UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Davian L. Haverstick

v. Civil No. 15-cv-094-PB Opinion No.

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.,

(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,

(1st Cir. 2014), cert. denied,

(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,

. “‘Medical malpractice does not become a

constitutional violation merely because the victim is a

prisoner.’”

(citation omitted). “[D]eliberate indifference

. . . requires evidence that the absence or inadequacy of

treatment is intentional.” Perry v. Roy,

(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,

(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.”

(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,

(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.

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