United States District Court, D. New Hampshire
Herbert A. Fowler
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
B. MCCAFFERTY, UNITED STATES DISTRICT JUDGE
the court is defendants' motion for summary judgment
(doc. no. 13). The pro se plaintiff, Herbert A. Fowler, has
not responded to the motion.
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.
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
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
version of PPD 5.25 are reproduced below, in pertinent part,
and are identical to the comparable provisions in Document
Reports of Instances of Punishable Conduct
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
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.
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.
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.
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.
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.
Policy and State Law
relevant times,  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 ...