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Belskis v. Somerset County

United States District Court, D. Maine

March 2, 2017

JOSEPH EDWARD BOVIN BELSKIS, Plaintiff
v.
SOMERSET COUNTY, et al., Defendants

          RECOMMENDED DECISION ON COUNTY DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

          JOHN C. NIVISON U.S. MAGISTRATE JUDGE.

         In this action, Plaintiff Joseph Belskis alleges Defendants acted with deliberate indifference toward his medical needs while he was incarcerated at the Somerset County Jail. The matter is before the Court on the County Defendants' Motion for Summary Judgment.[1] (ECF No. 215).

         Through their motion, the County Defendants argue Plaintiff's federal claim against them is barred because Plaintiff failed to exhaust administrative remedies available through the Somerset County Jail grievance procedure. (Id. at 2 - 4.) In the alternative, Defendants contend the doctrine of qualified immunity protects them from liability. Finally, Defendants argue that Plaintiff's claims against Somerset County and any supervisory defendants sued in an official capacity are not actionable because Plaintiff cannot establish the deprivation of a constitutional right or that any deprivation resulted from a municipal custom, policy, or practice, or pursuant to any decision made in a supervisory capacity. (Id. at 8 - 9.) Plaintiff, who is no longer incarcerated, did not file an opposition to the motion.

         Following a review of the pleadings and summary judgment filings, I recommend the Court grant in part and deny in part the motion.

         Facts[2]

         The following facts are established by the County Defendants through their summary judgment statement of material facts. (“SMF, ” ECF No. 216.)

         Plaintiff's incarceration, care and treatment

         Plaintiff was arrested in May 2012, and incarcerated at the Androscoggin County Jail. (SMF ¶ 1.) Plaintiff was on federal probation when he was arrested. (Id. ¶ 2.) During his incarceration at the Androscoggin County Jail, Plaintiff wore a pair of custom-made diabetic shoes. (Id. ¶¶ 3 - 4.)

         On November 5, 2012, Plaintiff was transferred to the Somerset County Jail where he remained for approximately ten months. (Id. ¶ 5.) He was wearing his diabetic shoes when he arrived at the Somerset County Jail. (Id. ¶ 6.) During the intake process, the corrections officer on duty took custody of Plaintiff's shoes. (Id. ¶ 7.) The officer informed Plaintiff that the shoes were taken for safety reasons and that he would need to raise the issue of his shoes with medical personnel. (Id. ¶ 8.)

         According to Defendant Cory Swope, who at the time was the Assistant Jail Administrator and is now the Jail Administrator, the shoes were considered a security risk because they had metal eyelets, had laces, and were not in good condition. (Id. ¶ 9.) The metal in the shoes and the laces were security concerns because they could have been used as part of a weapon or otherwise to harm others. (Id. ¶ 10.) Plaintiff received a pair of canvas shoes with velcro laces. (Id. ¶ 11.)

         On November 5, 2012, Mary Patterson, a nurse with Med Pro, met with Plaintiff for a medical screening. During the screening, Plaintiff told Nurse Patterson he had diabetes, toe amputations, bone amputations, renal failure, diabetic shoes, appendicitis, and his first metatarsal toe was just healing. (Id. ¶¶ 12 - 13.) Plaintiff spoke with Nurse Patterson about the fact he did not have his diabetic shoes. (Id. ¶ 14.)

         When Plaintiff entered the Somerset County Jail, his feet were in the “best shape they were in except under the first metatarsal there was a red spot that looked like a healed-up wound.” (Id. ¶ 15; Belskis Dep. at 53, ECF No. 212.) Nurse Patterson noted the spot during the screening. (SMF ¶ 15.) Throughout Plaintiff's incarceration at the Somerset County Jail, he received daily treatment for diabetes, which treatment included the monitoring of his blood sugar three to four times each day. (Id. ¶ 16.)

         On November 6, 2012, Plaintiff filed a written request with medical to have diabetic soft shoes made because his street diabetic shoes were a security risk at the facility. (Id. ¶ 17.)[3] On November 8, 2012, Lisa Cates, a supervisor with the medical staff, responded “this is not something the jail will do; you can have another pair dropped off, normally only jail-issued shoes are allowed.” (Id. ¶ 18; Belskis Dep. at 101.)

         On December 1, 2012, Plaintiff asked to be seen by a doctor for diabetic footwear. (SMF ¶ 19.) On December 4, Physician Assistant Ellis met with Plaintiff. At the conclusion of the meeting, Plaintiff understood the nursing staff would contact the correctional staff to determine whether he could have his old diabetic shoes. (Id. ¶ 20.)[4] Two days later, Plaintiff asked the medical department for an update on his diabetic footwear. On the same day, Sarah Laplante, a registered nurse, advised Plaintiff they were looking into the issue. The next day, Lisa Cates informed Plaintiff his request for his old diabetic shoes was denied.[5] (Id. ¶ 21.) Plaintiff did not grieve the denial.[6] (Id.) On December 8, Plaintiff asked whether the Bureau of Prisons would pay for him to obtain new shoes. (Id. ¶ 22.)[7]

         On December 16, 2012, Plaintiff noticed a problem with the fifth metatarsal of his right foot, and he reported his concern to Nurse Rhonda Walters.[8] (Id. ¶ 23.) On December 19, Plaintiff was issued crocs through the commissary, which was an exception to the footwear policy at the jail.[9] (Id. ¶ 25.) From December 19, 2012, through January 10, 2013, Plaintiff saw a member of the nursing staff every day for a dressing change to the fifth metatarsal. (Id. ¶ 26.)

         On December 28, 2012, Plaintiff was transported to Pine Tree Orthopedic in Livermore Falls and met with Bruce MacDonald, C. Ped., for an assessment regarding his need for diabetic shoes. (Id. ¶ 27.) Mr. MacDonald did not have any shoes in stock for Plaintiff and advised he would have them made. (Id. ¶ 29.)[10]

         On January 3, 2013, Plaintiff, in a level 1 grievance, wrote that he needed to be taken to a wound care center immediately to address wounds on his right foot that developed because of the issuance of improper footwear. (Id. ¶ 64; see ECF No. 216-9.) He also asserted he needed an antibiotics regimen. (Id.)

         On January 4, after seeing Nurse Laplante, Plaintiff was started on a four-day course of antibiotics. (SMF ¶ 30.) On January 9, in response to Plaintiff's grievance, Lisa Cates wrote: “inmate is aware that he is scheduled to see wound care clinic.” (ECF No. 216-9.) On January 10, Plaintiff was transported to the Wound Clinic at MaineGeneral Medical Center where he saw Dr. Lisa Sauer. (SMF ¶ 31.)

         On January 14, Plaintiff completed an inmate request form on which he asked whether medical was talking to Pine Tree Orthotics about his need for orthotic shoes; whether he would receive two pairs of shoes or one; and whether he would be returned to the wound center for follow-up care. (ECF No. 1-1.) On the top of the form Plaintiff wrote: “Medical Attn: Lisa.” (Id.) On January 15, Ms. Cates responded that she was attending to the matters. (Id.) Two days later, Plaintiff returned to Mr. MacDonald to have a mold made of his feet for the diabetic shoes. (SMF ¶ 32.)

         On January 18, Plaintiff went to Redington-Fairview Hospital for an MRI. (Id. ¶ 33.)[11] On January 31, when he was taken to the Wound Center at MaineGeneral Medical Center for a follow up appointment, Dr. Sauer told him the bone was infected. (Id. ¶ 34.)[12]

         On February 5, Plaintiff filed a second level 1 grievance addressed at the top to “Health Care Provider.” (SMF ¶ 65; see ECF Nos. 1-1, 216-10.) When asked to describe the subject of the grievance, Plaintiff 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 tells 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.

(ECF Nos. 1-1, 216-10.)

         On February 7, Plaintiff saw PA Ellis who offered to provide IV antibiotics, but Plaintiff declined. (Id. ¶ 35.) Mr. Ellis evidently responded to the February 5 grievance as follows:

Mr. Belskis was unsure as to which treatment option to choose. I spoke with him again on 2/7/13 and he would like amputation. This will be unresolved. We will inquire as to the custom foot wear as it has been 2 1/2 weeks since he was fitted.

(Id.)

         On February 14, Plaintiff wrote his final grievance on a “Level 2 Grievance” form. At the top of the form, he again wrote “Health Care Provider.”

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 the 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.

(ECF No. 1-1, PageID # 33; ECF No. 216-5.) The record does not include a response to the grievance.

         On February 15, Plaintiff was taken to Central Maine Orthotics for evaluation for amputation. (Id. ¶ 36.)[13] Four days later, Plaintiff received his new diabetic shoes. (Id. ¶ 37.) In March 2013, Plaintiff underwent surgery in which his right little toe was amputated. (Id. ¶ 38.)[14]

         Information Plaintiff provided to jail staff

         Plaintiff told jail staff (i.e., county corrections staff and not the medical provider staff) he had diabetes and had diabetic shoes from another jail that he needed, but he did not discuss the purpose for the diabetic shoes.[15] (SMF ¶ 39.) In his verified amended complaint, Plaintiff asserts that “various different officers accompanied him or provided transportation” when he obtained outside medical care, and that the officers “were present during the medical examinations and procedures and privy to the instructions given to the Plaintiff to address the reasons for the medical visit.” (Am. Compl. ¶ 53, ECF No. ...


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