     11-1047, 11-3853
     Griffin v. Alexander


                            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.

 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 8th day of March, two thousand twelve.
 5
 6       PRESENT: DENNIS JACOBS,
 7                              Chief Judge,
 8                DENNY CHIN,
 9                SUSAN L. CARNEY,
10                              Circuit Judges.
11
12       - - - - - - - - - - - - - - - - - - - -X
13       DONALD GRIFFIN,
14                Plaintiff-Appellant,
15
16                    -v.-                                               11-1047
17                                                                       11-3853
18       GEORGE ALEXANDER, CHAIRMAN, NYS
19       DIVISION OF PAROLE,
20                Defendant-Appellee.
21       - - - - - - - - - - - - - - - - - - - -X
22
23       FOR APPELLANT:                        Donald Griffin, pro se, Albion,
24                                             N.Y.
25
26       FOR APPELLEES:                        Barbara D. Underwood, Solicitor
27                                             General, Nancy A. Spiegel,

                                                  1
 1                              Senior Assistant Solicitor
 2                              General, Robert M. Goldfarb,
 3                              Assistant Solicitor General, of
 4                              Counsel, for Eric T.
 5                              Schneiderman, Attorney General
 6                              of the State of New York,
 7                              Albany, N.Y.
 8
 9        Appeal from a judgment of the United States District
10   Court for the Northern District of New York (McAvoy, J.).
11
12        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
13   AND DECREED that the appeals docketed under 11-1047 and
14   11-3853 are CONSOLIDATED, and the order and judgment of the
15   district court be AFFIRMED.
16
17
18        Appellant Donald Griffin, pro se, appeals from the
19   denial of his motion for a preliminary injunction, and
20   separately appeals from the dismissal of his complaint. He
21   alleged that his right to freely exercise his religion,
22   protected under the First Amendment and the Religious Land
23   Use and Institutionalized Persons Act of 2000, 42 U.S.C. §
24   2000cc-1, was violated when, in October 2008, the state
25   denied him parole based, in part, on his refusal to
26   participate in a sex offender counseling and treatment
27   program. We consolidate Griffin’s appeals and assume the
28   parties’ familiarity with the underlying facts, the
29   procedural history, and the issues presented for review.
30
31        “We review de novo a district court’s grant of a motion
32   to dismiss, accepting all factual allegations in the
33   complaint as true, and drawing all reasonable inferences in
34   the plaintiff’s favor.” Shomo v. City of N.Y., 579 F.3d
35   176, 183 (2d Cir. 2009) (internal quotation marks omitted).
36   “We review a district court’s decision to grant or deny a
37   preliminary injunction for abuse of discretion.” Oneida
38   Nation of N.Y. v. Cuomo, 645 F.3d 154, 164 (2d Cir. 2011).
39
40        Liberally construing his complaint to avoid mootness
41   and the “favorable termination” rule of Heck v. Humphrey,
42   512 U.S. 477, 486-87 (1994), we find that Griffin fails to
43   state a claim nonetheless. Griffin argues that his
44   Presentence Report erroneously states that he sexually
45   abused one victim; but he admits to sexually abusing
46   another. Participants in the sex offender treatment program
47   are not required to confess to any particular offense or act

                                  2
 1   of abuse. All that is required is that participants discuss
 2   the behavior that resulted in incarceration. Griffin does
 3   not plausibly state that this requirement necessitates that
 4   he lie or otherwise “impose[s] a substantial burden on the
 5   exercise of his religion.” See Redd v. Wright, 597 F.3d
 6   532, 536 (2d Cir. 2010).
 7
 8        As his complaint fails to state a claim, it follows
 9   that Griffin fails to show a “clear” or “substantial”
10   likelihood of success. See Jolly v. Coughlin, 76 F.3d 468,
11   473 (2d Cir. 1996) (articulating the standard for a
12   preliminary injunction that will alter the status quo or
13   “provide the movant with substantially all the relief
14   sought”) (internal quotation marks omitted).
15
16
17        For the foregoing reasons, the appeals docketed under
18   11-1047 and 11-3853 are CONSOLIDATED, and the order and
19   judgment of the district court are hereby AFFIRMED.
20
21
22                              FOR THE COURT:
23                              CATHERINE O’HAGAN WOLFE, CLERK
24
25




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