106264 v. Warden, State Prison (2010)

MEMORANDUM OF DECISION

On May 18, 2009, the pro se petitioner filed for a writ of habeas corpus in which he claims that his constitutional right to protection against cruel and unusual punishment has been violated due to the Department of Correction's failure to provide him with adequate medical care.   Specifically, the petitioner claims that the respondent has denied him a foot pass so that he or his family can purchase footwear from the outside for petitioner to wear for work and recreation within the corrections facility.   He further alleges that the medical shoes provided to him by the Department of Corrections have caused swelling and infection.   The respondent's return denies the claims and asserts that the respondent has provided and continues to provide the petitioner with quality medical care.

The matter came to trial on October 4, 2010, at which time the Court heard testimony from the petitioner and Department of Corrections employee, Dr. Edward Blanchette.   Petitioner proffered two letters and a set of three photographs of his feet.   Respondent offered portions of petitioner's medical records ranging over a seven-year period.   The Court has reviewed all of the testimony and documentary evidence and makes the following findings of fact.

FINDINGS OF FACT

1.  The petitioner is confined to the custody of the Commissioner of Corrections pursuant to a mittimus issued on November 11, 2004, by the New Britain Superior Court, sentencing petitioner to a total effective sentence of sixteen years.

2. At the habeas trial the petitioner testified that he had been a diabetic since childhood and had had neuropathy for twenty-two years.   Because of this he claims that the footwear issued by the Department of Corrections has caused his feet to swell and has even caused the skin to rub off his left toe.1  He further stated that he would like to buy work boots, sneakers, shower shoes, slippers, and walking shoes from a source outside the Department of Corrections.   He says that he needs footwear that will not cause his feet to swell or be bruised and painful.

3. Petitioner further stated that he needs to be issued a foot pass in order to be able to buy shoes from an outside source.   He claims that he has been requesting a foot pass since 2003 and has been continuously denied that privilege.

4. Although the Department of Corrections was willing to discuss providing petitioner with a specific type of sneaker and/or boot,2 petitioner stated in written response 3 and in his trial testimony, that he does not wish to be provided with one or two shoes, but continues to request a foot pass for the remainder of his sentence that will allow him to purchase his own shoes from the outside.

5. Petitioner further stated that he has been given appropriate medical care for his diabetes, but not for his feet.

6. Edward Blanchette, M.D., the medical director of the Department of Corrections, also testified at the habeas trial.   Dr. Blanchette has been a physician since 1975, is licensed to practice medicine in the state of Connecticut, and is board certified in fields of internal medicine and infectious diseases.   Dr. Blanchette testified that he was familiar with the petitioner and his medical conditions and that he had reviewed the medical records.

7. Dr. Blanchette first explained the policy of the Department of Corrections regarding orthopedic footwear.   He stated that footwear regulations are a safety security issue.   Therefore, the policy is that there is certain allowable footwear with the exception of footwear that is medically necessary.   For that purpose podiatrists are hired by the Department of Corrections who are specialists in foot care.   They manage issues involving footwear for those inmates with structural or clinical problems like diabetics who have a tendency toward foot ulcerations or other circulatory problems associated with their feet.

8. Dr. Blanchette further noted that petitioner has seen a podiatrist a number of times.   The most recent visit noted in a portion of his medical records, provided as Respondent's Exhibit A, was dated November 24, 2009.4  In that part of the record the doctor noted in his assessment that petitioner has diabetic neuropathy, but he has no swelling and has a normal foot structure.   He approved the use of a diabetic medical shoe and discouraged the approval of an outside shoe which would be against medical advice because of swelling concerns.   He further noted that petitioner currently had two pairs of diabetic medical shoes issued to him.

9. Dr. Blanchette further stated that, based on petitioner's medical history and records, his current medical treatment, including the type of footwear medically recommended, is entirely appropriate.

10. The Court will discuss additional facts as needed.

DISCUSSION

The eighth amendment,⁵ which is binding on the states under “the due process clause of the fourteenth amendment to the United States constitution ․ prohibits detention in a manner that constitutes cruel and unusual punishment.”  (Citation omitted;  internal quotation marks omitted.)   Fuller v. Commissioner of Correction, 75 Conn.App. 133, 136, 815 A.2d 208, cert. denied, 263 Conn.App. 65, 66, 787 A.2d 1217 (2003);  see also Hunnicutt v. Commissioner of Correction, 67 Conn.App. 65, 66, 787 A.2d 22 (2001).   To prevail on a habeas claim challenging the conditions of confinement, a petitioner must demonstrate by objective evidence that prison officials acted with deliberate indifference concerning his serious medical needs.  Hunnicutt v. Commissioner of Correction, supra, 67 Conn.App. 69-70;  Faraday v. Commissioner of Correction, 288 Conn. 326, 338-40, 952 A.2d 764 (2008).   Additionally, “․ subjective deliberate indifference means that a prison official cannot be found liable under the [e]ighth [a]mendment for denying an inmate humane conditions of confinement unless the official knows of and disregards an excessive risk to inmate health safety ․” (Internal quotation marks omitted.)  Fuller v. Commissioner, supra, 75 Conn.App. 137.

It is clear from the testimony of the petitioner, and confirmed by Dr. Blanchette, that petitioner is diabetic and suffers from diabetic neuropathy.   It is also clear that these conditions are not life threatening, nor even unbearably painful.   It is also clear from Dr. Blanchette's testimony and confirmed by medical records,⁶ that the Department of Corrections has addressed the issue of the foot pass on more than one occasion and concluded that, despite petitioner's insistence, a foot pass would not only not be medically contraindicated in petitioner's case, but the result of wearing outside boots, sneakers, or shoes, would likely be harmful to petitioner.

The Court finds that the petitioner has failed to prove that the respondent has acted with “deliberate indifference” to his medical needs.   The entire record before the Court established that the respondent performed appropriate evaluations and made appropriate recommendations and treatment in response to petitioner's requests, and continues to treat petitioner appropriately on an ongoing basis.

Accordingly, the Writ of Habeas Corpus is denied.

T. Santos, J.

FOOTNOTES

FN1. See Petitioner's Exhibit (Exh.) 3..  FN1. See Petitioner's Exhibit (Exh.) 3.

FN2. Petitioner's Exh. 1..  FN2. Petitioner's Exh. 1.

FN3. Petitioner's Exh 2..  FN3. Petitioner's Exh 2.

FN4. Respondent's Exh. A, p. 289..  FN4. Respondent's Exh. A, p. 289.

FN5. “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”   U.S. Const., amend.   VIII..  FN5. “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”   U.S. Const., amend.   VIII.

FN6. Respondent's Exh. A..  FN6. Respondent's Exh. A.

Santos, Thelma A., J.