Gray v. Perkins et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Jeffrey M. Gray
v. 	Case No. 18-cv-874-JL
John E. Perkins et al.1
REPORT AND RECOMMENDATION
Plaintiff, Jeffrey Gray, has filed this action claiming
that the defendants have violated his rights under federal and
state law. 	Gray’s complaint (Doc. No. 1) and complaint
1Plaintiff names the following defendants in the caption of
his complaint: John E. Perkins, New Hampshire State Prison
(“NHSP”) Librarian; William L. Wrenn, former New Hampshire
Department of Corrections (“DOC”) Commissioner; Helen E. Hanks,
DOC Commissioner and former DOC Medical and Forensic Services
(“MFS”) Director; Christopher Kench, DOC Director of Training
and Safety; Paula Mattis, MFS Director; Richard Gerry, former
NHSP Warden; Michelle Edmark, NHSP Warden and former Northern
New Hampshire Correctional Facility (“NCF”) Warden; Ransey Hill,
former MFS Deputy Director; Dr. Jeffrey Fetter, DOC Chief
Medical Officer; Ryan Landry, NHSP Nurse Coordinator; Lisa
Savage, Corina Neculai, and Diane Desmarias, NHSP nurse
practitioners; Cynthia Chapman and Olivia Gamelin, NHSP nurses;
Bernadette Campbell, former NHSP physical therapist; Dr. Paul
Levy, D.D., former DOC oral surgeon; Dr. Ingjerd Bergstedt,
D.D., Dr. Edward Dransite, D.D.S., and Dr. Anthony DiSalvo,
D.D.S., DOC dentists; Larry Denecourt, former NHSP dental
hygienist; Alexis White, DOC dental assistant; NHSP Corrections
Officers (“COs”) Benjamyn R. Carver, Michael E. Dube, and
Nicholas J. Leto; NHSP Capt. Scott J. Marshall; NCF Sgt. Joey L.
Pellitier; NCF Cpl. Thomas F. Macholl; and NCF CO Kathleen M.
Duschene. 	In the narrative of his complaint, Gray also
identifies the following defendants: COs Roy Tripp, Brian A.
Marion, Michael J. Eaton, and Frank H. Logan III; Judy Baker,
nurse practitioner; Dr. Celia Englander; and Dr. David Anzel,
D.M.D. 	In his complaint supplement (Doc. No. 3), Gray names the
DOC as a defendant.
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supplement (Doc. No. 3) are before the court for preliminary
review, pursuant to 28 U.S.C. § 1915A(a) and LR 4.3(d)(1).
Preliminary Review Standard
The court conducts a preliminary review of prisoner
complaints filed by inmates seeking relief from government
agents. 	See LR 4.3(d)(1); see also 28 U.S.C. § 1915A(a). 	In
considering whether the complaint states a claim, the court
determines whether, stripped of legal conclusions, and with all
reasonable inferences construed in plaintiff’s favor, the
complaint contains “sufficient factual matter, accepted as true,
to ‘state a claim to relief.’” 	Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (citation omitted). 	Claims may be dismissed, sua
sponte, if the court lacks jurisdiction, a defendant is immune
from the relief sought, or the complaint fails to state a claim
upon which relief may be granted. 	See 28 U.S.C. § 1915A(b); LR
4.3(d)(1)(A).
Background and Claims
Gray is a New Hampshire Department of Corrections (“DOC”)
inmate presently housed at the New Hampshire State Prison
(“NHSP”). 	Gray has asserted multiple claims arising from
various events that took place between 2012 and 2018 while Gray
was incarcerated at either the NHSP or the Northern New
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Hampshire Correctional Facility (“NCF”). 	Seeking damages, Gray
asserts his claims against a number of prison officials and DOC
medical and dental care providers, alleging violations of his
rights under federal and state law and prison policy, in that:
• 	Gray lost his prison job and was banned from the
prison law library, in retaliation for filing
grievances and a lawsuit against prison officials;
• 	Gray was denied adequate medical care and treatment
for serious medical conditions, including: sleep
apnea, chronic lower back pain, hearing loss,
tinnitus, and severe abdominal pain and cramps;
• 	Gray’s religious property was seized and retained by
corrections officers;
• 	Gray was denied adequate dental care and treatment for
his serious dental problems;
• 	Gray was denied access to the courts when his legal
property was confiscated, preventing his timely filing
of a brief in the New Hampshire Supreme Court, and
resulting in the dismissal of his appeal due to the
untimely filing of his brief;
• 	Gray was subjected to excessive force on December 21,
2017 and July 5, 2018;
• 	Gray’s right to privacy in his medical information was
violated when a corrections officer was present during
Gray’s appointment with a prison physician at which
personal and sensitive matters were addressed;
• 	A corrections officer seized and retained a catalog of
approved magazines from Gray;
• 	Gray, a medium custody inmate housed in the Secure
Psychiatric Unit at the NHSP was denied the right to
attend religious services and classes at the prison
chapel, and to have access to religious materials and
texts, while other medium custody inmates housed in
general population were permitted those things;
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• 	Prison officials violated several DOC Policy and
Procedure Directives (“PPDs”) in a manner that
adversely affected Gray; and
• 	Prison officials denied Gray’s administrative
grievances concerning the incidents underlying Gray’s
allegations in this action.
Discussion
I. 	Inadequate Dental Care
A. 	Claims
Gray alleges that he was denied adequate dental care on a
number of occasions between September 2012 and December 2019.
He seeks relief under 42 U.S.C. § 1983 on the following claims,
asserting violations of his federal constitutional right to
dental care while incarcerated and PPD 6.28:
1. 	Dr. Edward Dransite, D.D.S., denied Gray treatment and
antibiotic medication, from September 21, 2012 through
September 28, 2012, for: resorptive2 teeth with cavities,
gingivitis, a decayed upper front tooth (#8), a visible
infection/abscess in the gum related to the decay in tooth
#8, and severe pain;
2. 	Dr. Edward Dransite, D.D.S., denied Gray treatment and
antibiotic medication on January 10, 2014 for remnant root
fragments of an upper front tooth (#8), a visible
infection/abscess in the gum related to previous decay in
tooth #8, and resorptive teeth with cavities;
2“Resorption” is the “loss of substance by physiologic or
pathologic means, such as loss of dentin and cementum of a
tooth, . . ..” 	Dorland’s Illustrated Medical Dictionary 1098
(32d ed. 2012).
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3. 	On September 21, 2012, NHSP Dental Hygienist Larry
Denecourt denied Gray prophylactic care for gingivitis;
4. 	NHSP Dental Assistant Alexis White denied Gray care
and treatment for gingivitis, a decayed upper front tooth
(#8), a visible infection/abscess in the gum related to the
decay in tooth #8, and severe pain, by failing to schedule
dental appointments in September 2012, January 2015, and
July 2015;
5. 	NHSP Nurse Olivia Gamelin and NHSP Dental Assistant
Alexis White denied Gray care and treatment for a broken
tooth (#19), and resulting severe pain, between June 24,
2016 and July 7, 2016, by failing to obtain appropriate
dental care for Gray to treat those conditions;
6. 	Dr. David Anzel, D.M.D., during a routine dental sick
call on February 20, 2017, denied Gray care and treatment
for a broken tooth (#19), and resulting severe pain, by
failing to arrange for prompt extraction of the tooth;
7. 	Dr. Ingjerd Bergstedt, D.D., denied Gray care and
treatment for a broken tooth (#19) on October 23, 2017;
8. 	Dr. Paul Levy, D.D., denied Gray care and treatment
for a broken tooth (#19) on and after November 16, 2017;
and
9. 	DOC officials Ransey Hill, Paula Mattis, Christopher
Kench, Bernadette Campbell, and Helen Hanks denied Gray
adequate dental care and treatment for Gray’s serious
dental conditions, by denying his administrative grievances
complaining of allegedly inadequate dental care.
B. 	Violation of PPD 6.28
Gray asserts that the defendants have violated his rights
by failing to follow PPD 6.28, a DOC policy concerning the
provision of dental care to prisoners. 	“An assertion that
prison officials failed to follow prison rules or policies does
not set forth a constitutional claim.” 	McFaul v. Valenzuela,
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684 F.3d 564, 579 (5th Cir. 2012); see also Querido v. Wall,
C.A. No. 10–098 ML, 2010 U.S. Dist. LEXIS 139201, at *14, 2010
WL 5558915, at *3 (Dec. 8, 2010), R&R adopted, 2011 U.S. Dist.
LEXIS 1882, 2011 WL 63503 (D.R.I. Jan. 7, 2011). 	Further, the
DOC policies governing the conduct of prison officials do not
provide Gray with a private right of action for prison
officials’ violations of those policies. 	Accordingly, Gray
cannot state a claim for relief for the defendants’ violation of
prison policies, and the district judge should dismiss Gray’s
claims alleging that defendants violated PPD 6.28, with regard
to Gray’s dental care.
C. 	Eighth Amendment Claims
1. 	Official Capacity Claims
Gray asserts his Eighth Amendment claims against the DOC
officials and dental care providers in their individual and
official capacities. 	“Absent an explicit waiver from the state,
the Eleventh Amendment bars official capacity suits against
state actors in federal court unless the suit seeks prospective
injunctive relief.” 	Caisse v. DuBois, 346 F.3d 213, 218 (1st
Cir. 2003). 	Gray does not seek prospective injunctive relief,
and nothing suggests that New Hampshire has waived its immunity
for purposes of Gray’s § 1983 claims. 	Accordingly, the district
judge should dismiss Gray’s Eighth Amendment claims against the
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defendants to the extent they are sued in their official
capacities. 	See 28 U.S.C. § 1915(e)(2).
2. 	Individual Capacity Claims
a. 	Claims against Dental Care Providers
The court finds that Gray has stated sufficient facts to
allow the claims identified in this R&R as Claims 1-8 to go
forward against the defendants identified in those claims in
their individual capacities. 	Accordingly, in an Order issued
simultaneously with this R&R, the court directs service of
Claims 1-8 on the defendants identified therein.
b. 	Claims against Prison Administrators
In Claim 9, Gray alleges that DOC officials Hill, Mattis,
Kench, Campbell, and Hanks violated his Eighth Amendment right
to adequate dental by denying Gray’s grievances about his dental
issues.
A claimed constitutional violation must be based upon
active unconstitutional behavior. 	The acts of one’s
subordinates are not enough[;] nor can supervisory
liability be based upon the mere failure to act. 	For
the same reason that a supervisory relationship is
insufficient to establish liability for the misconduct
of a subordinate, denying a grievance or failing to
act based on information contained in a grievance is
insufficient to establish § 1983 liability.
Moore v. Mich. Dep’t of Corr., No. 1:17-cv-615, 2017 WL 3431602,
at *7, 2017 U.S. Dist. LEXIS 126885, at *17 (W.D. Mich. Aug. 10,
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2017), aff’d, No. 17-6107, 2018 U.S. App. LEXIS 25325 (6th Cir.
Sept. 5, 2018); see also Carter v. Englander, No. 17-cv-52-LM,
2018 U.S. Dist. LEXIS 211168, at *20, 2018 WL 6593934, at *7
(D.N.H. Aug. 22, 2018) (denial of grievance is not a
constitutional violation (citing cases)), R&R approved, No. 17-
cv-52-LM, 2018 WL 6591227 (D.N.H. Dec. 11, 2018).
In Claim 9, Gray alleges that Hill, Mattis, Kench,
Campbell, and Hanks denied grievances he filed about his dental
care. 	Gray does not allege that any of those individuals had
any role in the allegedly inadequate dental care underlying
those grievances. 	As Gray cannot allege a constitutional claim
against those defendants solely on the basis that they denied
his grievances, and the district judge should dismiss Claim 9
from this action.
II. 	Claims Unrelated to Dental Care
Rule 18(a) of the Federal Rules of Civil Procedure states
that: “[a] party asserting a claim . . . may join, as
independent or alternative claims, as many claims as it has
against an opposing party.” 	Rule 20(a)(2) states, however, that
defendants may be joined in one action only if the claims in the
action are asserted against them “jointly, severally, or in the
alternative with respect to or arising out of the same
transaction, occurrence, or series of transactions or
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occurrences,” and the claims involve one or more common
questions of law or fact. 	Fed. R. Civ. P. 20(a)(2).
Accordingly, different defendants may not be joined in one
action where the claims asserted against the defendants are
unrelated. 	See Roy v. Wrenn, No. 12-CV-303-JD, 2013 DNH 113,
2013 WL 4541389, at *2, 2013 U.S. Dist. LEXIS 121740, at *7
(D.N.H. Aug. 27, 2013).
In the context of prisoner litigation,
[u]nrelated claims against different defendants belong
in different suits, not only to prevent the sort of
morass that [a multiclaim multidefendant] suit
produce[s] but also to ensure that prisoners pay the
required filing fees—for the Prison Litigation Reform
Act limits to 3 the number of frivolous suits or
appeals that any prisoner may file without prepayment
of the required fees.
George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007) (citing 28
U.S.C. § 1915(g)).
Here, Gray’s claims identified as Claims 1-8 are asserted
against multiple dental providers. 	As set forth in the
complaint, those claims are arguably based on a series of
related transactions and involve overlapping questions of law
and fact. 	Accordingly, Claims 1-8, asserted against the dental
providers named in those claims, are appropriately joined in
this action.
All of the remaining claims in Gray’s complaint documents,
however, which are summarized in an unnumbered list above, are
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wholly unrelated to Claims 1-8 and are asserted against
defendants not named in Claims 1-8. 	Nothing in the filings
before the court, therefore, provides any basis for joining
those claims in this action.
Where, as here, parties (and the claims asserted against
them) are misjoined in a suit, the court may, sua sponte: (1)
drop a party (and the claims asserted against that party) from
the suit; or (2) sever the unrelated claims from those going
forward. 	See Fed. R. Civ. P. 21; Visendi v. Bank of Am., N.A.,
733 F.3d 863, 871 (9th Cir. 2013); DirecTV, Inc. v. Leto, 467
F.3d 842, 846-47 & n.4 (3d Cir. 2006). 	Rule 21 permits the
court to dismiss parties from an action if the dismissals “do
not cause ‘gratuitous harm to the parties.’” 	Strandlund v.
Hawley, 532 F.3d 741, 745 (8th Cir. 2008) (citations omitted).
Nothing in the filings before the court suggest that the
dismissal of the claims in this action other than Claims 1-8,
without prejudice, will cause any party harm. 	Therefore, the
district judge should dismiss from this case all of the claims
Gray has asserted, other than Claims 1-8, and all of the
defendants Gray named in his complaint other than those
identified in Claims 1-8.
Conclusion
For the reasons stated herein, the district judge should:
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1. 	Dismiss Gray’s claims alleging that the
defendants’ failure to provide gray with adequate dental
care violated prison policy;
2. 	Dismiss all of the claims asserted against the
defendants to Claims 1-8 in their official capacities;
3. 	Dismiss the claim identified herein as Claim 9;
and
4. 	Dismiss all of the remaining claims asserted in
Gray’s complaint documents, other than the Eighth Amendment
claims asserted in Claims 1-8, without prejudice to Gray’s
ability to assert those claims in separate actions.
5. 	Drop all of the defendants named by Gray other
than those upon whom the Complaint is served in the Order
issued this date, including, specifically the DOC and all
of the following individuals in both their individual and
official capacities: 	John E. Perkins; William L. Wrenn;
Helen E. Hanks; Christopher Kench; Paula Mattis; Richard
Gerry; Michelle Edmark; Ransey Hill; Dr. Jeffrey Fetter;
Ryan Landry; Lisa Savage, Corina Neculai, and Diane
Desmarias; Cynthia Chapman; Bernadette Campbell; Dr.
Anthony DiSalvo; Benjamyn R. Carver, Michael E. Dube, and
Nicholas J. Leto; Scott J. Marshall; Joey L. Pellitier;
Thomas F. Macholl; Kathleen M. Duschene; Roy Tripp, Brian
A. Marion, Michael J. Eaton, and Frank H. Logan III; Judy
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Baker; and Dr. Celia Englander.
Any objections to this Report and Recommendation must be
filed within fourteen days of receipt of this notice. 	See Fed.
R. Civ. P. 72(b)(2). 	The fourteen-day period may be extended
upon motion. 	Failure to file specific written objections to the
Report and Recommendation within the specified time waives the
right to appeal the district court’s order. 	See Santos-Santos
v. Torres-Centeno, 842 F.3d 163, 168 (1st Cir. 2016); Fed. R.
Civ. P. 72(b)(2).
__________________________
Andrea K. Johnstone
United States Magistrate Judge
January 2, 2020
cc: 	Jeffrey M. Gray, pro se
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