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King v. Keyser

United States District Court, S.D. New York

January 13, 2020

COLLEEN KING, Plaintiff,
WILLIAM KEYSER, Superintendent; EDWARD BURNETT, Deputy Superintendent; JIMI DEWITT, Family Reunion Coordinator; BRISA POWELL, Correction Officer; JEFF McKOY, Deputy Commissioner; and ALICIA SMITH-ROBERTS, Ministerial, Family, and Volunteer Services Director, Defendants.


          Vincent L. Briccetti United States District Judge.

         Plaintiff Colleen King, proceeding pro se and in forma pauperis (“IFP”), brings claims for violation of her constitutional rights against defendants Superintendent (“Supt.”) William Keyser, Deputy Supt. Edward Burnett, Family Reunion Program (“FRP”) Coordinator Jimi Dewitt, Correction Officer (“C.O.”) Brisa Powell, Deputy Commissioner (“Comm'r”) Jeff McKoy, and Ministerial, Family, and Volunteer Services Director Alicia Smith-Roberts.[1]Plaintiff's claims arise from the denial of her and her husband's applications to participate in the FRP at Sullivan Correctional Facility (“Sullivan”).

         Now pending is defendants' motion to dismiss pursuant to Rule 12(b)(6). (Doc. #16).

         For the following reasons, the motion is GRANTED.

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


         For the purpose of ruling on the motion to dismiss, the Court accepts as true all well-pleaded factual allegations in the complaint and draws all reasonable inferences in plaintiff's favor, as set forth below.

         I. FRP Applications

         Plaintiff is married to Eric Tolliver, an inmate at Sullivan at the time of the alleged events. Plaintiff alleges she and Tolliver were denied the right to participate in Sullivan's FRP in retaliation for Tolliver's filing grievances and bringing successful lawsuits against New York State Department of Corrections and Community Supervision (“DOCCS”) officials.[2]

         Plaintiff alleges she and Tolliver have applied three times to participate in the FRP as of the date of the complaint.[3] According to plaintiff, on all three occasions defendants Supt. Keyser and Deputy Supt. Burnett, who are required to review and make recommendations on FRP applications, recommended denying the applications, falsely stating Tolliver “has a poor disciplinary and adjustment record.” (Compl. at 4-5). Plaintiff asserts Tolliver does not in fact fall into any “category of disciplinary review.” (Id.).

         Plaintiff further alleges defendant Jimi Dewitt, the facility's FRP Coordinator and the official who conducts the final evaluation on FRP applications before the applications are sent to DOCCS headquarters in Albany for final determination, also recommended denying the FRP applications despite knowing that Keyser and Burnett's recommendations were based on false information. According to plaintiff, when she and Tolliver confronted Dewitt regarding the applications, he said: “you and I already know why your applications are being denied, take care of your end in getting rid of the law suits, and I guarantee the result of your next application will have you smiling.” (Compl. at 6-7).

         According to the complaint, after the FRP applications were sent to Albany, Deputy Comm'r McKoy recommended denying the FRP applications as well, and Alicia Smith-Roberts, director of the FRP, ultimately denied the FRP applications. However, plaintiff alleges she and her husband had informed both McKoy and Alicia Smith-Roberts of the alleged falsehoods and “discriminatory acts.” (Compl. at 8). In addition, plaintiff alleges she informed Smith-Roberts and the other defendants of other similarly situated prisoners who were granted permission to participate in the FRP.

         II. Misbehavior Report

         Plaintiff alleges on October 12, 2017, defendant C.O. Powell issued Tolliver a misbehavior report for violating a nonexistent regulation. According to plaintiff, when C.O. Powell issued the misbehavior report, she stated, “her reason for writing said misbehavior report against plaintiff's husband was because of the him [sic] filing law suits against her co-workers, therefore, she is making it her duty to see to it that plaintiff's husband never get approved to participate in the Family Reunion Program.” (Compl. at 7). Plaintiff alleges the misbehavior report was cited as a reason for denying at least one of the FRP applications.

         In addition, plaintiff alleges Deputy Supt. Burnett affirmed at a Tier-2 hearing a misbehavior report similarly based on the violation of a nonexistent regulation-presumably the same one C.O. Powell issued, although it is unclear from the complaint. And according to plaintiff, after the FRP applications were denied, Burnett expunged the violation from Tolliver's record.

         III. Correspondence with State Officials

         Throughout these events, both plaintiff and Tolliver sent numerous letters complaining about the denial of the FRP applications to state officials, including Governor Andrew M. Cuomo, DOCCS Acting Comm'r Anthony Annucci, FRP Coordinator Dewitt, Director Smith-Roberts, and Deputy Comm'r McKoy, which plaintiff attached to her complaint. Plaintiff also attached several responses from state officials, mostly from McKoy, but also from Dewitt, Smith-Roberts, and one from Governor Cuomo ...

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