New York State Court of Claims

New York State Court of Claims

HEINZ v. THE STATE OF NEW YORK, #2000-007-500, Claim No. 89561


Claimant asserted that he suffered impairment of the vision of his left eye as a result of a series of culpable acts and omissions by defendant that occurred in July and August 1992 while he was incarcerated at Great Meadow Correctional Facility. The court concluded that key aspects of claimant's contentions lacked credibility and thus the claim was dismissed.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):

Cross-motion number(s):

John L. Bell
Claimant's attorney:
SIVIN & MILLER(Edward Sivin, ESQ.)
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERAL(Paul F. Cagino, Esq., Assistant Attorney General, of Counsel)
Third-party defendant's attorney:

Signature date:
April 17, 2000

Official citation:

Appellate results:

See also (multicaptioned case)

Claimant contends that he sustained severe impairment of the vision of his left eye as a result of culpable conduct of defendant that occurred in July and August 1992[1]
while he was incarcerated at Great Meadow Correctional Facility, Washington County. Claimant attributes his visual problem to a series of acts and omissions by defendant. First, he alleges that a correction officer was clowning around with him on July 13, 1992 and that the officer snapped him in the left eye with a large elastic band, causing him to sustain bleeding inside his left eye. Next, claimant complains that, after receiving treatment from an ophthalmologist outside the prison for his left eye, he was prematurely ordered to return to work at Great Meadow lifting heavy objects in contravention of the ophthalmologist's orders. Lastly, claimant asserts that his repeated requests for treatment because he was losing his field of vision were ignored by a facility doctor for a week and that the delay in treatment significantly aggravated the extent of the permanent problems with his eye. Defendant adamantly contests virtually all aspects of the factual foundation upon which claimant's case rests.
On July 13, 1992, claimant was housed in cell three on one gallery of C block at Great Meadow. By approximately 6:30 p.m., most of the other inmates on the gallery had left the area for recreation. Claimant remained in his cell because he was being held on keeplock for a disciplinary infraction. Inmate Albert Bell, who was housed next to claimant in cell one, also remained on the gallery. Claimant testified that Correction Officer John L. Sargent came over to his cell and started "ragging"[2]
on him by hitting his nightstick on the cell and yelling. Claimant stated that both he and Sargent were laughing and playing. He related that Sargent would engage in mischievous conduct, leave and go to the officer's desk and then return for more frivolity to pass time.
Claimant claims he commenced playing with a pair of elastic bands, which he speculated had been removed from the outside of sneakers. The two bands had been tied together to form a single band. Claimant avers he had the elastic band wrapped around his wrist and through his hand, and he was using it to "smash roaches off the wall." He related that Sargent approached his cell and inquired what he was doing. Claimant held out the elastic band, without turning around to face Sargent. Sargent reportedly reached through the feed-up slot in claimant's cell, grabbed the band, pulled on it, causing claimant to spin around. Allegedly, Sargent then let go of the band and the band purportedly snapped back, hitting the left side of claimant's face and his left eye.

Claimant testified that Sargent told him not to worry and that he should put some water on his face. However, after approximately 15 minutes, a nurse observed claimant and he was sent to the infirmary. Claimant recalled that as Sargent escorted him to the infirmary, the officer pleaded with him not to implicate his involvement. Claimant stated that he agreed not to mention Sargent's involvement because he feared retribution if he did not do as the officer requested. Claimant told the nurse in the infirmary that he got poked in the eye by a piece of elastic with which he was playing (
see, Claimant's Exhibit 1, at 11).
The following morning, claimant returned to the facility's infirmary, where he was examined by Dr. William A. Smith. Dr. Smith observed blood in claimant's left eye and therefore immediately sent him to the emergency room at the Glens Falls Hospital. Claimant eventually came under the care of Dr. Dennis Picano, an ophthalmologist. Dr. Picano diagnosed a traumatic hyphema, prescribed certain medicines and directed bed rest for claimant. When claimant returned to Great Meadow, he was housed in the infirmary where he was closely monitored and kept on bed rest. Claimant was transported to several follow-up visits with Dr. Picano in July 1992.

Claimant was discharged from the infirmary at Great Meadow on August 3, 1992 and returned to general population. According to claimant, he was directed to return to his prior prison job, which included unloading trucks that delivered goods to the mess hall. Claimant testified that he told a correction officer that he did not think he was ready to engage in lifting, but the officer responded that he "didn't want to hear it" and that claimant "was to go to work." Claimant related that he thus returned to his job and, although he attempted to avoid lifting, he was required to move boxes weighing up to 100 pounds. Claimant recalled that he started experiencing "tightness" in his left eye. He went to a doctor at the facility and was given a pass excusing him from further work.

Claimant testified that he woke up one morning and there was a "sewer cap" partially blocking the vision in his left eye. He had a sensation of a "cloud coming in" his field of vision. Claimant stated that he "yelled" for a correction officer to take him to the infirmary. He was taken to see Dr. Smith and, according to claimant, Dr. Smith looked in his eye using a flashlight and then said there was "nothing wrong." Claimant contended that he "yelled and screamed" as he was taken back to his cell. Claimant recalled that the next morning his vision had continued to deteriorate and that he "screamed" that he needed to see a doctor. According to claimant, Dr. Smith again told him that there was "nothing wrong" and sent him back to his cell. Claimant averred that his repeated requests to be sent to Dr. Picano were ignored. About one week after claimant's purported vision loss had started, he was taken to see Dr. Picano for a regularly scheduled follow-up visit on August 17, 1992. Dr. Picano diagnosed a detached retina. Claimant was sent to Albany Medical Center where he underwent two surgeries to reattach the retina in his left eye.

Claimant testified that when he returned to Great Meadow following the surgeries, he finally told a guidance counselor about the alleged involvement of Sargent in the initial injury to his eye. Following the surgery claimant continued to have a variety of problems including double-vision and headaches.

Cross-examination of claimant included questioning about his extensive criminal record. Claimant initially stated that he could not recall his early convictions, but upon further questioning, he eventually remembered many of them. He explained that one of his assault-related convictions resulted from a police officer injuring his hand when the officer hit claimant in the face. Claimant initially stated that his domestic violence conviction in Florida "never happened" and that the whole thing arose when his wife caught him "cheating with another woman." Later, he stated that the domestic violence incident in Florida occurred when he disarmed his wife who was attempting to commit suicide.

Claimant stated that he had been in cell three on C block three days before the alleged incident with Sargent. He acknowledged that he did not know Sargent before the date of the incident and maintained that he found the elastic band a few minutes before the incident. The band was tied, together with a sheet, between the posts of his bunk. Claimant admitted that he initially reported that he had snapped himself. He acknowledged that prior to the incident he lifted weights and that he still works out with weights. He denied lifting weights while under treatment for his eye problem. Claimant further admitted on cross-examination that he had previously accused correction officers of doing things they had not, in fact, done.

Claimant produced as an expert Dr. Scott Weissman, a member of the faculty at New York Eye and Ear Infirmary. Dr. Weissman testified that the extent of recovery from a detached retina is significantly affected by how quickly the retina is repaired. He stated that the typical window of opportunity ranges from 24 to 48 hours and that longer delays generally do not result in a recovery "anywhere near 90 percent." He related that a general practitioner should be able to diagnose a detached retina and should be aware of the 24 to 48- hour window for optimal repair. Dr. Weissman described the initial injury sustained by claimant as bleeding between the cornea and the lense. He agreed that eye drops and bed rest were a proper course of treatment. He stated that rest can prevent a retina from detaching. When presented with the facts as related by claimant, Dr. Weissman opined that the elastic striking claimant's face caused the initial hyphema, that claimant should not have engaged in heavy lifting as soon as he did and that the delay of approximately one week in providing treatment after the onset of symptoms related to the detached retina was a departure from accepted medical practice. He indicated that it was not possible to conclude that heavy lifting caused the detachment but he believed it significantly increased the chance of detachment.

Inmate Albert Bell, who was subpoenaed by claimant, stated that on the evening of the incident he was in his cell reading. He recalled that claimant was making a lot of noise and that Sargent told claimant to "get off" the cell bars. Bell related that about 15 to 30 minutes later he heard claimant yelling and, at that time, Sargent was at the officer's desk on the gallery. Bell stated that he did not recall telling someone who investigated the incident that claimant and Sargent were engaged in horseplay prior to the incident.

Correction Officer Sargent testified that he did not interact with claimant on the subject evening until he heard claimant yelling that he had injured his eye. Sargent stated that he went to claimant's cell and asked what was wrong. Claimant purportedly responded that he had struck himself with a rubber band. Sargent related that a nurse was making rounds and he asked her to look at claimant.

Sargent stated that he did not know claimant before the incident. He was assigned to D block on July 13, 1992 and covered C block briefly while the other officer on duty in the area escorted the nurse on her rounds. He estimated that he had been on C block only five to ten minutes before the incident occurred. Sargent also denied putting his arm through the feed-up slot in claimant's cell. He elaborated that correction officers are specifically warned in training of the significant danger to which they would expose themselves by putting an arm through an inmate's feed-up slot.

Claimant's father, Charles Heinz, Sr., who proved to be a very sincere witness, testified that he is a retired New York City police officer. Mr. Heinz had lost an eye and was thus particularly concerned when he heard his son was experiencing a problem with his left eye. He recalled receiving calls from claimant in which claimant related that he was very concerned about his eye and thought he was going blind but that nobody would help him.

Nurse Carolyn Spaulding was on duty and visited C block on the evening claimant was injured. She asked claimant how he was injured and he stated that a rubber band struck him in the eye. Claimant was escorted to the facility infirmary. She observed that Sargent "acted normal" and did not seem upset.

Dr. William A. Smith was called as a witness by defendant. Dr. Smith has been a general practitioner since 1954. He "semi-retired" in 1985 and has worked two days a week at Great Meadow since 1988. Refreshing his memory by using claimant's ambulatory health records, Dr. Smith testified that he examined claimant on July 14 in the facility's clinic. He observed blood in claimant's left eye and immediately made arrangements to have him sent to the emergency room at Glens Falls Hospital. He related that he wanted claimant to be seen by a doctor with expertise in eye problems and that the quickest way to make such an arrangement was to send him to the emergency room. Dr. Smith indicated an acute concern for the eye injury that he observed in claimant because his son had been struck in the eye playing racket ball as a teenager and eventually lost the vision in his eye.

Dr. Smith stated that after claimant returned to Great Meadow on July 14 from his initial visit with Dr. Picano, he was admitted to the facility's infirmary and held there until August 3. Claimant was taken to see Dr. Picano for three follow-up visits during that last two weeks of July. The July 31 report from Dr. Picano indicated that claimant's hyphema had improved and that claimant could return to moderate activity. Dr. Smith reported that claimant was discharged from the facility infirmary on August 3. Dr. Smith stated that he saw claimant on August 11 and, at such time, he issued claimant a permit excusing him from all physical exertion.

Dr. Smith was asked about claimant's contention that he had visited him with complaints of loss of vision and that the doctor had sent claimant back to his cell. Dr. Smith adamantly denied that such events occurred. He stated that he "resented" the assertion that he would engage in such conduct. Dr. Smith testified that if claimant had told him that he was losing his vision, he would have sent him out "immediately" to his ophthalmologist. When Dr. Smith was asked about claimant's purported statement to him about a "sewer cover" and "clouds" forming in his field of vision, Dr. Smith stated that such comments would have resulted in claimant being sent to the ophthalmologist. He also stated that a notation would have been made in claimant's health record regarding any such comments by claimant.

Credibility is a critical issue in the claim before the court. If the version of events reported by claimant rang substantially true, liability would follow. Weighing evidence and assessing veracity of conflicting testimony is often an arduous task for which there is no precise or flawless test. There are no juries in the Court of Claims and therefore the court's responsibilities include deciding witness credibility and resolving factual disputes (
Le Grand v State of New York, 195 AD2d 784, 785, lv denied 82 NY2d 663; Colangione v State of New York, 187 AD2d 844; see, Savio v State of New York, AD2d , 703 NYS2d 548).
The court discerned crucial credibility problems with key aspects of claimant's testimony. In addition to claimant's criminal record, his testimony at trial suffered many infirmities. For example, at the beginning of cross-examination he claimed not to remember many aspects of his criminal record. Upon continued questioning, he selectively recalled various aspects of his criminal past. When questioned about his conviction in Florida for domestic violence, he attempted initially to explain the incident as a husband and wife dispute that was blown out of proportion and was rooted in his infidelity. Later, he contended that he received a resultant four-year sentence because of injuries accidently inflicted on his wife while preventing her from committing suicide. Claimant testified that on at least two occasions he was seen by Dr. Smith while losing his vision, that he screamed for help and the doctor cavalierly dismissed his complaints. Dr. Smith's adamant denial that he would treat any inmate in such a fashion was more convincing; particularly when weighed with the facts that Dr. Smith had afforded prompt treatment when he first saw claimant for a hyphema and also that the doctor's son had suffered the loss of an eye because of an injury.
Claimant's poor credibility eroded essential elements of his claim. The court concludes that Sargent truthfully testified that he had no involvement in claimant's initial injury. Among other factors, the court found it particularly untenable that Sargent – who did not know claimant – would endanger himself by reaching his arm through claimant's feed-up slot. The court further found Dr. Smith to be a credible witness and concludes that claimant did not present himself to Dr. Smith with complaints about loss of vision between August 3 and August 17, 1992.

The proof presented also did not convince the court that claimant was required to do heavy lifting shortly after being discharged from the facility infirmary in early August 1992 and that such lifting was a substantial cause of claimant's detached retina. Initially, the court notes that claimant's expert, while opining that exercise could increase the risk that the retina would detach, nevertheless acknowledged that it was "impossible to say" whether heavy lifting caused the condition. More importantly, claimant's poor credibility dissuades the court from accepting his assertion that he lifted boxes weighing up to 100 pounds. By the end of July, claimant had been given a clearance by Dr. Picano to resume moderate activity. When claimant subsequently complained to Dr. Smith on August 11 about the extent of his activity, Dr. Smith gave him a pass excusing him from all physical activity. The credible evidence regarding defendant's conduct failed to establish that culpability of defendant caused claimant's condition. Thus, despite the court's sympathy for claimant's severe impairment of vision of his left eye, an award of money damages cannot be made.

The claim is dismissed and the Chief Clerk of the Court of Claims is directed to enter judgment accordingly.

April 17, 2000
Plattsburgh, New York

Judge of the Court of Claims

The claim was filed in June 1994 after claimant had been released from State custody and was living in Florida. Delays in prosecuting the claim occurred, in part, because claimant was arrested in Florida and incarcerated for approximately four years. Because of the protracted delays, the claim was conditionally dismissed in 1998. However, claimant was eventually released from prison in Florida and returned to New York to pursue the instant claim.
Unless otherwise indicated, all quotes are from the court's trial notes.