115 L. Ed. 2d 271, 111 S. Ct. 2321 (1991).
In this case, however, the unrefuted evidence affords no rational basis for an inference of deliberate indifference to Alston's medical needs. It is clear, and indeed undisputed that Alston was afforded consistent, attentive surgical and therapeutic medical care on about a weekly basis in a comprehensive attempt to remedy the source of Alston's ankle pain. Although the constitution does not contemplate that prisoners receive unfettered access to medical care, see Hudson v. McMillian, 503 U.S. 1, 6, 117 L. Ed. 2d 156, 112 S. Ct. 995 (1992), Alston's care - which included arthroscopic exploratory and corrective surgery, physical therapy, regular oral and injected dosages of analgesics, arch supports, crutches and bed rest - appears to have been of a quality well above what might otherwise be available in the private sector.
It follows that Alston's allegations, even given the most generous reading, fail to establish that defendants' conduct is "'repugnant to the conscience of mankind'" or incompatible with the "'evolving standards of decency that mark the progress of a maturing society.'" Estelle, 429 U.S. at 102, 106 (citations omitted).
Nor has Alston established any rational basis for a claim that his medical needs were sufficiently serious to meet the objective component necessary to establish a constitutional violation. See Hudson, 503 U.S. at 9 ("Because society does not expect that prisoners will have unqualified access to health care, deliberate indifference to medical needs amount to an Eighth Amendment violation only if those needs are 'serious'"). To be serious, a medical need must constitute "a condition of urgency, one that may produce death, degeneration, or extreme pain." Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir. 1994), cert. denied, 130 L. Ed. 2d 1074, 115 S. Ct. 1108 (1995); see also Seiter, 501 U.S. at 298 ("only those deprivations denying 'the minimal civilized measures of life's 'necessities' are sufficiently grave to form the basis of an Eighth Amendment violation").
Here, Alston walked without pain after the arthroscopic surgery and returned to his work as an institutional painter three or four months thereafter. See Cole v. Scully, 1995 U.S. Dist. LEXIS 5127, 1995 WL 231250 (S.D.N.Y. Apr. 18, 1995).
Nor does Alston's disagreement as to the appropriate course of treatment create a constitutional claim.
See Ross v. Kelly, 784 F. Supp. 35, 44 (W.D.N.Y.), aff'd, 970 F.2d 896 (2d Cir. 1992), cert. denied, 506 U.S. 1040, 121 L. Ed. 2d 698, 113 S. Ct. 828 (1992). This is especially true since there is expert medical evidence supporting an inference that high performance footwear was an inappropriate treatment for Alston's ankle problem, and indeed might have exacerbated that injury by causing the ankle to stiffen and become inflexible.
Furthermore, Alston's equal protection claim alleging that he was denied high performance footwear while other similarly situated inmates with similar problems were not, must likewise be denied. Where, as here, Alston opposes summary judgment without enumerating any "specific facts and circumstances supported by depositions, affidavits based on personal knowledge, and admissions" which could rationally support a factual finding that he was denied equal protection, his claim must be dismissed. General Elec. v. New York State Dep't of Labor, 936 F.2d 1448, 1452 (2d Cir. 1991). In this case, Alston stated at his deposition only that he had observed other inmates with "lesser problems" receiving high performance shoes and boots from Dr. Organ and other podiatrists at the Green Haven podiatric clinic. See Alston Dep. at 88-91, attached to letter from counsel for defendants filed May 17, 1995.
However, he was unable when requested to furnish defendants with the names of these other inmates. Alston Dep. at 91. On the other hand, Dr. Organ submitted an affidavit indicating that he has never prescribed high performance footwear to private patients who have the same medical condition as Alston. Organ Aff. P 30. It follows that Alston's allegations are entirely too conclusory and lacking in evidentiary support to sustain an equal protection claim. See General Elec., 936 F.2d at 1452.
This is especially true since he has set forth no factual basis upon which a rational fact finder could conclude that any alleged unequal treatment was based upon a class-based discrimination. In the absence of such proof, the defendants need only demonstrate a rational basis to deny high performance footwear to Alston, a standard which has clearly been met in this case. See Soberal-Perez v. Heckler, 717 F.2d 36, 41 (2d Cir. 1983)("where a suspect class or a fundamental right is not implicated, the challenged action need only be rationally related to a legitimate governmental purpose"), cert. denied, 466 U.S. 929, 80 L. Ed. 2d 186, 104 S. Ct. 1713 (1984); see also Rivera v. Senkowski, 62 F.3d 80, 84 (2d Cir. 1995) (denying equal protection claim against defendants who had no authority to remedy alleged violation).
In any event, defendants are entitled to qualified immunity for the claims asserted against them individually. The doctrine of qualified immunity bars claims against government officials in their individual capacity arising out of the performance of their discretionary functions. See Harlow v. Fitzgerald, 457 U.S. 800, 818, 73 L. Ed. 2d 396, 102 S. Ct. 2727 (1982). Qualified immunity shields government employees from liability for conduct that is objectively reasonable and "does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Id.; see also Anderson v. Creighton, 483 U.S. 635, 639, 97 L. Ed. 2d 523, 107 S. Ct. 3034 (1987) (citations omitted). Dr. Organ provided Alston with a comprehensive course of appropriate treatment, including surgery, physical therapy, injections, analgesics, bed rest and crutches. His refusal to provide Alston with "high performance" footwear, which was not specially made or even therapeutic, was as a matter of law objectively reasonable and not in contravention of any clearly established federal or constitutional right. Similarly, given that Nurse Howard had no authority to prescribe "high performance" footwear, her failure to do so is also protected by qualified immunity.
For the reasons set forth above, defendants' motion for summary judgment shall be and hereby is granted. The Clerk of Court shall enter judgment accordingly and close the above-captioned action.
Dated: New York, New York
May 8, 1996
John E. Sprizzo
United States District Judge