N.H. AG’s Office: ‘Pay-to-Stay’ Claim Against Ex-Inmate Not Retaliatory

  • xxxxxx Concord Monitor — Caitlin Andrews

Concord Monitor
Published: 1/6/2019 12:18:19 AM
Modified: 1/6/2019 12:19:01 AM

Officials with New Hampshire’s Attorney General’s Office insist that efforts to recoup a former prisoner’s cost of care after he sued the state are not retaliatory.

The American Civil Liberties Union of New Hampshire on Thursday asked Merrimack County Superior Court Judge Richard McNamara to dismiss a counterclaim filed against their client, Eric Cable, who is suing the state for medical malpractice.

The state is asking for at least $119,000 under the state’s “pay-to-stay” law, which allows the prison system to recoup care costs from inmates up to six years after being incarcerated.

Cable was released from prison in 2017 after serving a roughly four-year sentence for causing the death of a Manchester man in a drunken boating accident on Northwood Lake in 2012.

He sued the state last March, alleging prison officials were negligent in not properly treating him for Type 2 diabetes by failing to perform regular lab tests, foot exams or thorough eye exams. As a result, he says, he lost partial eyesight in one of his eyes.

The state filed its counterclaim last July.

On Thursday, Assistant Attorney General Heather Neville said the counterclaim is a “separate, independent” matter from the malpractice suit.

She declined to say how the state determines who it will try to recoup cost of care from, saying to do so would “go outside the scope of this hearing.”

ACLU-NH lawyer Henry Klementowicz said he and Cable do not contest the state’s right to seek compensation, but that doing so after a lawsuit was filed violates his client’s constitutional right to seek remedy.

“We know that ‘pay-to-stay’ statutes are one more hurdle people coming out of prison have to overcome before they get back on their feet and become productive members of society,” he said.

Klementowicz said the state’s claim could overshadow or impact any amount Cable could receive in a settlement. The maximum amount someone who sues the state for medical malpractice can receive is $475,000.

Cable, speaking after the hearing, said he is working two jobs to support himself and is putting himself through school. He said he was shocked to receive the state’s bill.

“I had never heard of such a thing,” he said. “I honestly felt it was just punishment from them or some sort of retaliation.”

McNamara said he was sympathetic to Cable, but questioned the validity of the ACLU’s argument because “pay-to-stay” has been determined to be constitutional. He also noted Cable’s that malpractice suit has not been settled, so arguments about how much a counterclaim could impact his settlement may be pre-emptive.

“Isn’t this whole thing hypothetical?” he said.

New Hampshire’s so-called “pay-to-stay” law has been on the books since 1996, but it is rarely invoked.

For current inmates, the Attorney General’s Office can seek reimbursement if it determines that an inmate has sufficient assets to pay for all or part of his or her incarceration costs. Inmates who object can request hearings, and courts are required to consider the inmate’s other financial obligations.

According to court documents provided to the Concord Monitor by the ACLU-NH, only 11 petitions for reimbursement have been filed in the last 10 years.

Those 11 petitions sought to recover close to $2 million of inmate care. Not every petition sought a specific amount of money, but rather stated the cost of care for inmates during a fiscal year.

The lowest stated amount was for $33,109.15, for Constance Boldini, serving 4½ to 15 years for criminal soliciting to commit murder. The highest was for John Brooks, a millionaire serving a life sentence for multiple charges in a murder-for-hire case, an estimated cost of care totaling $996,051.

The ACLU-NH said none of those petitions were filed after a lawsuit.

McNamara has taken the case under advisement and will issue a ruling at a later date.

Cable’s malpractice suit is scheduled to go to trial in April; ACLU-NH officials anticipate that trial will be delayed.

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