United States District Court, S.D. New York
OPINION AND ORDER
VINCENT L. BRICCETTI UNITED STATES DISTRICT JUDGE.
Sean Salley, proceeding pro se and in forma
pauperis, brings this action under 42 U.S.C. §
1983, alleging defendants unlawfully transferred him from
Sullivan Correctional Facility (“Sullivan”) to
Green Haven Correctional Facility (“Green Haven”)
in retaliation for the exercise of his First Amendment
pending is defendants' motion to dismiss the amended
complaint pursuant to Rules 12(b)(1) and 12(b)(6). (Doc.
reasons set forth below, the motion is GRANTED in part and
DENIED in part.
Court has subject matter jurisdiction pursuant to 28 U.S.C.
purposes of ruling on a motion to dismiss, the Court accepts
all factual allegations of the amended complaint as true, and
draws all reasonable inferences in plaintiff's favor.
alleges that while he was incarcerated at Sullivan, defendant
correction officer Kevin Kelly harassed him, and that
plaintiff reported that harassment to his “area
supervisor.” (Am. Compl. ¶ 9). Plaintiff alleges
Kelly then submitted a “false and inaccurate
misbehavior report against plaintiff.” (Id.).
On September 21, 2015, plaintiff filed a “formal
complaint” against Kelly “based upon staff
misconduct, ” and to complain about the false
misbehavior report. (Id.). The Superintendent of
Sullivan, defendant William Keyser, designated his deputy
superintendent to investigate plaintiff's complaint. By
memorandum dated September 25, 2015, the deputy
superintendent informed plaintiff that, based on “an
investigation which included interviews with [plaintiff] and
Officer Kelly, ” and Kelly's “written denial
[of the] allegations, ” he concluded “there [was]
insufficient evidence to show any misconduct by Officer Kelly
during his dealings with” plaintiff. (Am. Compl. ¶
alleges on October 2, 2015, Kelly came into plaintiff's
housing area, even though he was not scheduled to work there
that day, and spoke to another inmate. Kelly allegedly asked
the other inmate “if he would like plaintiff's job
assignment of block clerk.” (Am. Compl. ¶ 13).
Plaintiff alleges Kelly told the other inmate “he would
make sure that plaintiff would be fired as block clerk . . .
because no ‘nigger' inmate in the facility should
have that job.” (Id.).
to plaintiff, on October 5, 2015, Kelly “made the hand
gesture of a gun shooting plaintiff” when he saw
plaintiff being escorted down a hallway. (Am. Compl. ¶
October 10, 2015, Kelly was assigned to work in
plaintiff's housing unit and “no further incidents
transpired.” (Am. Compl. ¶ 16).
October 13, 2015, plaintiff was transferred to Green Haven.
submitted a grievance regarding the transfer. On January 14,
2016, a hearing on plaintiff's grievance was held. The
deputy superintendent of Green Haven stated in a written
response that plaintiff had been transferred for
“security reasons.” (Am. Compl. ¶ 19). At
the hearing, plaintiff “argued that [defendant] Keyser
did not have any ‘legitimate security reasons' for
his transfer.” (Id. ¶ 20).
asserts prior to his transfer, he “did not have any
issues dealing with security as to where he needed to be
placed on a transfer from Sullivan due to a threat for his
own security or the security of someone else.” (Am.
Compl. ¶ 22). He asserts that in light of this,
“the only motivating factor for defendant Keyser to
transfer plaintiff from Sullivan to Green Haven was to
retaliate against plaintiff.” (Id. ¶ 23).
alleges Green Haven Superintendent Thomas Griffin “is
continuing the retaliation against plaintiff, ”
including by denying him the ability to “generate a
source of income by programming.” (Id. ¶
further alleges Sullivan Superintendent William Keyser
“conspired with . . . [defendant] Patrick Griffin to
transfer plaintiff to Green Haven, where his biological
brother Thomas Griffin is superintendent, where plaintiff
could be further punished and retaliated against.” (Am.
Compl. ¶ 32). As an example of that retaliation,
plaintiff alleges a money order his mother sent was
intentionally lost for a little over a week.