15-4029-cv
Hirsch v. Pernat, et al.

                                UNITED STATES COURT OF APPEALS
                                    FOR THE SECOND CIRCUIT

                                         SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED
BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE
NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY
OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

        At a stated Term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York on the
27th day of March, two thousand seventeen.

Present:    ROSEMARY S. POOLER,
            BARRINGTON D. PARKER,
            DEBRA ANN LIVINGSTON,
                        Circuit Judges.
____________________________________________________

JOSEPH S. HIRSCH,

                                  Plaintiff-Appellant,

                           v.                                                  15-4029-cv

KATHERINE PERNAT, SUFFOLK COUNTY,
JOSEPH TORTORA,

                        Defendants-Appellees.1
_____________________________________________________

    Appearing for Appellant:     PHILIP M. SMITH, Harrison, NY.

    Appearing for Appellees      JUDITH N. VALE, Assistant Solicitor General (Barbara D.
    Katherine Pernat and         Underwood, Solicitor General, Anisha S. Dasgupta, Deputy
    Joseph Tortora:              Solicitor General, on the brief), for Eric T. Schneiderman, Attorney
                                 General of New York, New York, NY.

    Appearing for Appellee       Brian C. Mitchell, Assistant County Attorney, for Dennis M.
    Suffolk County:              Brown, Suffolk County Attorney, Hauppauge, NY.
1
    The Clerk of the Court is directed to amend the caption as above.
       Appeal from the United States District Court for the Eastern District of New York
(Seybert, J.).

     ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of said District Court be and it hereby is AFFIRMED.

        Plaintiff-Appellant Joseph Hirsch appeals from a judgment and two orders entered by the
United States District Court for the Eastern District of New York (Seybert, J.). On March 18,
2015, the district court denied Hirsch’s motion for reconsideration of a prior ruling, and granted
Appellees’ motion for summary judgment as to Hirsch’s claims brought under 42 U.S.C. § 1983.
On March 24, 2015, the district court entered judgment in favor of Appellees. Thereafter, on
November 20, 2015, the district court denied Hirsch’s second motion for reconsideration.

        Hirsch’s claims arise from prison officials’ decision not to award him “good time” credits
during his imprisonment for several sex crimes, and from their recommendation that Hirsch be
classified as an intermediate-level risk on the State’s sex offender registry. Hirsch alleges that
both of these actions resulted from his refusal to confess to a fabricated rape charge while
imprisoned, and thus violated his rights under the Due Process Clause of the Fourteenth
Amendment. We assume the parties’ familiarity with the underlying facts, procedural history,
and specification of issues for review.

        “We review a district court’s decision to grant summary judgment de novo, construing
the evidence in the light most favorable to the party against which summary judgment was
granted and drawing all reasonable inferences in its favor.” Halo v. Yale Health Plan, Dir. of
Benefits & Records Yale Univ., 819 F.3d 42, 47 (2d Cir. 2016). On appeal, Hirsch argues, first,
that the district court erred in ruling that prison officials did not make an improper
recommendation regarding the level to which Hirsch should be assigned in the State’s sex
offender registry. He also argues that the district court erred in ruling that Hirsch had no
constitutional liberty or property interest in receiving “good time” credits while imprisoned.2

         The district court did not err in ruling that the Board of Examiners of Sex Offenders (the
“Board”) gave a correct recommendation for Hirsch’s risk level classification within the sex
offender registry. Hirsch argues that he refused to participate in the program because prison
employees demanded that he confess to a rape that he did not commit, and of which he had not
been convicted. The district court concluded that while the Board’s assignment of fifteen points
for this refusal in calculating Hirsch’s risk level score might have been improper, the net
difference in score was only five points—and thus would have had no effect on his
recommended risk level—because there was independent evidence in the record that Hirsch
would not accept responsibility for his crimes. Indeed, documentary evidence shows that Hirsch
repeatedly and emphatically denied that he was guilty of any crime, including those of which he
had been convicted, and that he declined to participate in the counseling program because it
required that he accept responsibility for his crimes. App’x at 46 (“I am not guilty of any crime
and I have no prior criminal record.”); 51 (“I have no prior criminal record and am innocent of

2
 We need not reach the issue of whether Hirsch’s claims against Tortora were timely, as
Hirsch’s claims fail on other grounds.

                                                 2
my instant offense.”); 154 (“I have no prior criminal history and am innocent of any crime,
including the one prompting my current incarceration . . . .”).

        Hirsch’s claim that he was wrongfully deprived of “good time” credits also fails. Hirsch
contends that the prison’s Time Allocation Committee refused to give him “good time” credits
because he did not participate in the counseling program, and that he did not participate in the
program because doing so would have required that he confess to a fabricated rape charge of
which he was not convicted. We have generally stated, however, that where “good time” credits
have not been earned—and there is no evidence that they had been earned here—there is no
constitutionally protected interest in them because of the discretionary nature of their award. See
Abed v. Armstrong, 209 F.3d 63, 67 (2d Cir. 2000). Even if Hirsch had a minimal due process
right in not being denied good time credits arbitrarily, see Graziano v. Pataki, 689 F.3d 110, 115
(2d Cir. 2012) (per curiam), there is no evidence that the Time Allowance Committee acted
arbitrarily here. It gave Hirsch notice that it was considering recommending that he not be
awarded good time credits, held a hearing, and based its decision on an undisputed fact, namely
that Hirsch refused to participate in the counseling program. The Time Allowance Committee’s
recommendation that Hirsch not receive good time credits therefore cannot support a due process
claim.

        We have considered the remainder of appellant’s arguments and find them to be without
merit. Accordingly, the order of the district court hereby is AFFIRMED. Each side to bear its
own costs.


                                                     FOR THE COURT:
                                                     Catherine O’Hagan Wolfe, Clerk




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