LEON FAISON v. DOUG SAPP, COMMISSIONER; WILLIAM SEABOLD, WARDEN; AND DEPARTMENT OF CORRECTIONS
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RENDERED: February 12, 1999; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1998-CA-000738-MR
LEON FAISON
APPELLANT
APPEAL FROM FRANKLIN CIRCUIT COURT
HONORABLE ROGER CRITTENDEN, JUDGE
ACTION NO. 97-CI-001039
v.
DOUG SAPP, COMMISSIONER;
WILLIAM SEABOLD, WARDEN; AND
DEPARTMENT OF CORRECTIONS
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
DYCHE, GUIDUGLI AND McANULTY, JUDGES.
GUIDUGLI, JUDGE.
Three inmates filed a declaratory judgment
action in the Franklin Circuit Court challenging the
constitutionality of the Department of Corrections’ policy of
requiring inmates to pay a portion of medical and dental care
costs during incarceration.
inmates’ action.
Franklin Circuit Court dismissed the
Only one of the inmates, Leon Faison
(“Faison”), appeals.
Upon reviewing the record and briefs filed
by the parties, we hereby affirm.
On November 30, 1995, the Department of Corrections
implemented a co-pay system for medical and dental care for
inmates.
Specifically, Chapter 13 of the Department of
Corrections Policy and Procedure (“CPP”) provides that:
An inmate shall be charged $2.00 for each
visit to regularly scheduled sick call unless
the inmate is indigent as defined in CPP
15.7. An inmate shall not be charged for
ongoing sick call services, for example blood
test for diabetes, blood pressure checks for
hypertensive individuals or other follow-up
services as directed by the medical staff.
CPP 13.2VI.B.a.6.
Apparently Chapter 13.9 regulates payment for
dental services and dentures.
However, this section is not
included in the record.
On January 30, 1997, Faison was examined by the
Kentucky State Reformatory Institutional Dentist, and was advised
that he was a “good candidate” for lower dentures.
He claims
that the institutional dentist told him that the dentures would
prevent him from having difficulty in chewing food thereby
relieving him from digestion problems.
However, Faison does not
include any medical records or an affidavit from the dentist
describing whether the dentures were medically necessary to
correct a serious health problem.
The dentist informed Faison
that he would have to pay a fee of $72.00 for the dentures.
Faison claims that he is unable and unwilling to pay for the
dentures.
Faison also attacks the constitutionality of the $2.00
co-pay for sick call services.
Faison claims that requiring inmates to pay for medical
and dental services violates constitutional principles.
Specifically, he alleges that Section 254 of the Kentucky
Constitution as well as the Eighth Amendment of the United States
Constitution is violated by the above procedures.
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We disagree.
The United States Supreme court has rejected strict
scrutiny as the correct standard of review for the
constitutionality of prison regulations.
Reynolds v. Wagner, 128
F.3d 166, 172 (3rd Cir. 1997) (citing Turner v. Safley, 482 U.S.
78, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987)).
The appropriate
standard instead is whether the regulation is reasonably related
to a legitimate state interest.
Id.
The specific standard in determining violations of the
Eighth Amendment is the two-pronged test set forth in Estelle v.
Gamble, 429 U.S. 97, 104, 97 S.Ct. 285, 291, 50 L.Ed.2d 251
(1976).
This standard requires a showing (1) that the prison
officials were deliberately indifferent to the inmates’ medical
needs and (2) that those needs were serious.
Id.
“Deliberate
indifference in violation of the Eighth Amendment’s proscription
against cruel and unusual punishment exists when a prison
official knows that an inmate faces a substantial risk of serious
harm to an inmate’s health and fails to take reasonable measures
to abate the risk.”
Gardner v. Wilson, 959 F.Supp. 1224, 1228
(C.D. Cal. 1997) (citing Farmer v. Brennan, 511 U.S. 825, 826-29,
114 S.Ct. 1970, 1974, 128 L.Ed.2d 811 (1994)).
Although the
Eighth Amendment forbids cruel and unusual punishment, “it does
not require the most intelligent, progressive, humane, or
efficacious prison administration.”
Hudgins v. DeBruyn, 922
F.Supp. 144, 150 (S.D. Ind. 1996) (quoting Oliver v. Deen, 77
F.3d 156, 161 (7th Cir. 1996)).
While no courts in Kentucky have dealt with this topic,
several other jurisdictions have.
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See e.g., Reynolds v. Wagner,
128 F.3d 166, 173 (3rd. Cir. 1977); Gardner v. Wilson, 959
F.Supp. 1224 (D.C. Cal. 1997); Hudgins v. DeBruyn, 922 F.Supp.
144 (S.D. Ind. 1996); and Johnson v. Dept. Of Public Safety and
Correctional Services, 885 F.Supp. 817 (D. Md. 1995).
Courts
ruling on the matter have found that requiring a prisoner to pay
for medical and dental care does not amount to “deliberate
indifference to serious medical needs.”
See e.g., Mourning v.
Correctional Medical, 300 N.J. Super., 62 A.2d 529 (1997);
Gardner v. Wilson, 959 F.Supp. 1224, 1228 (C.D. Cal. 1997);
Hutchinson v. Belt, 957 F.Supp. 97, 100 (W.D. La. 1996); Robinson
v. Fauver, 932 F.Supp. 639 (D.N.J. 1996); Bihms v. Klevenhagen,
928 F.Supp. 717, 718 (S.D. Tex. 1996); Hudgins v. DeBruyn, 922
F.Supp. 144 (S.D. Ind. 1996); Johnson v. Dept. of Public Safety
and Correctional Services, 885 F.Supp. 817, 820 (D. Md. 1995).
In order to establish deliberate indifference of a
serious medical need, Faison must show that requiring inmates to
pay a portion of the fee for medical and dental services
constitutes a “unnecessary and wanton infliction of pain contrary
to contemporary standards of decency.”
Id. (quoting Helling v.
McKinney, 509 U.S. 25, 32, 113 S.Ct. 2475, 2480, 125 L.Ed.2d 22
(1993)).
level.
We do not find that the policy at issue rises to that
“Instead, such a requirement simply represents an
insistence that the prisoner bear a personal expense that he or
she can meet and would be required to meet in the outside world.”
Reynolds, 128 F.3d at 174.
Furthermore, mechanisms are in place
in the regulations to ensure adequate care for all inmates.
example, under the program at issue, an exception is made for
For
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indigent inmates.
CPP 13.2 VI.B.3.6.
(“An inmate shall be
charged $2.00 for each visit to regularly-scheduled sick call
unless the inmate is indigent as defined in CPP 15.7").
Additionally, inmates are not charged for ongoing sick call
services, for example blood tests for diabetes, blood pressure
checks for hypertensive individuals or other follow-up services
as directed by the medical staff.
Moreover, Faison does not
allege and the record does not support that he has ever been
turned away or refused treatment for failure to pay the $2.00 copayment.
Although Faison was denied dentures unless he paid the
$72.00 fee for them, he presents no documentation of a serious
health need requiring the dentures beyond his own assertion that
the dentures would “prevent [him] from having difficulty in
chewing food, which would in turn relieve [him] from digestion
problems that he was experiencing.”
On its face, denial of the
dentures free of charge does not amount to “unnecessary and
wanton infliction of pain contrary to contemporary standards of
decency.”
Nonetheless, Faison asks this Court to stretch the
protections in the Eighth Amendment to regulations that simply
attempt to provide inmates with a small disincentive to abuse
sick call.
This goal falls within the area of a legitimate state
interest passing constitutional muster.
Thus, we can find no
violation of the Eighth Amendment.
Furthermore, we find that Faison’s claims of violations
of Section 254 of the Kentucky Constitution requiring that the
Commonwealth “provide for all supplies” of inmates is violated by
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the Department of Corrections procedures is without merit.
Faison presents no authority for his expansive reading of the
provision.
We agree with appellees that this phrase is meant to
impose a basic obligation of support and maintenance of inmates,
not an absolute right to free medical and dental services.
For
the reasons stated, we find no constitutional violation in
requiring inmates to pay a portion of their medical and dental
services.
For the foregoing reasons, the judgment of the Franklin
Circuit Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT PRO SE:
BRIEF FOR APPELLEES:
Leon Faison
LaGrange, KY
Rebecca Baylous
Department of Corrections
Frankfort, KY
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