New York State Court of Claims

New York State Court of Claims

SHAHID v. THE STATE OF NEW YORK, #2002-016-063, Claim No. 99950


Claim was dismissed in which claimant alleged: (1) that because of defendant's negligence, his ear was bitten off by another inmate during a fight at Woodbourne Correctional Facility; and (2) he was provided with improper medical treatment after the incident.

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):

Alan C. Marin
Claimant's attorney:
Aziz Shahid
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Joseph Romani, AAG
Third-party defendant's attorney:

Signature date:
June 25, 2002
New York

Official citation:

Appellate results:

See also (multicaptioned case)

This is the claim of Aziz Shahid, which was tried at Sullivan Correctional Facility where Mr. Shahid testified on his own behalf. For its part, defendant called correction officers James F. Donaghy and Jody Newell, along with nurse Lisa Caldiero. In his claim, Shahid asserts that because of defendant's negligence, a portion of his left ear was bitten off by another inmate during a fight at Woodbourne Correctional Facility. Claimant also complains of the medical treatment he received at Woodbourne following the incident.

Shahid testified that on February 16, 1998, he was standing by his cube when another inmate – with whom he had had words earlier in the day – approached him. According to Shahid, he said "it's over" to the other inmate, who nonetheless swung at him. Claimant explained that he then swung back to defend himself, and a fight broke out. Shahid initially recalled that two other inmates joined the fight, but then said they were merely spectators. He also said that when he went to a disciplinary hearing in connection with the fight, "I really didn't remember what happened. Inmates had to, basically, fill me in on everything that happened, because my memory was shot. I didn't have no memory." Asked if his trial testimony was based on other inmate's descriptions of the fight, he said "now I realize what happened. . . . Now, I remember exactly what happened, but at the time people were filling me in on what happened."

According to Shahid, after the fight broke out, correction officer Newell approached and grabbed his arm, after which he asked the officer to let him go because "at that point the fight was basically over." The officer said "no, you let him go," but at the same time, Shahid maintained, the other inmate was still swinging at him. Claimant recalled that he again asked the officer to let him go "and it will be over" but Newell said no. Shahid testified that at that point the other inmate "[came] over the top and [bit] my whole left ear. Well, a portion of it completely off and spit it on the floor." Claimant's medical records, as well as photographs of claimant taken after the incident, indicate that the detached portion was the upper outer edge of his left ear.[1]

As to defendant's alleged negligence, claimant essentially asserts that there should have been another officer in the dorm to respond, asserting that there was another officer assigned to the unit who could have responded, "but he was never on his post." He also contends that at the time Newell approached, he was "winning the fight" and it would have been over if Newell had let him go.

Shahid recalled that following the incident, he was taken to a local hospital, where he was informed he would need plastic surgery, after which he was transferred to Albany Medical Center, where the detached portion of his ear was reattached.

Claimant testified that he then returned to Woodbourne, where he stayed in the infirmary for four days. On February 20th, he returned to Albany Medical Center to have the stitches on his ear removed and when he returned to Woodbourne, he was placed on keeplock status.

He said that thereafter, he began complaining because his ear was "leaking pus," and became infected. He complained that the medical staff did not come to treat his ear regularly and that in order to get medical treatment, he had to sign up for sick call. According to Shahid, at some point, the reattached portion of his ear became "black" and he continued to complain, but his complaints were ignored. He also testified that during this time, his ear was not cleaned by Woodbourne medical staff and he was required to clean it himself, having been given gauze "to change my ear . . ." Claimant objected to what he called "self-administered" care and he also objected to having to request medical treatment, contending that defendant should have volunteered it.

Shahid recalled that several days later, he saw Dr. Makram, who told him she did not think that the reattached portion of his ear "took" and that it would have to be removed. He testified that the reattached portion was surgically removed at Coxsackie Medical Center.

As to his current condition, Shahid said he still experiences "a little pain. But the main part is that everybody's always asking me about my ear . . . You can see it from in front if you look at me that my ears, something's wrong with my ears." He also testified that subsequent to the incident, he began suffering from earaches and ear infections, although he conceded on cross-examination that such were internal aches and infections, not related to the outer top

portion of his ear.
* * *
Correction officer James Donaghy testified that he was employed at Woodbourne on February 16, 1998, on which date he responded to a "red dot" at claimant's dorm: a fight or disturbance where another officer needs assistance. He explained that Newell had pulled the pin on his "PAS" -- personal alarm system. That alerted the arsenal, which put a call out over the two-way radio, which is how Donaghy received it. He explained that there was a second officer in Shahid's dorm, but that that officer only had a PAS, not a two-way radio, so would not have received the call that way. Asked if the arsenal would send a call out to both the two-way radios and the PAS system, his response was unclear. He first said that the call would be put out over both the two-way radios and the PAS's, but then indicated that it was only sent to the two-way radios.

He recalled that when he arrived on the scene, claimant, was "running around the dorm," while Newell had the other inmate under control. Donaghy testified that after things were calmed down, he escorted Shahid to the infirmary because a portion of Shahid's ear had been bitten off – which had occurred before he arrived on the scene.
* * *
Correction officer Jody Newell testified that he was working at Woodbourne on February 16, 1998 and that a second officer was assigned to the same dorm, specifically to the recreation area, which was 50 feet away from where the fight occurred. He added that there is no visual contact between the two areas and as to the other officer, said, "He can't see me and I can't see him." Nor did he have any type of radio communication with the other officer; each had only a PAS, which communicates only with the arsenal.

As to the incident in question, he described it as a "multiple man fight" and described there being a lot of people, yelling and scuffling. Newell recalled there being about eight inmates at the scene, but he said it was unclear whether the others were participants or spectators: "it was all so fast . . ." Newell said that when he saw the fight, he pulled the pin on his PAS to alert the arsenal. He then approached the fight, and grabbed the first person he saw, which was not Shahid, but the other inmate who was fighting with Shahid at the time. He recalled that after grabbing the other inmate, he got such inmate behind himself and instructed both to break it up. Newell added that when he first arrived, Shahid was holding the other inmate and they were grappling. It appeared to him that Shahid was winning, because the other inmate looked like he was going to fall. He testified that after he separated the inmates, he ordered Shahid to go back to his cube, and claimant complied. Newell denied that he ever restrained Shahid or grabbed him.

Newell testified that after the response team responded to the dorm -- which occurred in less than two minutes -- he noticed that Shahid had lost part of his ear. He said he believed that Shahid noticed it at the same time because he suddenly jumped over the center divider in the dorm, after which he was stopped by officers from the response team. He said that after Shahid was calmed down, he was taken for medical attention. Newell testified that he did not witness the other inmate biting Shahid's ear.

Newell explained that if a PAS pin is pulled, the arsenal will announce the emergency over the two-way radios. As his fellow dorm officer in the recreation area did not have a two-way radio, he would not be notified of the alarm and would not be aware of a problem until the response team passed through recreation area.

Finally, Newell testified that the departmental policy for breaking up a fight is to call for help and wait for assistance unless the officer can break it up on his own. In this case, he said, he assessed the situation and determined that it was best to take immediate action, so he restrained the other inmate and got between him and Shahid.
* * *
Lisa Caldiero testified that she worked as a registered nurse at Woodbourne on February 16, 1998 and that at around 11:00 p.m. that night, Shahid was brought to the infirmary because he had been bitten by another inmate on his left ear. She described about 1/5 of the ear as being severed and recalled minimal bleeding.

Caldiero recalled that a correction officer brought her the severed portion of Shahid's ear, which she packed in ice. She further recalled that after she stopped the bleeding and cleaned and bandaged the ear, Shahid was sent out to Community General Hospital and then to Albany Medical Center, where his ear was reattached. He returned to the Woodbourne infirmary on February 17th.

Caldiero testified that claimant's medical records showed that on February 20th, he saw an ear, nose and throat ("ENT") specialist -- apparently to have his stitches removed at Albany Medical Center. She also testified that contrary to claimant's assertions, his ear was in fact cleaned at Woodbourne subsequent to February 20
th. Shahid's medical records show that the ear was cleaned and bacitracin applied on February 21st and 22nd and that on February 25th, he was issued bacitracin and pads and told to keep his ear dry and to wash his hands prior to applying bacitracin. Claimant's records for February 28th indicate that the reattached portion of the ear was "very dark." The records for March 5th indicate that the attached portion was "black" as does the entry for March 10th, which indicates that the area was cleaned and bacitracin applied. The entry for March 19th indicates that the attached portion "doesn't look viable." According to Caldiero, claimant saw Dr. Makram at the facility on March 19th, who arranged for him to go to an ENT specialist on March 24th, where the reattached portion of the ear was "debrided," which Caldiero explained was the removal of scabbing -- apparently what claimant refers to as "surgical removal" of the reattached portion. The records indicate, as Caldiero testified, that following the procedure on March 24th, Shahid's ear was re-dressed at Woodbourne on March 25th and 26th. Claimant, apparently disputing that his ear was cleaned at Woodbourne in late February, argued that the medical records must have been altered, but had no proof therefor.
Finally, Caldiero testified that Shahid's injury was not of the type that needs to be constantly monitored.
* * *
Liability for an inmate-on-inmate assault may be based upon one of the following three grounds: (i) the victim is a known risk and the State failed to provide reasonable protection (
Sebastiano v State of New York, 112 AD2d 562, 491 NYS2d 499 [3d Dept 1985]); (ii) the State had notice that the assailants were particularly prone to perpetrating such an assault and failed to take proper precautionary measures (Littlejohn v State of New York, 218 AD2d 833, 630 NYS2d 407 [3d Dept 1995]; or (iii) the State had ample notice and opportunity to intervene and failed to do so (Schittino v State of New York, 262 AD2d 824, 692 NYS2d 760 [3d Dept 1999]). In this case, only the third ground may be implicated.
As set forth above, Shahid and Officer Newell had different recollections as to how the fight occurred. But even if it is assumed that it occurred exactly as Shahid testified, he has still failed to prove that defendant was negligent. Shahid's theory that had officer Newell let go of him, the fight would have ended, is speculative at best. Moreover, even if that was the case, Shahid failed to show any violation of department policy, which Newell followed by pulling the pin on his PAS, assessing the situation and making a determination that the best way to respond was to intervene.

As to Shahid's medical care, he presented no expert testimony that the care provided at Woodbourne deviated from accepted standards of medical care. Such expert testimony is required for him to prevail in this case. See, e.g.,
Lyons v McCauley, 252 AD2d 516, 675 NYS2d 375 (2d Dept 1998), lv denied 92 NY2d 814, 681 NYS2d 475 (1998).
For the foregoing reasons, claim no. 99950 is dismissed.


June 25, 2002
New York, New York

Judge of the Court of Claims

  1. [1]The photographs were introduced as claimant's exhibit 1. The medical records were introduced as claimant's exhibit 2 and defendant's exhibit A. Subsequent to the trial, the Court's chambers at 5 World Trade Center in Manhattan, along with all its contents – including the exhibits from this trial – were destroyed on September 11, 2001. As to the photographs, they were viewed by the Court at trial. As to the medical records, at the Court's request, both claimant and defendant supplied the Court with copies of claimant's medical records following the destruction of exhibits 2 and A.