A Kentucky Death Row inmate has been rebuffed in his latest effort to have the state pay for an operation to replace his arthritic hip.
Attorneys for Robert C. Foley, 58, asked a federal judge to alter an earlier decision against Foley's request. In an order filed this week, however, U.S. Magistrate Judge Edward B. Atkins declined to change the decision.
Foley, one of 33 people under a death sentence in Kentucky, has been diagnosed with severe degenerative arthritis in his right hip, according to court records.
The condition is painful and creates a risk of Foley falling. He has fallen several times and was knocked unconscious once, his attorneys said in a court motion.
The state must provide medical treatment for inmates, but there has been disagreement on whether it's necessary for Foley to get a new hip.
The operation could cost more than $50,000. A former warden at the Kentucky State Penitentiary raised the issue of potential ridicule for the state if it paid to replace the hip of a condemned man, court records show.
The state Department of Corrections began looking in 2010 for doctors willing to do the surgery. However, half a dozen hospitals declined the request, citing security concerns in several cases, court records show.
Attorneys for Foley sued in 2012, seeking an order for the state to get the operation.
Defense attorneys argued that the state had been deliberately indifferent to Foley's condition, violating his right to be free from cruel punishment.
Atkins ruled that the state had made a number of efforts to deal with Foley's condition, including by providing medication, a steroid shot, a walker and a wheelchair, and had not violated Foley's rights.
In a subsequent motion, Foley's attorneys argued there was new evidence that justified altering that decision.
For instance, defense attorneys said that corrections officials had denied Foley the use of a wheelchair several times and had taken Foley to court or medical appointments without the excessive security measures that played a role in hospitals refusing to host surgery for him.
Foley's attorneys also argued Atkins ignored evidence that a nurse who searched for a hospital for the surgery wasn't qualified to do so, and that prison officials contacted only a few hospitals.
Atkins ruled that he had considered all those issues in making his earlier decision, so the information in Foley's motion did not qualify as new evidence or show legal error.
As part of his new motion, Foley said a doctor at a Paducah hospital said that Foley needed a hip replacement and was willing to do the surgery.
However, Atkins said Foley did not provide medical records to verify that claim.
Foley could appeal Atkins' decision to the U.S. 6th Circuit Court of Appeals, but he has made no decision on whether to do that, said one of his attorneys, R. Christian Garrison.
Foley's hip condition has not improved, Garrison said.
Foley was convicted of shooting brothers Rodney and Lynn Vaughn to death in Laurel County in 1991 after a fight at Foley's home.
He also was convicted of shooting and killing four people in Laurel County in 1989 and covering their bodies in an unused septic tank. Authorities said Foley thought one of the four had reported him for a parole violation on an earlier murder conviction.
Foley has exhausted many of his appeal options, but he still has appeals pending in state and federal court.
There is a moratorium on executions in Kentucky because of a court challenge involving its lethal injection execution method.