    10-3764-pr
    Ahlers v. Spitzer



                           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 27th day of September, two thousand eleven.

    PRESENT:
                ROSEMARY S. POOLER,
                BARRINGTON D. PARKER,
                DENNY CHIN,
                            Circuit Judges.
    __________________________________________

    Karl Ahlers,

                            Plaintiff-Appellant,

                            v.                                           10-3764-pr

    Eliot Spitzer, Ex Governor, New York State, et al.,

                      Defendants-Appellees.
    __________________________________________

    FOR APPELLANT:                  Karl Ahlers, pro se, Marcy, NY.

    FOR APPELLEES:                  Joshua Pepper, Assistant Attorney General (of Counsel), Cecelia
                                    C. Chang, Assistant Solicitor General, Benjamin N. Gutman,
                                    Deputy Solicitor General, Barbara D. Underwood, Solicitor
                                    General, Eric T. Schneiderman, Attorney General of the State of
                                    New York, New York, NY.

              Appeal from a judgment of the United States District Court for the Southern District of
New York (Scheindlin, J.).

       UPON DUE CONSIDERATION IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED.

       Appellant Karl Ahlers, proceeding pro se, appeals from the district court’s judgment

granting the defendants’ motion to dismiss his 42 U.S.C. § 1983 action. We assume the parties’

familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.

       In reviewing a district court’s dismissal of a complaint for lack of subject matter

jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1), we review factual findings for clear error and

legal conclusions de novo, accepting all material facts alleged in the complaint as true and

drawing all reasonable inferences in the plaintiff's favor. See Morrison v. Nat'l Austl. Bank Ltd.,

547 F.3d 167, 170 (2d Cir. 2008). Dismissal under Rule 12(b)(1) is proper “when the district

court lacks the statutory or constitutional power to adjudicate” the case. Makarova v. United

States, 201 F.3d 110, 113 (2d Cir. 2000).

       Having conducted an independent review of the record in light of these principles, we

affirm the district court’s judgment for substantially the same reasons stated by the district court

in its well-reasoned decision. On appeal, Ahlers primarily relies on case law standing for the

proposition that, in order for an Article III case or controversy to exist, a plaintiff need not

actually expose himself to liability before challenging a law as unconstitutional, as a case or

controversy exists where a litigant is forced to choose between abandoning his rights or risking

prosecution. See, e.g., MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 128-29 (2007).

However, Ahlers has not alleged that he faces a threat of prosecution. Moreover, given the

contingent nature of his release into a regimen of “strict and intensive supervision and treatment”


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and of the supervisory conditions imposed under that regimen, Ahlers has not been forced to

choose between abandoning his rights or risking further confinement, and it is not certain when,

or if, he will face such a dilemma. See generally N.Y. Mental Hyg. Law §§ 10.09, 10.11. In the

cases relied on by Ahlers, unlike here, “the plaintiff . . . eliminated the imminent threat of harm

by simply not doing what he claimed the right to do.” MedImmune, 549 U.S. at 129.

        We have considered Ahlers’s other arguments on appeal and have found them to be

without merit. Accordingly, the judgment of the district court is hereby AFFIRMED.


                                              FOR THE COURT:
                                              Catherine O’Hagan Wolfe, Clerk




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