The opinion of the court was delivered by: SPRIZZO
Pursuant to 42 U.S.C. § 1983, plaintiff Ernest L. Alston, acting pro se, brings the above-captioned action against Nurse Terry Howard and Dr. Philip Organ, claiming that defendants violated his constitutional rights to equal protection and to be free from cruel and unusual punishment by refusing to prescribe "high performance" footwear to remedy his ankle injury.
Pursuant to Federal Rule of Civil Procedure 56, defendants move for summary judgment on the grounds that plaintiff has failed to state a constitutional claim and that defendants are protected by qualified immunity.
At the Green Haven Correctional Facility in New York ("Green Haven"), each inmate is issued one pair of ankle-high sneakers and six inch leather boots. See Affidavit of Philip Organ Sworn to August 4, 1995 ("Organ Aff.") P 8. The New York State Department of Correctional Services ("DOCS") directives and Green Haven policy govern all requests for state shop boots and sneakers and provide that inmates are entitled to a new pair of sneakers every nine months and a new pair of boots every year. Id. ; Defendants' Notice of Motion ("Defs.' Not. Mot."), Ex. B. The inmate is responsible for pursuing any issues regarding state-issued footwear. Organ Aff. P 8. An inmate who needs or desires special footwear accommodations or new footwear must make a request to the state shop, which determines whether to issue new footwear to the inmate. Id.
At Green Haven, all prescriptions and medical recommendations must be approved by the Facility Health Services Director. Id. P 31. Under no circumstances may a nurse authorize prescriptions for medical footwear without the approval of a podiatrist and the Facility Health Services Director. Id. Similarly, a nurse cannot deny an inmate his approved medical prescription without the authorization of the attending physician and the Facility Health Services Director. Id. In addition, a general practice physician must conduct an examination and issue a referral before a podiatrist can conduct a consultation or examination. Id.
At all times relevant herein, plaintiff Ernest Alston was incarcerated at Green Haven. See Complaint ("Compl.") at 3. Defendant Dr. Philip Organ is a podiatrist and surgeon who serves as a podiatric surgery consultant at Green Haven. See Organ Aff. PP 2, 3, 7. Defendant Terry Howard is employed as a nurse at Green Haven. Compl. at 3.
According to his medical records, Alston has a history of chronic pain in his left ankle resulting from sports injuries in 1982 and 1990. Organ Aff. P 10; Compl. at 4. X-rays taken at Green Haven in May of 1991 revealed that he suffered a medical condition known as post-traumatic osteoarthritis. See Organ Aff. P 10; Alston's Ambulatory Health Records ("AHR"), attached as Ex. A to Defs.' Not. Mot. As treatment, DOCS physicians prescribed crutches and a unna boot, commonly referred to as a soft-cast. Organ Aff. P 11. The unna boot consists of gauze impregnated with zinc oxide which over time desiccates and causes a firm cast-like dressing to form over the foot. Id. By immobilizing the ankle, the unna boot distributes pressure to the foot, allowing the ankle injury to heal. Id.
On July 19, 1991, Dr. Organ examined and evaluated plaintiff's left ankle for the first time upon the referral of Alston's attending physician. Id. P 12. According to the AHR, Alston complained of disabling pain in the left foot and ankle, especially across the outer aspect of the ankle joint and along the lateral side of his left foot. Id. Dr. Organ was unable to conduct a physical examination because Alston's left foot was sensitive to palpation. Id. After reviewing x-rays, conducting a visual examination and a cursory physical examination of Alston's ankle, Dr. Organ found that Alston had sustained minor damage to his left lateral ankle. Id. The x-rays revealed a bone spur on the top surface of the left talar head and an overgrowth of the ankle joint. Id. However, Alston's bone density was within normal limits. Id.
Based upon this examination, Dr. Organ concluded that Alston was experiencing arthritic changes in his ankle and around the ankle joint. Id. P 13. He diagnosed Alston's condition as chronic arthritis, capsulitis, and synovitis. Id. Thereafter, Dr. Organ requisitioned a bone scan to rule out bone fractures, which could not be detected by x-ray. Id. After the examination, Alston was fitted with a posterior splint which immobilized the foot and ankle, allowing the ankle to rest. Id.
While performing the surgery, Dr. Organ found minor irritation and inflamed tissues in Alston's foot and joint. Id. P 17. Dr. Organ extracted samples of these tissues from Alston's foot and sent them to pathology. Id. The arthroscopic surgery revealed that Alston's left ankle showed no serious physical damage. Id. As a result of the procedure, Dr. Organ determined that the inflamed tissues around the joint contributed to Alston's pain in his left ankle joint. Id.
On the day after the surgery, Alston asked Nurse Howard and Dr. Organ for high performance boots and sneakers. Dr. Organ denied his request. Compl. at 3. Instead, Alston was returned to Green Haven with instructions to continue using crutches. Organ Aff. P 18. In addition, Alston was prescribed Feldene daily for 10 days and Tylenol with codeine four times per day. Id. On November 26, 1991, approximately six days after surgery, Alston reported that he was capable of walking without any pain and expressed his desire to quickly return ...