17-1304
Browne v. Hynes

                              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
25th day of April, two thousand eighteen.

Present:    RALPH K. WINTER,
            ROSEMARY S. POOLER,
            BARRINGTON D. PARKER,
                        Circuit Judges.
_____________________________________________________

KENDALL BROWNE,

                  Plaintiff-Appellant,

                         v.                                                17-1304-cv

CHARLES J. HYNES, INDIVIDUALLY AND AS
DISTRICT ATTORNEY OF KINGS COUNTY,
ERIC T. SCHNEIDERMAN, AS ATTORNEY GENERAL
OF THE STATE OF NEW YORK, NEW YORK
STATE SUPREME COURT, MICHAEL SHAW, FORMER ADA,
ADA CAROLINE CAMPOMANES,
HONORABLE ANDREW M. CUOMO,
AS GOVERNOR OF THE STATE OF NEW YORK,

                        Defendants-Appellees.
_____________________________________________________

Appearing for Appellant:         Kendall Browne, pro se, Albion, N.Y.
Appearing for Appellees                        Emma Grunberg, Assistant Corporation Counsel
Hynes, Shaw, and Campomanes:                   (Deborah A. Brenner, Assistant Corporation
                                               Counsel, on the brief), for Zachary W. Carter,
                                               Corporation Counsel of the City of New York, New
                                               York, NY.

Appearing for Appellees                        Mark H. Shawhan, Assistant Solicitor General
Schneiderman, and Cuomo:                       (Barbara D. Underwood, Solicitor General, Steven
                                               C. Wu, Deputy Solicitor General, on the brief), for
                                               Eric T. Schneiderman, Attorney General for the
                                               State of New York, New York, N.Y.

Appeal from the United States District Court for the Eastern District of New York (Vitaliano, J.;
Mann, M.J.).

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

        Kendall Browne appeals from the March 29, 2017 memorandum and order of the United
States District Court for the Eastern District of New York (Vitaliano, J.; Mann, M.J.) dismissing
his complaint, which sought to have certain New York state sentencing laws declared
unconstitutional. We assume the parties’ familiarity with the underlying facts, procedural history,
and specification of issues for review.

        We review de novo the dismissal of a complaint pursuant to Federal Rule of Civil
Procedure 12(b)(1) and (6), accepting all factual allegations as true and drawing all reasonable
inferences in plaintiff’s favor. Cayuga Nation v. Tanner, 824 F.3d 321, 327 (2d Cir. 2016) (Rule
12(b)(1)); Biro v. Condé Nast, 807 F.3d 541, 544 (2d Cir. 2015) (Rule 12(b)(6)). The complaint
must plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007); see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
Although a court must accept as true all the factual allegations in the complaint, that requirement
is “inapplicable to legal conclusions.” Iqbal, 556 U.S. at 678.

        In 2013, Browne pleaded guilty in state court to a violent felony. He was sentenced as a
second violent felony offender because of a prior conviction for a violent felony. He then brought
this federal lawsuit, challenging New York’s statutory scheme for enhanced sentences as
unconstitutionally vague, and seeking various forms of relief. We agree with the district court that
Browne’s claims are barred by prosecutorial and Eleventh Amendment immunity, and that Browne
lacks standing to bring suit on these claims. On appeal, Browne primarily challenges the district
court’s application of Eleventh Amendment immunity. At this juncture, he seeks only prospective
declaratory and injunctive relief, but lacks standing to do so.

       To have Article III standing, a party must show that (1) he “ha[s] suffered or [is]
imminently threatened with a concrete and particularized ‘injury in fact’” (2) that is “fairly
traceable to the challenged action of the defendant” and (3) that is “likely to be redressed by a
favorable judicial decision.” Lexmark Int’l, Inc. v. Static Control Components, Inc., 134 S. Ct.



                                                  2
1377, 1386 (2014) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)). “A plaintiff
seeking injunctive or declaratory relief cannot rely on past injury to satisfy the injury requirement
but must show a likelihood that he or she will be injured in the future.” Deshawn E. by Charlotte
E. v. Safir, 156 F.3d 340, 344 (2d Cir. 1998). Browne offers little more than speculation that he
will suffer some future injury, i.e., that he will again commit a violent felony, again be prosecuted
for that felony, and again be subjected to New York’s statutory scheme for enhanced sentences.
This is insufficient to demonstrate an “injury in fact.”

       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.

                                                      FOR THE COURT:
                                                      Catherine O’Hagan Wolfe, Clerk




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