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DOC ordered to release records regarding man who died at state prison

New Hampshire Union Leader

April 21. 2018 11:51AM


CONCORD — The Disability Rights Center has prevailed in a federal lawsuit seeking records from the Department of Corrections regarding an individual with mental illness who died in December while being held at the state prison in Concord.

The 34-year-old man died alone in his cell due to what authorities at the time described as “self-injurious behavior” in the prison’s Residential Treatment Unit, a specialized unit for inmates with mental illness who are unable to function in the general inmate population.

State officials initially said they are not required to provide the documents because the DRC does not have probable cause to suggest that abuse or neglect occurred, and if any records are to be released, they can’t be released until the state completes its own investigation.

United States District Judge Landya McCafferty disagreed, and after a hearing on Wednesday, issued an order for the Department of Corrections to release the material.

“The evidence shows — and defendants do not challenge — that defendants unjustifiably failed to respond to DRC’s repeated, reasonable requests prior to this litigation. Although defendants now make assurances that this matter will be prioritized, defendants acknowledge that they still have not fulfilled some of DRC’s requests from late March,” McCafferty wrote in her April 19 order.

“In the face of these continued delays, the court is persuaded that DRC will continue to suffer irreparable harm in the absence of injunctive relief.”

McCafferty ordered the Department of Corrections to produce all requested records by end of business on Friday, April 20, or explain in writing to the DRC why they can’t be produced.

The records already requested but not provided by Friday have to be provided by May 2.

Future requests

McCafferty then went one step further and ordered the Department of Corrections to follow a specific protocol when responding to future DRC requests for any of the clients it represents.

The department will have to respond within three business days from the date of the request, or provide written notice explaining why the records cannot or will not be produced. The two parties have to meet within five days to settle the dispute, and if they fail to do so, the Department of Corrections has to produce the disputed records in 10 days.

Senior Assistant Attorney General Rebecca Ross says the state will not be appealing the decision, and was planning to turn the documents over by the Friday deadline.

She acknowledged that the state will now be obligated to fulfill DRC document requests moving forward, but said, “We would as in any case have an opportunity to seek relief from the court if we do not believe they are legally entitled to those documents.”

Andrew Milne, staff attorney with DRC and lead counsel on the lawsuit, said the judge was clearly troubled by the DOC conduct, which Milne described as “impeding our federally authorized investigation into suspected abuse and or neglect resulting in the death of an individual with mental illness.”

“The court’s ruling confirms our contention that a facility suspected of abuse or neglect doesn’t get to determine whether they are investigated or when,” he said.

Federal authorization

The inmate at issue, Phillip Borcuk, 34, was rushed to Concord Hospital’s emergency room on Dec. 6, 2017, and later pronounced dead.

Corrections officers and medical personnel responded to Borcuk’s cell when “they heard him engaging in self-injurious behavior,” according to prison officials, who have since declined to elaborate.

Borcuk was sentenced to state prison in 2012 by Sullivan County Superior Court for charges of operating a motor vehicle after certification as a habitual offender, theft by unauthorized taking and assault by a prisoner. He would have been eligible for parole on Dec. 5.

The Disability Rights Center was the lead plaintiff in a 2013 landmark class action lawsuit against the state over its deficient mental health services that resulted in a $30 million settlement.

The center has been authorized since 1978 by the federal Protection and Advocacy System to protect the civil rights of individuals with mental illness in New Hampshire.

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