King v. Kelly et al

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
BERNARD KING,
Plaintiff,
v.
DAVID KELLY, PHILIP KELLY, CHRISTINE
PLOSS, and KYLE FENTON,
Defendants.
9:25-cv-784
(ECC/ML)
Amy Jane Agnew, Esq., for Plaintiff
Shawn C. Graham, Asst. Att’y General, for Defendants Philip Kelly and David Kelly
Hon. Elizabeth C. Coombe, United States District Judge:
MEMORANDUM-DECISION AND ORDER
Plaintiff Bernard King brings this action pursuant to 42 U.S.C. § 1983 against Defendants
David Kelly, Philip Kelly, Christine Ploss, and Kyle Fenton, asserting claims for excessive force
and failure to intervene in violation of his Eighth Amendment rights. See Dkt. No. 14 (First
Amended Complaint). Presently before the Court is Defendant David Kelly and Philip Kelly’s
motion to dismiss the First Amended Complaint as against Defendant Philip Kelly pursuant to
Federal Rule of Civil Procedure 12(b)(6). Dkt. No. 18. The motion is fully briefed. Dkt. Nos. 21,
22, 25. For the following reasons, the motion to dismiss is denied.
I. 	BACKGROUND1
In September of 2023, Plaintiff was in the custody of the New York State Department of
Corrections and Community Supervision (DOCCS) and housed at Marcy Correctional Facility.
1 These facts are drawn from the First Amended Complaint. The Court assumes the truth of, and
draws reasonable inferences from, the well-pleaded factual allegations, see Lynch v. City of New
York, 952 F.3d 67, 74-75 (2d Cir. 2020), but does not accept as true any legal conclusions, see
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Dkt. No. 14 ¶ 4. Defendants David Kelly and Philip Kelly were both correctional officers
employed by DOCCS at Marcy Correctional Facility. Id. ¶¶ 5-6.
Plaintiff alleges that on September 3, 2023, shortly after a misbehavior report was authored
against him and he was moved to a different dorm, a “response team of officers with rovers
arrived” looking for him. Id. ¶¶ 10-12. Among these officers were “Officers Fenton and/or Kelly.”
Id. ¶ 13. Plaintiff alleges that “Officers Fenton and/or Kelly” restrained Plaintiff, brought him to a
van, and drove him to a special disciplinary housing unit. Id. ¶¶ 13-16. Plaintiff alleges that
“Officers Fenton and/or Kelly” then used excessive force on him during a strip frisk, fracturing his
rib. Id. ¶¶ 17-22, 31.
II. 	LEGAL STANDARD
To survive a motion to dismiss under Rule 12(b)(6) for failure to state a claim, “a complaint
must provide ‘enough facts to state a claim to relief that is plausible on its face.’” Mayor & City
Council of Balt. v. Citigroup, Inc., 709 F.3d 129, 135 (2d Cir. 2013) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). The plaintiff must provide factual allegations sufficient “to
raise a right to relief above the speculative level[.]” Id. (quoting Twombly, 550 U.S. at 555). A
court must accept as true all factual allegations in the complaint and draw all reasonable inferences
in the plaintiff’s favor. See EEOC v. Port Auth., 768 F.3d 247, 253 (2d Cir. 2014) (citing ATSI
Commc’ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007)). However, “the tenet that a
court must accept as true all of the allegations contained in a complaint is inapplicable to legal
conclusions.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Unless otherwise noted, citations to page numbers
refer to the pagination generated by the CM/ECF system.
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III. 	DISCUSSION
Defendants move to dismiss the First Amended Complaint as against Defendant Philip
Kelly, contending that Plaintiff cannot show Philip Kelly’s personal involvement in the alleged
constitutional violations. See generally Dkt. No. 18-1. Defendants assert that Plaintiff has
acknowledged that only one Correction Officer Kelly was involved in the events at issue and that
the documentation Defendants provided Plaintiff in response to the Court’s Valentin Order (see
Dkt. Nos. 6, 11, 12) “clearly show[s] that Defendant Philip Kelly was not involved and that
Defendant David Kelly[] is the proper party to this action.” Dkt. No. 18-1 at 7.
As pointed out by Plaintiff in opposition, however, a court adjudicating a Rule 12(b)(6)
motion “may review only a narrow universe of materials.” Goel v. Bunge, Ltd., 820 F.3d 554, 559
(2d Cir. 2016). A complaint is “deemed to include any written instrument attached to it as an
exhibit or any statements or documents incorporated in it by reference,” and a court may consider
a document not incorporated by reference where the complaint renders the document “integral” by
“rel[ying] heavily on its terms and effect.” Nicosia v. Amazon.com, Inc., 834 F.3d 220, 230-31 (2d
Cir. 2016) (citations omitted). Defendants do not contend that the documentation provided in
response to the Court’s Valentin Order falls within any of these categories. Thus, the Court will
not consider this material extrinsic to the First Amended Complaint.2
Defendants raise no challenge to the sufficiency of the factual allegations in the First
Amended Complaint and in fact “presume that all allegations against ‘Kelly’ are alleged against
2 Even if the Court were to consider the extrinsic material, the Court agrees with Plaintiff that the
documentation does not conclusively establish which Officer Kelly was involved in the alleged
events underlying this lawsuit. See Dkt. No. 12-1 at 14 (memorandum signed by a “D. Kelly”
asserting that he was not present during the strip frisk of Plaintiff).
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Defendant Philip Kelly.” Dkt. No. 18-1 at 7. Accordingly, the Court denies Defendants’ motion to
dismiss the First Amended Complaint as against Philip Kelly.
IV. 	CONCLUSION
For these reasons, it is hereby
ORDERED that David Kelly and Philip Kelly’s partial motion to dismiss, Dkt. No. 18, is
DENIED.
IT IS SO ORDERED.
Dated: April 20, 2026
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