King v. Keyser

Background

Colleen King, proceeding without a lawyer and without paying the filing fee, brought constitutional claims against William Keyser, Edward Burnett, Jimi Dewitt, Brisa Powell, Jeff McKoy, and Alicia Smith-Roberts. Her claims arose from the denial of applications by King and her husband, Eric Tolliver, to participate in the Family Reunion Program at Sullivan Correctional Facility.

King alleged that officials recommended or approved denial of the applications in retaliation for Tolliver’s grievances and successful lawsuits against state corrections officials. She alleged that Keyser and Burnett falsely described Tolliver’s disciplinary record, that Dewitt knew the recommendations were based on false information, and that Dewitt suggested the applications would be approved if the lawsuits were withdrawn. She also alleged that Powell issued Tolliver a misbehavior report for violating a nonexistent regulation and said she intended to prevent his approval for the program. King further alleged that Burnett affirmed a similar report and later expunged the violation.

The court construed the complaint as asserting claims by King, including claims on Tolliver’s behalf. In an earlier order, it dismissed without prejudice the claims asserted on Tolliver’s behalf because King, as a nonlawyer, could not sue for another person. This opinion addressed the defendants’ motion to dismiss King’s claims under Rule 12(b)(6), which asks whether a complaint states a legally sufficient claim.

Qualified Immunity

The court construed King’s claim as asserting a constitutional right of intimate association with her spouse. Qualified immunity protects government officials from liability unless their conduct violated a statutory or constitutional right that was clearly established at the time.

The court recognized that a general right of intimate association had been established, but said qualified immunity depends on whether the right was clearly established in a sufficiently specific way. It held that King’s asserted right to full-contact visitation with her spouse in prison—including after a deprivation lasting more than four years—was not clearly established.

The court relied on a prior related proceeding involving prison visitation, in which the appeals court had held that neither the Supreme Court nor the Second Circuit had clearly established a right to spousal visitation in prison. The court also noted that Tolliver had been told to reapply to the Family Reunion Program, that the materials indicated he had not been found ineligible permanently, and that King alleged they could still communicate by telephone and participate in non-contact visits. The court found that an earlier unpublished appellate statement about intentional or malicious denial of visitation did not establish the required legal rule because, as the court characterized it, the statement was nonbinding and insufficiently specific.

The court therefore concluded that the defendants were entitled to qualified immunity. The opinion does not decide whether the alleged conduct actually violated the Constitution; it holds that the defendants could not be held liable because the asserted right was not clearly established.

Leave to Amend and Disposition

The court declined to give King permission to file an amended complaint. Although courts generally give self-represented litigants an opportunity to amend, the court found amendment would be futile because the defect was substantive and better pleading would not cure the qualified-immunity problem.

The court granted the motion to dismiss, instructed the Clerk to terminate the motion and close the case, and certified that any appeal would not be taken in good faith. It therefore denied King permission to appeal without paying the appellate filing fee. Judge Vincent L. Briccetti signed the opinion and order.