New York State Court of Claims

New York State Court of Claims

TUCKER v. THE STATE OF NEW YORK, #2000-028-0005, Claim No. 094837


Prison inmate failed to prove that the State should have been aware of the violent tendencies of another inmate, that it was a dereliction of duty for there to be no correction officers at a particular post, or that facility medical staff committed malpractice in using tape, rather than stitches, to treat a cut wound.

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):

Claimant's attorney:
Defendant's attorney:
BY: Michele M. Walls, Esq. Assistant Attorney General
Third-party defendant's attorney:

Signature date:
September 29, 2000

Official citation:

Appellate results:

See also (multicaptioned case)

On July 14, 1996, claimant Lugon Tucker was assaulted by another prison inmate at Greene Correctional Facility. Testimony at trial from claimant and Correction Officer Walter Whitman established that at the time of the assault claimant was living in the L2 dorm area. This

area was rectangular in shape and had a "bubble" office where correction officers were stationed, and "cube" living areas housing one and sometimes two inmates. On the day of the incident, claimant was sitting in his own cube when another inmate came up on his blind side and slashed the right side of his face with some type of cutting instrument. At the time, claimant did not know who attacked him, but later learned that it was inmate Mosley.
Claimant testified that immediately after the attack, he went to the "bubble", but found no correction officer there. He waited until an officer came from another area of the dorm, at which time he was taken to the infirmary. After receiving treatment, which consisted of a tape to the wound, claimant asked to be placed in protective custody and this was done.

Earlier in the day claimant and his attacker, Mosley, had been involved in a brief argument, but claimant acknowledged that he did not tell any correction officers about it because he believed that the matter had been resolved. Prior to the day of the incident, claimant and Mosley had both resided in the L2 dorm area for approximately a month without any incident or problem between them

The State is required to use reasonable care to protect the inmates of its correctional facilities from foreseeable risk of harm (Flaherty v State of New York, 296 NY 342), including the foreseeable risk of attack by other inmates (Dizak v State of New York, 124 AD2d 329; Sebastiano v State of New York, 112 AD2d 562). The State is not, however, an insurer of the safety of its inmates (Padgett v State of New York, 163 AD2d 914, lv denied 76 NY2d 711; Casella v State of New York, 121 AD2d 495), and negligence will not be inferred from the mere happening of an incident (Mochen v State of New York, 57 AD2d 719; Van Barneveld v State of New York, 35 AD2d 900). The standard of care is that of reasonable supervision (see, Castiglione v State of New York, 25 AD2d 895), and factors to be considered include whether there was a history of animosity between a claimant and his attackers of which the State was or should have been aware (see, Hull v State of New York, 105 AD2d 961; Wilson v State of New York, 36 AD2d 559; Hann v State of New York, 137 Misc 2d 605, 608-609). In claims arising from inmate assaults, the central issue is whether the State had notice of the risk of harm and an opportunity to intervene in a way that would have prevented assault but failed to do so (Huertas v State of New York, 84 AD2d 650).
Claimant, therefore, has the burden of establishing that the State knew, or should have known, that there was animosity and the risk of violence between Mosley and himself, or at the least that Mosely had a reputation for violence that put any other inmate at risk. This, claimant failed to prove. There was no testimony or other evidence to establish that a correction officer was required to be in the "bubble" at all times. Nor was there sufficient evidence to establish that the presence of an officer at the time of the incident would have prevented the attack or led to speedier treatment of claimant's wounds. Finally, with respect to claimant's argument that the nurse's decision to treat his wound with tape rather than to use stitches, there was no credible evidence from which the Court could conclude that the decision violated the medical professional's (1) duty to possess the requisite knowledge and skills possessed by the average member of their profession; (2) duty to use ordinary and reasonable care in applying such professional knowledge; or (3) duty to use his/her best judgment in the exercise of such knowledge (
Pike v Honnsinger, 155 NY 201; Littlejohn v Stae of New York, 87 AD2d 951).
On the basis of the foregoing, the claim is dismissed.

Let judgment be entered accordingly.

September 29, 2000
Coxsackie, New York

Judge of the Court of Claims