UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Herbert A. Fowler

v. Civil No. 18-cv-244-LM Opinion No.

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

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,

(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.” Celotex Corp. v. Catrett,

(1986). 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.,

(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.’”

(citations omitted). The nonmoving

party’s failure to make the requisite showing “entitles the

moving party to summary judgment.”

2 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.” Doc. No. 13-2, at

2. A disciplinary hearing was scheduled for January 9, 2014.

Fowler pleaded guilty on the date of his hearing. See Doc.

No. 13-1. 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. See id.; see also Doc. No.

13-1. 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. See

Doc. No. 13-5. 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.” See PPD 5.25, Attach. 2 (Doc. No. 24-

2). 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. See Doc. No.

24-2. 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

3Thepertinent 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.” N.H.

Rev. Stat. Ann. (“RSA”) § 622:31-a(VII). 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

. See Ashcroft v. Iqbal,

(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.,

(3d Cir. 2008) (“Burns I”); see also

Burns v. Pa. Dep’t of Corr.,

(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,

, at *8 n.4,

, 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,

(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,

(1st Cir. 2005); see also Wolff v. McDonnell,

, 564-

66 (1974); Smith v. Mass. Dep’t of Corr.,

(1st Cir. 1991); Campbell v. Miller,

, 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”). In

13 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,

(1985).

Procedural due process protections triggered by the risk of

loss of a protected property interest may be waived. See Boddie

v. Connecticut,

, 378–79 (1971). The existence of a

“waiver of constitutional rights in any context must, at the

very least, be clear.” Fuentes v. Shevin,

(1972) (emphasis in original). Courts “‘do not presume

acquiescence in the loss of fundamental rights’” and “‘indulge

every reasonable presumption against waiver.’”

(citations omitted). In reviewing the validity of such a

waiver, courts consider the circumstances in which the waiver

was obtained. See generally

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,

(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. 13-

5. 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. I waive my right to a hearing and my

right to appeal. I admit to the facts and circumstances as

described above.” 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. See

Doc. No. 13-4; Doc. No. 13-2. 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,

.6 See

Straub v. Griffith, No. 1:19-CV-11-JAR,

, at *4,

, 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,

(9th Cir. 1989), overruled in part on other grds. by Nettles v. Grounds,

(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,

, at *5,

, 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,

)), aff’d,

(4th Cir. 2013) (per curiam); Hunter v. Tilton, No. 08-CV-01460JAMCHSP,

, at *8,

, 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,

(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.,

(1st Cir. 2014) (citation omitted). “‘[T]he requisite

arbitrariness and caprice must be stunning, evidencing more than

humdrum legal error.’”

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,

, 881 (1st Cir. 2010)

(quoting Moran v. Clarke,

(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,

(1st Cir. 2004)

(to show deliberate indifference, plaintiff must, “at a bare

minimum, demonstrate that [defendants] actually knew of a

20 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 . . . .

21 United States v. Newell,

(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

(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. The

22 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.

23