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Salley v. Keyser

United States District Court, S.D. New York

April 17, 2017

SEAN SALLEY, Plaintiff,
v.
WILLIAM KEYSER, ANTHONY ANNUCCI, KEVIN KELLY, THOMAS GRIFFIN, and PATRICK GRIFFIN, Defendants.

          OPINION AND ORDER

          VINCENT L. BRICCETTI UNITED STATES DISTRICT JUDGE.

         Plaintiff 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 rights.

         Now pending is defendants' motion to dismiss the amended complaint pursuant to Rules 12(b)(1) and 12(b)(6). (Doc. #26).

         For the reasons set forth below, the motion is GRANTED in part and DENIED in part.

         This Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1331.

         BACKGROUND

         For 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.

         Plaintiff 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. ¶ 11).

         Plaintiff 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.).

         According 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. ¶ 14).

         On October 10, 2015, Kelly was assigned to work in plaintiff's housing unit and “no further incidents transpired.” (Am. Compl. ¶ 16).

         On October 13, 2015, plaintiff was transferred to Green Haven.

         Plaintiff 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).

         Plaintiff 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).

         Plaintiff 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. ¶ 31).

         Plaintiff 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.

         DISCUSSION

         I. Stand ...


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