The opinion of the court was delivered by: Sweet, District Judge.
Philip J. Organ, M.D. ("Dr.Organ"), a physician at Green Haven
Correctional Facility ("Green Haven"), and the State of New York
(together, "Defendants"), two of the defendants in this action,
have moved pursuant to Rule 56 of the Federal Rules of Civil
Procedure for summary judgment and to dismiss the complaint of
pro se plaintiff Francisco
Veloz ("Veloz"). For the reasons set forth below, the motion is
Veloz filed his complaint in this action on January 27, 1998,
pursuant to 42 U.S.C. § 1983, alleging that Defendants violated
the Eighth Amendment of the Constitution by performing an
operation on his foot that has caused him to have problems
walking, pain, and cramping.
The instant motion, having been filed by Dr. Organ and the
State of New York on October 8, 1998, and opposed by Veloz, was
marked fully submitted on November 4, 1998.
According to the complaint, in November 1988, Veloz's wife
severely injured his left foot in a domestic dispute. Now,
however, Veloz insists that there was no domestic dispute and
that at the time of the incident resulting in the injury to his
foot he was attempting to save the life of his daughter. Veloz
claims that this injury remained dormant until 1996, whereupon he
sought medical treatment from Green Haven medical personnel and
was referred to Dr. Organ, who works as an adjunct physician at
the facility's Podiatry Clinic. Veloz asserts that as a result of
medical treatment, namely an operation he received from
Defendants, his constitutional rights were violated.
Specifically, Veloz submits that (1) his October 10, 1996
surgical visit was canceled for unknown reasons but does not
allege that Dr. Organ was in any way responsible for the
rescheduling of his operation; (2) the surgery performed by Dr.
Organ on February 21, 1997, resulting in a screw being placed on
his left great toe, was performed in an unanticipated area of his
left foot; (3) Dr. Organ did not prescribe a wheel chair for him,
crutches, or a cane after the February 21, 1997 operation; (4)
Dr. Organ refused his request to remove the screw from his foot
after Veloz complained of pain and instead gave him medication to
relieve the pain that made him momentarily dizzy; (5) throughout
the course of his recovery, Dr. Organ gave Veloz pain medication
that caused the dizziness and squeezing in his chest; and (6) his
August 12, 1997 operation to remove the screw was rescheduled to
October 3, 1997.
II. Veloz's Course of Treatment
On May 21, 1996, Veloz was seen in the Podiatry Clinic of Green
Haven for a complaint of pain in his left hallux, i.e., great
toe. He was reevaluated on June 4, 1996. At the examinations,
Veloz described a history of pain in his left great toe due to a
crush injury that he had sustained approximately eight years
earlier. He stated that he had trouble sleeping prone because in
that position his left great toe pressed against the mattress,
On examination, it was determined that the pain was localized
in the left great toe. A diagnosis was made of a fracture
fragment, bone cyst, and degenerative arthritis in the joint area
of the toe. Surgery was discussed and agreed to by Veloz. The
surgical plan called for removal of the fracture fragment,
curettage of the cyst, and because the damaged articular surface,
fusion of the hallux interphalangeal joint.
On February 21, 1997, Veloz was admitted to Vassar Brothers
Hospital and with his consent the fragment and cyst were removed
from the left great toe. Additionally, the joint of the toe was
found to be eroded, and thus it was fused. According to Veloz,
because he did not have his eye glasses, he could not see the
details of the consent form. Veloz claims that he did not expect
the toe to be operated on, just the foot. Pathologic reports
showed bone demonstrating periosteal fibrosis (a degenerative
bone condition). Veloz was seen postoperatively four days later
when his wounds were redressed. He was instructed to be
ambulatory so as to avoid postoperative stiffness and atrophy of
disuse. As a result, no wheel chair or crutches were prescribed.
Furthermore, it was felt that being ambulatory would improve his
outlook and assist in diminishing postoperative pain more
Veloz was again seen on March 25, 1997. The wound was dry and
closed, the fusion site was intact, and although he had some pain
along one of his tendons, he had no swelling or redness in the
area. Veloz was referred to physical therapy, which was to be
administered twice a week by Green Haven medical staff.
Radiographs taken on that day showed the fracture line across the
surgical site, but there was no evidence of motion of the bone,
and it was clear that fusion had taken.
Veloz was then seen on April 8, 1997, for a redressing. He had
no pain in the operative site, but complained that there was
pressure from his sneaker overlying the bunion area. In the
belief that the sneaker was too tight, Dr. Organ removed the sock
lining from the sneaker so as to allow for more room.
Thereafter, according to Veloz's medical reports, he stubbed
his left great toe on June 3, 1997. Veloz, however, contends that
the incident occurred on June 6, 1997. Veloz described the injury
as resulting from kicking the concrete base of the toilet,
tearing his left great toe open and causing bleeding and severe
pain. Veloz was seen for this problem by Green Haven medical
staff on June 13, 1997. Dr. Organ was not informed of this injury
and did not take part in the treatment Veloz received. On July 1,
1997, Dr. Organ saw Veloz in the Podiatry Clinic where Veloz
complained of pain in the entire foot, day and night. He stated
that this pain began at the end of February 1997, corresponding
to the time of his arthrodesis surgery. On examination Dr. Organ
concluded that there was no pain in the area where the surgery
had been performed and the wound was healed. There was minimal
scar tissue over the skin of the toe. The toe was a bit swollen
and red but well in keeping with his status post surgery. Dr.
Organ treated Veloz's left foot by injection therapy.
It was Dr. Organ's opinion that the pain Veloz reported was due
to the limitation of motion at the metatarsophalangeal joint,
compensated at the hallux interphalangeal joint. Dr. Organ also
opined that this pain could have been aggravated or even induced
by the injury inflicted on Veloz when he stubbed his toe in June
1997. Moreover, according to Veloz's medical records, at the
visit of July 1, 1997, Veloz made no reference to the stubbing
injury that he had sustained.
It was Dr. Organ's opinion that the use of local injection
therapy would reduce pain and improve the range of motion of the
first metatarsophalangeal joint. Veloz was then scheduled to
return one week later and, in Dr. Organ's absence, receive an
injection from another clinic podiatrist. ...