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Foley v. Thompson

United States District Court, E.D. Kentucky, Central Division, Frankfort

September 5, 2014

ROBERT FOLEY, Plaintiff,
LADONNA THOMPSON, in her Official Capacity as Commissioner of the Kentucky Department of Corrections, Defendant.


EDWARD B. ATKINS, Magistrate Judge.


Plaintiff, Robert Foley, is a death row inmate incarcerated at the Kentucky State Penitentiary in Eddyville, Kentucky. This case involves Plaintiff's claim that the Defendant, LaDonna Thompson, Commissioner of the Kentucky Department of Corrections (DOC), violated his Eighth Amendment right to be free from cruel and unusual punishment. Plaintiff alleges that the Defendant has exhibited deliberate indifference to his serious medical needs by failing to secure a hospital to perform hip replacement surgery on him. This matter is before the court on Defendant's Motion for Summary Judgment. [R. 40].[1] Because the Plaintiff has not set forth a genuine issue of material fact on a necessary element of his claim, Defendant's Motion for Summary Judgment is GRANTED.


Plaintiff has been incarcerated on death row since September 29, 1993. [R. 40 at 2 ]. On June

6, 2008, Plaintiff informed DOC medical personnel that he was experiencing pain in his right hip. [R. 40]. Throughout the following months, Plaintiff intermittently complained of pain in his hip. [R. 1 at ¶ 18f]. During this time period, the DOC attempted to treat Plaintiff with pain medication. [R. 1 at ¶ 18f]. On April 13, 2010, as a result of continued complaints by Plaintiff, medical personnel requested a consult with Dr. Phillip Hunt, an orthopedic surgeon. [R. 1 at ¶ 18g]. Dr. Hunt declined the DOC's requested consultation on May 7, 2010. [R. 1 at ¶18m].

After Dr. Hunt decided not to consult on Plaintiff's condition, the DOC sent X-rays and clinical notes to Dr. Joseph Dobner, another orthopedic surgeon, so that he could review Plaintiff's case. [R. 1 at ¶ 18r]. On June 23, 2010, Dr. Dobner informed medical personnel that Plaintiff's best course of treatment would be to use a walker and incorporate Tylenol into his regimen. [R. 1 at ¶ 18s]. Dr. Dobner also advised that hip replacement was "certainly not a necessity." [R. 1 at ¶ 18s].

Two months later, Dr. Dobner treated Plaintiff's right hip with a steroid injection. [R. 1 at 18cc]. However, Plaintiff reported that the injection was ineffective. [R. 1 at ¶ 18dd]. Less than a month later, the DOC attempted to secure a consultation for Plaintiff with another orthopedic surgeon, Dr. Thane Deweese, but Deweese's office informed medical personnel that the doctor "did not want to get involved with this inmate, especially with a hepatitis C diagnosis." [R. 1 at ¶ 18ii].

Sometime around September 2010, the DOC began making a concerted effort to find a hospital willing to perform a hip replacement surgery on Plaintiff. [See R. 1 at ¶ 18 ff]. Shortly thereafter, the DOC was able to locate an orthopedic surgeon, Dr. Donley, willing to perform the surgery at a particular hospital where he had admitting privileges. [R. 1 at ¶ 18jj]. However, Dr. Donley was forced to withdraw from his commitment when the hospital denied his request to perform the surgery on its premises. [R. 1 at ¶ 18jj].

After it was determined that Dr. Donley would be unable to proceed with Plaintiff's hip replacement surgery, Dr. Dobner agreed to perform the procedure, and the surgery seemed likely to occur in early 2011. [See R. 1 at ¶ 18pp]. However, on February 22, 2011, Frankfort Regional Medical Center refused to allow the surgery to proceed, citing security concerns and the "high profile" nature of the patient. [R. 1 at ¶ 18ss].

On February 9, 2012, Plaintiff filed a complaint in the Franklin Circuit Court requesting a declaratory judgment that the DOC has an obligation to provide medical care to inmates in its custody and an injunction ordering the DOC to provide for his hip replacement surgery. [R. 1]. The Defendant subsequently provided notice of removal from state court to the United States District Court for the Eastern District of Kentucky pursuant to the provisions of 28 U.S.C. § 1441 et seq. [R. 1]. Upon consent of all parties, this case was referred to the undersigned for all proceedings. [R. 14].


Pursuant to Federal Rule of Civil Procedure 56(c), summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." The party moving for summary judgment bears the initial responsibility of informing the district court of the basis for its motion and identifying those portions of the record that it believes demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett , 477 U.S. 317, 323 (1986). While the court must view all facts in the light most favorable to the non-moving party and give him or her the benefit of all reasonable inferences that can be drawn from the facts, Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 255 (1986), the non-moving party cannot avoid summary judgment merely by resting on the pleadings, see Celotex , 477 U.S. at 324. Instead, the non-moving party must come forward with "specific facts showing that there is a genuine issue for trial." Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 587 (1986). In other words, "the nonmoving party must present significant probative evidence' to show that there is [more than] some metaphysical doubt as to the material facts.'" Dixon v. Gonzales , 481 F.3d 324, 330 (6th Cir. 2007) (alteration in original) (citing Moore v. Phillip Morris Cos. , 8 F.3d 335, 339-40 (6th Cir. 1993)). Moreover, "[c]onclusory allegations, speculation, and unsubstantiated assertions are not evidence, and are not ...

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