09-0468-pr
Duemmel v. Fischer

                                    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 3rd day of March, two thousand and ten.

PRESENT:

          JOSÉ A. CABRANES,
          BARRINGTON D. PARKER,
                 Circuit Judges,
          EVAN J. WALLACH ,
                 Judge.*

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THOMAS DUEMMEL , and all others similarly situated,

                               Plaintiff-Appellant,

          v.                                                                               No. 09-0468-pr

BRIAN FISCHER, Commissioner, NYS Department of
Correctional Services, ROBERT DENNISON , Chairman of the
New York State Division of Parole,

                               Defendants-Appellees,

NEW YORK STATE DEPARTMENT OF CORRECTIONAL
SERVICES, DAVID PATERSON , Governor of the State of New
York, SUSAN O’CONNELL, Superintendent, Oneida
Correctional Facility,

                               Defendants.

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          *
         The Honorable Evan J. Wallach, of the United States Court of International Trade, sitting
by designation.

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FOR APPELLANT:                           Thomas Duemmel, pro se, Rome, New York.

FOR APPELLEES:                           Wayne L. Benjamin, Office of the Attorney General of the State
                                         of New York, Albany, New York.

        Appeal from a January 23, 2009 judgment of the United States District Court for the Northern
District of New York (Thomas J. McAvoy, Judge).

     UPON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of the District Court is AFFIRMED.

        Appellant Thomas Duemmel (“appellant”), pro se, appeals from a judgment entered after the
District Court, acting sua sponte, dismissed appellant’s complaint for failure to state a claim upon
which relief can be granted. See 28 U.S.C. §§ 1915(e)(2)(B), 1915A. We assume the parties’
familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.

       We review a district court’s sua sponte dismissal of a complaint de novo. See McEachin v.
McGuinnis, 357 F.3d 197, 200 (2d Cir. 2004). Undertaking that review, we affirm the District Court’s
dismissal of appellant’s complaint.

         First, as the District Court recognized, our case law holds that New York’s parole scheme “is
not one that creates in any prisoner a legitimate expectancy of release,” and thus “plaintiffs have no
liberty interest in parole, and the protections of the Due Process Clause are inapplicable.” Barna v.
Travis, 239 F.3d 169, 171 (2d Cir. 2001). In any event, “nothing in the due process concepts as they
have thus far evolved . . . requires the Parole Board to specify the particular ‘evidence’ in the
inmate’s file or at his interview on which it rests the discretionary determination that an inmate is
not ready for conditional release.” Greenholtz v. Inmates of Neb. Penal & Correctional Complex, 442 U.S.
1, 15 (1979). Accordingly, appellant’s due process claim with respect to his denial of parole was
correctly dismissed.

          Second, turning to appellant’s due process claim regarding his participation in a sex offender
treatment program, although appellant alleged that the program was a requirement for parole
eligibility, his claim is not one in which the defendant’s actions “will inevitably affect the duration of
his sentence.” Sandin v. Conner, 515 U.S. 472, 487 (1995). Appellant has not alleged that the
program creates a presumption of parole release. Furthermore, the fact that appellant has been
repeatedly denied parole even after completing the program belies any claim that his timely
enrollment in the program would have necessarily resulted in his earlier release. He also lacks
standing to challenge the removal of other inmates from the program.


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        Third, appellant’s equal protection claims were properly dismissed even though those claims
were not addressed by the District Court. See ACEquip Ltd. v. Am. Eng’g Corp., 315 F.3d 151, 155
(2d Cir. 2003) (“Our court may . . . affirm the district court’s judgment on any ground appearing in
the record, even if the ground is different from the one relied on by the district court.”). We have
previously held that “prisoners either in the aggregate or specified by offense are not a suspect
class.” Lee v. Governor of New York, 87 F.3d 55, 60 (2d Cir. 1996). In any event, appellant has not
alleged any facts from which it could be inferred that enrollment in required programs was delayed
for sex offenders but not other inmates.

        Fourth, any ex post facto claim appellant could be construed as raising is foreclosed by Barna,
239 F.3d at 171 (“The Ex Post Facto Clause does not apply to guidelines that . . . are promulgated
simply to guide the parole board in the exercise of its discretion.”).

        Finally, we decline to consider appellant’s remaining arguments, raised for the first time on
appeal, challenging the constitutionality of New York’s parole scheme as a whole and the parole
board’s consideration of unchanging factors such as the nature of the offense. See Singleton v. Wulff,
428 U.S. 106, 120-21 (1976) (“It is the general rule . . . that a federal appellate court does not
consider an issue not passed upon below.”).

                                           CONCLUSION

     For the foregoing reasons, the January 23, 2009 judgment of the District Court is
AFFIRMED.


                                                FOR THE COURT,

                                                Catherine O’Hagan Wolfe, Clerk of Court




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