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Belskis v. Somerset County

United States District Court, D. Maine

September 29, 2017

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

          ORDER ON MEDPRO DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

          JOHN A. WOODCOCK, JR. UNITED STATES DISTRICT JUDGE

         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 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 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 FACTS[3]

         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 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 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. 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 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 ¶ 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, 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 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.

         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 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 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 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 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.

         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 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 croc-type 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.

         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. ...


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