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Fowler v. Zenk

United States District Court, D. New Hampshire

March 11, 2019

Herbert A. Fowler
v.
Michael Zenk, N.H. State Prison Warden, and Stephen O'Rourke, N.H. Department of Corrections Hearing Officer

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

          ORDER

          LANDYA B. MCCAFFERTY, UNITED STATES DISTRICT JUDGE

         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]

         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.” Celotex Corp. v. Catrett, 477 U.S. 317, 332 (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., 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.” 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]

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.

         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.

         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.

         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 ...


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