc. No.
1, at 16); see also August 2017 Affidavit (Doc. No. 1, at
alleges that during a July 10, 2017 dental appointment, Roy
reported to Dr. Anzel that a tooth on his lower partial had
broken off, that fillings in teeth #11 and #20 had fallen
out, and that teeth #23 and #28 had disintegrated or broken
apart. See August 2017 Affidavit (Doc. No. 1, at 20);
November 2017 Affidavit (Doc. No. 1, at 47). On July 10,
2017, Dr. Anzel: prescribed antibiotics for Roy's
abscessed teeth, concluded that they needed to be extracted,
expressed his opinion that teeth #11 and #20 involved only
“simple repairs, ” and opined that tooth #28 was
“not reparable.” August 2017 Affidavit (Doc. No.
1, at 20). Dr. Batchelder extracted teeth #23, #24, and #25
in November 2017. See November 2017 Affidavit (Doc. No. 1, at
47). Roy received fillings for teeth #20 and #21 on February
13, 2018. See August 2018 Affidavit (Doc. No. 1, at 25). Dr.
Pande repaired tooth #22 on April 9, 2018. See August 2018
Affidavit (Doc. No. 1, at 25).
alleges that on December 1, 2017, an unnamed dentist,
assisted by defendant Kathy Belisle, recorded decay and chips
on many of Roy's teeth. Roy asserts that the decayed or
chipped teeth have not been treated or repaired. See January
2019 Affidavit (Doc. No. 18, at 4). In a dental appointment
on December 13, 2018, the dental administrator made it clear
that Roy would receive no more repairs to his bottom teeth.
Single Procedure Rule and Extraction Preference
asserts that the NCF Dental Department limits each
inmate's dental care to a “single procedure”
per visit. Roy asserts that inmates with multiple, concurrent
dental problems must submit separate requests for each
problem, that appointments are typically scheduled months
apart, and that separate appointments are scheduled for each
reported dental problem. November 2017 Affidavit (Doc. No. 1,
at 47). Roy further alleges that the defendants prefer to
extract teeth rather than repair them. See Id. As
evidence of the defendants' extraction preference, Roy
points to statements made by a dental administrator at
Roy's September 2018 appointment, when Roy was told he
could not have any further repairs made to his lower teeth,
other than extractions. As to the single procedure policy,
Roy alleges that when he went to dental “sick
call” on July 10, 2017, seeking an appointment for
missing fillings in teeth #11 and #20, repairs to teeth #23
and #28, and repairs to his lower partial, Roy received a
follow-up appointment slip only for an extraction scheduled
for November 2, 2017 and did not receive an appointment for
the other procedures. Roy attributes that response to the
“single procedure rule.” Roy has also alleged
that the “single procedure rule” resulted in his
having to defer a semi-annual cleaning on one occasion so he
could get a cavity filled. See November 2017 Affidavit (Doc.
No. 1, at 47).
asserts the following claims in this case:
Defendants are liable under 42 U.S.C. § 1983 and state
law, in that delays in Roy's receipt of an upper partial
denture in 2014 violated the Eighth Amendment, breached the
2010 settlement agreement in Roy I, and manifested negligence
Defendants are liable under 42 U.S.C. § 1983 and state
law, with respect to Roy's teeth cleanings, in that:
a. The failure to provide any teeth cleanings to Roy in 2014
violated the Eighth Amendment and breached the 2010
settlement agreement in Roy I;
b. The failure to provide any teeth cleanings to Roy in 2014
was negligence and/or professional malpractice; and
c. The variations in the scheduling of Roy's twice-yearly
teeth cleanings in 2015-2018:
i. Violated his Eighth Amendment rights;
ii. Breached the 2010 settlement agreement in Roy I; and
iii. Constituted negligence and/or professional ...