[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 96-2307
MICHAEL A. GUGLIELMO,
Plaintiff, Appellant,
v.
NEW HAMPSHIRE STATE PRISON, ET AL.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Joseph A. DiClerico, U.S. District Judge]
Before
Torruella, Chief Judge,
Campbell, Senior Circuit Judge,
and Boudin, Circuit Judge.
Michael A. Guglielmo on brief pro se.
April 25, 1997
Per Curiam. Upon careful review of the record and
appellant's brief, we perceive no error in the district
court's dismissal of this case. We reach this conclusion
essentially for the reasons stated in the magistrate judge's
report and recommendation dated August 26, 1996. We add only
these comments.
1. The constitutionality of the "cost of care"
reimbursement provision, N.H. Rev. Stat. Ann. 622:53-58
(Supp. 1995), is not fit for review at this time and better
may be evaluated in the context of a live case. See Ernst &
Young v. Depositors Economic Protection Corp., 45 F.3d 530,
538 (1st Cir. 1995) ("[The] claim lacks the needed dimensions
of immediacy and reality. The challenge is not rooted in the
present, but depends on a lengthy chain of speculation as to
what the future has in store.").
2. The medical co-payment and litigation fee
provisions, N.H. Rev. Stat. Ann. 622:31-a & 623-B:1-3
(Supp. 1995), are alterations in the prevailing legal and
administrative regime, rather than increases in the measure
of punishment. Therefore, those provisions are not penal
laws violative of the Ex Post Facto clause, U.S. Const. art.
1 10. See California Department of Corrections v. Morales,
115 S.Ct. 1597, 1603 n.6 (1995); Dominique v. Weld, 73 F.3d
1156, 1163 (1st Cir. 1996); Jones v. Murray, 962 F.2d 302,
309 (4th Cir. 1992) ("It is precisely because reasonable
-2-
prison regulations . . . are contemplated as part of the
sentence of every prisoner, that they do not constitute
additional punishment and are not classified as ex post
facto."). We are unswayed by the distinction appellant
attempts to draw between "positive" laws and "regulations" or
"policies."
3. We reject appellant's contention that the
litigation fee provisions violate his right of access to the
courts. See Lewis v. Casey, 116 S.Ct. 2174, 2180-82 (1996)
(to show a violation, the litigant must show "actual injury"
such that an actionable claim has been lost or rejected or
that presentation of the claim is currently being prevented);
N.H. Rev. Stat. Ann. 623-B:1(IV) ("Nothing in this section
shall prohibit an inmate from filing a civil action or
proceeding if the inmate is indigent.").
4. We decline to comment further on appellant's
undeveloped arguments that the medical co-payment and
litigation fee provisions violate double jeopardy and equal
protection.
Affirmed. See 1st Cir. Loc. R. 27.1.
-3-