ORDER

LANDYA B. McCAFFERTY, 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

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.

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 "selfinjury" 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 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:

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 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 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 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, 564-66 (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"). 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. See Boddie v. Connecticut, 401 U.S. 371, 378-79 (1971). 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.'" Id. at 94-95 (citations omitted). 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 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 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 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.

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 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 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.

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 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.

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

SO ORDERED.