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

Plaintiff, Davian L. Haverstick, an inmate in the New

Hampshire State Prison (“NHSP”), brings this action pursuant to

against current and former NHSP and New

Hampshire Department of Corrections (“DOC”) officials, in their

individual and official capacities. Haverstick alleges that

defendants have violated his Eighth Amendment rights through

their deliberate indifference to his serious medical and dental

needs, and that they have violated his equal protection rights

by refusing to provide him with dentures. Haverstick seeks

damages and injunctive relief, and has specifically requested

that the court issue a preliminary injunction, requiring the

NHSP Dental Department to provide him with a complete set of

dentures.

1Construed liberally, the complaint names as defendants 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 representative Christopher Kench, in both their individual and official capacities. Before the court is defendants’ motion for summary judgment

(doc. no. 9) on all claims, through which they object to

Haverstick’s request for a preliminary injunction. Haverstick

objects to defendants’ motion for summary judgment. See Obj.

(doc. no. 12); Suppl. Obj. (doc. no. 23). Also pending is

Haverstick’s discovery motion (doc. no. 24), which this court

took under advisement, see Feb. 19, 2016, Order (doc. no. 25).

Defendants have not objected to that motion.

For reasons stated below, defendants’ motion for summary

judgment (doc. no. 9) is granted in part and denied in part, and

Haverstick’s request for a preliminary injunction is denied. As

set forth in the Conclusion of this Order, the parties are

directed to respond to the February 19, 2016, Order (doc. no.

25) by March 25, 2016.

Background

Haverstick entered the NHSP in May 2014. Dransite Decl.,

May 6, 2015, ¶ 2 (doc. no. 9-2). All incoming NHSP inmates

undergo a dental intake examination.

Haverstick’s dental

intake examination, conducted on May 12, 2014, revealed that he

entered the prison fully edentulous — meaning that he had no

teeth. Id.; DOC Dental Chart (doc. no 9-3). Haverstick’s

dental chart from the May 12 evaluation revealed that, other

than having no teeth, his oral hygiene was “good.” DOC Dental

Chart (doc. no 9-3). The dental chart noted that Haverstick’s

2 teeth had been missing since 2011, and that he expressed a

desire for dentures.

The DOC written policy concerning dentures and dental care

is found in Policy and Procedure Directive (“PPD”) 6.28 and

6.11. PPD 6.28 states that DOC “[d]ental treatment includes the

range of services that in the supervising dentist’s judgment are

necessary for proper mastication and maintaining the

inmate’s/patient’s health status.” PPD 6.28 ¶ IV(A)(5) (doc.

no. 9-7). For dental prosthetics, such as dentures, a medical

“practitioner will determine when a prosthetic device is

indicated,” based on criteria including the level of functional

impairment, the benefits and side effects of the proposed

prosthesis, and the length of the inmate’s sentence that

remains. PPD 6.11 ¶ IV(A)-(B) (doc. no. 9-8). “Decisions will

be made on a case by case basis,” and if prosthetics are

approved, “[p]ractitioners will approve the least costly

prosthetic device that will accomplish restoration of the basic

functioning determined to be necessary.”

at ¶ IV(C)-(D).

However, “[c]osmetic services will not be provided, nor will any

device not necessary for accomplishment of ordinary living

tasks[,] nor will devices . . . which will only marginally

improve abilities.”

at ¶ IV(E).

Haverstick was told during his dental intake examination

that inmates are not eligible for dentures unless it is

3 medically necessary. Dransite Decl., May 6, 2015, ¶ 3 (doc. no.

9-2). Several months later, on November 5, 2014, Haverstick

submitted an inmate request slip “requesting an appointment to

be seen by a dentist” in order to receive dentures, as he had no

teeth and reported having had issues “eating certain things

because of my gums.” Inmate Req. Slip (doc. no. 9-9). On

November 14, 2014, a NHSP dental staff member replied to

Haverstick’s request, stating that Haverstick had been “told [at

his] dental intake that [he] did not qualify for dentures.”

On November 15, 2014, Haverstick filed a grievance claiming

that his gums had been bleeding and, without dentures, he was

“not able to chew any food properly.” Grievance Form, Nov. 15,

2014 (doc. no. 9-10). Helen Hanks, who was the DOC Director of

Medical and Forensic Services at that time, replied that

Haverstick had been referred for “a dietary consultation to

assess [Haverstick’s] nutritional status to determine if [he]

qualif[ied] [for dentures] under the [DOC] policy.”

She

also noted that the dietician might offer an altered diet to

assist Haverstick with chewing.

On November 21, 2014, at Dr. Dransite’s orders, Haverstick

underwent a nutritional assessment by Timothy Popovich, a

nutrition consultant for NHSP. Popovich Decl. ¶ 2 (doc. no. 9-

13); Dransite Decl., May 6, 2015, ¶ 3 (doc. no. 9-2).

Popovich’s assessment confirmed that Haverstick was edentulous,

4 but he showed no signs of malnutrition. Popovich Decl. ¶ 3

(doc. no. 9-13). During the assessment, Haverstick reported

that he had difficulty chewing and had lacked teeth for about

ten years, but was able to eat “OK.” Id. ¶¶ 3, 5; DOC Nutr.

Assess. (doc. no. 9-15). Haverstick denied problems “with

swallowing, constipation, diarrhea, nausea, vomiting, or

appetite.” Popovich Decl. ¶ 5 (doc. no. 9-13). Haverstick also

rejected being placed on a “chopped”2 diet. Id. Popovich

concluded that Haverstick was an “obese male in no acute

distress” and displayed no signs of malnutrition. DOC Nutr.

Assess, (doc. no. 9-15). As part of the assessment, Popovich

reviewed Haverstick’s NHSP food purchases. Popovich Decl. ¶ 6

(doc. no. 9-13). Popovich found that Haverstick, prior to the

assessment, had purchased whole or spear pickles and sausages.

Id.; DOC Nutr. Assess. (doc. no. 9-15). Popovich has explained

that these foods cannot be “cut into pieces before consuming

them” because “inmates have no access to knives.” Popovich

Decl. ¶ 6 (doc. no. 9-13). Therefore, Popovich concluded, and

reported to Dr. Dransite, Haverstick had “no medical need for

dentures or any other dental prosthesis.” Id. ¶ 7.

2At NHSP, a “chopped” diet “consists of all of the same food an inmate is served as part of a normal inmate diet, but cut into 1/4-inch sized pieces.” Popovich Decl. ¶ 5 (doc. no. 9- 13). 5 Based in part on Popovich’s assessment and on Dr.

Dransite’s opinion that Haverstick had no medical need for

dentures or dental prosthetics, in December 2014, Dr. Dransite

rejected Haverstick’s request for dentures. Dransite Decl., May

6, 2015, ¶ 5 (doc. no. 9-2). On December 17, 2014, Haverstick

submitted another grievance, stating that Popovich’s assessment

was “no help at all” and “being able to chew my food properly or

be[ing] able to digest properly is indeed a medical issue” that

can cause medical problems “down the road.” Grievance Form,

Dec. 17, 2014 (doc. no. 9-11). The next day, the DOC

Commissioner’s office denied Haverstick’s grievance stating that

the DOC “support[ed] the former Medical Director’s decision.”

Id.

Since November 24, 2014, Haverstick’s canteen purchases

have included “solid food items” such as cookies and potato

chips. Hagar Decl. ¶ 4 (doc. no. 9-17); Canteen Sale R. (doc.

no. 9-18). Edward Hagar, NHSP canteen supervisor, states that

these “food items are hard and dry.” Hagar Decl. ¶ 4 (doc. no.

9-17).

On March 28, 2015, Haverstick commenced this action

alleging violations of his Eighth and Fourteenth Amendment

rights, and seeking a preliminary injunction requiring the

prison to give him dentures. Compl. (doc. no. 1). Defendants

moved for summary judgment (doc. no. 9).

6 In Haverstick’s initial response (doc. no. 12) to the

summary judgment motion, he asserted that the motion for summary

judgment was premature, and that he needed additional time for

discovery. Haverstick clarified during the December 7, 2015,

preliminary pretrial conference that he needed an opportunity to

meet with three inmates he believed could provide statements to

support his claims before he could respond fully to the summary

judgment motion. Pursuant to Fed. R. Civ. P. 56(d), this court

directed the DOC to provide Haverstick with an opportunity to

meet with those inmates, if the inmates were willing. See Feb.

3, 2016, Order (doc. no. 22). Pursuant to that Order,

Haverstick filed a supplemental objection (doc. no. 23), to

which he attached, as an exhibit (doc. no. 23-1), a statement

from inmate James Lapre concerning Lapre’s experience obtaining

dentures at the NHSP. Defendants filed a reply to that

supplemental objection, including a declaration of Dr. Dransite,

distinguishing Lapre’s circumstances from Haverstick’s. See

Dransite Decl., Feb. 19, 2016 (doc. no. 26-2).

Discussion

I. Summary Judgment

Defendants assert two arguments in their motion for summary

judgment: (1) Haverstick’s lack of teeth does not rise to the

level of a serious medical need, and even if it does, defendants

7 have not been deliberately indifferent; and (2) there is no

proof in the record sufficient to survive summary judgment,

suggesting that Haverstick’s sentence length, or his pre-

existing lack of teeth, affected the decision to deny him

dentures.

A. Standard

Summary judgment is appropriate 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); Santangelo v. N.Y. Life Ins. Co.,

(1st Cir. 2015). “A genuine issue is one that can be resolved

in favor of either party and a material fact is one which has

the potential of affecting the outcome of the case.” Gerald v.

Univ. of P.R.,

(1st Cir. 2013) (citation and

internal quotation marks omitted). In deciding a motion for

summary judgment, the court draws all reasonable factual

inferences in favor of the nonmovant. Kenney v. Floyd,

(1st Cir. 2012). LR 56.1(b) provides that all

“properly supported material facts set forth in the moving

party’s factual statement may be deemed admitted,” unless

properly opposed by the nonmovant.

B. Eighth Amendment Claims

Defendants have moved for summary judgment on Haverstick’s

Eighth Amendment claims. “[T]o prove an Eighth Amendment

8 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).

Pursuant to the first prong, the medical need must be

serious. This “requires that the need be ‘one that has been

diagnosed by a physician as mandating treatment, or one that is

so obvious that even a lay person would easily recognize the

necessity for a doctor’s attention.’” Id. (citation omitted).

Accordingly, “[t]his prong does not impose upon prison

administrators a duty to provide care that is ideal, or of the

prisoner’s choosing.” Id. The Eighth Amendment proscribes care

that is “so inadequate as to shock the conscience.” Id. at 83

(internal quotation marks and citation omitted).

Additionally, “the Eighth Amendment is not violated unless

prison administrators . . . exhibit deliberate indifference to

the prisoner’s needs.” Id. (citation omitted). “[D]eliberate

indifference . . . defines a narrow band of conduct, and

requires evidence that the failure in treatment was purposeful.”

Id. (citation and internal quotation marks omitted); see also

Estelle v. Gamble,

(1976) (“Medical malpractice

does not become a constitutional violation merely because the

9 victim is a prisoner.”). “While deliberate indifference may

also be exhibited by a ‘wanton disregard’ to a prisoner’s needs,

such disregard must be akin to criminal recklessness, requiring

consciousness of impending harm, easily preventable.” Kosilek,

(internal citation and quotation marks omitted).

Here, Haverstick was evaluated for eligibility for dentures

during his dental intake examination and after a nutrition

assessment by Popovich. Dransite Decl., May 6, 2015, ¶¶ 3-5

(doc. no. 9-2); Popovich Decl. ¶¶ 2-7 (doc. no. 9-13). After

both evaluations, determinations were made that dentures were

not medically necessary. Dransite Decl., May 6, 2015, ¶¶ 3-5

(doc. no. 9-2). Medical records show that Haverstick’s oral

hygiene was “good” during his dental intake examination. DOC

Dental Chart (doc. no. 9-3). Haverstick has offered no

submissions of evidentiary quality to contest those findings.

Pursuant to LR 56.1, the court deems those facts admitted. As

Haverstick has not shown that there is any genuine issue of

material fact as to whether he had a medical need for dentures,

his Eighth Amendment claim fails with respect to that issue.

Even if Haverstick’s lack of teeth and his complaints of

sore gums and bleeding were deemed to be serious medical needs,

no trier-of-fact could reasonably conclude based on the record

that defendants were deliberately indifferent. After Haverstick

complained about difficulties with chewing and sore gums, Dr.

10 Dransite ordered a nutritional assessment. Dransite Decl., May

6, 2015, ¶ 4 (doc. no. 9-2). The assessment revealed no

problems with nutrition, swallowing, digestion, or appetite.

DOC Nutrition Assessment (doc. no. 9-15); Popovich Decl. ¶ 5

(doc. no. 9-13). To the extent Haverstick also reported

difficulty chewing and suffered from sore gums, the record is

undisputed that Haverstick was offered a chopped diet, which he

rejected. “[A] constitutional violation does not occur merely

because a prisoner disagrees with a medical professional’s

decisions regarding the proper course of medical treatment.”

Brown v. Englander, No. 10-cv-257-SM,

,

at *6,

at *2 (D.N.H. June 1,

2012) (citing Ruiz–Rosa v. Rullan,

(1st Cir.

2007)). Nothing in the record supports a finding that

defendants were deliberately indifferent to Haverstick’s oral

hygiene or lack of teeth.

Haverstick has not shown that there is a genuine dispute of

fact on his Eighth Amendment claims, and defendants are entitled

to judgment as a matter of law on those claims. Accordingly,

defendants’ motion for summary judgment on Haverstick’s Eighth

Amendment claims is granted.

C. Fourteenth Amendment Equal Protection Claims

Haverstick also alleges that defendants violated his

Fourteenth Amendment right to equal protection by denying him

11 dental care and/or dentures because his sentence does not exceed

five years, his lack of teeth pre-existed his incarceration, and

he has not exhibited a nutritional deficiency. Defendants have

moved for summary judgment on that claim, asserting that

Haverstick has not produced any evidence that the length of his

sentence and his pre-existing lack of teeth affected his

eligibility for dentures.

Under the Fourteenth Amendment, all persons are guaranteed

“the equal protection of the laws.” U.S. Const. amend. XIV,

§ 1. “The Equal Protection Clause contemplates that similarly

situated persons are to receive substantially similar treatment

from their government.” Davis v. Coakley,

(1st Cir. 2015) (citation omitted). To establish an equal

protection claim, a plaintiff needs to allege facts showing that

“‘(1) the [plaintiff], compared with others similarly situated,

was selectively treated; and (2) that such selective treatment

was based on impermissible considerations such as race,

religion, intent to inhibit or punish the exercise of

constitutional rights, or malicious or bad faith intent to

injure [the plaintiff].’”

(citations omitted).

Proof of discriminatory intent or purpose is required to show a

violation of the Equal Protection Clause. Vill. of Arlington

Heights v. Metro. Hous. Dev. Corp.,

(1977).

The proper level of scrutiny for Haverstick’s equal protection

12 claim is the rational basis test, as Haverstick has not alleged

that he has been discriminated against on the basis of his race,

religion, or membership in any other group entitled to more

demanding scrutiny. See Willowbrook v. Olech,

(2000).

1. Nutritional Deficiency and Medical Necessity

Defendants have submitted declarations and medical records

to support their contention that Haverstick’s request for

dentures was denied after a case-by-case assessment of his oral

hygiene and nutrition failed to show a nutritional deficit or

other medical necessity for dentures, in light of his history of

functioning for years without teeth. Defendants have also

produced PPDs that substantiate that individualized

determinations of medical necessity, nutritional deficits, and

the level of functional impairment are criteria generally used

by the NHSP in determining whether to provide dentures. Those

factors are rational bases for distinguishing among inmates with

respect to allocating limited resources to pay for dentures.

Haverstick has offered no evidence to dispute the findings that

he lacked a medical or nutritional need for dentures.

Accordingly, Haverstick cannot base his equal protection claim

on the decision to deny him dentures to the extent the decision

was made due to his nutrition status or lack of a medical need,

13 and defendants’ motion for summary judgment on that claim is

granted.

2. Pre-existing Condition

Haverstick further asserts that the decision to deny him

dentures violated his equal protection rights, in that it was

based on the fact that Haverstick had no teeth when he arrived

at the NHSP. Dr. Dransite’s February 19, 2016, Declaration

(doc. no. 26-2) is consistent with Haverstick’s assertion that

his pre-existing condition affected the decision to deny him

dentures, insofar as Haverstick’s history of functioning without

dentures prior to his incarceration factored into that decision.

Discussing the dental history of a third party inmate, James

Lapre, who received dentures after DOC dentists removed the few

teeth left in Lapre’s mouth when he arrived at the NHSP, Dr.

Dransite avers that DOC typically gives dentures to inmates who

have no prior history of functioning without teeth, after DOC

extracts all of their teeth; Dr. Dransite explained that those

inmates, unlike Haverstick, have no history of having functioned

for years without teeth. Dransite Decl., Feb. 19, 2016, ¶ 4

(doc. no. 26-2, at 2).

Defendants have thus offered a rational basis for treating

Haverstick differently than inmates like Lapre, based on

Haverstick’s demonstrated history of functioning without teeth.

Lapre and Haverstick are not similarly situated with respect to

14 that factor, and there is a rational basis for treating them

differently. Accordingly, defendants’ motion for summary

judgment is granted, to the extent it is based on a claim

challenging the provision of dentures to inmates whose teeth

have been removed since their arrival at NHSP, while denying

dentures to Haverstick.

3. Length of Sentence

Haverstick asserts that the length of his sentence affected

the decision to deny him dentures, in violation of his rights

under the Equal Protection Clause. Defendants deny that the

length of Haverstick’s sentence had a substantial impact on

their decision to deny him dentures.

Defendants argue that there is no proof of evidentiary

quality in the record to support Haverstick’s claim that the

length of his sentence affected the decision to deny him

dentures. The record, however, includes PPD 6.11 ¶ IV(B)(3)

(doc. no. 9-8), which states that the criteria used by a

practitioner in determining whether a prosthetic is needed “will

include, but need not be limited to . . . [the] Length of

incarceration remaining.” Additionally, the record includes

Haverstick’s verified complaint, signed in a manner consistent

with

(1), asserting that the Dental Department

told him he “does not qualify for dental treatment/dentures

[until] he has served at least five (5) years” at the NHSP.

15 Compl. (doc. no. 1), at 3. Fed. R. Evid. 801(d)(2) excludes

that statement from the restrictions on hearsay, to the extent

it could be deemed to recount a statement of defendants’

employee on a matter within the scope of his employment, namely,

the type of dental services that could be provided to

Haverstick. Cf. Hannon v. Beard,

(1st Cir.

2011) (rejecting affiant’s description of nondeclarant’s

statement as hearsay, unsuitable for consideration in opposition

to motion for summary judgment). Although Haverstick has not

made a showing that the DOC Dental Department staff member who

told him about his eligibility for dentures was acting within

the scope of his employment in doing so, this court takes into

consideration the interests of justice, plaintiff’s pro se

status, and the early timing of the summary judgment motion

(which was filed well before the conclusion of the discovery

period), in considering both that statement in Haverstick’s

verified complaint and PPD 6.11 ¶ IV(B)(3), in evaluating

defendants’ motion for summary judgment. Accepted as true for

the limited purpose of this Order, that statement and the

relevant portion of the PPD generate a genuine material issue on

whether the length of Haverstick’s prison sentence affected the

decision to deny him dentures. Defendants -- who maintain that

Haverstick’s shorter sentence did not have any impact on their

decision -- have not tried to rationalize sentence-length

16 discrimination. Where the record does not suggest any valid

basis for making Haverstick’s sentence length a factor in

deciding whether he should obtain dentures, and finding a

genuine issue of material fact as to whether that type of

discrimination occurred, this court declines to find defendants

entitled to judgment as a matter of law on that claim at this

time. Accordingly, defendants’ motion for summary judgment is

denied in part, to the extent it seeks summary judgment on

Haverstick’s equal protection claim relating to the length of

his sentence.

II. Preliminary Injunction

Haverstick has requested a preliminary injunction directing

the NHSP Dental Department to provide him with dentures while

this action is pending. See Compl. (doc. no. 1), at 3.

Defendants object. See Mem. (doc. no. 9-1).

“A plaintiff seeking a preliminary injunction must

establish that he is likely to succeed on the merits, that he is

likely to suffer irreparable harm in the absence of preliminary

relief, that the balance of equities tips in his favor, and that

an injunction is in the public interest.” Winter v. Nat. Res.

Def. Council, Inc.,

(2008). The likelihood of

success on the merits and irreparable harm are the factors that

weigh most heavily in the analysis. See Esso Std. Oil Co. v.

Monroig–Zayas,

(1st Cir. 2006); see also Voice

17 of the Arab World, Inc. v. MDTV Med. News Now, Inc.,

(1st Cir. 2011). The Prison Litigation Reform Act

further requires that any preliminary injunction imposed in this

case be both narrowly drawn and the least intrusive means

necessary to correct the harm. See

(a)(2).

The court may rule on a motion for a preliminary injunction

on the papers if it has before it “‘adequate documentary

evidence upon which to base an informed, albeit preliminary

conclusion,’” and the parties have been afforded “‘a fair

opportunity to present relevant facts and arguments to the

court, and to counter the opponent’s submissions.’” Campbell

Soup Co. v. Giles,

(1st Cir. 1995)

(citations omitted). The parties have had such an opportunity

here.

Only one of Haverstick’s claims survives this Order:

Haverstick’s claim of an equal protection violation based on the

asserted impact of the length of his sentence on his eligibility

for dentures. Haverstick has not shown any likelihood of

success on the merits of the remaining claims, including all of

his Eighth Amendment claims and his remaining equal protection

claims. As to those claims, no preliminary injunction is

available.

Assuming without deciding, that Haverstick could be deemed

to have shown a substantial likelihood of success on the merits

18 of the one surviving equal protection claim, Haverstick has not

demonstrated that he needs dentures to avoid irreparable harm.

Haverstick has not shown he has a medical need for dentures; he

has not suffered any nutritional deficits while in prison

without dentures; and he lived in the community for years

without dentures prior to his incarceration. Accordingly,

Haverstick’s request for a preliminary injunction is denied.

III. Discovery Motion (Doc. No. 24)

Plaintiff’s discovery motion (doc. no. 24) seeks a subpoena

to compel the DOC to produce to him the dental records for all

inmates with few or no teeth who have received complete upper or

lower dentures from the DOC within the last twenty months. The

motion (doc. no. 24) also seeks an order compelling defendants

to produce vender receipts for equipment used within the last

ten years to make dentures, including the “teeth” used to do so.

On February 19, 2016, see Order (doc. no. 25), the court

directed the parties to confer in an attempt to narrow the

issues before the court relating to that motion, to file a

proposed protective order relating to third party dental records

the parties may obtain and/or use in this lawsuit, and to file a

statement indicating whether they have resolved or narrowed the

issues before the court, with respect to dental records and

vender receipts. The parties have not filed any response to

19 that Order. The parties are directed to file their responses by

March 25, 2016.

Conclusion

For the foregoing reasons, the court orders, as follows:

1. Defendants’ motion for summary judgment (doc. no. 9)

is granted in part, as to all of Haverstick’s Eighth Amendment

claims, and as to Haverstick’s equal protection claims asserting

discrimination based on his nutrition status and his pre-

existing condition of having no teeth. The court denies the

summary judgment motion,

to the extent that the court

declines to issue a judgment as a matter of law for defendants

on Haverstick’s claim that denying him dentures based on the

length of his sentence violated his right to equal protection.

2. Plaintiff’s request for a preliminary injunction, as

set forth in the Complaint, is denied.

3. The parties are directed to file their responses to

the February 19, 2016, Order (doc. no. 25), by March 25, 2016.

I have resolved defendants’ motion for summary judgment and

plaintiff’s motion for preliminary injunction by applying the

constitution’s standards for minimally acceptable conduct. My

order should not be read as an endorsement of the defendants’

decision to refuse plaintiff’s request for dentures. As this

litigation progresses, the defendants would be wise to reassess

20 their decision in light of the costs associated with continued

litigation and the potential benefit to the plaintiff of

providing him the relief he seeks.

SO ORDERED.

/s/Paul Barbadoro Paul Barbadoro United States District Judge

March 10, 2016

cc: Davian L. Haverstick, Pro Se Francis Charles Fredericks, Esq. Kenneth A. Sansone, Esq.

21