BELSKIS v. STATE OF MAINE BOARD OF CORRECTION et al
Filing
279
ORDER denying 232 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.
)
)
)
)
)
)
)
)
)
)
1:15-cv-00091-JAW
ORDER ON MEDPRO DEFENDANTS’ MOTION
FOR SUMMARY JUDGMENT
The plaintiff in this civil rights action under 42 U.S.C. § 1983 alleges that the
medical provider at a county jail acted with deliberate indifference in providing care
that ultimately resulted in the amputation of one of his toes. The Court concludes
that the plaintiff has withstood summary judgment because the record contains no
evidence as to the extent to which the defendant advocated on behalf of the plaintiff
with jail officials who were denying recommended care.
I.
BACKGROUND
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 (SCJ).
Compl. (ECF No. 1).1 Mr. Belskis amended his complaint on October 14, 2015. First
Am. Compl. (ECF No. 59) (Am. Compl.). 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, 2016, Attorney Haddow entered
his appearance on Mr. Belskis’ behalf. Notice of Appearance (ECF No. 253).
On January 13, 2017, the so-called Medpro Defendants filed a motion for
summary judgment, Mot. for Summ. J. by Medpro Defs. (ECF No. 232) (Medpro Mot.),
together with a statement of uncontested material facts. Statement of Material Fact
in Support of Mot. for Summ. J. by Medpro Defs. (ECF No. 233) (DSMF). Mr. Belskis,
who at the time was not represented by counsel, failed to respond.
On May 2, 2017, Attorney Haddow filed a consent motion to extend the time
for Mr. Belskis’ response to the Medpro Defendants’ motion for summary judgment
to May 23, 2017 and on May 2, 2017, the Court granted the motion. Pl.’s Mot. to
Extend Deadline to Resp. to Medpro Defs’ Mot. for Summ. J. (ECF No. 259); Order
Granting Mot. to Extend Time (ECF No. 263). On May 23, 2017, Mr. Belskis, through
Attorney Haddow, filed another motion to extend time to June 1, 2017, which the
Court granted on May 23, 2017. Pl.’s Mot. to Extend Deadline to Resp. to Medpro
Defs.’ Mot. for Summ. J. (ECF No. 268); Order Granting Mot. to Extend Time (ECF
No. 271). On June 1, 2017, Mr. Belskis filed what was termed a final motion to extend
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).
1
2
time, this time to June 16, 2017. Pl.’s Final Mot. to Extend Deadline to Resp. to
Medpro Defs.’ Mot. for Summ. J. (ECF No. 270). On June 1, 2017, the Court granted
this final extension. Order Granting Mot. to Extend Time (ECF No. 271).
On June 16, 2017, Mr. Belskis responded to the Medpro Defendants’ motion
for summary judgment, Pl.’s Mem. in Opp’n to Medpro Defs.’ Mot. for Summ. J. (ECF
No. 272) (Pl.’s Opp’n), and filed a responsive statement of undisputed material facts,
Pl.’s Resp. to Medpro Defs.’ Statement of Material Fact (ECF No. 273) (PRDSMF) as
well as a statement of additional material facts. Id. Attach. 1, Pl.’s Statement of
Additional Material Facts in Opp’n to Mot. for Summ. J. (ECF No. 273) (PSAMF).
On July 6, 2017, the Medpro Defendants filed a reply to Mr. Belski’s response to their
motion for summary judgment, Reply to Pl.’s Opp’n to the Mot. for Summ. [J.] by
Medpro Defs. (ECF No. 277) (Medpro Reply) and a response to Mr. Belskis’ additional
statement of material fact. Medpro Defs.’ Resp. to Pl.’s Additional Facts (ECF No.
275) (DRPSAMF).
B.
Joseph Belskis’ Amended Complaint
Mr. Belskis has brought this civil rights action against Medpro under 42 U.S.C.
§ 1983 and under 5 M.R.S. §§ 4651, et seq. Am. Compl. at 1.2 In the October 14, 2015
Amended Complaint, Mr. Belskis claims that Medpro created policies, practices and
customs that affected the delivery of medical care, treatment, and services and that
violated his constitutional rights. Id. at 22. He also alleges that Medpro violated his
Mr. Belskis initially stated medical negligence claims against Medpro; however, on July 27,
2015, Mr. Belskis filed a notice dismissing all such claims against Medpro. Notice of Voluntary
Dismissal (ECF No. 41).
2
3
Eighth Amendment guarantee against cruel and abusive treatment and his
Fourteenth Amendment right to due process of law. Id. at 22-23.
II.
THE STATEMENT OF FACTS3
A.
Joseph Belskis and Diabetes
Joseph Belskis is a diabetic with a history of lower extremity ischemic vascular
disease including two prior toe amputations and a history of diabetic foot ulcers.
DSMF ¶ 4; PRDSMF ¶ 4. Mr. Belskis arrived at the Somerset County Jail (SCJ) with
a history of poorly controlled diabetes, peripheral vascular disease, and previous
amputations of the left and right great toes. Id. He also had a history of substance
abuse. Id. One of the foundations for the care of diabetes and prevention of the risks
of development of other conditions is the close monitoring of the hemoglobin HgB AIC
level. DSMF ¶ 28; PRDSMF ¶ 28.
B.
Joseph Belskis, Diabetic Footwear, the Androscoggin County
Jail, and the Transfer to the Somerset County Jail
Joseph Belskis was arrested in May 2012 and incarcerated at the Androscoggin
County Jail (ACJ). PSAMF ¶ 1; DRPSAMF ¶ 1. Mr. Belskis was on federal probation
when he was arrested. PSAMF ¶ 2; DRPSAMF ¶ 2. During his incarceration at the
ACJ, Mr. Belskis was allowed to wear a pair of diabetic shoes that he had made in
2011. PSAMF ¶ 3; DRPSAMF ¶ 3. These shoes were a brown leather type diabetic
In accordance with “conventional summary judgment praxis,” the Court recounts the facts in
the light most favorable to Mr. Belskis’ theory of the case consistent with record support. Gillen v.
Fallon Ambulance Serv., Inc., 283 F.3d 11, 17 (1st Cir. 2002). Consistent with this obligation, the
Court recites certain events as facts even though MedPro disputes them.
3
4
shoe with expanding laces like a rubber band with metal eyelets, similar to a hiking
shoe. PSAMF ¶ 4; DRPSAMF ¶ 4.
C.
The Somerset County Jail Booking Process
On November 5, 2012, Mr. Belskis was transferred to the SCJ, where he
remained for approximately ten months. PSAMF ¶ 5; DRPSAMF ¶ 5. Specifically,
the SCJ received Mr. Belskis on November 5, 2012 and transferred him on August
30, 2013. DSMF ¶ 1; PRDSMF ¶ 1. Mr. Belskis was transferred from ACJ to SCJ as
a federal prisoner and was being held at the SCJ as a federal prisoner on behalf of
the United States Marshal Service in connection with criminal charges pending
against him in United States District Court for the District of Maine. DSMF ¶ 3;
PRDSMF ¶ 3.
When Mr. Belskis was transferred from the ACJ to SCJ, he was wearing his
diabetic shoes. PSAMF ¶ 6; DRPSAMF ¶ 6. SCJ correctional staff denied Mr. Belskis
the use of his diabetic shoes on his entry into the jail as part of the initial booking
process, DSMF ¶ 5; PRDSMF ¶ 6, and upon entry to the sally port, the corrections
officer took Mr. Belskis’ diabetic shoes on intake. PSAMF ¶ 7; DRPSAMF ¶ 7. Mr.
Belskis told the corrections office staff who were booking him into the SCJ that he
needed his diabetic shoes and he would have a problem if he could not wear them.
DSMF ¶ 6; PRDSMF ¶ 6. The corrections officers told Mr. Belskis that they were
taking his shoes for safety reasons and that his shoes were not allowed through the
door. PSAMF ¶ 8; DRPSAMF ¶ 8. At booking, the corrections officers gave Mr.
Belskis canvas shoes with Velcro laces. PSAMF ¶ 9; DRPSAMF ¶ 9. After the initial
5
denial by SCJ, Medpro staff members made three separate requests of SCJ staff to
obtain Mr. Belskis’ diabetic shoes, which his previous jail, ACJ, had permitted, and
were denied on all three occasions by SCJ correctional staff, including Jail
Administrator David Allen. DSMF ¶ 7; PRDSMF ¶ 7.
D.
Medpro’s Initial Dealings with Joseph Belskis
During the booking, the corrections officers told Mr. Belskis that he needed to
address the issue of his diabetic shoes with the medical staff. PSAMF ¶ 8; DRPSAMF
¶ 8. Medpro is a wholly-owned subsidiary of DT Developers, Inc. which does business
as Medpro Associates and serves as the medical provider at SCJ. PSAMF ¶ 2;
DRPSAMF ¶ 2. On November 5, 2012, Mary Patterson, a nurse with Medpro, saw
Mr. Belskis. PSAMF ¶ 10; DRPSAMF ¶ 10; DSMF ¶ 8; PRDSMF ¶ 8. Nurse
Patterson executed a “medical intake questionnaire” form concerning her
examination and determined that Mr. Belskis was medically and mentally stable at
the time. DSMF ¶ 8; PRDSMF ¶ 8. During the medical screening, Mr. Belskis told
Nurse Patterson that he had diabetes, toe amputations, bone amputations, renal
failure, diabetic shoes, appendicitis, and that his first metatarsal toes was just
healing.
PSAMF ¶ 11; DRPSAMF ¶ 11.
Mr. Belskis also mentioned that the
corrections staff had denied him diabetic shoes. PSAMF ¶ 12; DRPSAMF ¶ 12.
When Mr. Belskis was transferred to the SCJ, his feet were in good shape,
except there was a red spot under the first metatarsal that looked like a healed-up
wound. PSAMF ¶ 13; DRPSAMF ¶ 13. Nurse Patterson noted a light dime-sized
spot on Mr. Belskis right great toe area and a pink area on the metatarsal area.
6
DSMF ¶ 10; PRDSMF ¶ 10. She questioned whether the provider should review the
matter but did not place Mr. Belskis on the sick call book to be seen by the provider.
Id. Nurse Patterson’s observations were of a previous wound that had completely
healed.
DSMF ¶ 11; PRDSMF ¶ 11.
On November 5, 2012, Nurse Patterson
submitted a “keep on person” (KOP) authorization for Mr. Belskis’ diabetic shoes that
had been taken from him during the booking intake. DSMF ¶ 12; PRDSMF ¶ 12. On
November 5, 2012, the corrections office staff denied Nurse Patterson’s KOP
authorization. DSMF ¶ 13; PRDSMF ¶ 13.
Medpro policy requires that an inmate seeking medical attention must under
normal circumstances submit an “Inmate Request Form” (IRF).
DSMF ¶ 145;
PRDSMF ¶ 145. Inmates are instructed by Medpro staff concerning the use of the
form. Id. Consistent with Medpro standard practice, Nurse Patterson documented
that she made Mr. Belskis aware that if he had any medical issues, he could submit
a request for medical treatment either the IRF or one captioned “Inmate Medical
Request” (IMR). DSMF ¶¶ 9, 145; PRDSMF ¶¶ 9, 145.
On November 6, 2012, Mr. Belskis filled out a request to medical, saying that
he “would like to be taken out to have diabetic soft shoes made because [he had been
told that] my street diabetic shoe is a security risk at SCJ.” DSMF ¶ 21; PRDSMF ¶
21; PSAMF ¶ 14; DRPSAMF ¶ 14.4 Mr. Belskis understood that the SCJ corrections
There is a slight difference between Medpro’s paragraph 21, which quotes Mr. Belskis’
statement about the security risk as a fact (“because my diabetic shoe is a security risk at this facility”),
DSMF ¶ 21, and Mr. Belskis’ paragraph 14, which says that Mr. Belskis “had been told” that his
diabetic shoes were a security risk. PSAMF ¶ 14. Mr. Belskis admitted Medpro’s version, and Medpro
admitted Mr. Belskis’ version. PRDSMF ¶ 21; DRPSAMF ¶ 14. Viewing the facts in the light most
favorable to Mr. Belskis, the Court accepted his version and inserted it in Medpro’s quotation.
4
7
staff did not permit diabetic shoes he was wearing on admission because they
presented a security risk. DSMF ¶ 22; PRDSMF ¶ 22. On November 8, 2012, Lisa
Cates, RN, Medpro nursing supervisor, responded to Mr. Belskis’ IRF, writing that
“this is not something the jail will do; you can have another pair dropped off, normally
only jail-issued shoes are allowed.” PSAMF ¶ 15; DRPSAMF ¶ 15; DSMF ¶ 23;
PRDSMF ¶ 23. Nurse Cates’ intent was to make Mr. Belskis aware that his best
course of immediate action was to have another pair of shoes brought in to determine
whether they would comply with SCJ corrections staff’s security requirements.
DSMF ¶ 24; PRDSMF ¶ 24. Nurse Cates understood that as a federal prisoner, Mr.
Belskis would be subject to the United States Marshal Service’s (USMS) procedures
for obtaining medical care and it would require a doctor’s order before an outside
appointment or other medical need was submitted. DSMF ¶ 25; PRDSMF ¶ 25. Mr.
Belskis never responded to Nurse Cates’ note of inquiry of November 8, 2012 and
Nurse Cates was not aware he was having foot problems until it was brought to her
attention that he had made oral and written requests about foot issues on November
30, 2012 and December 1, 2012 respectively. DSMF ¶ 26; PRDSMF ¶ 26.
Meanwhile, on November 7, 2012, the Medpro medical provider, Robert Ellis,
PA-C, reviewed Mr. Belskis’ medication list and medical records on November 7,
2012. DSMF ¶ 14; PRDSMF ¶ 14. Physician’s Assistant Ellis believed that Nurse
Patterson’s findings concerning Mr. Belskis were not indicative of any medical
problem. DSMF ¶ 15; PRDSMF ¶ 15. Consistent with standard Medpro practice,
Mr. Belskis’ medical records from the ACJ were received. DSMF ¶ 17; PRDSMF ¶
8
17. The ACJ medical records revealed, among other things, that Mr. Belskis had an
annual physical examination at the ACJ on May 9, 2012. DSMF ¶ 18; PRDSMF ¶
18. Consistent with Medpro standard practice, Mr. Belskis had an updated annual
examination at the SCJ on May 8, 2013. Id. Given his stable condition on entry and
the prior physical examination at the ACJ in May 2012, Mr. Belskis would not be
scheduled to see the provider, namely Physician’s Assistant Ellis, unless he was
having a specific problem that was brought to the attention of the Medpro staff.
DSMF ¶ 19; PRDSMF ¶ 19. Mr. Belskis was aware of the need to submit written
request forms because of his prior incarcerations and because he demonstrated his
knowledge of this procedure by filing several IRFs unrelated to his feet, including his
glasses (11/6 and 11/12), an eyeglass prescription change (11/19/12), and complaints
for charges for seeing the provider (12/25/12). DSMF ¶ 20; PRDSMF ¶ 20.
Mr. Belskis had worn specially-made footwear for his diabetes while at the
Piscataquis County Jail a few years before and he still had this footwear. PSAMF ¶
16; DRPSAMF ¶ 16. Mr. Belskis arranged to have his mother bring the footwear to
the SCJ and she delivered the shoes to a nurse at the SCJ a few days after his arrival.
Id. The SCJ, however, denied his request to wear this footwear as well. Id.
E.
Medpro’s Treatment of Joseph Belskis’ Diabetes: An Overview
Although Mr. Belskis had a chronic condition of diabetes, he had no active
complications of diabetes. DSMF ¶ 27; PRDSMF ¶ 27. Specifically, there were no
signs or symptoms of infection or loss of skin integrity; Mr. Belskis requested and
received a routine follow-up and monitoring for his insulin dependent diabetes,
9
including foot checks.
Id.
One of the foundations for the care of diabetes and
prevention of the risks of development of other conditions is the close monitoring of
the hemoglobin HgB AIC level. DSMF ¶ 28; PRDSMF ¶ 28. From November 5, 2012
onward, the Medpro medical staff saw Mr. Belskis on a daily basis for purposes of
insulin treatment for his diabetes. DSMF ¶ 29; PRDSMF ¶ 29. Mr. Belskis was in
the medical unit four times a day for his diabetes sugar checks: before breakfast,
lunch, and dinner and before bedtime. Id. Mr. Belskis received long-acting insulin
twice a day, before breakfast and before bedtime, and he received insulin on an “as
needed” basis otherwise during the first three daily visits depending on his insulin
levels. DSMF ¶ 30; PRDSMF ¶ 30. Mr. Belskis’ HgB AIC levels at the SCJ were
markedly better than those at ACJ. Id.
F.
Joseph Belskis’ Initial Foot Complaints
Mr. Belskis did not complain about his feet until November 30, 2012. DSMF
¶ 31; PRDSMF ¶ 31. The Medpro medical records do not reveal any complaint about
foot problems by Mr. Belskis until an oral complaint of November 30, 2012 and his
written follow-up on December 1, 2012. DSMF ¶ 32; PRDSMF ¶ 32. On Friday,
November 30, 2012, Mr. Belskis complained to a Medpro staff member about foot
problems during a routine blood sugar check and he was advised to submit a medical
slip. DSMF ¶ 33; PRDSMF ¶ 33. On Saturday, December 1, 2012, Mr. Belskis made
out an IMR, requesting to be seen by a doctor for diabetic footwear. PSAMF ¶ 17;
DRPSAMF ¶ 17; DSMF ¶ 34; PRDSMF ¶ 34; PSAMF ¶ 17; DRPSAMF ¶ 17. Mr.
Belskis submitted his December 1, 2012 IMR in response to the November 30, 2012
10
oral exchange with Medpro staff. DSMF ¶ 34: PRDSMF ¶ 34. In his December 1,
2012 IMR form, Mr. Belskis described his “problem” as the need “to be seen by the
[Doctor] for diabetic ulcer—proper diabetic footwear in [the SCJ] property [locker] . .
. .” Id. Nurse Cates was not aware of Mr. Belskis’ foot complaint until she returned
for a full day of work on December 4, 2012. DSMF ¶ 35; PRDSMF ¶ 35. By the time
Nurse Cates returned to work on December 4, 2012, another member of the nursing
staff had already placed Mr. Belskis on the next available sick call day—December
4—and PA-C Ellis saw him that day. Id.
On December 4, 2012, PA-C Ellis saw Mr. Belskis for the first time. DSMF ¶
36; PRDSMF ¶ 36.
PA-C Ellis observed that Mr. Belskis had evidence of a
hyperkeratotic area consistent with a healing chronic ulcer on the plantar aspect of
the right foot, first metatarsal, and two small areas of redness from shoe irritation,
one on the right fifth toe. Id. He demonstrated no signs of skin breakdowns and no
signs of infection at that time. Id. PA-C Ellis noted on December 4:
Mr. Belskis is a diabetic who has had amputations of toes and chronic
diabetic ulcers. He wears orthotic shoes and this was discontinued upon
his arrest. [H]e would like to wear them so I’m going to ask the nursing
staff to discuss this with the administrative staff to see if they will allow
his specialized shoes.
Id. As of December 4, 2012, Mr. Belskis did not have a serious medical need or
condition related to his right foot. DSMF ¶ 37; PRDSMF ¶ 37. After seeing PA-C
Ellis on December 4, 2012, Mr. Belskis left the visit with the understanding that the
nursing staff was going to make a request to correctional staff to see if he could get
his old diabetic shoes. PSAMF ¶ 18; DRPSAMF ¶ 18.
11
On December 5, 2012, at PA-C Ellis’ request, Nurse Cates asked the on-duty
SCJ booking staff if a property person was in to obtain Mr. Belskis’ shoes and was
advised “no”. DSAMF ¶ 38; PRDSMF ¶ 38.
On December 6, 2012, Mr. Belskis completed an IRF for the issuance of
prescriptive diabetic shoes or the return of his own diabetic shoes, which had been
taken at his admission to the SCJ. DSMF ¶ 39; PRDSMF ¶ 39. On December 6,
2012, Nurse Cates discussed the diabetic shoe issue with PA-C Ellis and SCJ
Corrections Sergeant Theresa Brown. DSMD ¶ 40; PRDSMF ¶ 40. Sergeant Brown
was made aware of the link between the need for specialized footwear and Mr.
Belskis’ diabetes. Id. Later that day, another Medpro staff member responded to Mr.
Belskis, advising him that “we are checking into it”. Id.
On Friday, December 7, 2012, Nurse Cates executed another KOP slip and
submitted it to SCJ corrections staff. DSMF ¶ 41; PRDSMF ¶ 41. SCJ Sergeant
Elijah Munn was advised that Mr. Belskis’ shoes were worn at ACJ and that Mr.
Belskis needed them because of his diabetes and potential medical complication. Id.
Later on December 7, 2012, Nurse Cates advised Mr. Belskis that “[SCJ] security
looked at [his shoes] again and denied [the KOP] due to laces, metal and condition [of
the footwear].” DSMF ¶ 42; PRDSMF ¶ 42. Sergeant Munn issued the denial. Id.
Mr. Belskis never grieved the denial of his diabetic footwear by SCJ corrections staff.
DSMF ¶ 43; PRDSMF ¶ 43. Nurse Cates personally made SCJ corrections staff
aware that Mr. Belskis needed his diabetic shoes because of his diabetic condition
12
and that if he did not have his shoes, this could lead to problems with his feet. DSMF
¶ 44; PRDSMF ¶ 44.
On Saturday, December 8, 2012, Mr. Belskis submitted an IRF, asking Medpro
“to check if the Federal Bureau of Corrections would pay for a pair of diabetic soft
shoe sneakers for my ongoing problem with diabetic ulcers on my feet. So these shoes
would not be a security risk at any facility I have to enter.” DSMF ¶ 45; PRDSMF ¶
45. Another nursing staff member referred the IRF to the provider. Id.
Mr. Belskis was on the sick call list to be seen by the provider concerning his
request for diabetic footwear on the next regularly scheduled day, Tuesday, December
11, 2012. DSMF ¶ 46; PRDSMF ¶ 46. For some reason, he was not seen that day.
Id. Rather than wait until the next sick call day, Nurse Cates called provider PA-C
Ellis on Wednesday, December 12, 2012, and explained Mr. Belskis’ request. DSMF
¶ 47; PRDSMF ¶ 47. PA-C Ellis issued a verbal order for the prescription for diabetic
shoes. Id.
Also on December 12, 2012, Nurse Cates contacted Pine Tree Orthopedic (PTO)
to receive a cost for the consultation, which is required by the United States Marshal
Service (USMS) protocol for submission of outside services. DSMF ¶ 48; PRDSMF ¶
48.
On Thursday, December 13, 2012, Nurse Cates received a quote for the
consultation from PTO and submitted a request to the USMS, requesting approval of
a consult with PTO in Livermore Falls, Maine “upon recommendation of R. Ellis, PA
. . . [as Mr. Belskis] has initially been diagnosed with diabetes [and] needs consult for
diabetic [shoes].” DSMF ¶ 49; PRDSMF ¶ 49. After USMS approval, Nurse Cates
13
contacted PTO and made what she understood was the first available appointment
for Mr. Belskis for December 27, 2012. Id. The appointment for the initial consult
for diabetic footwear was made three days before Mr. Belskis’ initial foot problems on
December 16, 2012. DSMF ¶ 50; PRDSMF ¶ 50. For some reason, Mr. McDonald did
not see Mr. Belskis on December 27, 2012, but on December 28, 2012. Id.
G.
Mr. Belskis’ Development of a Serious Medical Condition and
the Medpro Response
On Sunday, December 16, 2012, Mr. Belskis noticed something wrong with his
fifth metatarsal. PSAMF ¶ 19; DRPSAMF ¶ 19. This was the first time Mr. Belskis
had noticed a problem with his right foot. DSMF ¶ 52; PRDSMF ¶ 52. On December
16, 2012, Mr. Belskis submitted an IMR to see the medical provider concerning his
foot sores. DSMF ¶ 51; PRDSMF ¶ 51. Mr. Belskis also stated that he “would like
clog-type shower shoes.” Id. On December 16, 2012, he saw Licensed Practical Nurse
Rhonda Walters and he reported his concern to her.5 PSAMF ¶ 19; DRPSAMF ¶ 19.
This was the first time Mr. Belskis had reported a foot wound to Medpro personnel.
DSMF ¶ 53; PRDSMF ¶ 53. Other than the pink area on the metatarsal area that
Nurse Patterson noticed on November 5, 2012, the medical treatment of Mr. Belskis
establishes that he did not have a serious medical condition related to his right foot
until December 16, 2012, at the earliest, when he complained of problems to the
Medpro issued a qualified response to this statement of fact, asserting that Mr. Belskis initially
refused to be seen by a member of the nursing staff for his December 16, 2012 complaint. DRPSAMF
¶ 19. The Court included this fact in Medpro’s paragraph 56.
5
14
medical staff. DSMF ¶ 54; PRDSMF ¶ 54.6 PA-C Ellis saw Mr. Belskis in a timely
fashion on December 18, 2012. Id.
Medpro standard procedure requires the nursing staff to make an initial
contact with the inmate concerning any written inmate request for medical services.
DSMF ¶ 55; PRDSMF ¶ 55. The reasons for this procedure include the need for the
nursing staff to make a preliminary assessment and to provide additional details to
the provider. Id. Mr. Belskis initially refused to be seen by the nursing staff on
December 16, 2012, but later that day, Nurse Rhonda Walters saw Mr. Belskis and
he told her that the “croc [type shoe which was available at SCJ] would work.” DSMF
¶ 56. Medpro nursing staff checked with SJC Corrections Major David Allen and
Major Allen advised that a medical order would be required to obtain a croc-type shoe
for Mr. Belskis. DSMF ¶ 57; PRDSMF ¶ 57.
On Tuesday, December 18, 2012, PA-C Ellis saw Mr. Belskis on follow-up to
the December 16, 2012 written IMR. PSAMF ¶ 20; DRPSAMF ¶ 20; DSMF ¶ 58;
PRDSFM ¶ 58. This was the first opportunity for Mr. Belskis to see the provider in
regard to the problem he also wrote about on December 16, 2012. Id. On December
18, 2012, PA-C Ellis noted that Mr. Belskis “has been unable to wear his orthopedic
footwear as it is not jail approved” and that Mr. Belskis has “been in standard Velcro
top sneaker which was irritating his foot.” DSMF ¶ 59; PRDSMF ¶ 59. By December
Medpro’s initial statement did not make reference to the pink area on Mr. Belskis’ metatarsal
on November 5, 2012, when he was booked into the SCJ. DSMF ¶ 54. Mr. Belskis issued a qualified
response, noting that he presented with a pink area on his metatarsal on November 5, 2012. PRDSMF
¶ 54. In accordance with its obligation to view the evidence in the light most favorable to Mr. Belskis,
the Court included his qualification.
6
15
18, 2012, Mr. Belskis had developed a sore, which was blistered and oozing, on his
fifth metatarsal.7 PSAMF ¶ 21; DSMF ¶ 21.
PA-C Ellis observed a one centimeter pressure spot on the right distal fifth
metatarsal and a healing chronic two centimeter spot on the second metatarsal. Id.
PA-C Ellis submitted a written order for the croc-type shoes and required the nursing
staff to begin applying dry dressings daily. Id. With the hope that a change in
footwear would be less traumatic until his new diabetic shoes were available, PA-C
Ellis asked that Mr. Belskis be issued a pair of croc-type shoes generally available
only to the female inmates. DSMF ¶ 60; PRDSMF ¶ 60. PA-C Ellis noted that a
referral for an orthopedic shoe had already been made and was pending. Id.
As of December 18, 2012, PA-C Ellis considered Mr. Belskis to have a serious
medical condition or need regarding his right foot and PA-C Ellis recommended daily
wound checks with a dry dressing by the nursing staff. DSMF ¶ 61; PRDSMF ¶ 61.
The purpose of the daily wound dressing was to pad the area and provide protection.
DSMF ¶ 62; PRDSMF ¶ 62. PA-C Ellis also recommended that Mr. Belskis wear
socks to provide additional foot protection. Id. The dressing was a dry gauze taped
on, as jail regulations will not allow the use of roll gauze because of safety concerns;
this resulted in the bandage being easily displaced. Id. The Medpro staff applied
daily dressing changes to Mr. Belskis’ foot for foot ulcers from December 19, 2012
through January 17, 2013. DSMF ¶ 70; PRDSMF ¶ 70; DSMF ¶ 73; PRDSMF ¶ 73.
Medpro denied this paragraph, citing the Ellis, Walters and Cates affidavits. DRPSAMF ¶ 21.
However, the Court is required to view contested facts in the light most favorable to Mr. Belskis and
it has therefore included his recollection of the condition of his toe on December 18, 2012.
7
16
The nursing staff reported increasing improvement at daily dressing changes in the
fifth metatarsal lesion with decreasing redness and no pain. DSMF ¶ 74; PRDSMF
¶ 74.
On December 18, 2012, Nurse Cates received a memorandum from SCJ
corrections staff, Compliance Manager Sean Maguire. DSMF ¶ 63; PRDSMF ¶ 63.
Mr. Maguire confirmed the denial of Mr. Belskis’ previous diabetic footwear for
security reasons. Id. Mr. Maguire’s December 18, 2012 memorandum stated:
Inmate [Belskis’] diabetic shoes were denied due to metal eyelets and
long shoelaces. Inmate Belskis has been issued a set of crocs and
instructed to wear these with socks. The denial of the shoes was
reviewed by [Major Corey] Swope and found to meet jail policies on
contraband.
DSMF ¶ 64; PRDSMF ¶ 64. Mr. Maguire also noted that Mr. Belskis was not
compliant with the request to wear socks for additional protection and that SCJ policy
requires all inmates to wear socks as part of the jail uniform, regardless of the type
of footwear. DSMF ¶ 65; PRDSMF ¶ 65.
Terry Thurlow is a principal, owner, and the health services administrator of
Medpro Associates.8 See DSMF, Attach. 4, Aff. of Terry Thurlow ¶ 66. Mr. Thurlow
contacted various SCJ personnel and made them aware of the importance of Mr.
Belskis having his own diabetic shoes.9 DSMF ¶ 66; PRDSMF ¶ 66. Mr. Thurlow
Medpro introduces Terry Thurlow in its statement of material fact paragraph 66. DSMF ¶ 66.
But he is identified only as Mr. Thurlow. Id. Mr. Thurlow’s affidavit describes his position at Medpro.
Id. Attach. 4, Aff. of Terry Thurlow ¶ 1. The Court has added his description on the assumption that
Mr. Belskis does not contest that Mr. Thurlow’s relationship with Medpro. Otherwise, Mr. Thurlow’s
statements are without context.
9
Neither Medpro’s statement of material facts nor Mr. Thurlow’s affidavit clarifies when Mr.
Thurlow contacted the SCJ personnel. Although the Court included these contacts, they add little
because their timing is unknown. By its placement in Medpro’s statement of material facts, it could
be that Mr. Thurlow made these contacts on December 18, 2012, but this is an assumption.
8
17
made SCJ corrections staff, Jail Administrator David Allen and Compliance Officer
Sean Maguire, aware that Mr. Belskis needed his diabetic shoes because of his
diabetic condition and that if he did not have his shoes, it could lead to problems with
his feet. DSMF ¶ 67; PRDSMF ¶ 67.
On December 19, 2012, SCJ corrections staff provided Mr. Belskis with a croctype shoe. DSMF ¶ 68; PRDSMF ¶ 68. On December 20, 2012, Mr. Belskis was seen
by Medpro staff “with new croc style shoes on. [Mr. Belskis] reported he likes them
and they don’t rub as much.” DSMF ¶ 69; PRDSMF ¶ 69. Mr. Belskis did not wear
his socks only for brief periods of time; however, on December 20, 2012, when the
other Medpro nurse saw Mr. Belskis, he was non-compliant with the request to wear
socks.10 DSMF ¶ 71; PRDSMF ¶ 71. When yet another Medpro nurse saw Mr. Belskis
on December 21, 2012, he was compliant with the request to wear socks. DSMF ¶ 72;
PRDSMF ¶ 72. Generally, during the time the medical staff at the SCJ was dressing
the sore on Mr. Belskis’ foot, he did wear socks, though he would not wear them for
the walk between the shower and his cell, a short distance. PSAMF ¶ 33; DRPSAMF
¶ 33. Otherwise, Mr. Belskis routinely wore socks for the entire time he was at SCJ.11
Id.
Medpro’s paragraph seventy-one states that when the Medpro nurse saw him on December 20,
2012, he was again non-compliant with the request to wear socks. DSMF ¶ 71. Mr. Belskis denied
this paragraph, noting that he did not wear the socks only for brief periods of time. PRDSMF ¶ 71.
Mr. Belskis’ denial does not directly contradict the Medpro statement. He could have been generally
compliant but non-compliant when the Medpro nurse saw him on December 20, 2012. The Court
incorporated both statements.
11
Medpro issued a qualified response to Mr. Belskis’ paragraph thirty-three. DRPSAMF ¶ 33.
The qualified response only states: “Qualify (Cates Affidavit ¶¶ 21 and 23).” Id. These paragraphs of
Nurse Cates’ affidavit are the record support for Medpro paragraphs 71 and 72, which the Court has
incorporated in the statement of facts, mindful of the requirement to view the facts in the light most
favorable to Mr. Belskis.
10
18
On Friday, December 28, 2012, Mr. Belskis was escorted to Bruce MacDonald’s
office at PTO in Livermore Falls, Maine at which time, Mr. MacDonald assessed him
to see if he needed diabetic shoes. PSAMF ¶ 22; DRPSAMF ¶ 22; DSMF ¶ 75;
PRDSMF ¶ 75.12 Mr. MacDonald did not have any shoes in stock for Mr. Belskis and
so he was going to have some made. PSAMF ¶ 23; DRPSAMF ¶ 23. Mr. Belskis was
transported back to SCJ with a note that read: “[Mr. MacDonald] will send [a] letter
with recommendations.”
DSMF ¶ 75; PRDSMF ¶ 75.
The note making those
recommendations was not sent or received at Medpro until the following Tuesday,
December 31, 2012. DSMF ¶ 76; PRDSMF ¶ 76.
Mr. MacDonald’s observations of December 28, 2012 contained in the note that
Medpro received on December 31, 2012 were not consistent with those observations
of the Medpro nursing staff. DSMF ¶ 77; PRDSMF ¶ 77. On December 28, 2012,
Medpro staff member Nurse Leavit13 observed that “the wound appears improved
from yesterday slightly more dry than I usually see it.” DSMF ¶ 78; PRDSMF ¶ 78.
On Mr. Belskis’ return from PTO on December 28, 2012, he was seen by another
Medpro nurse. DSMF ¶ 79; PRDSMF ¶ 79. Mr. Belskis reported to that nurse that
Mr. MacDonald had not looked under his dressing. Id. Mr. MacDonald had given a
cream to Mr. Belskis, but Medpro staff was still awaiting an order from Mr.
Medpro’s paragraph seventy-five refers to “Pine Street Orthopedics”, not Pine Tree
Orthopedics. DSMF ¶ 75. The Court assumes this was a typographical error.
13
Medpro introduces Nurse Leavit in its statement of material fact paragraph 78. DSMF ¶ 78.
The statement provides no first name for Nurse Leavit. The record support for the statement is the
affidavit of Robert G. Ellis, PA-C, which states: “On December 28, Medpro nursing staff RN Leavit
observed that ‘the wound appears improved from yesterday slightly more dry than I usually see it.”
DSMF, Attach. 2, Aff. of Robert G. Ellis, PA-C ¶ 10. Nurse Leavit’s name appears once in the Medpro
statement of material fact.
12
19
MacDonald regarding the lotion. DSMF ¶ 80; PRDSMF ¶ 80. A Medpro staff nurse
called Mr. MacDonald and Mr. MacDonald advised that he would fax the order. Id.
On Monday, December 31, 2012, Nurse Patterson noted the following condition
on the right small toe: “[right] pinky toe sore approximately 1 cm round white
appeared to have approx. 2mm x 1mm x 1.5 mm deep center with scant amt clear
ooze at base. [Patient] reported that it has been oozing slightly.” DSMF ¶ 81;
PRDSMF ¶ 81.
Another Medpro staff member, Nurse Littlefield, called Mr.
MacDonald that morning to inquire about his orders, which Medpro had still not yet
received. Id. Mr. MacDonald finally transmitted his note to Medpro concerning the
December 28, 2012 visit with Mr. Belskis via fax at 1:30 p.m. on December 31, 2012.14
DSMF ¶ 82; PRDSMF ¶ 82. Mr. MacDonald’s note concerning his December 28, 2012
visit with Mr. Belskis confirmed that he had no diabetic shoes that would fit Mr.
Belskis, but Mr. MacDonald advised that he could order them or make them at his
facility. DSMF ¶ 83; PRDSMF ¶ 83.
Licensed Practical Nurse Rhonda Walters saw Mr. Belskis on January 1 and
January 2, 2013 for dressing changes. DSMF ¶ 84; PRDSMF ¶ 84. As a result of the
changes she saw in his right foot on January 2, 2013, namely an open wound on the
right little toe with drainage, she referred him to the provider for further review and
direction. Id. Later that day, LPN Walters spoke to the provider, PA-C Ellis, who
ordered that Mr. Belskis be sent to the Wound Clinic as soon as possible.
Id.
Medpro’s paragraph 82 does not clarify whether or not it was 1:30 p.m. on December 31, 2012.
However, Nurse Cates’ affidavit does. DSMF Attach. 1, Aff. of Lisa Cates ¶ 29. The Court included
the date for clarity.
14
20
Specifically, on Wednesday, January 2, 2013, PA-C Ellis was alerted by the nursing
staff that the area on the right fifth toe had opened, and after discussion with the
nursing staff, PA-C Ellis was satisfied that no frank signs of infection were noted at
that time. DSMF ¶ 85; PRDSMF ¶ 85. On January 2, 2013, SCJ staff requested the
USMS on PA-C Ellis’ telephone order that Mr. Belskis be seen at the Maine General
Hospital Wound Clinic in Waterville. DSMF ¶ 86; PRDSMF ¶ 86. The USMS
approved the request later that day. Id.
H.
Antibiotics, Wound Care, and Amputation
On Thursday, January 3, 2013, Nurse Cates contacted the Maine General
Medical Center (MGMC) Wound Clinic in Waterville, Maine to arrange an
appointment for Mr. Belskis as soon as possible. DSMF ¶ 87; PRDSMF ¶ 87. MGMC
advised Medpro that the appointment would likely be the following week and
arrangements were made for Mr. Belskis to be seen on Thursday, January 10, 2013.
Id.
On Friday, January 4, 2013, a Medpro staff nurse noted that some foot redness
had begun to develop; PA-C Ellis gave a verbal order for antibiotics (Minocycline and
Levaquin) and noted that he would see Mr. Belskis at sick call the following day. 15
DSMF ¶ 88; PRDSMF ¶ 88. Antibiotics were started on January 4, 2013, following
the clinical signs of infection reported to PA-C Ellis. DSMF ¶ 89; PRDSMF ¶ 89. This
In his statement of material fact paragraph 24, Mr. Belskis says that Nurse Laplante saw him
on January 4, 2013 and started him on a four-day course of antibiotics. PSAMF ¶ 24. Medpro issued
a qualified response, stating that PA-C Ellis prescribed the antibiotics. DRPSAMF ¶ 24. It is not
material to the resolution of the motion who prescribed the antibiotics. However the Court accepted
Medpro’s version because unless they have advance training, nurses generally are not authorized to
prescribe medicine, see 32 M.R.S. § 2102, and physicians assistants typically are, subject to physician
review. 32 M.R.S. § 3300-C.
15
21
delay of two days was not a significant delay in terms of treatment and was unlikely
to have an impact on Mr. Belskis’ ultimate condition, the development of
osteomyelitis, and the delay would not have had an effect on the future course of the
problem. DSMF ¶ 90; PRDSMF ¶ 90.16 On January 4, 2013, Nurse Cates confirmed
an appointment for Mr. Belskis at the MFMC for January 10, 2013. DSMF ¶ 91;
PRDSMF ¶ 91. Also on January 4, 2013, Nurse Cates called PTO and asked Mr.
MacDonald to get back to her concerning the next steps to obtain shoes for Mr.
Belskis. Id. When she did not hear back from Mr. MacDonald, she called him again
on January 15, 2013 and left a voice message for him, asking again what the next
steps were to obtain shoes for Mr. Belskis. Id.
Medpro’s paragraph ninety reads: This delay of two days was not a significant delay in terms
of treatment and was unlikely to have an impact on Mr. Belskis’ ultimate condition, the development
of osteomyelitis, and the delay would not have had an effect on the future course of the problem. DSMF
¶ 90. For record support, Medpro cites the affidavit of James W. Berry, M.D. Id. Attach. 13, Aff. of
James W. Berry, MD ¶ 7. Mr. Belskis objected on foundational grounds, referring to his additional
statement of material fact thirty-five. PRDSMF ¶ 90; PSAMF ¶ 35. His statement of material fact
thirty-five reads: The Plaintiff never spoke with, and was never examined by James W. Berry, M.D.
Medpro admitted Mr. Belskis’ paragraph thirty-five. PSAMF ¶ 35; DRPSAMF ¶ 35.
The dispute about the admissibility of Dr. Berry’s testimony would more properly be resolved
by a Daubert motion or a motion in limine. Here, the parties have just framed the issue—whether a
medical doctor’s opinion based solely on a records review is admissible—but have offered no authority
either way. For purposes of this motion only, the Court overrules Mr. Belskis’ objection to Dr. Berry’s
opinion based on foundational grounds.
Dr. Berry’s opinion assumes the accuracy of the medical records in this case and therefore is
similar to an expert response to a hypothetical. Furthermore, Dr. Berry was Mr. Ellis’ supervising
physician. See DSMF ¶¶ 137-38; PRDSMF ¶¶ 137-38. As the supervising physician, Dr. Berry would
have been charged with making routine judgments about the adequacy of Mr. Ellis’ care based on
medical records alone since he actually met with Mr. Ellis only every four weeks. DSMF ¶ 138;
PRDSMF ¶ 138.
Furthermore, his opinion as to whether a two-day delay in the initiation of antibiotic therapy
made a difference in the end medical result is a matter of scientific opinion. Absent actually examining
Mr. Belskis in early January 2013, as Mr. Belskis’ little toe was amputated in March 2013, it is unclear
what additional information Dr. Berry would have been able to obtain on this causation question had
he examined Mr. Belskis.
Finally, Mr. Belskis had not proffered a medical opinion contrary to Dr. Berry’s causation
opinion. Had he done so, the Court would have accepted Mr. Belskis’ expert opinion over Dr. Berry’s
in accordance with its obligation to view contested facts in the light most favorable to the non-movant.
16
22
On January 5, 2013, Nurse Cates evaluated Mr. Belskis and noted some
redness across the dorsum of the foot, although Mr. Belskis stated that it was
improving. DSMF ¶ 93; PRDSMF ¶ 93. In addition, on January 5, 2013, PA-C Ellis
evaluated Mr. Belskis and noted some redness across the dorsum of the foot, although
Mr. Belskis also told Mr. Ellis that it was improving. DSMF ¶ 94; PRDSMF ¶ 94;
DSMF ¶ 104; PRDSMF ¶ 104. Mr. Belskis reported less pain than the day before.
DSMF ¶ 104; PRDSMF ¶ 104.
Daily dressing changes with antibiotics were
continued for the next five days and he was seen by Dr. Lisa Sauer of the MGMC
Wound Clinic on January 10, 2013. DSMF ¶¶ 93-94, 104; PRDSMF ¶¶ 93-94, 104;
PSAMF ¶ 25; DRPSAMF ¶ 25. On January 10, 2013, Dr. Sauer ordered an MRI,
which was done on January 18, 2013. DSMF ¶ 94; PRDSMF ¶ 94.
On January 10, 2013, Dr. Sauer called Medpro at the SCJ regarding Mr.
Belskis and spoke with LPN Walters. DSMF ¶ 99; PRDSMF ¶ 99. Dr. Sauer stated
that Mr. Belskis told her that Medpro was not allowing him what he needs. Id. LPN
Walters informed Dr. Sauer that an orthopedic approval goes through corrections
administration for safety concerns in a correctional setting and that his current
orthopedic shoes were not approved by SCJ administration, Major Swope. Id. Dr.
Sauer advised LPN Walters that she was requesting an MRI of his foot. DSMF ¶
100; PRDSMF ¶ 100. LPN Walters advised Dr. Sauer that an appointment for his
shoes was pending before the January 10, 2013 appointment with Dr. Sauer. Id. Dr.
Sauer also wanted to know exactly what was needed for modifications for Mr. Belskis’
current shoes. DSMF ¶ 101; PRDSMF ¶ 101. LPN Walters asked Dr. Sauer to send
23
a request, specifying what she would like to have and LPN Walters said she would
speak with SCJ corrections administration. Id.
In response to the information concerning self-injury, Dr. Sauer stated that
she did not obtain that history and that she can only believe what the patient tells
her.17 DSMF ¶ 103; PRDSMF ¶ 103. LPN Walters told Dr. Sauer that Mr. Belskis
is not being neglected as he reported to Dr. Sauer, and that Medpro is doing what is
medically necessary under the corrections administration and the USMS Guidelines.
Id. The call concluded with LPN Walters advising Dr. Sauer that if she needed
anything further from Medpro, she should please not hesitate to let Medpro know.
Id. Mr. Belskis did not inflict wounds on his foot while he was housed at the SCJ,
either by rubbing/hitting his foot on his bunk or otherwise.18
PSAMF ¶ 32;
DRPSAMF ¶ 32.
Mr. MacDonald’s office returned the call on January 15, 2013 and made an
appointment for January 17, 2013 for Mr. Belskis to be molded for shoes. DSMF ¶
95; PRDSMF ¶ 95. A fax was sent to the USMS on January 15, 2013 for approval of
the shoes, which were approved. Id. Mr. Belskis returned to see Mr. MacDonald on
January 17, 2013, to get a mold made of his feet for the diabetic shoes. PSAMF ¶ 26;
DRPSAMF ¶ 26.
In its paragraph 102, Medpro asserts that LPN Walters told Dr. Sauer that Mr. Belskis
admitted to her that he had been inflicting wounds to his feet by rubbing and/or hitting his foot on his
bunk and that Mr. Belskis told her this in the course of his routine daily for insulin checks. DSMF ¶
102. Mr. Belskis denied making such statements. PRDSMF ¶ 102. In accordance with its obligation
to view the evidence in the light most favorable to Mr. Belskis, the Court omitted Medpro paragraph
102.
18
Medpro denied this statement, but the Court has included it because it is required to view the
facts in the light most favorable to Mr. Belskis.
17
24
Medpro staff made no fewer than five telephone calls to PTO from Mr. Belskis’
initial visit on December 28, 2012 through February 15, 2013, trying to expedite the
production of custom-made shoes. DSMF ¶ 96; PRDSMF ¶ 96. PTO finally saw Mr.
Belskis in follow-up and he was provided new diabetic shoes from PTO on February
19, 2013. Id.
The passage of time for Mr. Belskis to obtain his shoes was within customary
practice. DSMF ¶ 97; PRDSMF ¶ 97. It is not unusual for there to be a delay of six
weeks to two months for a custom pair of diabetic shoes to be molded and fitted for a
diabetic patient. Id. Mr. Belskis currently wears diabetic shoes as his regular
footwear and from the time his feet were molded until he received the shoes, it was
about two-and-one-half weeks.19 PSAMF ¶ 34; DRPSAMF ¶ 34.20
On January 18, 2013, Mr. Belskis no longer had an open wound to treat so
dressing changes were discontinued. DSMF ¶ 105; PRDSMF ¶ 105. Daily foot checks
and dry dressing if needed were continued from January 18, 2013 until February 10,
2013. DSMF ¶ 106; PRDSMF ¶ 106. On January 18, 2013, Mr. Belskis was taken to
Redington Fairview Hospital in Skowhegan for the MRI ordered by Dr. Sauer. DSMF
¶ 107; PRDSMF ¶ 107; PSAMF ¶ 27; DRPSAMF ¶ 27. Dr. Sauer had ordered the
The parties issued qualified responses to Medpro’s paragraph 97 and to Mr. Belskis’ paragraph
34. The Court included both paragraphs, which cures both qualified responses.
20
Medpro’s paragraph 98 states: The only significant delays in Mr. Belskis’ case was the
approximately two week delay by PTO between the time of the request and the date of initial
consultation appointment in December 2012, and then another two week delay for the foot molding
appointment that eventually occurred on January 17, 2013. DSMF ¶ 98. Mr. Belskis denied this
statement, noting that there was a significant delay between his first request on November 6, 2012
and the eventual visit for a fitting. PRDSMF ¶ 98. He also notes that there was a significant delay in
his being started on antibiotics. Id. Viewing the facts in the light most favorable to Mr. Belskis, the
Court has not included Medpro paragraph 98.
19
25
MRI to rule out osteomyelitis. Id. The MRI showed suspicion of osteomyelitis of the
right fifth toe. Id. At this time, the ulcer had healed over. Id. Dr. Anthony C. Van
Dyck’s reading of the MRI confirmed an infection in the bone, which is consistent with
the diagnosis of osteomyelitis. Id. Mr. Belskis returned to the Wound Center at
MGMC on January 31, 2013 to see Dr. Sauer and she told him that the bone was
infected. PSAMF ¶ 28; DRPSAMF ¶ 28.
PA-C Ellis spoke with Dr. Sauer about the MRI results and further action; Dr.
Sauer recommended either six weeks of IV antibiotics or referral to an orthopedic
surgeon for consideration of amputation. Id. Mr. Ellis spoke with Mr. Belskis twice
about Dr. Sauer’s recommendations. DSMF ¶ 109; PRDSMF ¶ 109. At first Mr.
Belskis was not sure and said he wanted to think about it, and was uncertain what
course of action to pursue. Id.; DSMF ¶ 112; PRDSMF ¶ 112. He then decided to go
forward with the amputation stating he did not want to have IV antibiotics while in
jail. Id. On January 23, 24, 25, and 26, 2013, Mr. Belskis refused foot checks and on
January 26, 2013, the Medpro staff contacted the provider to inform him of this.
DSMF ¶ 110; PRDSMF ¶ 110.
On February 5, 2013, Mr. Belskis submitted an Informal Request for Remedy
(Level 1 Grievance), concerning his medical treatment options.
DSMF ¶ 111;
PRDSMF ¶ 111. On February 7, 2013, PA-C Ellis saw Mr. Belskis concerning his
request, Dr. Sauer’s findings of osteomyelitis, and the treatment options of
amputation or intravenous antibiotics. Id. At the February 7, 2013 visit, PA-C Ellis
explained that IV antibiotics treatment could be done at the SCJ infirmary if Mr.
26
Belskis wished. DSMF ¶ 113; PRDSMF ¶ 113. Because he believed that amputation
was the best course given his history, Mr. Belskis declined IV antibiotic treatment
and advised PA-C Ellis that he preferred amputation to be done by James Timoney,
DO, who had performed Mr. Belskis’ other foot amputations.21 Id. As a result of this
visit with Mr. Belskis, the plan on February 7, 2013 was to schedule a referral date
with Dr. Timoney. DSMF ¶ 114; PRDSMF ¶ 114. On Thursday, February 7, 2013,
Nurse Cates spoke with PTO and PTO informed her that Mr. Belskis’ shoes were “in
production and should be ready tomorrow or Monday.” DSMF ¶ 115; PRDSMF ¶ 115.
PTO informed Nurse Cates that once the shoes were ready, Mr. Macdonald would call
to set up an appointment for a fitting. Id.
From February 11, 2013 to February 28, 2013, Mr. Belskis refused daily foot
checks. DSMF ¶ 116; PRDSMF ¶ 116. On Thursday, February 14, 2013, PTO called
and advised that the shoes were ready and eventually an appointment for a fitting
was made for Tuesday, February 19, 2013. DSMF ¶ 117; PRDSMF ¶ 117. Mr. Belskis
returned from that appointment with his shoes, a printout of instructions for them,
and pairs of specialty socks. Id.; PSAMF ¶ 30; DRPSAMF ¶ 30.
On February 15, 2013, Mr. Belskis was taken to Central Maine Orthopedics
(CMO) for a consultation with Dr. Timoney. DSMF ¶ 118; PRDSMF ¶ 118; PSAMF
¶ 29; DRPSAMF ¶ 29. At the February 15, 2013 consultation with Dr. Timoney, Mr.
Belskis denied any traumatic event to his right fifth toe and stated that he started
Mr. Belskis qualified his response to Medpro paragraph 113 to assert that he elected the
amputation because he believed it was the best course, given his history. PRDSMF ¶ 113. The Court
included Mr. Belskis’ qualification.
21
27
feeling pain in December 2012. Id. On March 1, 2013, Mr. Belskis was taken to CMO
for a follow-up consultation with Dr. Timoney. DSMF ¶ 119; PRDSMF ¶ 119. On
March 11, 2013, Dr. Timoney conducted an amputation of the right small toe or fifth
metatarsal. Id.; PSAMF ¶ 31; DRPSAMF ¶ 31. Following the surgery, Dr. Timoney
issued discharge instructions for post-surgical recuperation. Id.
Mr. Belskis was returned to the SCJ after surgery and spent a short time in
the Medpro infirmary in post-surgical recuperation before being discharged to his
regular housing unit. DSMF ¶ 120; PRDSMF ¶ 120. He recovered well and without
incident from the surgery during his stay at the SCJ infirmary. Id. After the March
11, 2013 surgery, daily foot checks and dressing changes resumed. DSMF ¶ 121;
PRDSMF ¶ 121.
On March 21, 2013, Mr. Belskis submitted an IRF requesting information
concerning an alleged delay in his receiving diabetic footwear.
DSMF ¶ 122;
PRDSMF ¶ 122. On March 25, 2013, PA-C Ellis saw Mr. Belskis for follow-up on the
March 21, 2013 request. Id. At the March 25, 2013 consult, provider and patient
agreed that Mr. Belskis’ problems, which resulted in his amputation by Dr. Timoney
on March 11, 2013, were an “exacerbation of an ongoing chronic problem . . . that was
probably smoldering following a long bout with diabetic foot ulcers care while he was
in another jail.”22 DSMF ¶ 123; PRDSMF ¶ 123.
Not unreasonably, Mr. Belskis objects to this statement, pointing out that there is no evidence
of any chronic problem such as the one described. PRDSMF ¶ 123. Mr. Belskis cites Medpro’s
paragraphs 11, 15, and 16, all of which confirm that his previous wound had completely healed by
November 5, 2013, the day of his booking at SCJ, that PA-C Ellis believed he had no medical problem
as of November 5, 2013, and Nurse Patterson’s observations on November 5, 2013 had nothing to do
with Mr. Belskis’ ultimate problems with his toe. Id. (citing DSMF ¶¶ 11, 15, 16).
22
28
I.
Subjective Awareness23
As of December 16, 2012, Mr. Belskis was seen by the provider at the first
opportunity, two days after making his request. DSMF ¶ 128; PRDSMF ¶ 128.
J.
SCJ Health Management Policies
SCJ Policies 12.1 entitled “Health Care Management” and 12.2 entitled
“Health Care Screening and Services” are the official policies of the SCJ and were in
effect of the date of the incident in this lawsuit. PSAMF ¶ 36; DRPSAMF ¶ 36. SCJ
Policy 12.1 provides that “No non-medical staff member will deny an inmate access
to treatment or evaluation of medical or mental health problems.” PSAMF ¶ 37;
DRPSAMF ¶ 37. SCJ Policy 12.1 also provides that “All matters of medical judgment
are the sole province of the physicians or dentists working for, or under contract with,
the SCJ; however, the unified Health Authority has the final clinical authority in all
cases. PSAMF ¶ 38; DRPSAMF ¶ 38. SCJ Policy 12.1 further provides that “Medical
staff members are obligated to be aware of inmates with special medical problems
that may require specific interventions and the associated signs and symptoms.
PSAMF ¶ 39; DRPSAMF ¶ 39.
K.
Medpro: Medical Provider at SCJ
In order to provide medical treatment to SCJ inmates, Somerset County
contracts with Medpro Associates to provide medical services.
PSAMF ¶ 40;
The Court acknowledges that there is an apparent conflict. However, Mr. Belskis has not
alleged that the contents of paragraph 123 are incorrect. In other words, PA-C Ellis and Mr. Belskis
did have this conversation. Accordingly, the Court included it.
23
In paragraphs 124 through 131, Medpro postulates a number of statements and Mr. Belskis
objects to all, except paragraph 128 above. The Court agrees with Mr. Belskis that the statements are
argumentative, conclusory and cloak legal conclusions as statements of undisputed fact. The Court
sustains all of Mr. Belskis’ objections and omits the paragraphs from the statement of facts.
29
DRPSAMF ¶ 40. Since 2006, Medpro Associates has been under contract to provide
medical healthcare services to inmates incarcerated at SCJ. DSMF ¶ 132; PRDSMF
¶ 132. Decisions as to diagnosis of injuries and illnesses, and the appropriateness of
treatment are decisions within the purview of the SCJ’s medical provider. PSAMF ¶
41; DRPSAMF ¶ 41. As the contractor to provide medical services at SCJ, Medpro
operates in a facility in East Madison that is wholly owned and controlled by
Somerset County. DSMF ¶ 133; PRDSMF ¶ 133.
(1)
(2)
(3)
(4)
(5)
(6)
(7)
(8)
(9)
(10)
Medpro occupies a space within the secure perimeter of SCJ that
is owned and controlled by SCJ;
SCJ personnel conduct background checks, similar to checks
undertaken for potential law enforcement officials in Maine on all
potential Medpro hires;
SCJ and the Somerset County Sheriff have the ultimate say on
who has access to SCJ and the medical facility;
All Medpro employees work at the discretion of the Somerset
County Sheriff;
Medpro employees work in close cooperation with SCJ corrections
staff in providing inmates with access to medical care;
SCJ and Medpro policies concerning medical care are reviewed by
the Maine Department of Corrections (MDOC);
In addition, Medpro Health Services Administrator (HSA) Terry
Thurlow reviews Medpro policies on a yearly basis;
MDOC monitors the medical care provided by Medpro on a
regular basis with the use of its MDOC medical personnel;
During the time of Mr. Belskis’ stay at SCJ, the SCJ employed a
compliance manager, Sean Maguire, to oversee Medpro’s
compliance with MDOC standards and regulations for medical
care in correctional facilities;
HSA Thurlow works jointly with Mr. Maguire to ensure that
MDOC standards have been met.
Id. During the time Mr. Belskis was an inmate at SCJ, November 5, 2012 to August
30, 2013, Medpro staffed the SCJ medical facility with the following personnel:
(1)
(2)
A RN level nurse from 6:00 a.m. to 2:00 p.m. – seven days a week;
A RN level nurse from 2:00 p.m. to 10:00 p.m. – seven days a
week;
30
(3)
(4)
(5)
(6)
(7)
(8)
A RN level nursing supervisor from 7 a.m. to 4 p.m. – five days a
week;
A medical secretary from 8:00 a.m. to 4:00 p.m. – five days a week;
A med tech or cna-m at 8:00 a.m., 2 p.m. and 8 p.m. – seven days
a week;
A PA-C provider Tuesdays and Thursdays and otherwise on 24/7
call;
A medical director, MD level, on call 24/7; and
HSA on call 24/7 with presence at SCJ at least three days a week.
DSMF ¶ 134; PRDSMF ¶ 134. The staffing levels in place at the time of Mr. Belskis’
incarceration were consistent with the requirements of Medpro’s contract with SCJ.
DSMF ¶ 125; PRDSMF ¶ 135.
Several Medpro employees provided care to Mr. Belskis.
DSMF ¶ 136;
PRDSMF ¶ 136. The “provider” level health care professional during Mr. Belskis’
time at SCJ was PA-C Robert G. Ellis. DSMF ¶ 137; PRDSMF ¶ 137. The Medical
Director was James Berry, M.D. Id. Dr. Berry did not have regular visitation hours
at SCJ but was available to the provider and other staff on a 24-hour, on-call basis.
Id. In addition, Dr. Berry served as the supervising physician for PA-C Ellis and, as
required by the Board of Licensure in Medicine, Dr. Berry met with Mr. Ellis
approximately every four weeks. DSMF ¶ 138; PRDSMF ¶ 138.
It is Medpro policy that all inmates at SCJ receive medically necessary
healthcare. DSMF ¶ 139; PRDSMF ¶ 139. It is also the policy of Medpro that all
inmates housed at SCJ for the USMS will receive medically necessary care while at
SCJ. DSMF ¶ 140; PRDSMF ¶ 140. The medication provided to USMS inmates by
Medpro, such as Mr. Belskis’ insulin, is directly billed to the USMS by the pharmacy
used by Medpro. DSMF ¶ 141; PRDSMF ¶ 141. Any outside care required by USMS
inmates is also reimbursed directly by the USMS. Id.
31
By Medpro policy and procedure, any time outside medical services are
required by an inmate housed for the USMS, Medpro is required to fax a request for
pre-approval of medical services to the USMS. DSMF ¶ 142; PRDSMF ¶ 142. The
required preapproval was done for every outside medical service required for Mr.
Belskis. DSMF ¶ 143; PRDSMF ¶ 143. Medpro is not aware of any denials of requests
for preapproval of medical services by the USMS in connection with Mr. Belskis’ care
while at SCJ. Id. Mr. Belskis’ medical care at SCJ did not cost Medpro or SCJ any
additional money. DSMF ¶ 144; PRDSMF ¶ 144. Neither Medpro nor SCJ had a
financial incentive to provide less care to Mr. Belskis than other inmates. Id.
L.
Administrative Exhaustion
The SCJ grievance policy provides that a grievance may be initiated by an
inmate for an alleged violation of civil, constitutional, or statutory rights; an alleged
criminal or prohibited act by a staff member; or to resolve a condition existing within
the facility that creates unsafe or unsanitary living conditions; or to resolve a chronic
condition existing within the facility that contradicts the Detention and Correctional
Standards for Maine Counties and Municipalities. DSMF ¶ 146; PRDSMF ¶ 146.
The first step in the grievance procedure is for an inmate to file a Level 1 grievance.
DSMF ¶ 147; PRDSMF ¶ 147. If an inmate is not satisfied with the response to a
Level 1 grievance, the inmate may file a Level 2 grievance. Id. If an inmate is still
not satisfied, after receiving a response to a Level 2 grievance, the inmate may file a
grievance with the MDOC. DSMF ¶ 148; PRDSMF ¶ 148. This is the final step in
the SCJ grievance procedure. Id. The grievance policy is outlined in the SCJ Inmate
32
Handbook, which is provided to all inmates, including Mr. Belskis, upon entry into
the SCJ. DSMF ¶ 149; PRDSMF ¶ 149.
Mr. Belskis filed three grievances about his shoes. DSMF ¶ 150; PRDSMF ¶
150; PSAMF ¶ 42; DRPSAMF ¶ 42. He filed a Level 1 grievance on January 3, 2013,
requesting that he be taken to a wound care center immediately to address wounds
on his right foot that developed because of improper footwear. Id. Mr. Belskis filed
a second Level 1 grievance dated February 5, 2013. DSMF ¶ 151; PRDSMF ¶ 151;
PSAMF ¶ 43; DRPSAMF ¶ 43. In his February 5, 2013 grievance, Mr. Belskis wrote:
Health Care Provider: this was my ongoing point to you and staff about
my severity of my medical issues with my feet and the importance of
having diabetic shoes from November 5, 2012 on now some 88 days later
Dr. Lisa Sauer from Waterville’s General Hospital tell me of my now
bone infection. Don’t you think that scheduling visits for antibiotics
regimen and surgery of the infected bone should be done in a timely
manner so there’s less of a chance of more bone infection. This is not an
unreasonable request.
PSAMF ¶ 44; DRPSAMF ¶ 44. Mr. Belskis filed only one Level 2 grievance related
to issues with his foot, which is dated February 14, 2013. DSMF ¶ 152; PRDSMF ¶
152; PSAMF ¶ 45; DRPSAMF ¶ 45. It read:
My medical issues have been documented; I have followed protocol. I
have been patient all the while my condition worsens, jeopardizing my
livelihood. I need to see a surgeon as to have my toe amputated before
the bone infection spreads and my leg is endangered. I’m filing this
level two grievance to document the seriousness of the matter.
PSAMF ¶ 46; DRPSAMF ¶ 46. Mr. Belskis never received a response to his Level 2
grievance. PSAMF ¶ 47; DRPSAMF ¶ 47. Mr. Belskis did not write the MDOC
concerning issues from any of these grievances. DSMF ¶ 153; PRDSMF ¶ 153.
III.
LEGAL STANDARD
33
Summary judgment is appropriate “if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” FED. R. CIV. P. 56(a). A fact is “material” if it “has the potential to
change the outcome of the suit.” Tropigas de Puerto Rico, Inc. v. Certain Underwriters
at Lloyd’s of London, 637 F.3d 53, 56 (1st Cir. 2011) (quoting Borges ex rel. S.M.B.W.
v. Serrano-Isern, 605 F.3d 1, 5 (1st Cir. 2010)). A dispute is “genuine” if “a reasonable
jury could resolve the point in favor of the nonmoving party.” Id. (quoting McCarthy
v. Nw. Airlines, Inc., 56 F.3d 313, 315 (1st Cir. 1995)).
Once this evidence is supplied by the moving party, the nonmovant must
“produce ‘specific facts, in suitable evidentiary form, to . . . establish the presence of
a trialworthy issue.’” Triangle Trading Co., Inc. v. Robroy Indus., Inc., 200 F.3d 1, 2
(1st Cir. 1999) (quoting Morris v. Gov’t Dev. Bank of Puerto Rico, 27 F.3d 746, 748
(1st Cir. 1994)).
In other words, the nonmoving party must “present ‘enough
competent evidence’ to enable a factfinder to decide in its favor on the disputed
claims.” Carroll v. Xerox Corp., 294 F.3d 231, 237 (1st Cir. 2002) (quoting Goldman
v. First Nat’l Bank of Bos., 985 F.2d 1113, 1116 (1st Cir. 1993)). The Court then
“views the facts and draws all reasonable inferences in favor of the nonmoving party.”
Ophthalmic Surgeons, Ltd. v. Paychex, Inc., 632 F.3d 31, 35 (1st Cir. 2011). However,
the Court “afford[s] no evidentiary weight to ‘conclusory allegations, empty rhetoric,
unsupported speculation, or evidence which, in the aggregate, is less than
significantly probative.’” Tropigas, 637 F.3d at 56 (quoting Rogan v. City of Boston,
34
267 F.3d 24, 27 (1st Cir. 2001)); accord Sutliffe v. Epping Sch. Dist., 584 F.3d 314,
325 (1st Cir. 2009).
IV.
THE PARTIES’ POSITIONS
A.
The Medpro Defendants’ Position
1.
Failure to Exhaust Administrative Remedies
Quoting the Prison Litigation Reform Act (PLRA), Medpro points out that “[no]
action shall be brought with respect to prison conditions under Section 1979 or the
Revised Statutes of the United States (42 U.S.C. § 1983), or any other federal law, by
a prisoner confined in any jail, prison, or other correctional facility until such
administrative remedies as are available are exhausted.”
Medpro’s Mot. at 11
(quoting 42 U.S.C. § 1997e(1)). Medpro states that “[i]n spite of his diabetic shoes
being denied him on admission on November 5, 2012, Mr. Belskis filed no grievance
until four (4) days before receiving his new boots.” Id. at 12 (emphasis in original).
Medpro says that Mr. Belskis’ “only grievance with respect to his foot was dated
February 14, 2013.” Id. at 12. It asserts that he “did not file any grievances with the
[MDOC] concerning his foot while at SCJ” and [b]y failing to file a Level 2 grievance
or the next level grievance to the [MCOC], Mr. Belskis failed to exhaust his
administrative remedies and his claims against the Medpro Defendants are barred.”
Id. at 12-13.
2.
Deliberate Indifference
To succeed on his Eighth Amendment claim, Medpro states that Mr. Belskis
must establish that the treatment and care he received from it involved “acts or
35
omissions sufficiently harmful to evidence deliberate indifference to serious medical
needs.” Id. at 13 (quoting Ruiz-Rosa v. Rullan, 485 F.3d 150, 156 (1st Cir. 2007).
Medpro contends that a “serious medical need was not present until December 16.”
Id. at 14. Furthermore, Medpro argues that the evidence “fails to establish that any
Medpro staff member had the culpable state of mind required to inflict pain or
deliberately ignore Mr. Belskis’ care after December 16.” Id. Medpro also maintains
that the individual Medpro Defendants are entitled to qualified immunity or a “good
faith defense.” Id. at 15-19. Next, separately analyzing the evidence against each
individual Medpro Defendant, Medpro argues that the record fails to establish
deliberate indifference against any specific individual. Id. at 19-27. Finally, Medpro
asserts that the allegations against DT Developers, Inc. are too threadbare to satisfy
pleading standards. Id. at 27-18.
B.
Joseph Belskis’ Opposition
1.
Failure to Exhaust Administrative Remedies
After acknowledging that exhaustion of administrative remedies is mandatory,
Mr. Belskis observes that Medpro bears the burden to establish that “there was an
available administrative remedy, and that the prisoner did not exhaust that available
remedy.” Pl.’s Opp’n at 6-7 (quoting Albino v. Baca, 747 F.3d 1162, 1172 (9th Cir.
2014)) (en banc). Here, Mr. Belskis refers to the Magistrate Judge’s recommended
decision on Somerset County’s motion for summary judgment, which observed that
an inmate’s right to a Level 3 grievance did not commence until the inmate received
the results of the Level 2 grievance. Id. at 7-8 (citing Recommended Decision of
36
County Defs.’ Mot. for Summ. J. at 16 (ECF No. 240)). However, as the Magistrate
Judge concluded, there was no evidence in the record that Mr. Belskis ever received
a response to the Level 2 grievance and therefore, a question remains as to whether
the final level of review was available to Plaintiff. Id. at 8.
2.
Deliberate Indifference
After reciting the applicable standards, Mr. Belskis discusses both the
objective and subjective standards for deliberate indifference. Mr. Belskis argues
that he met the objective standard for “serious harm” to meet the requirements of a
deliberate indifference claim because he had “serious medical needs.”
Id. at 4.
Regarding the subjective standards, he points to the delays in obtaining his diabetic
footwear to prevent damage to his feet and the delays in prescribing antibiotics once
he presented with a sore on his toe. Id. at 4-5. He contends that these delays
amounted to a denial of prompt medical care sufficient to create genuine issues of
material facts on the issue of deliberate indifference. Id. Finally he argues that
having created a genuine issue of material fact on the issue of deliberate indifference,
the individual defendants are not entitled to qualified immunity. Id. at 5-6.
C.
Medpro’s Reply
In Medpro’s view, Mr. Belskis “submitted very few denials or qualifications to
the Medpro Defendants[’] Statement of Material Facts.”
Medpro’s Reply at 2-5.
Reviewing Mr. Belskis’ responses, Medpro contends that Mr. Belskis “did not have a
serious medical condition concerning his feet until December 16.” Id. at 5. Medpro
also observes that on the issue of individual liability, Mr. Belskis only responded to
37
allegations against two of the Medpro individual Defendants, Nurse Cates and PA-C
Ellis. Id. Medpro maintains that Mr. Belskis failed to present facts that generate
genuine issues against either Medpro employee in their supervisory or individual
capacities. Id. at 6-8. Futhermore, Medpro argues that Mr. Belskis failed to respond
to its contentions regarding Medpro employees, Patterson, Littlefield and Walters,
and summary judgment should therefore be granted in their favor.
Id. at 8-9.
Finally, Medpro observes that Mr. Belskis also failed to address the entity liability
claim against DT Developers and therefore its motion for summary judgment should
be granted. Id. at 9.
V.
DISCUSSION
A.
Exhaustion of Administrative Remedies
The Court readily concludes that Medpro’s failure to exhaust administrative
remedies argument must fail.
In its initial memorandum, Medpro argues that
because Mr. Belskis failed to file a grievance with the MDOC, he failed to exhaust
administrative remedies. Medpro Mot. at 12-13. The answer to this issue is found
by juxtaposing two statements of material fact: (1) if an inmate is still not satisfied,
after receiving a response to a Level 2 grievance, the inmate may file a grievance with
the MDOC, DSMF ¶ 148; PRDSMF ¶ 148, and (2) Mr. Belskis never received a
response to his Level 2 grievance. PSAMF ¶ 47; DRPSAMF ¶ 47. These conceded
statements of fact demonstrate that an inmate is not required to file a Level 3
grievance until he receives the response to his Level 2 grievance and that Mr. Belskis
never received a response to his Level 2 grievance.
38
On these facts, Mr. Belskis did not fail to exhaust his administrative remedies
by failing to file a Level 3 grievance, because Medpro failed to establish a prerequisite
that would have allowed him to file a Level 3 grievance. Mr. Belskis is not required
to grieve a decision he never received. Medpro has not established that Mr. Belskis
failed to pursue an “available” administrative remedy. See Albino, 747 F.3d at 1172
(Defendant must establish “that there was an available administrative remedy”)
(emphasis supplied).
B.
Deliberate Indifference
The Eighth Amendment prohibits “cruel and unusual punishments.” U.S.
CONST. amend. VIII. It is well established that “the treatment a prisoner receives in
prison and the conditions under which he is confined are subject to scrutiny under
the Eighth Amendment.” Farmer v. Brennan, 511 U.S. 825, 832 (1994) (quoting
Helling v. McKinney, 509 U.S. 25, 31 (1993)). “Prison officials have a duty to ‘provide
humane conditions of confinement; prison officials must ensure that inmates receive
adequate . . . medical care, and must take reasonable measures to guarantee the
safety of the inmates.’” Giroux v. Somerset County, 178 F.3d 28, 31 (1st Cir. 1999)
(quoting Farmer, 511 U.S. at 832).
In order to prevail on his claim against the Medpro Defendants, Mr. Belskis
must show that he received treatment and care that involved “acts or omissions
sufficiently harmful to evidence deliberate indifference to serious medical needs.”
Ruiz-Rosa, 485 F.3d at 156. “There is an objective and subjective component to the
deliberate indifference inquiry.” Parlin v. Cumberland County, 659 F. Supp. 2d 201,
39
208 (D. Me. 2009). “A plaintiff must establish: (1) that he suffered from an objectively
serious medical need; and (2) that a prison official was subjectively aware of, yet failed
to attend to, this objectively serious medical need.” Id. (citing Farmer, 511 U.S. at
834).
A “serious medical need” is one “that has been diagnosed by a physician as
mandating treatment, or one that is so obvious that even a lay person would easily
recognize the necessity for a doctor’s attention.” Miranda-Rivera v. Toledo-Dávila,
813 F.3d 64, 74 (1st Cir. 2016). When Joseph Belskis was admitted to SCJ on transfer
from ACJ, Medpro knew from his medical records that he was a diabetic with a
history of lower extremity ischemic vascular disease including two prior toe
amputations and a history of diabetic foot ulcers. He arrived at SCJ with a history
of poorly controlled diabetes, peripheral vascular disease, and previous amputations
of the left and right great toes. Mr. Belskis also arrived with a pair of diabetic shoes
that were made in 2011; these shoes were brown leather with expanding laces like a
rubber band and metal eyelets, similar to a hiking shoe. Medpro also knew that the
SCJ staff had confiscated his diabetic shoes and had issued him a pair of canvas shoes
with Velcro laces.
From the very outset, Medpro staff concluded that Mr. Belskis required a pair
of diabetic shoes. On November 5, 2012, Nurse Mary Patterson recommended that
Mr. Belskis be allowed to keep on his person his pair of diabetic shoes, a request
denied by the corrections staff. The very next day Mr. Belskis began requesting that
he be fitted with a pair of diabetic shoes. Although the record is dense, the fact is
40
that Mr. Belskis did not receive a pair of diabetic shoes until February 19, 2013, over
three months later. It was too late. By then, Mr. Belskis had developed an infection
on his toe that required amputation on March 1, 2013.
With this history, the Court easily concludes that Mr. Belskis has raised a
genuine issue of material fact as to whether he had a “serious medical condition”
within the meaning of the law because he had a condition that had resulted in the
past and, if not properly treated, could result in the future and lead to the amputation
of one of his body parts. Even a lay person would recognize that a condition that runs
a significant risk of amputation is a condition that involves “an unreasonable risk of
serious damage to his future health.” Helling, 509 U.S. at 35. It is also plain that
the Medpro professionals “[drew] the inference” of a substantial risk of serious harm
because they uniformly recommended the diabetic shoes for Mr. Belskis.
The second prong is the subjective test: whether a prison official, who was
subjectively aware of the serious medical need, “failed to act despite his knowledge of
a substantial risk of serious harm.”
Farmer, 511 U.S. at 842.
“Deliberate
indifference” is a state of mind requirement that goes beyond negligence. Parlin, 659
F. Supp. 2d at 208 (citing Estelle v. Gamble, 429 U.S. 97, 106 (1976)).
What Mr. Belskis’ case raises is the extent of the obligation on the part of a
prison system’s medical staff to advocate for the inmate whose need for medical
treatment to prevent a serious medical condition is being denied by the corrections
staff.
This critical issue is not directly addressed in the dispositive motion.
Necessarily, the corrections staff is primarily concerned with the security of the jail,
41
but there is no evidence in this record that any of the corrections staff who were
denying the Medpro request for diabetic shoes were aware that by issuing the denial,
Mr. Belskis could well lose a body part. It is the medical staff, not the corrections
staff, who are aware of the exact nature of and risks present in Mr. Belskis’ medical
condition and who must inform the corrections staff, who have ultimate authority
over the inmates, of the seriousness and likelihood of the dangers Mr. Belskis was
running.
Here, apart from Medpro recommendations to the SCJ corrections staff that
Mr. Belskis be allowed to wear proper footwear, there is no evidence in the record to
reflect what precisely the Medpro professionals told the SCJ corrections staff about
Mr. Belskis’ need for diabetic shoes and the risk he ran by wearing prison-issued
footwear, namely that one of his body parts would have to be amputated. The record
does not reflect whether Medpro’s recommendations were pro forma, whether the
Medpro professionals impressed upon the corrections staff the potentially dire
consequences of their intransigence, and whether the Medpro staff created a sense of
urgency in their recommendations to the SCJ corrections staff. Put another way, the
record in this case lacks any evidence to rebut the inference that in their dealings
with the corrections staff, Medpro acted with “knowledge of impending harm, easily
preventable.” DeRosiers v. Moran, 949 F.2d 15, 19 (1st Cir. 1991). In short, Mr.
Belskis has raised a genuine issue of material fact as to whether the Medpro staff did
enough to prevent the amputation of his toe.
42
This conclusion compels the denial of the Medpro Defendants’ motion for
summary judgment both individually and, as applicable, in their supervisory
capacities, since each treatment provider at Medpro was aware of Mr. Belskis’
condition and was therefore obligated to attend to the condition by notifying SCJ
officials of the risks, and as supervisors, were required not to encourage, condone or
acquiesce in the failure to properly advocate for Mr. Belskis.
C.
The Good Faith Defense
As Mr. Belskis points out, because there is a genuine issue of material fact as
to the deliberate indifference of the actors in this case, there is also a genuine issue
of material fact as to the availability of qualified immunity. Miranda-Rivera v.
Toledo-Dávila, 813 F.3d 64, 75 (1st Cir. 2016); Belskis v. Somerset Cnty, No. 1:15-cv00091-JAW, 2017 U.S. Dist. LEXIS 29359, *22-23 (D. Me. Mar. 2, 2017) (“[B]ecause
a genuine issue of fact exists regarding some of the County Defendants’ knowledge
and conduct, 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”); Martin v. Somerset Cnty, 387 F. Supp. 2d 65, 79-80 (D. Me. 2005)
(“Once a plaintiff creates a genuine dispute of material fact that a defendant was
subjectively deliberately indifferent, then the defendant cannot be entitled to
qualified immunity on the grounds that a reasonable officer in his or her position
would not understand that such conduct violated the plaintiff’s rights”).
43
VI.
CONCLUSION
The Court hereby DENIES Medpro’s Motion for Summary Judgment (ECF No.
232).
SO ORDERED.
/s/ John A. Woodcock, Jr.
JOHN A. WOODCOCK, JR.
UNITED STATES DISTRICT JUDGE
Dated this 29th day of September, 2017
44
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?