Mark Rusch, the Claimant herein, appears to allege in Claim Number 104818 that
Defendant's agents failed to protect him from assault by fellow inmates, and
allowed dangerous conditions to exist - such as bed bugs and asbestos dust -
causing his terminal cancer, while he was in the custody of the New York State
Department of Correctional Services (hereafter DOCS) at Green Haven Correctional
Facility (hereafter Green Haven). Trial of the matter was held at Sing Sing
Correctional Facility on August 27, 2004.
Claimant testified about his lack of guilt for his underlying criminal
conviction and other matters not within the jurisdiction of this Court. He spoke
at length about his fear that the underlying criminal conviction was part of a
larger conspiracy to cause him harm by an individual named "Tolland" who he
claims gave his daughter drugs, and sexually assaulted her and/or drove a truck
over her, and who then proceeded to harm Claimant once Tolland became part of
too. He testified that at first at Fishkill Correctional Facility Claimant
would wake up sneezing, without energy, throwing up, "hemorrhaging" because
Tolland was "getting asbestos from the basement" and hurting Claimant. Later,
Claimant said, at Green Haven, Tolland arranged for others to harm Claimant
because Tolland feared Claimant would testify against him. Claimant said he
would "be walking through the hallway at Green Haven, or laying down, and would
have dust thrown on . . . [him], and would suddenly start sneezing or choking,"
because Tolland's friends "were throwing dust at . . . [him]." This "damaged. .
. . [his] lungs."
When he was at Elmira Correctional Facility - prior to coming to Green Haven -
he was "diagnosed with cancer of the glands." He told medical personnel when
asked that it was caused by Tolland throwing asbestos on him, because Claimant
was a "healthy normal person" before he was incarcerated.
Claimant also said when he was at Green Haven he was "tossed against the wall"
by two correction officers, they "smacked my head into the wall when I came out
When he summarized his testimony, he said that he was not guilty of any crime
against his daughter, that she perjured herself to protect Tolland who had
threatened her, and Tolland continued to threaten Claimant's family, and to harm
Claimant because Tolland feared Claimant's testimony.
No other witnesses testified and no real evidence was submitted.
Based upon the evidence submitted, the Claimant has not stated a cause of
action against the State of New York. While he is clearly upset by his illness,
and disturbed by the fact of his incarceration, he has not shown how the State
of New York is liable to him in any fashion.
Accordingly, Claim number 104818 is hereby dismissed in its entirety.
Let Judgment be entered accordingly.