           09-0674-cv
           Miner v. Goord

                                    UNITED STATES COURT OF APPEALS
                                          F OR T HE S ECOND C IRCUIT

                                                   SUMMARY ORDER

R ULINGS   BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT .    C ITATION TO SUMMARY ORDERS FILED AFTER J ANUARY 1, 2007,
IS PERMITTED AND IS GOVERNED BY THIS COURT ’ S    L OCAL R ULE 32.1 AND F EDERAL R ULE OF A PPELLATE P ROCEDURE 32.1. I N A
BRIEF OR OTHER PAPER IN WHICH A   LITIGANT CITES A SUMMARY ORDER , IN EACH PARAGRAPH IN WHICH A CITATION APPEARS , AT LEAST
ONE CITATION MUST EITHER BE TO    THE F EDERAL A PPENDIX OR BE ACCOMPANIED BY THE NOTATION : “( SUMMARY ORDER ).” A PARTY
CITING A SUMMARY ORDER MUST SERVE A COPY OF THAT SUMMARY ORDER TOGETHER WITH THE PAPER IN WHICH THE SUMMARY ORDER IS
CITED ON ANY PARTY NOT REPRESENTED BY COUNSEL UNLESS THE SUMMARY ORDER IS AVAILABLE IN AN ELECTRONIC DATABASE WHICH
IS PUBLICLY ACCESSIBLE WITHOUT PAYMENT OF FEE      ( SUCH   AS THE DATABASE AVAILABLE AT HTTP :// WWW . CA 2. USCOUR T S . GOV /).
IF   NO COPY IS SERVED BY REASON OF THE AVAILABILITY OF THE ORDER ON SUCH A DATABASE , THE CITATION MUST INCLUDE REFERENCE
TO THAT DATABASE AND THE DOCKET NUMBER OF THE CASE IN WHICH THE ORDER WAS ENTERED .



                At a stated Term of the United States Court of                                          Appeals
           for the Second Circuit, held at the Daniel Patrick                                          Moynihan
           United States Courthouse, 500 Pearl Street, in the                                          City of
           New York, on the 25 th day of November, two thousand                                        and
           nine.

           Present: JOSEPH M. MCLAUGHLIN,
                    RICHARD C. WESLEY,
                                  Circuit Judges,
                    LAWRENCE E. KAHN,
                                  District Judge. *
           ________________________________________________

           LEROY MINER,
                                          Plaintiff-Appellant,

                           - v. -                                                     (09-0674-cv)

           GLEN S. GOORD, ROBERT DENNISON,
           WILLIAM GORMAN, MELVIN WILLIAMS,
           THOMAS O’CONNOR, JANICE SMITH,
                             Defendants-Appellees.
           __________________________________________________


                   *
                    The Honorable Lawrence E. Kahn, of the United States District Court
           for the Northern District of New York, sitting by designation.

                                                                1
     Appearing for Appellant:    ROBERT N. ISSEKS, Law Office of
                                 Robert N. Isseks, Esq.,
                                 Middletown, New York.

     Appearing for Appellee:     RAJIT S. DOSANJH, Assistant
                                 Solicitor General of Counsel,
                                 State of New York Office of the
                                 Attorney General, Appeals and
                                 Opinions Bureau, Albany, New
                                 York (BARBARA D. UNDERWOOD,
                                 Solicitor General, ANDREA OSER,
                                 Deputy Solicitor General, ANDREW
                                 M. CUOMO, Attorney General of
                                 the State of New York, on the
                                 brief).

          Appeal from the United States District Court for the
     Northern District of New York (Sharpe, J.).

 1       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

 2   AND DECREED that the judgment of the United States District

 3   Court for the Northern District of New York be AFFIRMED.

 4       Plaintiff, Leroy Miner, appeals from the district

 5   court’s January 21, 2009 judgment and order granting summary

 6   judgment in favor of Defendants and dismissing his complaint

 7   in its entirety.   Miner v. Goord, — F. Supp. 2d —, No. 1:06-

 8   CV-0439 (GLS/GHL), 2009 WL 159156 (N.D.N.Y. Jan. 21, 2009).

 9   Plaintiff is a former state prisoner who brought an action

10   pursuant to 42 U.S.C. § 1983 against parole officers and

11   supervisory officials, among others, alleging that

                                   2
 1   Defendants violated his rights under the First Amendment.

 2   Plaintiff, an atheist, claims that the Alcohol and Substance

 3   Abuse Treatment (“ASAT”) program in place at the Willard

 4   Drug Treatment Campus is “a form of religious indoctrination

 5   based on the 12 Steps of Alcoholics Anonymous.”     Plaintiff

 6   contends that he “refused to subject himself to the

 7   program’s religious indoctrination and, as a result,

 8   defendants revoked his parole and forced him to serve an

 9   additional nine months in prison until the expiration of his

10   sentence.”     Plaintiff maintains that “Defendants’ failure to

11   offer [him] a secular alternative to the Willard program

12   violated [his] clearly established First Amendment right not

13   to be punished for refusing to engage in religious

14   practice.”

15       We presume the parties’ familiarity with the underlying

16   facts, the procedural history of the case, and the issues on

17   appeal.   Plaintiff elected to enter the Willard Drug

18   Treatment Program as a condition of his release on parole

19   supervision.     Plaintiff contends that he did not enter the

20   Willard Program voluntarily, but rather did so under

21   pressure from the attorney who represented him at the time.



                                     3
 1   Nothing in the record even remotely supports this assertion.

 2   Indeed, Plaintiff concedes that he did not raise a religious

 3   objection at the time that he agreed to enter the Willard

 4   Program.

 5        Upon Plaintiff’s arrival at Willard, he refused to

 6   sign a Memorandum of Agreement, which would indicate his

 7   willingness to participate in the program.    Petitioner was

 8   informed that he would have twenty-four hours to reconsider

 9   this decision, after which time, his parole officer would

10   commence the parole violation process.    Plaintiff refused to

11   sign the Memorandum of Agreement a second time and was

12   charged with violating the conditions of his release.

13   Plaintiff’s parole was revoked and he was ordered to serve

14   the remainder of his sentence.    Plaintiff filed this action

15   after completing his term of imprisonment.

16       After conducting a de novo review of the district

17   court’s grant of summary judgment in favor of Defendants,

18   see Jeffreys v. City of New York, 426 F.3d 549, 553 (2d Cir.

19   2005), we affirm.   As an initial matter, we agree with the

20   district court that Plaintiff’s § 1983 suit is not barred by

21   the “favorable termination” rule set forth in Heck v.



                                   4
 1   Humphrey, 512 U.S. 477 (1994) and Edwards v. Balisok, 520

 2   U.S. 641 (1997).   Although the favorable termination rule

 3   applies to § 1983 claims regarding parole revocations, the

 4   doctrine is not implicated on these facts.    In this case,

 5   there is no danger that § 1983 is being utilized in a manner

 6   that would allow Plaintiff to engage in an end-run around

 7   the requirements for bringing a habeas corpus petition

 8   because he has completed his term of imprisonment.    See

 9   Green v. Montgomery, 219 F.3d 52, 61 n.3 (2d Cir. 2000);

10   McKithen v. Brown, 481 F.3d 89, 100-01 (2d Cir. 2007).

11       Because Plaintiff refused to enroll in the Willard

12   Program, he cannot show that his injury is “fairly traceable

13   to defendants’ conduct.”   In re U.S. Catholic Conference,

14   885 F.2d 1020, 1024 (2d Cir. 1989); see also Garelick v.

15   Sullivan, 987 F.2d 913, 919 (2d Cir. 1993).    Had Plaintiff

16   enrolled in the program and been subjected to mandatory

17   religious programming, his claim could have survived a

18   motion for summary judgment if he had proffered facts that

19   demonstrated a causal link between the program’s alleged

20   religious orientation and his injury.   See Garelick, 987

21   F.2d at 919.   However, because Plaintiff chose not to enroll


                                   5
 1   in the program based only on an unconfirmed but fervent

 2   belief that he would be required to participate in religious

 3   activities, he cannot show that “he personally has suffered

 4   some actual or threatened injury” as a result of conduct by

 5   Defendants.   DeStefano v. Emergency Hous. Group, Inc., 247

 6   F.3d 397, 421 (2d Cir. 2001) (internal quotation marks

 7   omitted); see also Jeffries v. Harleston, 52 F.3d 9, 14 (2d

 8   Cir. 1995).   Therefore, Plaintiff lacks standing to pursue

 9   his claims.

10       We note that it is indisputable that the 12 Steps of

11   Alcoholics Anonymous are religious in nature.   See Cox v.

12   Miller, 296 F.3d 89, 108 (2d Cir. 2002); Griffin v.

13   Coughlin, 88 N.Y.2d 674, 680-84 (1996).   However, this fact

14   would not resolve the merits of Plaintiff’s claim, if we

15   were to reach the merits.   The ultimate issues for purposes

16   of Plaintiff’s § 1983 claim is whether the Willard Program

17   requires participation in religious activity, see Warner v.

18   Orange County Dep’t of Prob., 115 F.3d 1068, 1069 (2d Cir.

19   1997), and whether Miner would have been exempted from any

20   religious portions of the Willard Program, see id. at 1074-

21   75; see also Jackson v. Mann, 196 F.3d 316, 320 (2d Cir.


                                   6
 1   1999).   Because we conclude that Plaintiff lacked standing,

 2   we need not answer these questions definitively.     However,

 3   we note that as long as a secular alternative to Alcoholics

 4   Anonymous is provided, it does not violate the Establishment

 5   Clause to “include a noncoercive use of [Alcoholics

 6   Anonymous’s] 12-step regimen.”    Griffin, 88 N.Y.2d at 677.

 7   An Establishment Clause challenge based on the “mere

 8   inclusion” of Alcoholics Anonymous “as one element in [a]

 9   program’s treatment plan” has been “foreclosed.”     DeStefano,

10   247 F.3d at 408.

11       The Court has reviewed Plaintiff’s remaining arguments

12   and finds them to be without merit.    Accordingly, the

13   judgment of the district court is hereby AFFIRMED.

14

15                               For the Court
16                               Catherine O’Hagan Wolfe, Clerk
17
18                               By: ______________________
19




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