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January 21, 1999


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 granted.

Prior Proceedings

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.


I. Veloz's Claims

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, causing pain.

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 quickly.

A request was made for Veloz to come to the Medical Clinic approximately one week later, at which time the staff was to change the dressing. Veloz was then seen by Dr. Organ on March 11, 1997, approximately eighteen days after the operation. The wound was inspected and found to be dry and clean, and a tape splint was applied to the toe in order to aid the fusion process of the surgery site.

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. ...

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