New York State Court of Claims

New York State Court of Claims
FLEMING v. THE STATE OF NEW YORK, # 2019-015-140, Claim No. 131004, Motion No. M-93784


Defendant's motion to dismiss claim alleging his prison cell was searched in violation of the fourth amendment to the Federal Constitution was granted because the Court of Claims lacks jurisdiction over such claims. In addition, a constitutional tort claim was not the sole avenue of redress. As for the alleged loss of claimant's personal property, he failed to exhaust his administrative remedies as required by Court of Claims Act 10 (9). Failure to exhaust such remedies, while generally an affirmative defense, was not waived here since the requirement of exhaustion is a condition of the State's waiver of immunity under Court of Claims Act 8.

Case information

UID: 2019-015-140
Claimant short name: FLEMING
Footnote (claimant name) :
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 131004
Motion number(s): M-93784
Cross-motion number(s):
Claimant's attorney: Robert Fleming, Pro Se
Defendant's attorney: Honorable Letitia James, Attorney General
By: Douglas R. Kemp, Esq., Assistant Attorney General
Third-party defendant's attorney:
Signature date: May 3, 2019
City: Saratoga Springs
Official citation:
Appellate results:
See also (multicaptioned case)


Defendant moves to dismiss the claim pursuant to CPLR 3211 (a) (2) and (7).(1)

Claimant alleges that correction officers searched his cell in his absence on November 1, 2017 and November 22, 2017 in violation of his rights under the Fourth Amendment of the Federal Constitution and prison Directive 4910. Claimant also alleges correction officers damaged certain unspecified property during the course of the search.

Defendant contends in support of its dismissal motion that this Court lacks jurisdiction over causes of action alleging violations of the Federal Constitution and, in any event, the Fourth Amendment was not violated inasmuch as prisoners are not entitled to the same degree of protection from searches and seizures as other members of the community who are not so confined. Defendant also argues that, to the extent the claim asserts a cause of action for damage to his property, claimant failed to exhaust his administrative remedies or provide an adequate description of the property allegedly damaged.

First, to the extent the claim alleges violations of claimant's right under the Fourth Amendment to be free from unreasonable searches and seizures, it is well settled that such " 'federal constitutional claims may not be asserted in the Court of Claims' " (Jones v State of New York, ___AD3d___ 2019 WL 1714949 [3d Dept 2019], quoting Oppenheimer v State of New York, 152 AD3d 1006, 1008 [3d Dept 2017]). The reason for the exclusion of claims arising under the Federal Constitution is that "the statutory basis for such claims, 42 USC 1983, authorizes claims only against a 'person' and defendant is not a person within the meaning of this statute" (DeMaille v State of New York, 166 AD3d 1405, 1408 [3d Dept 2018] [internal quotation marks and citations omitted]). Moreover, to the extent the claim makes reference to the New York State Constitution, claims thereunder " 'are barred when a claimant has an alternative legal remedy to protect his or her constitutional rights' " (id. [citation omitted]). Here, claimant had various alternative legal remedies, including the inmate grievance program and judicial review pursuant to CPLR article 78. Moreover, while it is unclear whether the search of claimant's cell resulted in the issuance of a misbehavior report, if it did, a violation of claimant's rights under the State Constitution would support vacatur of a determination of guilt following a hearing, and expungement from an inmate's institutional record (see generally Matter of Hill v Selsky, 19 AD3d 64 [3d Dept 2005]; Matter of Mingo v Chappius, 106 AD3d 1160 [3d Dept 2013]). Such alternative avenues of redress render recognition of a constitutional tort claim unnecessary (see Martinez v City of Schenectady, 97 NY2d 78, 83-84 [2001]).

Claimant's reliance upon a violation of Directive 4910 is similarly misplaced. The Directive does not expressly create a private right of action permitting an inmate to recover civil damages for violations thereof, and it is not a statute as to which a private right of action may be fairly implied (see Jones v State of New York, supra; see generally Palaez v Seide, 2 NY3d 186 [2004]). Moreover, the allegations in the claim itself demonstrate there was no violation of the Directive. Directive 4910 states, in pertinent part, the following:

"The search of a general confinement housing unit may be conducted with or without the inmate being present. If the inmate is removed from quarters prior to the search, he or she shall be placed outside the immediate area to be searched, but allowed to observe the search. However, if, in the opinion of a supervisory security staff member, the inmate presents a danger to the safety and security of the facility, the inmate shall be removed from the area and not allowed to observe the search" (Directive 4910 [V] [D] [1]).

This section of the Directive has been interpreted to require that inmates be permitted to observe cell searches only when they have been removed from their cell for that purpose (Matter of Doyle v Prack, 115 AD3d 1110 [3d Dept 2014], lv denied 23 NY3d 907 [2014]; Matter of Johnson v Fischer, 109 AD3d 1070 [3d Dept 2013]; Matter of Mitchell v Fischer, 81 AD3d 1013 [3d Dept 2011]). Here, claimant alleges in the claim that his cell was twice searched in his absence. With respect to the November 1, 2017 search, claimant alleges he was absent from his cell "on a call-out," and on November 22, 2017 he was eating lunch in the mess hall, when his cell was searched (defendant's Exhibit B, claim, p. 2). Inasmuch as claimant was not removed from his cell, the search conducted in his absence did not constitute a violation of the Directive.

Lastly, defendant contends that claimant may not recover for damage to his property which allegedly occurred during the course of the search, first because he failed to exhaust his administrative remedies and, second, because he failed to specify in the claim the items of property allegedly damaged.

The failure to exhaust administrative remedies is generally an affirmative defense which must be raised in either an answer or pre-answer dismissal motion or else be deemed waived (see e.g. Sheils v County of Fulton, 14 AD3d 919 [3d Dept 2005], lv denied 4 NY3d 711 [2005]; Matter of Warwick v Henderson, 117 AD2d 1001 [4th Dept 1986]). No such defense was raised here. In claims against the State, however, the State's waiver of immunity from suits for money damages "is contingent upon a claimant's compliance with specific conditions placed on the waiver by the Legislature" (Lepkowski v State of New York, 1 NY3d 201, 206 [2003]). In this regard, Court of Claims Act 8 specifically conditions the State's waiver of immunity on compliance "with the limitations of this article", including those set forth in Court of Claims Act 10 which states "[n]o judgment shall be granted in favor of any claimant unless such claimant shall have complied with the provisions of this section applicable to his claim." Court of Claims Act 10 (9) prohibits the filing of a claim for loss or damage to personal property "unless and until the inmate has exhausted the personal property claims administrative remedy, established for inmates by the department." Thus, although the failure to exhaust administrative remedies is generally an affirmative defense which may be waived by a defendant's failure to raise it as a defense in either its answer or a pre-answer dismissal motion, compliance with the exhaustion requirements of Court of Claims Act 10 (9) is a non-waivable condition of the State's waiver of sovereign immunity (see Williams v State of New York, 38 AD3d 646 [2d Dept 2007]). Accordingly, claimant's failure to plead compliance with Court of Claims Act 10 (9), or otherwise submit proof of compliance in opposition to the defendant's motion, requires that his claim for property damage be dismissed.(2)

Accordingly, defendant's motion is granted and the claim is dismissed.

May 3, 2019

Saratoga Springs, New York


Judge of the Court of Claims

Papers Considered:

  1. Notice of motion dated April 11, 2019;
  2. Affirmation of Douglas R. Kemp, Esq. dated April 11, 2019, with Exhibits A-C;
  3. Affidavit of Robert Fleming sworn to April 23, 2019.

1. The Appellate Division, Third Department, holds that post-answer motions, such as the one at bar, are in fact motions for summary judgment under CPLR 3212 that are based upon one or more CPLR 3211(a) grounds (see Jones v State of New York, ___AD3d ___2019 WL 1714949, n 1 [3d Dept 2019], citing Matter of Andrews v. State of New York, 138 AD3d 1297, 1298 n. 1 [3d Dept 2016], lv denied 27 NY3d 912 [2016]; Chenango Contr., Inc. v Hughes Assoc., 128 AD3d 1150, 1151[3d Dept 2015]).

2. In addition, as defendant points out, claimant's failure to plead "the items of damage . . . claimed to have been sustained"(Court of Claims Act 11 [b]) is a jurisdictional defect requiring dismissal of the property damage claim (see Lepkowski v State of New York, supra)