joint. Dr. Organ decided to have the screw removed. Dr. Organ's
impression was that the irritation could be causing him to walk
in an antalgic manner to avoid aggravating the rest of his foot.
However, it did not appear that there was any specific problem at
the tip of the hallux.
Dr. Organ further postulated that if after screw removal, Veloz
continued to complain of pain in the ankle, the requested MRI
would be used to evaluate the ankle and subtalar joints. If the
problem was secondary to synovitis and superficial ankle joint
erosion, it was Dr. Organ's opinion that an arthroscopic surgery
would be justified. If the damage was more extensive, a single,
double, or triple surgical fixation of the joint might be needed
to control his pain. Veloz was referred to further physical
therapy for degenerative arthritis of the left foot to be
conducted by Green Haven medical staff, and Dr. Organ
administered injection therapy.
On October 3, 1997, the screw was removed from the left hallux
under local anesthesia. Veloz was instructed to remain ambulatory
postoperatively. Thus no wheel chair or crutches were prescribed.
On November 18, 1997, Veloz again told Dr. Organ of the pain in
his left foot. Veloz indicated the area of the tarsometatarsal
joints as the focus of this pain. Veloz's medical records
indicate a crush injury to the left hallux approximately eight
years earlier, but the treatment Dr. Organ provided appeared to
resolve that problem.
On examination, Dr. Organ found pain on palpation and motion of
the interlarsal joints of Veloz's left foot. However, there was
no redness or swelling present. Dr. Organ's impression was that
Veloz was developing degenerative arthritis, and he treated Veloz
with injection therapy and recommended that the Green Haven
medical department provide Veloz with physical therapy twice a
week and a better shoe and sneaker with a built-in-arch support.
Finally, Green Haven medical personnel presented Veloz to Dr.
Organ's clinic on December 30, 1997. Veloz contests the date and
proclaims that he was last seen by Dr. Organ on December 16,
1997. At that time, Veloz reported that the pain across the
instep of his foot was relieved for about one hour after the last
injection, but that he experienced chest pain after the
injection. Veloz said he had a similar chest pain incident after
an IVP injection sometime earlier. He never reported these
incidents to Dr. Organ in person. Based on this, the decision was
made to hold off the injections. He was still awaiting the
dispensing of special shoes by Green Haven medical personnel. Dr.
Organ has not treated him since this last visit.
I. Standard for Summary Judgment
Rule 56(c) of the Federal Rules of Civil Procedure provides
that a court shall grant a motion for summary judgment "if the
pleadings, depositions, answers to interrogatories, and
admissions on file, together with affidavits . . . show that
there is no genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter of law." See
Silver v. City University, 947 F.2d 1021, 1022 (2d Cir. 1991).
"The party seeking summary judgment bears the burden of
establishing that no genuine issue of material fact exists and
that the undisputed facts establish her right to judgment as a
matter of law." Rodriguez v. City of New York, 72 F.3d 1051,
1060 (2d Cir. 1995). In determining whether a genuine issue of
material fact exists, a court must resolve all ambiguities and
draw all reasonable inferences against the moving party. See
Matsushita Elec. Indus. v. Zenith Radio Corp., 475 U.S. 574,
587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Brady v. Town of
Colchester, 863 F.2d 205, 210 (2d Cir. 1988). If there is any
evidence in the record regarding the issues on which summary
judgment is sought from which a reasonable inference could be
drawn in favor of the nonmoving party, summary judgment is
improper. See Knowles v. New York City Dept. of Corrections,
904 F. Supp. 217, 220 (S.D.N.Y. 1995).
A party seeking to defeat a summary judgment motion cannot
"rely on mere speculation or conjecture as to the true nature of
facts to overcome the motion." Lipton v. Nature Co.,
71 F.3d 464, 469 (2d Cir. 1995) (quoting Knight v. U.S. Fire Ins. Co.,
804 F.2d 9, 12 (2d Cir. 1986)). Rather, the responding
party "must show the existence of a disputed material fact in
light of the substantive law." Peer Int'l Corp. v. Luna Records,
Inc., 887 F. Supp. 560, 564 (S.D.N.Y. 1995). In the absence of
any disputed material fact, summary judgment is appropriate.
Materiality is defined by the governing substantive law. "Only
disputes over facts that might affect the outcome of the suit
under the governing law will properly preclude the entry of
summary judgment. Factual disputes that are irrelevant or
unnecessary will not be counted." Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
"[T]he mere existence of factual issues — where those issues are
not material to the claims before the court — will not suffice to
defeat a motion for summary judgment." Quarles v. General Motors
Corp., 758 F.2d 839, 840 (2d Cir. 1985).
For a dispute to be genuine, there must be more than
"metaphysical doubt." Matsushita, 475 U.S. at 586, 106 S.Ct.
1348. "If the evidence is merely colorable, . . . or is not
significantly probative, . . . summary judgment may be granted."
Anderson, 477 U.S. at 249-50, 106 S.Ct. 2505 (citations
omitted). Since this standard mirrors that for a directed
verdict, see id. at 250, 106 S.Ct. 2505, the ultimate question
on this motion is whether a reasonable jury could find for the
nonmoving party, or whether the evidence "is so one-sided that
one party must prevail as a matter of law." Id. at 251-52, 106
II. The Eleventh Amendment Bars the Claims Against the State
of New York
Veloz seeks damages in this suit from the State of New York.
However, absent waiver or consent — and neither exist in this
case — the Eleventh Amendment bars a suit in federal court
against a state.
The Eleventh Amendment to the United States Constitution
states: "The Judicial Power of the United States shall not be
construed to extend to any suit in law or equity, commenced or
prosecuted against one of the United States by Citizens or
Subjects of any Foreign State." Indeed, the Supreme Court has
interpreted the Eleventh Amendment as barring suits by citizens
against their own states. See Atascadero State Hospital v.
Scanlon, 473 U.S. 234, 237-40, 105 S.Ct. 3142, 87 L.Ed.2d 171
(1985); Welch v. Texas Department of Highways and Public
Transportation, 483 U.S. 468, 472, 107 S.Ct. 2941, 97 L.Ed.2d
389 (1987); Pennhurst State School & Hosp. v. Halderman,
465 U.S. 89, 100, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984). Furthermore,
the provisions of § 1983 were not intended to override a state's
immunity. See Dube v. State University of N.Y., 900 F.2d 587,
594 (2d Cir. 1990) (citing Quern v. Jordan, 440 U.S. 332,
340-42, 99 S.Ct. 1139, 59 L.Ed.2d 358 (1979)).
Accordingly, Veloz's claim against the State of New York must
III. Summary Judgment Is Granted in Favor of Defendants
Because There Exists No Issue of Material Fact as to
Whether Dr. Organ Violated Veloz's Right Under the Eighth
"To state a viable § 1983 claim, plaintiff must show that
officials were acting under color of state law and their actions
deprived the plaintiff of a right guaranteed by the constitution
or laws of the United States."