New York State Court of Claims

New York State Court of Claims

MOYE v. THE STATE OF NEW YORK, #2004-034-005, Claim No. 106780


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:
New York State Attorney General
BY: THOMAS G. RAMSAY, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
May 19, 2004

Official citation:

Appellate results:

See also (multicaptioned case)

Claimant filed the above Claim on October 10, 2002, seeking to recover damages allegedly sustained while an inmate at Attica Correctional Facility on September 13, 2001. The matter proceeded to trial on May 14, 2004, during which the Court heard testimony from Claimant and a defense witness, Mark Carlucci. On consideration the Court must now deny and dismiss the Claim, notwithstanding its full acceptance of Mr. Moye's testimony regarding the circumstances of his injury.

Claimant is an inmate at Five Points Correctional Facility. At the time in issue he was confined to Attica Correctional Facility, having been transferred to that prison on or about August 16, 2001. While at Attica he was assigned to E Block, one of several housing sections located within that facility. Inmates within E Block had access to two open yards for recreational programs, denominated as Number 1 Yard and Number 2 Yard. Although the two recreational areas were separated by a wing of housing, they did connect at one point by means of an open gate.

Number 2 Yard is approximately 40 yards long by 30 yards wide. Unlike Number 1 Yard, which contained basketball courts and weightlifting equipment, Number 2 Yard consisted of an unimproved open area, with some benches for seating. An outdoor shower was also located in that yard, positioned against one of the walls. The shower consisted of a rectangular structure, approximately 10 feet in length by 8 feet in depth, containing two shower heads. The front of the shower area was not permanently enclosed, although plastic shower curtains provided some privacy.

At approximately 9 o'clock on the evening of September 13, 2001, Claimant decided to use the Number 2 Yard shower. To do so he first had to wait in a short line of approximately two to three inmates. He then entered the shower structure and began to wash, while another unknown inmate bathed under the adjoining shower unit. As Mr. Moye soaped his face, he felt someone suddenly slash him with a sharp object across the left side of his head. He quickly washed the soap from his eyes, then ran from the shower for assistance. Claimant could not immediately locate a correction officer in the Number 2 Yard, and ran through the connecting gate to obtain help from an officer in the Number 1 Yard. Claimant was taken to the prison's infirmary, where he received approximately 25 stitches to suture his wound.

Although Claimant did not submit any treatment records, the Court did examine the wound during the trial, and finds that Mr. Moye has sustained a pronounced scar to the left side of his face as a result of the incident. The scar extends from the outside edge of his left eyelid back and downward in a straight line across Claimant's upper cheek, then through the mid-part of his left ear. While hair covers the scar in the sideburn area, it is quite visible in the area of Claimant's upper cheek. Mr. Moye also stated that he experiences occasional blurriness in his left eye.

Claimant did not know who assaulted him. He denied any prior altercations with other inmates, and had not been the subject of any threats, or other reason to believe he might be assaulted. Mr. Moye noted that he had only been transferred to Attica several weeks prior to the incident, and did not know many of his fellow prisoners. He speculated that he might have been assaulted in retaliation for an incident that led to his incarceration, but had no evidence to support that belief.

Claimant has premised his claim of liability on the absence of correction personnel in Number 2 Yard at the time of the incident, specifically noting that an observation booth in that yard was unmanned at the time of his attack, and that he had to run to the adjoining yard to locate a correction officer to assist him with his injury. In response, Lieutenant Mark Carlucci, an employee of the Department of Correctional Services who oversaw E Block and an adjoining industrial area on the evening in question, testified that the yard was fully staffed at the time of the attack. Lieutenant Carlucci stated that two officers would watch the yard during recreation periods, with one permanently positioned on the "platform," a slightly elevated guard station that also controlled the door to the yard. A second officer would either roam the yard or stand in the observation booth, as he deemed appropriate. The lieutenant specifically refuted Claimant's suggestion that an officer was required to be stationed in the wooden booth. Security also featured periodic searches of inmate shower kits and random weapon searches. He also testified that immediately after the incident he sealed Number 2 Yard in an effort to locate Claimant's assailant. While no one was apprehended that night, the attacker was identified within a few days.

Lieutenant Carlucci reported that at no point prior to the incident had Claimant requested protective custody or advised Attica personnel of any safety concerns. Even after the incident Claimant rejected the lieutenant's offer to place him in voluntary protective custody. Lieutenant Carlucci then transferred Claimant to involuntary protective custody, both for the inmate's protection against further attack, and to lessen the potential for retaliation.

Without question the State owes inmates within its custody a duty to safeguard them from reasonably foreseeable harm, including risks of attack by fellow inmates (
Sanchez v State of New York, 99 NY2d 247, 252-253 [2002]). The scope of that duty extends not only to circumstances wherein the State had actual knowledge that a specific inmate was vulnerable to assault, or that a particular assailant was dangerous, or that an assault was about to occur, but also to circumstances of constructive notice, wherein the State reasonably should have known of such a danger (Sanchez v State of New York, 99 NY2d, at 253-256). That duty, however, does not render the State the insurer of prisoner safety, or mandate unremitting surveillance in all circumstances, and the mere occurrence of an inmate assault, without credible evidence that the incident was foreseeable, cannot work to establish the State's liability (Sanchez v State of New York, 99 NY2d, at 256).
Here, there is no basis from the proof to conclude that Defendant either knew or in the exercise of reasonable care should have known of the risk of attack Claimant faced as he entered the Number 2 Yard shower. Mr. Moye himself did not know of any danger, and thus could not have warned Defendant that he was concerned for his safety. Nor is there any evidence that Defendant otherwise knew that an assault was planned, or that another inmate presented an unusual danger, or that an elevated concern for security existed within the yard. Further, there is no evidence that would lead to a conclusion that the State should have been aware of the potential that Claimant would be attacked. Nor does the evidence support that security deficiencies increased the potential that someone in the yard would be attacked. To the contrary, the Court accepts that the yard was fully staffed at the time of the incident, and that the determination by one officer to roam the yard rather than stand in the guard booth was discretionary, and not in violation of any rule or procedure.

Based upon the foregoing, the Claim is hereby dismissed. The Chief Clerk of the Court is directed to enter judgment accordingly.

May 19, 2004
Buffalo, New York

Judge of the Court of Claims