Fowler v. NH State Prison, Warden

Filing 26

///ORDER granting in part 13 Motion to Dismiss for Failure to State a Claim. The court grants defendants' motion for summary judgment, in part, as to the claims numbered as Claims 1, 2, 3, and 4 in this Order, and as to all claims asserted against defendant Michael Zenk. The court dismisses Claim 5 without prejudice, as the court declines to exercise supplemental jurisdiction over that claim. So Ordered by Chief Judge Landya B. McCafferty.(gla)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE

Herbert A. Fowler
v.

Civil No. 18-cv-244-LM
Opinion No. 2019 DNH 041

Michael Zenk, N.H. State Prison Warden,
and Stephen O’Rourke, N.H. Department
of Corrections Hearing Officer

O R D E R
Before the court is defendants’ motion for summary judgment
(doc. no. 13).

The pro se plaintiff, Herbert A. Fowler, has not

responded to the motion.1

1The

court issued a notice to Fowler explaining the nature
of summary judgment and the manner in which he was required to
respond to the defendants’ summary judgment motion. See Doc.
No. 21. Plaintiff has not filed any document in this case since
he appeared at a hearing on his motion to appoint counsel on
August 29, 2018. That motion was denied without prejudice. See
Aug. 30, 2018 Order (Doc. No. 22). Consistent with the
permission provided by Fowler in the August 29, 2018 hearing,
see id., the court solicited from defendants’ counsel, in
December 2018, a notice regarding whether plaintiff’s health
could have been a cause of his failure to respond to the summary
judgment motion. Counsel’s notice states that Fowler’s treating
psychiatric nurse practitioner reported that his mental health
condition would not have impaired his ability to meet the
December 10, 2018 deadline for objecting to the motion for
summary judgment. See Doc. No. 23. A copy of that notice was
served on Fowler, but he did not respond.

Summary Judgment Standard
“Summary judgment is warranted if the record, construed in
the light most flattering to the nonmovant, ‘presents no genuine
issue as to any material fact and reflects the movant’s
entitlement to judgment as a matter of law.’”

Lawless v.

Steward Health Care Sys., LLC, 894 F.3d 9, 20-21 (1st Cir. 2018)
(citation omitted); see also Fed. R. Civ. P. 56(a)).

To obtain

summary judgment, “the moving party must affirmatively
demonstrate that there is no evidence in the record to support a
judgment for the nonmoving party.”
477 U.S. 317, 332 (1986).

Celotex Corp. v. Catrett,

Once the moving party makes the

required showing, “‘the burden shifts to the nonmoving party,
who must, with respect to each issue on which [it] would bear
the burden of proof at trial, demonstrate that a trier of fact
could reasonably resolve that issue in [its] favor.’”

Flovac,

Inc. v. Airvac, Inc., 817 F.3d 849, 853 (1st Cir. 2016)
(citations omitted).

“This demonstration must be accomplished

by reference to materials of evidentiary quality,” and that
evidence must be “‘significantly probative,’” and “more than
‘merely colorable.’”

Id. (citations omitted).

The nonmoving

party’s failure to make the requisite showing “entitles the
moving party to summary judgment.”

2

Id.

Background
I.

Undisputed Facts
Fowler suffers from a diagnosed, serious mental illness.

See Doc. Nos. 18, 19.

He has engaged in acts of cutting himself

while incarcerated at the New Hampshire State Prison (“NHSP”).
On December 19, 2013, Fowler sliced his arms and was
transported to the Catholic Medical Center Emergency Department
for treatment.

Prison officials charged Fowler with the

disciplinary offense of “self-injury” relating to that incident
(“2013 charge”).

Doc. No. 13-2, at 2.

The officer assigned to

investigate that charge noted that when interviewed, Fowler said
he was pleading “not guilty,” and that he was working with his
clinician to be classified as having a Serious and Persistent
Mental Illness (“SPMI”).

Id. at 3.

The investigating officer

further noted that Fowler was “not currently SPMI.”

Id.

If

Fowler had been classified as SPMI at that time, that
classification could have affected the processing of the
disciplinary charge and the penalty imposed.

See, e.g., N.H.

Department of Corrections (“DOC”) Policy and Procedure Directive
(“PPD”) 5.25(IV)(C)(3)(f).2

2Defendants

filed a version of PPD 5.25 that bears an
effective date of 08/01/14, see doc. no. 24-2. The court has
reviewed a superseded version of PPD 5.25, bearing an effective
date of 10/25/10, which appears to have been in effect as to the
2013 charge. The provisions relative to SPMI in the 10/25/10
3

version of PPD 5.25 are reproduced below, in pertinent part, and
are identical to the comparable provisions in Document No. 24-2:
C.

Reports of Instances of Punishable Conduct
. . . .
3.
Disciplinary reports filed by staff members in a
prison facility shall be processed in the following
manner:
. . . .
d.
The supervisor (Sergeant or above) assigned
to investigate the violation will determine if
the inmate is listed as having a Serious and
Persistent Mental Illness (SPMI) via “Alerts” in
CORIS [Corrections Information System].
e.
If the inmate is not listed as having a
SPMI, the investigation supervisor will proceed
to (g) below.
f.
If the inmate is listed as having a SPMI,
the supervisor will contact the designated mental
health professional (attachment 5) who will
review the incident within 72 hours and determine
if the actions that resulted in the disciplinary
report were proximate to the SPMI, or if the
actions were behavioral in nature. If it is
determined that the inmate’s actions were due to
the SPMI, the mental health professional will at
that time make recommendations as how to proceed
via the Mental Health Consultation to
Disciplinary Process form [Attachment 4]. If it
is determined that the inmate’s actions were
behavioral in nature, the investigation officer
will proceed as noted in (g) considering any
recommendations made by the mental health staff.
Once completed by the mental health staff, the
Mental Health Consultation to Disciplinary
Process form will be provided to the unit
supervisor and made a permanent attachment to the
disciplinary report.
4

The investigating officer recommended processing Fowler’s
disciplinary report on the 2013 charge as a “minor
disciplinary,” and further recommended a sanction including
“restitution for medical expenses imposed.”
2.

Doc. No. 13-2, at

A disciplinary hearing was scheduled for January 9, 2014.
Fowler pleaded guilty on the date of his hearing.

No. 13-1.

See Doc.

New Hampshire Department of Corrections (“DOC”)

Hearing Officer Lt. John Morin received Mr. Fowler’s guilty plea
and imposed the recommended sanction of “Medical Restitution.”
See id.; Doc. No. 13-2, at 3, 4, 5.
Twenty months later, on August 19, 2015, DOC Hearing
Officer Stephen R. O’Rourke issued a notice, copied to Fowler
and Inmate Accounts, informing Fowler that he owed $809.24 in
restitution for medical expenses relating to the 2013 Charge.
See Doc. No. 13-3.

DOC accountant Loretta Coulombe has averred

and substantiated that that amount corresponds with the “charges
incurred and amounts paid by the Department of Corrections,
after Medicaid discounts, for emergency services” relating to
the 2013 Charge.

Doc. No. 13-6; Doc. Nos. 13-7, 13-8, 13-9.

g.
The supervisor investigating the
disciplinary report will contact the inmate(s)
involved and will ask them to provide statements
relating to their version of the events. . . .
PPD 5.25(IV)(C)(3)(d)-(g) (eff. 10/25/10); Doc. No. 24-2.

5

On October 4, 2016, Fowler sliced his arms again,
necessitating an ambulance trip to the Concord Hospital
Emergency Department.

Prison officials charged Fowler with two

disciplinary offenses arising from that incident, including a
charge of self-injury (“2016 Charge”).

See Doc. No. 13-4.

The

investigating officer noted Fowler’s statement, “I’m guilty.”
Id., at 2.

The disciplinary report listed, as part of the

recommended penalty, “100% Medical Restitution -- All medical
treatment charges (transport, hospital treatment, medication
costs, etc.).”

Id.

On October 11, 2016, DOC Lt. Andrew Newcomb

accepted Fowler’s guilty plea to the disciplinary charges and
imposed the recommended sanctions.
13-1.

See id.; see also Doc. No.

Major Jon Fouts marked the disciplinary report bearing

the record of Fowler’s plea and sentence as “approved” on
October 12, 2016.

See Doc. No. 13-4, at 3.

On December 11,

2017, Officer O’Rourke issued a notice informing Fowler that he
owed $915.18 in restitution relating to the 2016 Charge.
Doc. No. 13-5.

See

Coulombe has affirmed and substantiated that

that amount is what was paid by the DOC, after Medicaid
discounts, for emergency services relating to the 2016 Charge.
See Doc. No. 13-6; Doc. Nos. 13-10, 13-11, 13-12.

6

II.

DOC Policy and State Law
At all relevant times,3 PPD 5.25 has identified “self-

injury” as a disciplinary infraction punishable by sanctions
including “restitution.”
2).

See PPD 5.25, Attach. 2 (Doc. No. 24-

PPD 5.25(IV)(F)(17) provides that if restitution is

required by the hearing officer as part of the sanction for a
disciplinary offense, the Inmate Accounts Office, upon notice,
will debit the amount from the inmate’s account.
24-2.

See Doc. No.

PPD 3.09(IV)(E) has provided at all relevant times that

if restitution is ordered for a disciplinary offense, inmate pay
will be diverted from deposit to the inmate’s trust account to
satisfy that obligation.

See PPD 3.09(IV)(E) (Doc. No. 24-3).

PPD 5.25, Attachment 2, states that “Inmates will not be charged
monetary damages, such as the replacement value of destroyed
property if the infraction is found to be a proximate result” of
an inmate’s SPMI.

Doc. No. 24-2.

At all times relevant to this case, state law has provided
that “[n]o inmate shall be subject to deductions from moneys
credited to the inmate’s account” for repayment of the costs of
treating self-inflicted injuries, “until the inmate has been

3The

pertinent provisions of and attachments to the
superseded PPD 5.25 (eff. 10/25/10), apparently in effect at the
time of the 2013 charge, are identical to the corresponding
provisions and attachments to Document No. 24-2, the 08/01/14
PPD, which appears to have been in effect in 2016.
7

afforded a due process hearing and has been found guilty.”
Rev. Stat. Ann. (“RSA”) § 622:31-a(VII).

N.H.

DOC policy allows

inmates to plead guilty to disciplinary charges at the
investigation phase, before a hearing, by signing the
disciplinary report form, waiving the right to a hearing,
waiving the right to an administrative appeal, and accepting the
offered punishment.

See PPD 5.25(IV)(C)(3)(h) (Doc. No. 24-2).

“All pleas shall be reviewed and approved by the facility’s
Chief of Security/designee.

The facility’s Chief of

Security/designee shall ensure that such pleas are given
voluntarily, knowingly, and intelligently.”

PPD

5.25(IV)(C)(3)(i) (Doc. No. 24-2).

III. Claims
Fowler has asserted the following claims in this lawsuit4:
1.
Fowler was deprived of his Fourteenth Amendment right
to procedural due process, in that:
a.
The hearing officer who accepted Fowler’s guilty
plea to the 2013 charge imposed medical restitution as
part of the punishment for a disciplinary conviction
in January 2014, based on Fowler’s guilty plea and
waiver of the right to a hearing, which Fowler

4Upon

further review, in light of exhibits to Doc. No. 13
filed by defendants, see Doc. Nos. 13, 24, this court has
recharacterized (and renumbered) the claims asserted by Fowler,
pursuant to the its authority under 28 U.S.C. §§ 1915A and
1915(e)(2). The court deems the claims enumerated in this Order
to be the claims in Fowler’s Complaint at issue at this time.
8

executed while suffering from mental illness and
believing the amount of restitution to be zero;
b.
The hearing officer who accepted Fowler’s guilty
plea to the 2016 charge imposed medical restitution as
part of the punishment for a disciplinary conviction
in October 2016, based on Fowler’s guilty plea and
waiver of the right to a hearing, which Fowler
executed while suffering from mental illness and
believing the amount of restitution to be zero; and
c.
Hearing Officer Stephen O’Rourke, (i.) in August
2015 and (ii.) December 2017, provided notice of the
amounts to be debited from Fowler’s funds as medical
restitution, based on Fowler’s guilty pleas and
waivers which Fowler executed while suffering from
mental illness and believing the amount of restitution
to be zero.
2.
Fowler was deprived of his Fourteenth Amendment right
to substantive due process, in that:
a.
The hearing officer who accepted Fowler’s guilty
plea to the 2013 charge imposed medical restitution as
part of the punishment for a disciplinary conviction
of self-injury in January 2014, although Fowler’s
self-injury resulted from his severe mental illness;
b.
The hearing officer who accepted Fowler’s guilty
plea to the 2016 charge imposed medical restitution as
part of the punishment for a disciplinary conviction
of self-injury in October 2016, although Fowler’s
self-injury resulted from his severe mental illness;
and
c.
Hearing Officer Stephen O’Rourke in August 2015
and December 2017 issued a notice establishing the
amounts to be debited from Fowler’s funds for his
disciplinary convictions of self-injury, although
Fowler’s self-injury resulted from his severe mental
illness.
3.
The amount of restitution Fowler is required to pay
is arbitrary, in violation of Fowler’s Fourteenth
Amendment right to substantive due process, as the DOC did
not incur any unreimbursed expenses that the DOC was not
obligated to incur in treating Fowler’s injuries.
9

4.
The imposition of restitution as a penalty, (a.) in
January 2014 and (b.) in October 2016, violated Fowler’s
Eighth Amendment right not to be subjected to an excessive
fine.
5.
The imposition of restitution as a penalty, under the
circumstances, constituted the torts of (a.) abuse of
process and (b.) intentional infliction of emotional
distress, under state law.
See Apr. 27, 2018 Order (Doc. No. 4).

The court allowed claims

for damages to proceed against (former) NHSP Warden Michael Zenk
and Hearing Officer O’Rourke in their individual capacities and
allowed claims for injunctive relief to proceed as official
capacity claims.

See id.5

Discussion
I.

Claims against Zenk
Defendants move for summary judgment on Fowler’s claims

against defendant (former) NHSP Warden Zenk, arguing that Zenk
took no action as to the guilty pleas and restitution at issue.
Defendants have filed exhibits showing that Lts. John Morin and

5In

the instant motion (doc. no. 13), defendants identified
the officers who accepted the pleas and imposed sentences upon
Fowler as Lts. Andrew Newcomb and John Morin. This court in the
August 29, 2018 hearing in this case inquired whether counsel
from the New Hampshire Attorney General’s Office would object to
adding those officers to the list of defendants. Counsel did
not object. This court then issued an Order explicitly taking
under advisement the issue of whether to add those defendants,
pending receipt of a motion seeking such relief. See Aug. 30,
2018 Order, at 1 n.1 (Doc. No. 20).
10

Andrew Newcomb accepted the pleas and imposed the sentences, and
that Hearing Officer Stephen O’Rourke provided Fowler with
notices of the amount of restitution to be debited from his
inmate pay.

While PPD 5.25(IV)(F)(20) states that all

“disciplinary hearings” will be “reviewed by the Warden/designee
to assure conformity with policy and procedures,” see doc. no.
24-2, it is undisputed that Fowler’s disciplinary proceedings
were resolved without a hearing, and nothing before the court
otherwise suggests that Zenk in fact reviewed Fowler’s pleas and
restitution orders, or considered any appeal relating to those
matters.
To the extent plaintiff has joined Zenk based on a claim of
vicarious liability, the law is settled that respondeat superior
is unavailable in the context of claims asserted under 42 U.S.C.
§ 1983.

See Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009).

Plaintiff has not stated a claim against Zenk that can survive
summary judgment.

Accordingly, defendants’ motion (doc. no. 13)

is granted, to the extent the court enters judgment as a matter
of law in Zenk’s favor as to all of Fowler’s claims asserted
against him.

II.

Procedural Due Process Claims (Claims 1(a)-(c))
Fowler asserts in Claims 1(a)-(c) that his plea and waivers

executed in 2014 and 2016 were not knowing and intelligent, as
11

he executed those pleas while suffering from a serious mental
illness, and he believed he had health insurance that covered
all of his medical costs, negating the impact of any restitution
order.

For those reasons, he claims, the imposition of

restitution sanctions and subsequent debiting of his inmate
funds deprived him of property without due process.

A.

Protected Property Interest

The Fourteenth Amendment prohibits state deprivation of
property or liberty without due process of law.

Courts have

concluded that inmates have a protected property interest in
funds that may become subject to restitution orders in
disciplinary proceedings.

See generally Burns v. Pa. Dep’t of

Corr., 544 F.3d 279, 291 (3d Cir. 2008) (“Burns I”); see also
Burns v. Pa. Dep’t of Corr., 642 F.3d 163, 171 (3d Cir. 2011)
(“Burns II”) (plaintiff “was entitled to procedural due process
at his disciplinary hearing because assessment of his inmate
account for the costs of . . . medical expenses was a possible
consequence of conviction of the infractions he was charged
with”); Ryder v. Varano, No. 3:12-CV-614, 2013 U.S. Dist. LEXIS
133778, at *8 n.4, 2013 WL 5299173, at *3 n.4 (M.D. Pa. Sept.
18, 2013) (inmate has protected interest in funds he earned
which were docked because of alleged disciplinary infraction).
Cf. Young v. Wall, 642 F.3d 49, 53 (1st Cir. 2011) (“It is clear
12

beyond hope of contradiction that an inmate has a property
interest in the balances held in his accounts.”).

Furthermore,

state law provides that inmates must be afforded a “due process
hearing” and be found guilty before medical restitution for
repayment of the costs of self-inflicted injuries may be
ordered.

RSA § 622:31-a(VII).

Accordingly, the court concludes

that Fowler had a protected property interest in the funds that
were at stake in his disciplinary hearing.

B.

Due Process and Waivers in Disciplinary Hearings

The minimum due process requirements associated with prison
disciplinary hearings affecting protected interests are written
notice of the charges, the ability to call witnesses and present
documentary evidence (when doing so is consistent with
institutional safety and correctional concerns), a hearing
before an impartial decisionmaker, and a written statement as to
the evidence relied on and the reasons for the hearings
officer’s decision.

See Surprenant v. Rivas, 424 F.3d 5, 16

(1st Cir. 2005); see also Wolff v. McDonnell, 418 U.S. 539, 56466 (1974); Smith v. Mass. Dep’t of Corr., 936 F.2d 1390, 1401
(1st Cir. 1991); Campbell v. Miller, 787 F.2d 217, 224 n.12 (7th
Cir. 1986) (due process hearings that suffice under Wolff
satisfy Fourteenth Amendment due process requirements for “the
entry of . . . restitution and impoundment orders”).
13

In

addition, due process requires that the decision be supported by
“some evidence” in the record, although a court may not use that
requirement on review to second-guess the disciplinary board’s
“factual findings or decisions with respect to appropriate
punishment.”

Superintendent, Mass. Corr. Inst. v. Hill, 472

U.S. 445, 455-56 (1985).
Procedural due process protections triggered by the risk of
loss of a protected property interest may be waived.
v. Connecticut, 401 U.S. 371, 378–79 (1971).

See Boddie

The existence of a

“waiver of constitutional rights in any context must, at the
very least, be clear.”

Fuentes v. Shevin, 407 U.S. 67, 95

(1972) (emphasis in original).

Courts “‘do not presume

acquiescence in the loss of fundamental rights’” and “‘indulge
every reasonable presumption against waiver.’”
(citations omitted).

Id. at 94-95

In reviewing the validity of such a

waiver, courts consider the circumstances in which the waiver
was obtained.

See generally id.

Pleas and waivers of

procedural due process rights outside of the context of a
criminal prosecution need not be accompanied “by a formal
colloquy of the depth and intensity required under Federal Rule
of Criminal Procedure 11.”

United States v. Correa-Torres, 326

F.3d 18, 23 (1st Cir. 2003) (considering process required where
individual pleads guilty to violations of conditions of

14

probation or supervised release and waives procedures required
by Fed. R. Crim. P. 32.1).

C.

2013 and 2016 Charges – Guilty Pleas and Waivers

Fowler received notice of the charges against him in 2013
and 2016, see doc. nos. 13-2, 13-4, and notice that restitution
was ordered as a sanction because of his guilty pleas, doc. no.
13-2, at 4, 5; doc. no. 13-3; doc. no. 13-4, at 2; doc. no. 135.

No disciplinary hearing was held on either charge, however,

as Fowler pleaded guilty by signing the relevant disciplinary
reports directly beneath the statement: “I desire to plead
guilty to the charges.
right to appeal.
described above.”

I waive my right to a hearing and my

I admit to the facts and circumstances as
Doc. No. 13-4, at 2; Doc. No. 13-2, at 4.

The “facts and circumstances described” above Fowler’s signature
on both of the disciplinary reports include a description of the
charged conduct, its designation as a major or minor
disciplinary infraction, the report of the officer who
investigated the charge, and the recommended sanctions,
specifically, in relevant part, “restitution for medical
expenses imposed” as to the 2013 charge, and “100% medical
restitution – all medical treatment charges (transport, hospital
treatment, medication costs, etc.)” as to the 2016 charge.
Doc. No. 13-4; Doc. No. 13-2.

See

On its face, each of the guilty
15

pleas, each waiver of Fowler’s rights to a hearing, and each
statement of the recommended sanction of medical restitution is
unambiguous.

The restitution orders imposed upon him were

supported by “some evidence,” consisting of his pleas of guilt
and the corrections officers’ written descriptions of the
incidents, in conformity with the procedural requirements of the
Fourteenth Amendment set forth in Hill, 472 U.S. at 455-56.6

See

Straub v. Griffith, No. 1:19-CV-11-JAR, 2019 WL 873703, at *4,
2019 U.S. Dist. LEXIS 28047, at *9-*10 (E.D. Mo. Feb. 21, 2019)
(inmate ordered to pay $250 in restitution for property he
damaged while on suicide watch was not denied due process, where

6While

the First Circuit has not addressed the question, a
Ninth Circuit case, Bostic v. Carlson, 884 F.2d 1267 (9th Cir.
1989), overruled in part on other grds. by Nettles v. Grounds,
830 F.3d 922, 932 (9th Cir. 2016), and cases from other
jurisdictions citing Bostic, have held that hearing officers in
prison disciplinary proceedings are not “constitutionally
required to ascertain that [an inmate’s] guilty plea was
voluntary.” Id. at 1272; accord Rychwalski v. Clayton, No.
CIV.A. GLR-12-2259, 2013 WL 3009301, at *5, 2013 U.S. Dist.
LEXIS 83754, at *13 (D. Md. June 14, 2013) (“Unlike a judge in a
criminal trial, a hearing officer in a disciplinary proceeding
is not required to ascertain whether an inmate’s guilty plea is
voluntary.” (citing Bostic, 884 F.2d at 1272)), aff’d, 540 F.
App’x 201 (4th Cir. 2013) (per curiam); Hunter v. Tilton, No.
08-CV-01460JAMCHSP, 2010 WL 2089377, at *8, 2010 U.S. Dist.
LEXIS 50497, at *23 (E.D. Cal. May 20, 2010) (same). The court
in Bostic based its holding on precedent finding that the
colloquy required by Fed. R. Crim. P. 11 and the Due Process
Clause is not required in probation revocation proceedings, and
on cases finding that still less procedural protections are
extended to inmates in prison disciplinary proceedings. This
court notes that such precedent could provide the foundation for
a defense of qualified immunity to Claim 1.
16

he had been given chance to defend himself and chose instead to
plead guilty and waived a further hearing, and the corrections
officer’s written disciplinary report describing the incident
sufficed to constitute “some evidence” to support hearing
officer’s decision).
Fowler argues that each plea and waiver of rights was
invalid as he had a diagnosed mental illness.

Fowler, however,

does not provide this court with any information suggesting that
his mental illness had an impact on his ability to admit guilt
or waive a hearing freely and knowingly.

“Mere evidence of

diagnostic labels without content tying them to capacity to give
valid consent is inadequate to create an issue as to the
consequences of the disorders on an individual’s capacity to
give valid consent.”

Rivera-Flores v. Bristol-Myers Squibb

Caribbean, 112 F.3d 9, 13 (1st Cir. 1997).

Nothing before this

court suggests that there may be a triable issue as to whether
Fowler’s mental illness rendered his guilty pleas invalid.
Fowler also asserts in the Complaint that his guilty pleas
and waivers of rights were not valid to the extent they resulted
in medical restitution orders, as he did not know he would have
to pay any appreciable amount of restitution when he signed the
waivers and admitted his guilt.

Specifically, Fowler asserts

that he believed he had health insurance that would cover the
entire cost of care for his self-inflicted injuries.
17

Although neither the disciplinary report for the 2013
charge, nor the report for the 2016 charge provides any estimate
of the amount of restitution Fowler would have to pay, both
disciplinary reports explicitly include “medical restitution” as
a recommended sanction.

Fowler asserts that he believed he had

“prisoner’s health insurance” to cover the full amount.

Nothing

in the record, however, suggests that Fowler was unaware that
his medical expenses for treatment outside of the prison would
have to be paid, in the first instance, by someone, the
prisoner’s “health insur[er]” or the prison, as to whom
restitution could be paid.

Furthermore, at the time of Fowler’s

plea of guilty to the 2016 charge, Fowler had already received
the August 2015 notice stating that he owed $809.24 to the State
in restitution as a sanction for his guilty plea to the 2013
charge.

Under such circumstances, Fowler’s assertions in the

Complaint regarding his beliefs about insurance coverage do not
generate a genuine issue of material fact as to whether his
admissions of guilt and waivers of procedural due process rights
in prison disciplinary proceedings were valid.

Accordingly,

defendants’ motion (Doc. No. 13) as to Claim 1 is granted.

III. Substantive Due Process (Claims 2 and 3)
Claims 2 and 3 are Fowler’s claims that the imposition of
restitution as a disciplinary sanction for both the 2013 Charge
18

and 2016 Charge, and the debiting of inmate funds to satisfy his
restitution obligation, violated Fowler’s Fourteenth Amendment
substantive due process rights.

Fowler asserts that the DOC had

an obligation to pay for the treatment of his self-injuries, as
they resulted from his severe mental illness.
To state a claim that state action violates substantive due
process, a plaintiff must allege facts showing that the state
actor’s conduct “objectively ‘shocks the conscience.’”

S.

Commons Condo. Ass’n v. Charlie Arment Trucking, Inc., 775 F.3d
82, 91 (1st Cir. 2014) (citation omitted).

“‘[T]he requisite

arbitrariness and caprice must be stunning, evidencing more than
humdrum legal error.’”

Id.

DOC policies at all pertinent times provided a process for
an inmate with a documented serious and persistent mental
illness to avoid paying money damages, if his disciplinary
infraction was determined to be a proximate result of his SPMI.
See PPD 5.25, Attach. 2, at 1.

It is undisputed that Fowler had

some awareness of the SPMI process in December 2013 as the
investigator noted that Fowler was working with his clinician to
be designated as having an SPMI.

Even if Fowler could offer

expert evidence here generating a factual issue as to whether
either or both of the disciplinary charges at issue proximately
resulted from his serious mental illness, such evidence would
not affect the disposition of Fowler’s substantive due process
19

claim; it is undisputed here that DOC records at the time of the
2013 charge did not list Fowler has having an SPMI, and nothing
before this court suggests that prison officials interfered with
Fowler’s ability to obtain an SPMI designation, at any time,
relative to the incidents giving rise to the charges at issue.
Furthermore, the undisputed evidence here demonstrates that
the amount of restitution at issue is equal to the costs
incurred by the DOC for Fowler’s transport and treatment by
third party health care providers.
“A hallmark of [a] successful [substantive due process]
challenge[] is an extreme lack of proportionality, as the
test is primarily concerned with ‘violations of personal
rights . . . so severe . . . so disproportionate to the
need presented, and . . . so inspired by malice or sadism
rather than a merely careless or unwise excess of zeal that
it amounted to a brutal and inhumane abuse of official
power literally shocking to the conscience.’”
González-Fuentes v. Molina, 607 F.3d 864, 881 (1st Cir. 2010)
(quoting Moran v. Clarke, 296 F.3d 638, 647 (8th Cir. 2002) (en
banc) (ellipses in original).

The test is context-specific:

“[I]n situations ‘where actual deliberation on the part of a
governmental defendant is practical, the defendant may be held
to have engaged in conscience-shocking activity’ by exercising
‘deliberate indifference.’”

Gonzalez-Fuentes, 607 F.3d at 881

(quoting Coyne v. Cronin, 386 F.3d 280, 288 (1st Cir. 2004)
(to show deliberate indifference, plaintiff must, “at a bare
minimum, demonstrate that [defendants] actually knew of a
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substantial risk of serious harm to him and disregarded that
risk”).
Nothing before this court demonstrates that the hearing
officers who accepted Fowler’s pleas were actually aware of the
dimensions of Fowler’s mental illness or of his beliefs and
misperceptions regarding health insurance.

Restitution orders

obligating Fowler to repay the amount paid by the prison to
third party health care providers for his disciplinary offenses
does not shock the conscience under the circumstances.
Therefore, defendants’ dispositive motion on Claims 2 and 3 is
granted, and those claims are dismissed.

IV.

Excessive Fines (Claim 4)
Fowler’s Claim 4 asserts that the amount of restitution

violates his Eighth Amendment right not to be subjected to an
excessive fine.
We have never held that the Excessive Fines Clause of the
Eighth Amendment applies to restitution. The circuits that
have considered challenges to restitution orders under the
Excessive Fines clause have held that where the restitution
order reflects the amount of the victim’s loss no
constitutional violation has occurred. . . . This is not
surprising, as restitution is inherently proportional,
insofar as the point of restitution is to restore the
victim to the status quo ante. Restitution is distinct in
this regard from forfeiture . . . .

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United States v. Newell, 658 F.3d 1, 35 (1st Cir. 2011)
(citations omitted).

Where the record is undisputed that the

amount of restitution at issue is equal to the amounts incurred
by the DOC to pay for the cost of treating Fowler’s injuries,
the restitution amount for which Fowler is responsible is not
excessive under the circumstances.

Defendants’ motion for

summary judgment on the Eighth Amendment excessive fines claim
is properly granted.

V.

State Law Claims (Claim 5)
As this Order disposes of all of the federal claims in this

action, the court declines to exercise supplemental jurisdiction
over, and dismisses, without prejudice, the state law claims
asserted in the Complaint, numbered here as Claim 5.

See 28

U.S.C. § 1367(c)(3) (court may decline to exercise supplemental
jurisdiction over state law claims where the court has dismissed
all claims over which it has original jurisdiction).

Conclusion
For the foregoing reasons, the court grants defendants’
motion for summary judgment (doc. no. 13), in part, as to the
claims numbered as Claims 1, 2, 3, and 4 in this Order, and as
to all claims asserted against defendant Michael Zenk.

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The

court dismisses Claim 5 without prejudice, as the court declines
to exercise supplemental jurisdiction over that claim.
SO ORDERED.

___________
______________
Landya B. McCafferty
United States District Judge
March 11, 2019
cc:

Herbert A. Fowler, pro se
Anthony Galdieri, Esq.
Lawrence Edelman, Esq.

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