10-1221-pr
Joyner-El-Qawi-Bey v. Russi


                 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 Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of New
York, on the 15th day of September, two thousand eleven.

PRESENT:     GUIDO CALABRESI,
             DENNY CHIN,
             SUSAN L. CARNEY,
                            Circuit Judges.

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WILLIAM L. JOYNER-EL-QAWI-BEY,
          Plaintiff-Appellant,

             -v.-                                     10-1221-pr

RAUL RUSSI, CHAIRMAN DIVISION OF PAROLE,
DENNIS BRESLIN, SUPERINTENDENT, ARTHUR
KILL CORRECTIONAL FACILITY, FRANKLIN
CORRECTIONAL FACILITY, BRIAN FISCHER,
COMMISSIONER, NEW YORK STATE DEPARTMENT
OF CORRECTIONAL SERVICES,
          Defendants-Appellees.
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FOR PLAINTIFF-APPELLANT:            WILLIAM L. JOYNER-EL-QAWI-BEY, pro
                                    se, Malone, New York.

FOR DEFENDANTS-APPELLEES:           BARBARA D. UNDERWOOD, Solicitor
                                    General (Richard Dearing, Deputy
                                    Solicitor General, Laura R.
                                    Johnson, Assistant Solicitor
                                    General of Counsel, on the brief),
                                    for Eric T. Schneiderman, Attorney
                                    General of the State of New York,
                                    New York, New York.
          Appeal from a judgment of the United States District

Court for the Eastern District of New York (Gleeson, J.).
          UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment of the district court is AFFIRMED.

          In 2009, plaintiff-appellant William Joyner-El-Qawi-Bey

("appellant"), proceeding pro se, brought a civil rights action
pursuant to 42 U.S.C. § 1983 against the New York State

Department of Correctional Services and its current and former

officials, seeking injunctive relief and compensatory damages.

Appellant alleges that defendants violated his constitutional

rights by administratively imposing a term of post-release

supervision in 2006, and continuing to enforce the supervision

term until his resentencing in 2009.   On March 23, 2010, the

district court granted defendants-appellees' motion to dismiss

appellant's claims for compensatory damages on the basis of

qualified immunity and the Eleventh Amendment.

          Our review of a district court's grant of a motion to

dismiss, based upon qualified immunity grounds and the Eleventh

Amendment, is de novo, accepting as true all material allegations

of the complaint and drawing all reasonable inferences in

plaintiff's favor.   Pena v. DePrisco, 432 F.3d 98, 107 (2d Cir.
2005).

          After having independently reviewed the record in light

of these principles, as to the claims for damages, we affirm the

judgment for substantially the reasons set forth in the district


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court's decision and in this Court's decision in Scott v.

Fischer, 616 F.3d 100 (2d Cir. 2010).    In addition, because

appellant did not challenge the district court's holding that his

claim against the Franklin Correctional Facility was barred by

the Eleventh Amendment, this claim is deemed abandoned.   See

LoSacco v. City of Middletown, 71 F.3d 88, 92-93 (2d Cir. 1995).

          The district court, however, did not discuss

appellant's claims for equitable relief.   In addition to seeking

damages, appellant had also sought injunctive relief in the form

of removal from the Division of Parole's supervision and custody.

Qualified immunity and sovereign immunity under the Eleventh

Amendment do not bar such claims for equitable relief.    Fulton v.
Goord, 591 F.3d 37, 45 (2d Cir. 2009) (holding injunctive relief

is not barred by the Eleventh Amendment); Adler v. Pataki, 185

F.3d 35, 48 (2d Cir. 1999) (holding that qualified immunity does

not bar actions for declaratory or injunctive relief).

          Nonetheless, based on the record below, the district

court did not err in dismissing all claims.   Upon appellant's

resentencing by the New York State Supreme Court, the court

reinstated its original sentence of four years with no period of

post-release supervision, thus terminating the Division of

Parole's custody of appellant.    This occurred approximately one

month after appellant filed the present underlying action in the

district court.   Therefore, appellant's claims for declaratory

and injunctive relief are moot.


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            We have considered appellant's other arguments on

appeal and have found them to be without merit.   For the

foregoing reasons, the judgment of the district court is hereby

AFFIRMED.


                           FOR THE COURT:
                           Catherine O'Hagan Wolfe, Clerk




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