Ayers v. Ciccone

• Decision Date: 07 October 1968
• Docket Number: Civ. A. No. 16855-3.
• Citation: 300 F. Supp. 568
• Court: U.S. District Court — Western District of Missouri
• Parties: Keith P. AYERS, Petitioner, v. Dr. P. J. CICCONE, Director, United States Medical Center for Federal Prisoners, Springfield, Missouri, Respondent.

300 F. Supp. 568

Keith P. AYERS, Petitioner, v. Dr. P. J. CICCONE, Director, United States Medical Center for Federal Prisoners, Springfield, Missouri, Respondent.

Civ. A. No. 16855-3.

United States District Court W. D. Missouri, W. D.

October 7, 1968.

Keith P. Ayers, pro se.

Calvin K. Hamilton, U. S. Atty., Kansas City, Mo., for respondent.

ORDER DISMISSING PETITION FOR HABEAS CORPUS WITHOUT PREJUDICE

BECKER, Chief Judge.

Petitioner, a federal convict confined in the United States Medical Center for Federal Prisoners, Springfield, Missouri, petitions this Court for habeas corpus and for leave to proceed in forma pauperis. Leave to proceed in forma pauperis was previously granted in this cause.

Petitioner stated in his petition that on October 23, 1967, after a plea of guilty to a charge of violating Section 2313, Title 18, U.S.C. (Sale or receipt of stolen vehicles), he was sentenced to a three year term by the United States District Court for the Western District of Kentucky; that he did not appeal the judgment of conviction or the imposition of sentence; and that he was not represented by counsel at his arraignment and plea but was represented by counsel at his sentencing.

Petitioner bases his petition for habeas corpus on the contention that he is being subjected to cruel and unusual punishment by the respondent. To support this contention, petitioner states that he has chronic osteomyelitis of the right foot and left leg; that he has had this disease since December 7, 1961, and has had several operations on both by "bone surgeons"; that on December 22, 1967, he underwent surgery on his foot by the surgeons at the Medical Center; that his foot is better but is very painful; that on February 9, 1968, he underwent surgery on his left leg; that his left leg "was cut open and bone removed from it, and the cavity is now the size of a silver dollar and 1½ inches deep directly under his left knee cap and the inside of the bone is exposed clearly"; that he consented to both operations and has taken all medicine prescribed by the doctors attending him at the Medical Center; that he suffers from "chronic pain" and "that in his last operation a vital nerve in his left leg was so damaged" that he is now unable to use it; that the pain is "unbearable" and because of its intensity he can not eat or sleep; that he has requested "adequate pain medication" from the doctors, but each time he complains the doctors decrease his medication; that his present medication is inadequate to relieve the pain he experiences; and that because of the doctors' refusal to increase his medication, he has been denied his constitutional right to be free from cruel and unusual treatment.

Some of the facts alleged, if true, may have constituted a denial of petitioner's right to be free from cruel and unusual treatment while confined. Therefore, respondent was directed to show cause why the writ should not be granted.

The response to the order to show cause consists of an affidavit of Dr. John E. Manire, M. D., Chief of Surgery at the Medical Center, which summarized the history and treatment of the petitioner. Attached to this affidavit is a graphic record of medication received by petitioner at the Medical Center from August 8, 1967, through May of 1968. The pertinent portions of the affidavit of Dr. Manire are as follows:

"* * * The patient was admitted to Medical Center on August 8, 1967 and because of pus draining from his left leg and right foot he was placed in the Infections Isolations (sic) Unit. Cultures of the drainage showed the germ staphylococcus aureus, coagulase positive, sensitive to a variety of antibiotics. The patient was placed on an antibiotic to combat the infection and on the analgesic Darvon for pain. Antibiotics were changed from time to time as cultures would indicate. Pain medications were changed, increased or decreased on the judgment of his physicians. In order that a comprehensive view of the antibiotic and pain medications may be obtained, a detailed graph of these medicines is attached as a part of this affidavit. On review of this graph it is quite clear that there are very few days that some analgesic was not available to the patient for pain relief. Chloral Hydrate, a powerful sleeping medication, was available and used almost every night at bedtime since his hospitalization at Springfield.

"On October 20, 1967 this patient was released to court and returned to our care on November 12, 1967. The patient still had drainage from his left leg and right foot and again was placed in our Infections Isolation Unit and given antibiotics for the infection and medications for pain. At times he was on two different antibiotics at the same time and had available to him a choice of two different analgesics at the same time for pain.

"On December 22, 1967 the patient underwent an operation on the right foot in an attempt to eradicate the drainage. Little evidence of diseased bone was found, nonetheless the old schlerotic sic layer of bone was removed, but drainage persisted.

"Daily soaks, dressing changes on both right foot and left leg continued along with antibiotics and more powerful analgesics for pain.

"Over the months our orthopedic treatment of this patient was guided by our orthopedic consultants, Dr. William H. Snead and Dr. Erin M. Dillard. However, all operations were performed by Dr. John E. Manire, specialist in general surgery, Chief of Surgery at Medical Center.

"Since drainage continued from the left leg cavity (which was present long before any surgery performed at Medical Center) the patient requested that we operate again. Consultation was again obtained from our orthopedic consultants who advised removal of the upper fibula bone and again scraping out the cavity in the tibia bone. The patient was plainly told that Dr. John E. Manire agreed to do this surgery and that due to the five prior surgical procedures in the same region that the risk of damaging the peroneal nerve that ran around the bone to be removed in this scarred area was extremely great and that no operation should be performed if he were not prepared to accept a foot drop as the price for this surgical attempt to eradicate the drainage from this left leg. He said he fully understood and signed his consent to the operative permit. The surgery was performed under spinal anesthesia on February 9, 1968 with the patient awake and talking to the operating surgeon, Dr. Manire, through much of the procedure. There could be no doubt that he knew who was operating on him and he made no protest whatsoever. Unfortunately he did end up with left foot drop which was treated with a foot board just after surgery and later the patient was provided with a short leg drop foot brace with which he walks well.

"Now he did complain of pain in his left leg and foot following this surgery and very careful attention was given to these complaints. As shown on the attached graph in the immediate postoperative period the patient was given Talwin 30 mg. intramuscular every four hours upon request for fourteen days, then this dose was reduced to Talwin 15 mg. intramuscular every four to six hours upon request for the next forty-five days.

"Talwin is an analgesic of major pain relieving quality with a 30 mg. dose of Talwin being equivalent to 10 mg. of Morphine.

"Mr. Ayers (sic) physicians were fully aware of his dissatisfaction with his pain

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