A Death Row inmate has renewed his request for a federal court order requiring the state to arrange hip-replacement surgery for him.
A federal judge has twice turned away the request from Robert Foley, but his attorneys argue there is new evidence that makes his case more compelling.
Among other things, Foley’s hip gave out in July while he was getting out of bed, and he fell, smashing his face into a footlocker, according to a court motion.
A doctor at the Kentucky State Penitentiary told the staff to let Foley put his mattress on the floor, according to a court record.
Sign Up and Save
Get six months of free digital access to the Lexington Herald-Leader
U.S. Magistrate Judge Edward B. Atkins held a telephone conference on Foley’s motion Tuesday and scheduled another for Dec. 22, according to court records.
Foley, 59, is one of 32 men under a death sentence in Kentucky. There is one woman sentenced to die, according to the state Department of Corrections.
Foley has been on Death Row more than 20 years. He has been diagnosed with degenerative arthritis in his right hip, which is painful and creates a risk of falls, according to court records.
Hip replacement for him reportedly could cost more than $50,000. A former warden raised the issue of potential ridicule for the state if it paid to replace the hip of a man it plans to execute, court records show.
Attorneys for Foley sued in 2012, seeking an order for the state to get Foley the operation.
Defense attorneys have argued that the state has been deliberately indifferent to Foley’s condition, a violation of his rights.
However, the state disputes that. The Department of Corrections looked for a hospital willing to do the surgery, but a half-dozen declined, citing security concerns in some cases, court records show.
Atkins ruled for the state, saying officials had made a number of efforts to deal with Foley’s condition, including providing medication, and had not violated his rights.
Attorneys for Foley asked to reopen the case in October, citing the new evidence.
In addition to Foley’s latest fall, his attorneys included an August letter from Dr. Ted Jefferson, who said that in his opinion, Foley would be best served through a hip replacement.
Jefferson said the surgery could be done at Baptist Health Paducah Hospital.
Also, Foley’s attorneys pointed out that another Death Row inmate, 48-year-old Donald Herb Johnson, had his left hip replaced earlier this year.
Johnson, convicted of sexually abusing and killing 61-year-old Helen Madden in 1989 at a Hazard laundry where she worked, fell in January while leaving a check-up at the prison infirmary and broke his left hip.
Jefferson did hip-replacement surgery on Johnson at Baptist Health in Paducah, according to a court record.
Three guards were in Johnson’s room or just outside while he was in the hospital.
Foley’s attorneys said in their motion that the “realistic possibility” of having a doctor willing to do the surgery and a hospital to host it didn’t come up until August.
The state has insisted on unnecessarily stringent security in order for Foley to have the operation, his attorneys have argued.
In response to Foley’s new motion, the Department of Corrections argued that it has never refused to consent to hip-replacement surgery for him.
The department has agreed to pay for the procedure and provide rehabilitation afterward, its attorney said in a motion.
However, several hospitals the state contacted about surgery for Foley refused to host it, and the department can’t order a facility to admit Foley for non-emergency surgery, the motion said.
If the board at Baptist Health in Paducah decides to allow the surgery, the department will cooperate to make that happen, the motion said.
At this point, though, the department contends surgery for Foley would be elective. That differs from Johnson’s case, where his broken hip was an emergency, the department said.
Foley’s hip problems “are not threatening to life or limb,” the state’s response 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 still has appeals pending in state and federal court.
There is a moratorium on executions in Kentucky because of a court challenge.