UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Davian L. Haverstick
v. Civil No. 15-cv-094-PB Opinion No. 2016 DNH 150 New Hampshire State Prison Warden Richard Gerry et al.1
O R D E R
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).
Background
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
1Defendants are (former) New Hampshire State Prison (“NHSP”) Warden Richard Gerry, (former) NHSP Health Services Director Helen Hanks, New Hampshire Department of Corrections (“DOC”) Commissioner William Wrenn, and DOC Commissioner’s Office employee Christopher Kench, in both their individual and official capacities. 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
2 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).
Discussion
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
3 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
2Plaintiff’s motion for reconsideration names four Littleton Regional Hospital doctors who he claims would testify that diverticulitis is caused by a “lack of chewing food.” Doc. No. 38, at 1. In a separate filing docketed as a motion for appointment of counsel (doc. no. 45), Haverstick claims that an unnamed gastroenterologist will “testify that the diverticulitis is caused by sw[a]llowing food whole is [sic] damaging the plaintiff[’s] body.” 4 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
5 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
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Davian L. Haverstick
v. Civil No. 15-cv-094-PB Opinion No. 2016 DNH 150 New Hampshire State Prison Warden Richard Gerry et al.1
O R D E R
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).
Background
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
1Defendants are (former) New Hampshire State Prison (“NHSP”) Warden Richard Gerry, (former) NHSP Health Services Director Helen Hanks, New Hampshire Department of Corrections (“DOC”) Commissioner William Wrenn, and DOC Commissioner’s Office employee Christopher Kench, in both their individual and official capacities. 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
2 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).
Discussion
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
3 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
2Plaintiff’s motion for reconsideration names four Littleton Regional Hospital doctors who he claims would testify that diverticulitis is caused by a “lack of chewing food.” Doc. No. 38, at 1. In a separate filing docketed as a motion for appointment of counsel (doc. no. 45), Haverstick claims that an unnamed gastroenterologist will “testify that the diverticulitis is caused by sw[a]llowing food whole is [sic] damaging the plaintiff[’s] body.” 4 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
5 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 shown
that this court erred in finding an absence of a genuine dispute
of fact as to the deliberate indifference element of
Haverstick’s Eighth Amendment claim.3 Accordingly, the court
denies Haverstick’s motion to reconsider (doc. no. 38) the March
10 Order (doc. no. 27), to the extent it granted summary
judgment on Haverstick’s Eighth Amendment claim.
B. Poverty Discrimination
Haverstick argues in his motion to reconsider (doc. no. 38)
that summary judgment should not have been granted on his equal
3In reaching this conclusion, I, of course, recognize that there may well be circumstances in which a decision by prison officials to deny an inmate dentures could support an Eighth Amendment claim. In this case, however, Haverstick has failed to produce sufficient evidence to support such a claim. 6 protection claims, to the extent that he claims poverty
discrimination. Haverstick contends that the prison denied him
dentures in part because he lived for years without dentures in
the community. Haverstick labels that decision poverty
discrimination because he claims the reason he never had
dentures is that he could not afford to pay for them.
The complaint upon which defendants filed their motion for
summary judgment did not include a claim of poverty
discrimination. Even if the court were inclined to consider
such a claim at this stage of the case, nothing in the record
suggests that any prison official intended to discriminate
against Haverstick based on his financial status. Haverstick
has neither pleaded, nor offered any evidence, suggesting that
he has been treated differently than any similarly-situated
inmates who were not poor prior to their incarceration.
Accordingly, Haverstick’s motion to reconsider the summary
judgment order (doc. no. 38) is denied to the extent Haverstick
seeks to add a new claim of poverty discrimination to this
lawsuit.
III. Defendants’ Motion to Reconsider
This court denied defendants’ motion for summary judgment
on Haverstick’s equal protection claim alleging that the length
of his sentence affected the decision to deny him dentures.
7 Defendants argue that any alleged discrimination against
Haverstick need only be justified by a conceivable rational
basis, which, they contend is fully satisfied by evidence that
defendants found that Haverstick did not have a medical need for
dentures.
The premise of defendants’ motion to reconsider is faulty,
but the motion itself is well-taken. It is the alleged decision
to deny dentures to Haverstick because he will be in prison for
a relatively short time that is at issue and must be justified
by a rational basis. Reconsidering the summary judgment order
on that basis, the court looks to whether “‘there is a rational
relationship between the disparity of treatment and some
legitimate governmental purpose.’” Bd. of Trustees of Univ. of
Alabama v. Garrett, 531 U.S. 356, 367 (2001) (citation omitted).
The error in the underlying summary judgment order was this
court’s statement that the record failed to suggest any rational
basis for that type of discrimination. Rather, the “burden is
upon [plaintiff] to negative any reasonably conceivable state of
facts that could provide a rational basis for the
classification.” Id. (citation and internal quotation marks
omitted). Upon reconsideration, this court finds that plaintiff
has failed to carry the burden of disproving the existence of a
8 reasonably conceivable state of facts providing a rational basis
for the alleged sentence length discrimination.
It is rational for prison officials to take the likely
duration of an inmate’s incarceration into account in allocating
limited prison health care resources to pay for dentures.
Inmates without teeth with shorter sentences will have an
opportunity to obtain dentures from outside providers on their
own sooner, while inmates facing a longer time behind bars will
not have that opportunity arise as quickly. It is thus rational
to give dentures to inmates facing longer sentences, and to deny
them to inmates facing shorter sentences, all other things being
equal. Therefore, the court grants defendants’ motion to
reconsider (doc. no. 36), vacates the underlying summary
judgment order, in part, to the extent it denied summary
judgment on Haverstick’s “length of sentence” equal protection
claim, and now grants summary judgment on that claim.
IV. Motion to Appoint Counsel
Haverstick has moved for the appointment of counsel,
asserting that he is unskilled in the law. He further contends
that he needs medical experts to provide an opinion that having
no teeth to chew food is causing his diverticulitis.
This case does not present the type of exceptional
circumstances warranting the appointment of counsel for a civil
9 litigant. See generally DesRosiers v. Moran, 949 F.2d 15, 23
(1st Cir. 1991). Haverstick has demonstrated an ability to
draft cogent, persuasive arguments, and to marshal facts to
support his claims. Moreover, this court has assumed without
deciding in this Order that there is a triable issue on whether
Haverstick’s ability to chew food causes his diverticulitis, and
the court nevertheless finds that defendants are entitled to
judgment as a matter of law on all of Haverstick’s claims;
counsel’s assistance in obtaining an expert to testify regarding
causation, as Haverstick wants, would not alter that result.
Because an appointment of counsel is not necessary to avoid
fundamental unfairness impinging on Haverstick’s right to due
process, Haverstick’s motion for appointment of counsel (doc.
no. 45) is denied.
Conclusion
For the foregoing reasons, the court grants defendants’
motion for reconsideration (doc. no. 36), denies Haverstick’s
motion for reconsideration (doc. no. 38), and denies
Haverstick’s motion to appoint counsel (doc. no. 45). The court
vacates the March 10, 2016, Order (doc. no. 27), in part, to the
extent that Order declined to grant the motion for summary
judgment on the “length of sentence” equal protection claim, and
10 the court grants defendants’ motion for summary judgment on that
claim. Part I(C)(3) of the March 10 Order (doc. no. 27), at p.
17, and the corresponding parts of that Order’s Conclusion, at
page 20, are affected by this Order. No other part of the March
10 Order (doc. no. 27) is vacated by this Order. Judgment as a
matter of law in defendants’ favor on all of Haverstick’s claims
in this case is properly entered. The clerk is directed to
enter judgment and close this case.
SO ORDERED.
/s/Paul Barbadoro Paul Barbadoro United States District Judge
August 25, 2016
cc: Davian L. Haverstick, Pro Se Francis Charles Fredericks, Esq. Kenneth A. Sansone, Esq.