BELSKIS v. STATE OF MAINE BOARD OF CORRECTION et al

Filing 278

ORDER adopting 240 Report and Recommended Decision for 215 Motion for Summary Judgment filed by COREY SWOPE, ALYAH MUNN, DAVID ALLEN, STEVEN GIGGY, DALE LANCASTER, BARRY DELONG, SOMERSET COUNTY; granting in part and denying in part 215 Motion for Summary Judgment. By JUDGE JOHN A. WOODCOCK, JR. (MFS)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
JOSEPH EDWARD BOVIN
BELSKIS,
Plaintiff,
v.
SOMERSET COUNTY, et al.,
Defendants.

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1:15-cv-00091-JAW

ORDER AFFIRMING THE RECOMMENDED DECISION
OF THE MAGISTRATE JUDGE
A former prison inmate whose toe was amputated because a County Jail and
its employees refused to allow him to wear diabetic shoes has survived a motion for
summary judgment against jail personnel who were aware of his medical condition
and failed or refused, despite his requests, to provide him with proper footwear and
against the jail itself, which adopted policies that prohibited him from wearing proper
footwear while incarcerated.
I.

STATEMENT OF FACTS
A.

Procedural History

On March 6, 2015, Joseph Edward Bovin Belskis filed a complaint in this Court
against various federal, county, and individual actors, including a medical
contracting business and several of its employees, alleging that they violated his civil
rights while he was a federal prisoner housed at the Somerset County Jail. Compl.

(ECF No. 1).1 Mr. Belskis began this legal action acting pro se; however, once he
survived a motion to dismiss and motion for judgment on the pleadings and faced
motions for summary judgment, the Court asked Attorney Jon Haddow to represent
Mr. Belskis and on March 31, 2017, Attorney Haddow entered his appearance on Mr.
Belskis’ behalf. Notice of Appearance (ECF No. 253).
On November 21, 2016, the so-called County Defendants2 filed a motion for
summary judgment, County Defs.’ Mot. for Summ. J. (ECF No. 215), together with a
statement of uncontested material facts. County Defs.’ Statement of Uncontested
Material Facts (ECF No. 216). On March 2, 2017, the Magistrate Judge issued a
recommended decision on the County Defendants’ motion for summary judgment.
Recommended Decision on County Defs.’ Mot. for Summ. J. (ECF No. 240) (Rec. Dec.).
On March 9, 2017, Mr. Belskis, acting pro se, objected to the Magistrate Judge’s
recommended decision. Pl.’s Obj. to Recommended Decision (ECF No. 241) (Pl.’s Obj.
to Rec. Dec.). On March 13, 2017, Mr. Belskis, still acting pro se, filed a supplemental
objection to the Magistrate Judge’s recommended decision. Pl.’s Suppl. Objection to
County Recommended Decision (ECF No. 249). On March 14, 2017, the County
Defendants also filed an objection to the Magistrate Judge’s Recommended Decision.
Somerset County Defs.’ Partial Obj. to Recommended Decision on Mot. for Summ. J.
(ECF No. 246) (County Obj. to Rec. Dec.). On March 16, 2017, the County Defendants

The complete procedural backdrop is complicated but not material to this Order. On
September 27, 2016, the Court more fully described the background at least until that date. See Order
on Mot. to Dismiss and Mot. for J. on the Pleadings at 2-3 (ECF No. 184).
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The County Defendants are either Somerset County itself or employees of Somerset County,
including Barry Delong, Stephen Giggey, David Allen, Elijah Nunn, Cory Swope and Dale Lancaster.
See County Defs.’ Mot. for Summ. J. at 1 (ECF No. 215).
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filed a response to Mr. Belskis’ objection to the Magistrate Judge’s Recommended
Decision. Somerset County Defs.’ Resp. to Pl.’s Obj. to Recommended Decision (ECF
No. 248). After Attorney Haddow entered his appearance on behalf of Mr. Belskis,
he filed a notice of consent to the Magistrate Judge’s recommended decision. Pl.’s
Notice of Consent to Recommended Decision on County Defs.’ Mot. for Summ. J. (ECF
No. 264). This left only one matter pending on the Magistrate Judge’s recommended
decision, the County Defendants’ partial objection.
I.

THE RECOMMENDED DECISION
In his recommended decision, the Magistrate Judge recommended that this

Court dismiss Mr. Belskis’ Complaint against three of the Somerset County
Defendants and deny the motion as regards the remaining Somerset County
Defendants.3 Recommended Decision at 22. The Magistrate Judge’s recommended
decision addresses the three issues that the Somerset County Defendants contended
entitled them to summary judgment: (1) whether Mr. Belskis’ claims were barred
because he failed to exhaust administrative remedies, (2) whether the doctrine of
qualified immunity protects them from liability, and (3) whether Mr. Belskis had

The Magistrate Judge recommended that the Court dismiss Barry Delong, the Somerset
County Sheriff from 1995 to 2014, Dale Lancaster, the Chief Deputy Sheriff of Somerset County from
2012 to 2014 and the Sheriff from 2014 to the present, and Steven Giggy, the Program Manager at
Somerset County Jail from 2013 to 2014. Recommended Decision at 1, n.1, 22. Mr. Belskis has not
objected to the Magistrate Judge’s recommendation and, having reviewed the recommended decision,
the Court agrees with it for the same reasons the Magistrate Judge discussed in the recommended
decision.
The Magistrate Judge recommended that the Court deny the Somerset County Defendants’
motion as to David Allen, Jail Administrator of the Somerset County Jail from 2012 to 2013, Elijah
Munn, Corrections Officer at the Somerset County Jail from 2008 to the present, Corey Swope,
Assistant Jail Administrator at the Somerset County Jail from 2007 to 2014 and the Jail
Administrator from 2014 to the present, and Somerset County itself.
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established that Somerset County had adopted a custom, policy or practice or that a
decision made in a supervisory capacity, either of which led to the deprivation of a
constitutional right. Id. at 1-2.
The Magistrate Judge rejected the motion for summary judgment based on an
asserted failure to exhaust administrative remedies.

Id. at 13-16.

The record

reflected that Mr. Belskis had gone through Level 1 and Level 2 grievances. Id. at
15. The County Defendants contended that he had failed to appeal to Level 3, the
final level of administrative review. Id. The Court observed that an inmate is
required to file a letter of appeal to the Department of Corrections only after receiving
a response to the Level 2 grievance. Id. Mr. Belskis denied receiving a response to
the Level 2 grievance and the Magistrate Judge concluded that his denial created a
factual issue as to whether Level 3 “was available to Plaintiff.” Id. at 16.
The Magistrate Judge next addressed the issue of qualified immunity. The
Magistrate Judge recited the “deliberate indifference” objective and subjective
standards as they apply to the provision of medical care to an inmate. Id. at 16-17.
The Magistrate Judge concluded that the record failed to establish evidence that
Defendants Delong, Lancaster, or Giggy, “individually or in a supervisory capacity,
was involved in the care Plaintiff received at the Somerset County Jail.” Id. at 20.
Yet, the Magistrate Judge concluded that for the remaining Somerset County
Defendants, “the same facts would raise a genuine issue whether a reasonable officer
in their position would have appreciated that such acts or omissions violated clearly
established law.” Id.

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The Magistrate Judge also discussed Mr. Belskis’ official capacity claims
against Somerset County. Id. at 21. Here, he concluded that the record “contains
sufficient facts to support a claim based on a policy of the County.”

Id. More

specifically, he wrote, “a factfinder could conclude Plaintiff was deprived of his
diabetic shoes and thus denied the required care because of the County’s contraband
policy as applied to Plaintiff’s diabetic shoes.” Id. at 21-22.
II.

THE COUNTY’S OBJECTION
On March 14, 2017, the Somerset County Defendants filed a partial objection

to the Magistrate Judge’s recommended decision. County Obj. to Rec. Dec. at 1-6.
The Somerset County Defendants obviously did not object to the recommended
decision to the extent it recommended dismissal of Mr. Belskis’ claims against some
of them. Id. at 1 n.1. But they did object to the extent the Magistrate Judge
recommended against summarily dismissing others from Mr. Belskis’ case. Id. at 15. Nor did they object to the Magistrate Judge’s recommendation about the failure to
exhaust defense.
First, the individual Somerset County Defendants complain that the
Magistrate Judge “failed to consider whether despite their knowledge [of Mr. Belskis’
condition], these Defendants responded properly by providing Belskis with continued
medical care, allowing him to wear Crocs, and having new diabetic shoes made for
Belskis.” Id. at 1-2.
Second, Somerset County argues that the Magistrate Judge’s recommended
decision to retain the County as a Defendant is erroneous because it “does not give

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substantial deference to prison administrators’ judgment concerning the validity of
prison regulations under Turner v. Safley, 382 U.S. 78 (1987).” Id. at 4. The County
maintains that Mr. Belskis failed to point to “any evidence disputing the validity of
the contraband policy.” Id. at 5.
III.

DISCUSSION
The brief answer to the objections of the Somerset County Defendants, both

individuals and the County, is that their objections are grounded on disputed issues
of material fact, which under the summary judgment standard must be viewed in the
light most favorable to Mr. Belskis. The record confirms that Mr. Belskis repeatedly
informed jail personnel of his diabetic condition and the risk that improper footwear
imposed and he filed three grievances regarding his need for diabetic shoes. The
Somerset County Defendants seem to concede that Mr. Belskis’ diabetic condition
met the standard for a “serious” medical condition, since the potential risk was
amputation. See Farmer v. Brennan, 511 U.S. 825, 843 (1994); Helling v. McKinney,
509 U.S. 25, 35 (1993).

In addition, the impending harm was arguably “easily

preventable”, Feeney v. Corr. Med. Servs., 464 F.3d 158, 162 (1st Cir. 2006) (quoting
Watson v. Caton, 984 F.2d 537, 540 (1st Cir. 1993)), simply by getting Mr. Belskis
fitted with a new pair of proper footwear.
Even though it is possible—as the Somerset Defendants contend—that a
factfinder could conclude that alternatives, such as Crocs and continued medical care,
negate Mr. Belskis’ allegation of deliberate indifference, it remains contested whether
the individual Somerset County Defendants and Somerset County itself factually met

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this standard. Against the possibility of a factual finding in the Somerset County
Defendants’ favor are (1) that Mr. Belskis’ diabetic shoes were taken from him when
he entered the Somerset County Jail on November 5, 2012, (2) that he made multiple
and persistent efforts to obtain proper footwear, (3) that he was not provided with
diabetic shoes until February 19, 2013, and (4) that he underwent an amputation the
next month.

A factfinder could readily resolve these factual issues against the

Somerset County Defendants and conclude that the Somerset County Defendants
were deliberately indifferent.
Although the Somerset County Defendants criticize the Magistrate Judge and
Mr. Belskis for failing to point to a case “that would have put the Defendants on notice
that their actions in providing medical care to Belskis violated a clearly established
constitutional right,” County Obj. to Rec. Dec. at 4, the Somerset County Defendants’
objection is largely rhetorical because it fails to address what level of medical care
Mr. Belskis actually received. Indeed, Mr. Belskis’ case against the Somerset County
Defendants is fact-intensive and it would be remarkable to find a case with a fact
pattern precisely on point.
As regards the County’s contention that it could not allow Mr. Belskis to have
fitted footwear because metal eyelets and laces presented safety concerns, it begs the
question why the County capitulated and allowed him to have diabetic shoes in
February. In other words, if the diabetic shoes were truly a valid safety concern in
November, 2012, when the County removed them, then why were they not a safety

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concern in February, 2013, when the County supplied them? At the very least, this
inherent contradiction generates factual issues that must be resolved by a factfinder.
IV.

CONCLUSION
Having reviewed and considered the United States Magistrate Judge’s

recommended decision, the entire record, and the Somerset County Defendants’
objections, the Court has made a de novo determination of all matters adjudicated by
the Magistrate Judge’s recommended decision, and the Court concurs with the
recommendations of the Magistrate Judge for the reasons set forth in his
Recommended Decision and in this Order. The Court determines that no further
proceedings are necessary.
1. It is therefore ORDERED that the Recommended Decision (ECF No.
240) of the Magistrate Judge be and hereby is AFFIRMED.
2. Accordingly, it is hereby ORDERED that County Defendants’ Motion
for Summary Judgment (ECF No. 215) be and hereby is DENIED in
part and GRANTED in part. The Court GRANTS the County
Defendants’ Motion for Summary Judgment as to Defendants
Delong, Lancaster and Giggy; the Court otherwise DENIES the
motion.
SO ORDERED.
/s/ John A. Woodcock, Jr.
JOHN A. WOODCOCK, JR.
UNITED STATES DISTRICT JUDGE
Dated this 15th day of September, 2017

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