09-3592-pr
C arnell v. Paterson



                               UNITED STATES COURT OF APPEALS
                                   FOR THE SECOND CIRCUIT

                                               SUMMARY ORDER
RULINGS BY SUMM ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUM M ARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN
CITING A SUM M ARY ORDER IN A DOCUM ENT FILED W ITH THIS COURT, A PARTY MUST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (W ITH THE NOTATION
“SUM M ARY ORDER”). A PARTY CITING A SUM M ARY ORDER M UST 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 14 th day of July, two thousand ten.

PRESENT:               REENA RAGGI,
                       GERARD E. LYNCH,
                       DENNY CHIN,
                                 Circuit Judges.

--------------------------------------------------------------------------------------
ANTHONY CARNELL,
                                                 Plaintiff-Appellant,

                             v.                                                          No. 09-3592-pr

DAVID A. PATERSON, GOVERNOR, MICHAEL R.
BLOOMBERG, MAYOR, ANDREW M. CUOMO,
ATTORNEY GENERAL, NEW YORK STATE
DIVISION OF PAROLE, PEOPLE OF THE STATE
OF NEW YORK, NEW YORK STATE DEPARTMENT
OF CORRECTIONS, AND NEW YORK STATE
DEPARTMENT OF CORRECTIONS RECORD
COORDINATOR,
                         Defendants-Appellees.
--------------------------------------------------------------------------------------

FOR APPELLANT:                                   Anthony Carnell, pro se, East Elmhurst, New York.

FOR APPELLEES:                                   Andrew M. Cuomo, Attorney General of the State of
                                    New York; Barbara D. Underwood, Solicitor General;
                                    Laura L. Johnson, Assistant Solicitor General, New
                                    York, New York.

       Appeal from the United States District Court for the Eastern District of New York

(John Gleeson, Judge).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the district court’s July 31, 2008 and July 29, 2009 orders are AFFIRMED.

       Pro se plaintiff Anthony Carnell appeals from the district court’s dismissal of his

claim that New York state prison officials violated his civil rights by confining him for

longer than his sentence. See U.S. Const. amend VIII; 42 U.S.C. § 1983; Fed. R. Civ. P.

12(b)(6).1 We review the dismissal of a complaint de novo, accepting all factual allegations

as true and drawing all reasonable inferences in plaintiff’s favor. See Holmes v. Grubman,

, 335 (2d Cir. 2009). In applying this standard, we assume the parties’

familiarity with the facts and record of prior proceedings, which we reference only as

necessary to explain our decision to affirm.

       1.     Post-Release Supervision Claim

       Carnell submits that defendants violated his constitutional rights by adding a five-year

term of post-release supervision to his 2000 sentence for second-degree burglary.


       1
         Because Carnell does not argue that the district court erred in entering summary
judgment for defendants on his claim that medical testing procedures for new inmates
constitute cruel and unusual punishment, we deem any such argument abandoned. See
LoSacco v. City of Middletown, 

, 92-93 (2d Cir. 1995) (holding that pro se litigant
abandoned issue insufficiently raised on appeal).

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“Government actors have qualified immunity [from] § 1983 claims insofar as their conduct

does not violate clearly established statutory or constitutional rights of which a reasonable

person would have known.” Bolmer v. Oliveira, 

, 141 (2d Cir. 2010) (internal

quotation marks omitted); see also Pearson v. Callahan, 

, 818 (2009)

(permitting courts to determine first whether right was clearly established). At the time

Carnell served his sentence, a term of post-release supervision was automatically imposed

as part of any determinate sentence. See People v. Adams, 

, 76, 

, 331 (1st Dep’t 2004); People v. Lindsey, 

, 129, 

, 119

(3d Dep’t 2003); People v. Bloom, 

, 838, 

, 763 (4th Dep’t

2000); see also N.Y. Penal Law § 70.45(1) (“When a court imposes a determinate sentence

it shall in each case state not only the term of imprisonment, but also an additional period of

post-release supervision . . . .”). Indeed, Carnell was released in April 2006, before any court

ever questioned the constitutionality of this practice. See Earley v. Murray, 

, 76-

77 (2d Cir. 2006) (decided June 9, 2006). Accordingly, we conclude that defendants are

entitled to qualified immunity on this claim. Cf. Vives v. City of New York, 

,

117 (2d Cir. 2005) (“[S]tate officials are entitled to rely on a presumptively valid state statute

until and unless the statute is declared unconstitutional.” (brackets and ellipses omitted)).




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       2.     Delayed Release Claim

       Carnell contends that he is entitled to damages for having been released from the

custody of the New York State Department of Correctional Services after his sentence

actually expired. Counting Carnell’s three misdemeanor sentences consecutively and as

interrupting his term of post-release supervision, see N.Y. Penal Law §§ 70.15, 70.25(1)(b),

70.40(3), the district court concluded that Carnell was actually released four days before his

post-release supervision should have ended. Because he was not arrested for his third

misdemeanor until October 25, 2005, Carnell submits that the district court erred in

attributing to his third misdemeanor sentence the period between August 10, 2005, when the

district court stopped counting parole jail time, and October 25, 2005, when he was actually

arrested for petit larceny. Under this calculation, Carnell’s term of post-release supervision

would have expired on March 19, 2006, twenty-two days before his actual release on April

10, 2006. But, on that date, Carnell would still have had at least a month remaining on the

six-month sentence imposed following his October 25 petit larceny arrest. Thus, even if

Carnell’s post-release supervision would have ended sooner than the district court thought,

Carnell still would not have been entitled to be released from custody until April 25, 2006,

fifteen days after his actual April 10, 2006 release.

       Because Carnell cannot state an Eighth Amendment claim that he was held in custody

beyond the term prescribed by law, see ACEquip Ltd. v. Am. Eng’g Corp., 

,




                                              4
155 (2d Cir. 2003) (permitting affirmance on any ground appearing in record), we need not

address the state’s qualified immunity arguments.

       We have considered Carnell’s other arguments on appeal and conclude that they are

without merit. Accordingly, we affirm the July 31, 2008 and July 29, 2009 orders of the

district court.

                           FOR THE COURT:
                           CATHERINE O’HAGAN WOLFE, Clerk of Court




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