Haverstick v. NH State Prison, Warden

Filing 4

ORDER Directing Clerk to Make Service as provided in the Agreement on Acceptance of Service. Defendants to serve plaintiff complete copy of NHSP medical/dental records as outlined by 5/15/15. Defendants response to request for preliminary injunctive relief as set forth in complaint by 5/15/15; plaintiff can reply by 6/15/15. So Ordered by Magistrate Judge Andrea K. Johnstone.(dae)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE

Davian L. Haverstick
v.

Civil No. 15-cv-94-JD

New Hampshire State Prison
Warden Richard Gerry et al.1
O R D E R
Davian L. Haverstick, a New Hampshire State Prison (“NHSP”)
inmate, seeks damages and injunctive relief under 42 U.S.C.
§ 1983, claiming that New Hampshire Department of Corrections
(“NH DOC”) officials and medical/dental providers have been
deliberately indifferent to his serious medical needs, and have
violated his equal protection rights.
preliminary review.

The complaint is here for

See 28 U.S.C. § 1915A; LR 4.3(d)(1).

Haverstick has also requested a preliminary injunction in the
narrative of the complaint.
Preliminary Review Standard
The court conducts a preliminary review of inmate
complaints seeking relief from governmental entities, see 28
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Plaintiff has named Warden Richard Gerry in the caption of
his complaint. Construed liberally, the complaint narrative
indicates an intent to name as additional defendants former New
Hampshire State Prison (“NHSP”) Health Services Director Helen
Hanks, New Hampshire Department of Corrections Commissioner
William Wrenn, and Christopher Kench.

U.S.C. § 1915A, and complaints filed by plaintiffs proceeding in
forma pauperis, see 28 U.S.C. § 1915(e)(2), to determine whether
the action states a claim.

In making that determination, the

court construes the complaint liberally.
Pardus, 551 U.S. 89, 94 (2007).

See Erickson v.

Disregarding any legal

conclusions, the court considers whether the factual content in
the complaint and inferences reasonably drawn therefrom, taken
as true, state a claim upon which relief might be granted.
Hernandez-Cuevas v. Taylor, 723 F.3d 91, 102-03 (1st Cir. 2013)
(citing Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).
Identification of Claims
The complaint asserts the following claims for damages and
injunctive relief against the defendants in their official and
individual capacities:
1.
Former NHSP Health Services Director Helen Hanks,
and unspecified NHSP dental providers under her
supervision, with deliberate indifference to a serious
medical need, have denied Haverstick dentures and/or other
medically necessary care relating to Haverstick’s lack of
teeth and problems eating and digesting food, in violation
of Haverstick’s Eighth Amendment right to adequate
medical/dental care at the NHSP.
2.
Defendants Helen Hanks, NHSP Warden Richard
Gerry, NH DOC Commissioner William Wrenn, and Christopher
Kench, with deliberate indifference to a serious medical
need: (a) have denied Haverstick’s grievances seeking
medically necessary treatment and/or dentures relating to
his lack of teeth and digestive problems; and (b) are

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responsible for promulgating and enforcing an NHSP policy
that denies Haverstick medically necessary dental care in
violation of Haverstick’s Eighth Amendment right to
adequate medical/dental care.
3.
Defendants Hanks, Gerry, Wrenn, and Kench have
violated Haverstick’s Fourteenth Amendment right to equal
protection by promulgating and enforcing a policy that
denies Haverstick necessary dental care and/or dentures,
because his sentence does not exceed five years, his dental
problems pre-existed his incarceration, and he has not
exhibited a nutritional deficiency, while such care is
routinely provided to otherwise similarly-situated inmates
whose sentences exceed five years and whose dental problems
did not pre-exist their incarceration.
The complaint states one or more cognizable claims for
relief.

The court, therefore, directs service of the complaint

upon defendant Helen Hanks, in her individual capacity, and upon
defendants Richard Gerry, William Wrenn, and Christopher Kench,
in their individual and official capacities, relating to the
claims identified above.
To effect service upon defendants, the clerk’s office shall
serve the New Hampshire Office of the Attorney General (“AG”),
as provided in the Agreement on Acceptance of Service,
electronic copies of this Order and the Complaint (doc. no. 1).
Within thirty days from receipt of these materials, the AG will
submit an Acceptance of Service notice to the court specifying
whether each defendant has authorized the AG to receive service
on his or her behalf.

When the AG files the Acceptance of

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Service, service will be deemed made on the last day of the
thirty-day period for any defendant with AG representation.

If

any defendant does not authorize the AG to receive service or
the AG declines to represent any defendant, the AG shall, within
thirty days from receipt of the above-listed documents, provide
to the court the last known address of those defendants.

In

that event, the clerk’s office is instructed to complete and
issue a summons for each of those defendants, using the last
known address provided, and forward the summonses, along with
the above-listed documents, to the United States Marshal for the
District of New Hampshire, to complete service on those
defendants in accordance with this order and Fed. R. Civ. P.
4(c)(3) and 4(e).

Plaintiff is instructed that all future

pleadings, written motions, notices, or similar papers shall be
served directly on defendants by delivering or mailing the
materials to defendants or their attorney(s), pursuant to Fed.
R. Civ. P. 5(b).
The court grants defendants leave to respond to plaintiff’s
request for a preliminary injunction, set forth in the
complaint, on or before May 15, 2015.

Defendants may attach to

their response to the request for a preliminary injunction, as
appropriate, affidavits concerning plaintiff’s medical/dental

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condition and course of treatment, relevant parts of NH DOC
Policy and Procedure Directives, or other relevant NH DOC rules,
and pertinent parts of plaintiff’s medical/dental records,
relating to the matters asserted in the complaint and the claims
identified in this Order.

Additionally, the court directs

defendants to serve Haverstick with a copy of all of his NHSP
records of medical/dental care relating to the matters alleged
in the complaint and the claims identified in this Order, no
later than May 15, 2015.
Plaintiff is granted leave to file a reply to defendants’
response to his request for a preliminary injunction, on or
before June 15, 2015, attaching, as appropriate, affidavits,
medical records, or other documentary exhibits.

Upon receipt of

the parties’ filings, or the expiration of the time granted for
such filings, this court will determine whether further
proceedings relating to plaintiff’s request for a preliminary
injunction are warranted.
Conclusion
1.

The complaint and this Order shall be served upon

defendants Helen Hanks, Richard Gerry, Christopher Kench, and
William Wrenn, in accordance with this Order, and the Clerk’s
office shall update the docket to name each defendant.

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Defendants are instructed to answer or otherwise plead within
twenty-one days of service.
2.

Defendants are directed to serve upon plaintiff a

complete copy of his NHSP medical/dental records, relating to
the matters asserted in the complaint and the claims identified
in this Order, on or before May 15, 2015.
3.

Defendants are granted leave to file a response to the

request for preliminary injunctive relief set forth in the
complaint, on or before May 15, 2015.

Plaintiff is granted

leave to file a reply to defendants’ response by June 15, 2015.
SO ORDERED.

__________________________
Andrea Johnstone
United States Magistrate Judge
March 30, 2015
cc:

Davian L. Haverstick, pro se

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