A Kentucky Death Row inmate is continuing his effort to have the state pay to replace his arthritic right hip.
Attorneys for Robert Foley argued that officials with the state Department of Corrections did not want Foley to get the operation because of the potential political or public-relations headache from spending more than $50,000 on an operation for a man scheduled to be executed.
The department and officials "sabotaged the search for a willing hospital," in part by describing unreasonable security measures required to host Foley, his attorneys said in a motion filed last month.
Corrections officials, however, said the department made diligent efforts to find doctors and hospitals willing to provide the surgery, without success.
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U.S. Magistrate Judge Edward B. Atkins ruled in September that the state had taken steps to address Foley's condition through measures including pain medication and a wheelchair, and that they had made reasonable efforts to get hip surgery for him.
That is the judgment at issue in the new motion from Foley's attorneys, which asks Atkins to amend his order.
Foley, 58, was sentenced to death for killing six people, the most of any of the 33 men on Death Row in Kentucky. There is one woman under a death sentence.
Foley was convicted of shooting and killing brothers Rodney and Lynn Vaughn in Laurel County in 1991 after a fight.
He was later convicted of shooting four people in Laurel County in 1989 because he thought one of them had reported him for violating his parole conditions on an earlier murder conviction.
Foley dumped the four — Kimberly Bowersock, Calvin Reynolds, Lillian Contino and Jerry McMillen — in an unused septic tank, taking money from the bodies to pay for concrete to cover them, the prosecutor said at his trial.
Foley has exhausted many of his appeal options.
However, he is challenging his convictions and sentences in several pending actions in state and federal court, said his attorney, Meggan Smith.
There is a moratorium on executions in Kentucky because of a court challenge.
Court records show that Foley has been diagnosed with severe degenerative arthritis in his right hip.
The condition is painful and puts him at greater risk of falls. Foley has fallen several times and was knocked unconscious in one instance, according to court records.
The state is required to provide medical care for inmates. One issue in Foley's case has been whether the hip operation is necessary, however.
Beginning in fall 2010, employees with the Department of Corrections began looking for doctors willing to replace Foley's hip and hospitals to host the surgery.
Six hospitals declined to allow the surgery, citing security concerns in several cases, according to court records and published accounts.
Attorneys for Foley sued in 2012, seeking a court order for the state to get him the operation.
His attorneys argued the state had shown deliberate indifference to Foley's medical condition, violating his constitutional right to be free from cruel and unusual punishment.
Atkins ruled that the state did not show deliberate indifference to Foley's condition or violate his rights.
In their latest motion, Foley's attorneys said there was new evidence that should justify letting him seek a court order requiring the state to provide the surgery.
For instance, Foley has been denied access to a wheelchair at times, the motion said.
The motion also said guards have taken Foley to a number of medical or court appointments in recent months without the "extreme" security measures a former warden at the Kentucky State Penitentiary demanded during the earlier search for a hospital.
Those measures were "more suited for a Hollywood screenplay" than for an aging inmate with a bad hip who has received medical treatment outside the prison on other occasions without incident, according to Foley's motion.
The motion also questioned why prison officials did not contact Western Baptist Hospital in Paducah about operating on Foley's hip, even though it is the hospital the state uses for most operations on Kentucky State Penitentiary inmates.
Foley said in a statement that a doctor at Western Baptist told him in September he would be willing to perform the operation and didn't think the hospital would object to him doing it there.
The fact that no one from the Department of Corrections contacted Western Baptist shows that officials did not do an adequate search for a hospital for Foley, his attorneys argued.
Recent tests showed that a hip replacement is the only effective way to treat Foley's condition, according to his motion.
The Department of Corrections has not responded to the latest motion in the case.