Haverstick v. NH State Prison, Warden

Filing 27

///ORDER granting in part and denying in part 9 Motion for Summary Judgment. So Ordered by Judge Paul J. Barbadoro.(js)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Davian L. Haverstick
v.

Civil No. 15-cv-094-PB
Opinion No. 2016 DNH 050

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
42 U.S.C. § 1983 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.
May 6, 2015, ¶ 2 (doc. no. 9-2).

Dransite Decl.,

All incoming NHSP inmates

undergo a dental intake examination.

Id.

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.”
Chart (doc. no 9-3).

DOC Dental

The dental chart noted that Haverstick’s
2

teeth had been missing since 2011, and that he expressed a
desire for dentures.

Id.

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.”
no. 9-7).

PPD 6.28 ¶ IV(A)(5) (doc.

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.”

Id. 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.”

Id. at ¶ IV(E).

Haverstick was told during his dental intake examination
that inmates are not eligible for dentures unless it is
3

medically necessary.
9-2).

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

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.”

Id.

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.”
2014 (doc. no. 9-10).

Grievance Form, Nov. 15,

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.”

Id.

She

also noted that the dietician might offer an altered diet to
assist Haverstick with chewing.

Id.

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,
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but he showed no signs of malnutrition.
(doc. no. 9-13).

Popovich Decl. ¶ 3

During the assessment, Haverstick reported

that he had difficulty chewing and had lacked teeth for about
ten years, but was able to eat “OK.”
Assess. (doc. no. 9-15).

Id. ¶¶ 3, 5; DOC Nutr.

Haverstick denied problems “with

swallowing, constipation, diarrhea, nausea, vomiting, or
appetite.”

Popovich Decl. ¶ 5 (doc. no. 9-13).

rejected being placed on a “chopped”2 diet.

Id.

Haverstick also
Popovich

concluded that Haverstick was an “obese male in no acute
distress” and displayed no signs of malnutrition.
Assess, (doc. no. 9-15).

As part of the assessment, Popovich

reviewed Haverstick’s NHSP food purchases.
(doc. no. 9-13).

DOC Nutr.

Popovich Decl. ¶ 6

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.”
Decl. ¶ 6 (doc. no. 9-13).

Popovich

Therefore, Popovich concluded, and

reported to Dr. Dransite, Haverstick had “no medical need for
dentures or any other dental prosthesis.”

2At

Id. ¶ 7.

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. 913).
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.
6, 2015, ¶ 5 (doc. no. 9-2).

Dransite Decl., May

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.”
Dec. 17, 2014 (doc. no. 9-11).

Grievance Form,

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).

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

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.
3, 2016, Order (doc. no. 22).

See Feb.

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
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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 preexisting 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., 785 F.3d 65, 68
(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., 707 F.3d 7, 16 (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.
604, 608 (1st Cir. 2012).

Kenney v. Floyd, 700 F.3d

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
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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).
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, 429 U.S. 97, 106 (1976) (“Medical malpractice
does not become a constitutional violation merely because the
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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,

774 F.3d at 83 (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.
(doc. no. 9-2).

Dransite Decl., May 6, 2015, ¶¶ 3-5

Medical records show that Haverstick’s oral

hygiene was “good” during his dental intake examination.
Dental Chart (doc. no. 9-3).

DOC

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.
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Dransite ordered a nutritional assessment.
6, 2015, ¶ 4 (doc. no. 9-2).

Dransite Decl., May

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, 2012 DNH 95, 2012 U.S.
Dist. LEXIS 76176 at *6, 2012 WL 1986518 at *2 (D.N.H. June 1,
2012) (citing Ruiz–Rosa v. Rullan, 485 F.3d 150, 156 (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.”
§ 1.

U.S. Const. amend. XIV,

“The Equal Protection Clause contemplates that similarly

situated persons are to receive substantially similar treatment
from their government.”

Davis v. Coakley, 802 F.3d 128, 132

(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].’”

Id. at 132-33 (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., 429 U.S. 252, 265 (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, 528 U.S. 562, 565

(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 28 U.S.C. § 1746(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, 645 F.3d 45, 49 (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
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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.
Defendants object.

See Compl. (doc. no. 1), at 3.

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.”
Def. Council, Inc., 555 U.S. 7, 20 (2008).

Winter v. Nat. Res.
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, 445 F.3d 13, 18 (1st Cir. 2006); see also Voice
17

of the Arab World, Inc. v. MDTV Med. News Now, Inc., 645 F.3d
26, 32 (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 18 U.S.C. § 3626(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, 47 F.3d 467, 470-71 (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 preexisting condition of having no teeth.

The court denies the

summary judgment motion, id., 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.

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