Kentucky death row inmate loses lawsuit to force surgery for degenerative hip



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LOUISVILLE, Kentucky — A federal judge has turned away a request from Kentucky death row inmate to force the state to find somewhere to perform a $56,000 hip replacement surgery after concluding officials put forth an effort to accommodate the inmate's medical needs.

U.S. Magistrate Judge Edward B. Atkins on Friday rejected 57-year-old Robert Foley's claims that state sabotaged the attempts to find a hospital and surgeon and the inability to find a hospital amounted to unconstitutional cruel and unusual punishment.

"At worst, the (state's) efforts to secure a venue willing to perform surgery on Foley amount to an inadvertent failure to provide medical care, which is insufficient to establish a violation of the Eighth Amendment," Atkins wrote.

Foley sued the state in 2012 after more than four years of pressing the Justice and Public Safety Cabinet and the Department of Corrections for the operation.

Foley was convicted of killing six people in eastern Kentucky in 1989 and 1991. That's more victims than any other prisoner on the state's death row. Court documents obtained through a public records request and Foley's lawsuit show his status as an extremely dangerous prisoner was a key factor in the state's difficulty finding a surgeon and hospital.

Foley's attorney, Meggan Smith, was disappointed with the decision. Smith said the evidence appeared to be good enough to prove the state isn't providing Foley with the medical treatment he needs because a now-retired warden declared him dangerous. Smith was unsure if the decision would be appealed.

"We thought we proved that, if he were any other inmate, he would have already had the surgery," Smith said. "Since this litigation started, other death row inmates have had surgeries and a KSP inmate has received a hip replacement."

Foley is awaiting execution for shooting and killing brothers Rodney and Lynn Vaughn in his home in Laurel County in 1991. He was also condemned to death for the murders of Kimberly Bowersock, Lillian Contino, Jerry McMillen, and Calvin Reynolds. He shot the four on Oct. 8, 1989, because he thought one of them had reported him to his parole officer.

Emails and memos obtained by The Associated Press show corrections officials struggling for a year to reconcile their duty to provide medical care with the political ramifications of spending tens of thousands of dollars for surgery on a man they plan to execute. The hospitals' security concerns became a key problem and six facilities refused to host Foley for the surgery.

Also, state officials worried about inviting scorn from Fox News pundits if they spent money on a hip replacement for a man who might soon be executed.

Then-Kentucky State Penitentiary warden Phil Parker wrote in an email on Nov. 22, 2010: "I can see this making Fox News on a slow news day, maybe even on a busy news day. In fact, I bet (Fox News host Bill O'Reilly) would love to put this in his 'Pinheads' commentary. Just a thought to consider before it goes too much further."

Prison officials also made contingency plans to call off the surgery if Gov. Steve Beshear set an execution date. Kentucky has been under a judge's order since 2010 halting all executions. Franklin Circuit Judge Phillip Shepherd last week ruled that recent issues with executions in Oklahoma and Ohio call into question the constitutionality of Kentucky's method — a decision that further delays lethal injections being carried out in the state.

State officials deny that politics played a role, and there's no evidence in the documents that political considerations prevented the surgery.

"Bob is in pain," Smith said. "Since he cannot be executed, Bob will remain in pain and continue to fall and incur additional injuries for quite some time, increasing the chances that he will require emergency surgery to repair or replace his hip."

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Follow Associated Press reporter Brett Barrouquere on Twitter: http://twitter.com/BBarrouquereAP

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