| Flemming v State of New York |
| 2014 NY Slip Op 05668 [120 AD3d 848] |
| August 7, 2014 |
| Appellate Division, Third Department |
[*1]
| Woodrow Flemming, Appellant, v State ofNew York, Respondent. |
Woodrow Flemming, New York City, appellant pro se.
Eric T. Schneiderman, Attorney General, Albany (Laura Etlinger of counsel), forrespondent.
Devine, J. Appeal from a judgment of the Court of Claims (DeBow, J.), enteredMarch 18, 2013, upon a decision of the court in favor of defendant.
Claimant, an inmate, commenced an action alleging, among other things, that he wasdeprived of personal property as the result of a cell search. Following a trial, the Court ofClaims partially granted defendant's motion to dismiss the claim, finding that the noticeof claim as it related to allegations that facility officials conspired against claimant andfailed to investigate his complaint did not comply with the pleading requirements ofCourt of Claims Act § 11 (b). The court also denied claimant's trial motionto amend his claim to include allegations of subsequent retaliation against him for filinga grievance related to the cell search. Finally, the court dismissed so much of the claimthat alleged that the cell search was a violation of claimant's constitutional rights andfound that claimant had failed to prove that the correction officers who conducted thesearch had failed to follow Department of Corrections and Community SupervisionDirective No. 4910. Claimant appeals.
We affirm. Initially, "[p]ursuant to Court of Claims Act § 11 (b), aclaim must set forth the nature of the claim, the time when and place where it arose, thedamages or injuries and the total sum claimed" (Morra v State of New York, 107 AD3d 1115, 1115 [2013];see Hogan v State of NewYork, 59 AD3d 754, 754 [2009]). We agree with the Court of Claims thatclaimant's general allegations related to a conspiracy, and the failure of certain correctionofficers [*2]to investigate an unspecified complaint didnot "provide a sufficiently detailed description of the particulars of the claim to enable[defendant] to investigate and promptly ascertain the existence and extent of its liability"(Sinski v State of New York, 265 AD2d 319, 319 [1999]; accord Morra vState of New York, 107 AD3d at 1115-1116).
Regarding the cell search, "Directive No. 4910 (V) (C) (1) allows an inmate toobserve a cell search when the inmate is removed from the cell for the search, unless adetermination is rendered that such presence constitutes a safety or security risk" (Matter of Johnson v Fischer,109 AD3d 1070, 1071 [2013]). Here, even assuming that the correction officers whosearched claimant's cell abused their discretion by not allowing him to be present, theofficers "were nevertheless exercising a discretionary authority for which [defendant] hasabsolute 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 (seeHaywood v Drown, 556 US 729, 734 n 4 [2009]; Shelton v New York State Liq. Auth., 61 AD3d 1145, 1151[2009]). Claimant's New York Constitution causes of action were also properlydismissed, as alternative post-deprivation remedies were available (see Martinez vCity of Schenectady, 97 NY2d 78, 83 [2001]; Waxter v State of New York, 33 AD3d 1180, 1181[2006]). Finally, we find no basis to disturb the Court of Claims' determination that therewas insufficient evidence in the record to support claimant's allegations regardingviolations of Correction Law § 137 or § 138 or variousDepartment regulations. Claimant's remaining contentions, including that the Court ofClaims erred in denying his motion to amend his claim, have been considered and foundto be without merit.
Peters, P.J., Rose, Egan Jr. and Lynch, JJ., concur. Ordered that the judgment isaffirmed, without costs.