State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: August 7, 2014 516541
________________________________
WOODROW FLEMMING,
Appellant,
v MEMORANDUM AND ORDER
STATE OF NEW YORK,
Respondent.
________________________________
Calendar Date: May 29, 2014
Before: Peters, P.J., Rose, Egan Jr., Lynch and Devine, JJ.
__________
Woodrow Flemming, New York City, appellant pro se.
Eric T. Schneiderman, Attorney General, Albany (Laura
Etlinger of counsel), for respondent.
__________
Devine, J.
Appeal from a judgment of the Court of Claims (DeBow, J.),
entered March 18, 2013, upon a decision of the court in favor of
defendant.
Claimant, an inmate, commenced an action alleging, among
other things, that he was deprived of personal property as the
result of a cell search. Following a trial, the Court of Claims
partially granted defendant's motion to dismiss the claim,
finding that the notice of claim as it related to allegations
that facility officials conspired against claimant and failed to
investigate his complaint did not comply with the pleading
requirements of Court of Claims Act § 11 (b). The court also
denied claimant's trial motion to amend his claim to include
allegations of subsequent retaliation against him for filing a
grievance related to the cell search. Finally, the court
-2- 516541
dismissed so much of the claim that alleged that the cell search
was a violation of claimant's constitutional rights and found
that claimant had failed to prove that the correction officers
who conducted the search had failed to follow Department of
Corrections and Community Supervision Directive No. 4910.
Claimant appeals.
We affirm. Initially, "[p]ursuant to Court of Claims Act §
11 (b), a claim must set forth the nature of the claim, the time
when and place where it arose, the damages or injuries and the
total sum claimed" (Morra v State of New York, 107 AD3d 1115,
1115 [2013]; see Hogan v State of New York, 59 AD3d 754, 754
[2009]). We agree with the Court of Claims that claimant's
general allegations related to a conspiracy, and the failure of
certain correction officers to investigate an unspecified
complaint did not "provide a sufficiently detailed description of
the particulars of the claim to enable [defendant] to investigate
and promptly ascertain the existence and extent of [their]
liability" (Sinski v State of New York, 265 AD2d 319, 319 [1999];
accord Morra v State of New York, 107 AD3d at 1115-1116).
Regarding the cell search, "Directive No. 4910 (V) (C) (1)
allows an inmate to observe a cell search when the inmate is
removed from the cell for a search, unless a determination is
rendered that such presence constitutes a safety or security
risk" (Matter of Johnson v Fisher, 109 AD3d 1070, 1071 [2013]).
Here, even assuming that the correction officers who searched
claimant's cell abused their discretion by not allowing him to be
present, the officers "were nevertheless exercising a
discretionary authority for which [defendant] has absolute
immunity" (Holloway v State of New York, 285 AD2d 765, 766
[2001]). The Court of Claims also properly dismissed claimant's
42 USC § 1983 cause of action, as a state is not a "person" under
the statute (see Matter of Haywood v Drown, 556 US 729, 734 n 4
[2009]; Shelton v New York State Liquor Auth., 61 AD3d 1145, 1151
[2009]). Claimant's NY Constitution causes of action were also
properly dismissed, as alternative post-deprivation remedies were
available (see Martinez v City of Schenectady, 97 NY2d 78, 83
[2001]; Waxler v State of New York, 33 AD3d 1180, 1181 [2006]).
Finally, we find no basis to disturb the Court of Claims'
determination that there was insufficient evidence in the record
-3- 516541
to support claimant's allegations regarding violations of
Correction Law § 137 or § 138 or various Department regulations.
Claimant's remaining contentions, including that the Court of
Claims erred in denying his motion to amend his claim, have been
considered and found to be without merit.
Peters, P.J., Rose, Egan Jr. and Lynch, JJ., concur.
ORDERED that the judgment is affirmed, without costs.
ENTER:
Robert D. Mayberger
Clerk of the Court