12-653
     Kearney v. Westchester County Department of Correction



                            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 20th day of December, two thousand twelve.

     PRESENT:
                 ROBERT A. KATZMANN,
                 BARRINGTON D. PARKER,
                 RICHARD C. WESLEY,
                       Circuit Judges.
     _________________________________________

     Walter Kearney,

                       Plaintiff-Appellant,

                       v.                                                  12-653

     Westchester County Department of Correction,

                 Defendant-Appellee.
     _________________________________________

     FOR APPELLANT:                      Walter Kearney, pro se, Mount Vernon, NY.

     FOR APPELLEE:                       Thomas G. Gardiner, Senior Assistant County Attorney (James
                                         Castro-Blanco, Chief Deputy County Attorney, on the brief),
                                         for Robert F. Meehan, County Attorney for the County of
                                         Westchester, White Plains, NY.
       Appeal from a judgment of the United States District Court for the Southern District

of New York (Seibel, J.).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

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

       Appellant Walter Kearney, proceeding pro se, appeals from the judgment of the

United States District Court for the Southern District of New York granting the defendant’s

motion to dismiss Kearney’s 42 U.S.C. § 1983 claim of false imprisonment under Federal

Rule of Civil Procedure 12(b)(6). We assume the parties’ familiarity with the underlying

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

       This Court reviews de novo a district court’s dismissal of a complaint pursuant to

Rule 12(b)(6), construing the complaint liberally, accepting all factual allegations in the

complaint as true, and drawing all reasonable inferences in the plaintiff’s favor. Chambers v.

Time Warner, Inc., 

, 152 (2d Cir. 2002). A complaint must plead “enough facts

to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 

, 570 (2007). Although factual allegations in the complaint are assumed to be true, this

tenet is “inapplicable to legal conclusions.” Ashcroft v. Iqbal, 

, 678 (2009). A

claim will have “facial plausibility when the plaintiff pleads factual content that allows the

court to draw the reasonable inference that the defendant is liable for the misconduct

alleged.” Id.

       Applying these standards, we conclude that the district court correctly granted the

defendant’s motion. To establish a claim for false imprisonment under section 1983 or New

York law, a plaintiff must allege that: (1) the defendant intended to confine him; (2) he was


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conscious of the confinement; (3) he did not consent to the confinement; and (4) the

confinement was not otherwise privileged. See Shain v. Ellison, 

, 67 (2d Cir.

2001). Here, Kearney cannot allege that his confinement was not privileged because the

Westchester County Department of Correction held him pursuant to a facially valid parole

warrant. See N.Y. Exec. Law § 259-i(3)(a)(i) (“A warrant issued pursuant to this section

shall constitute sufficient authority to the superintendent or other person in charge of any jail,

penitentiary, lockup or detention pen to whom it is delivered to hold in temporary detention

the person named therein.”); cf. Simms v. Vill. of Albion, 

, 1106 (2d Cir. 1997)

(“A police officer who relies in good faith on a warrant issued by a neutral and detached

magistrate upon a finding of probable cause is presumptively shielded by qualified immunity

from personal liability for damages.”). We may consider the parole warrant on a motion to

dismiss because Kearney attached it to his complaint. See Cortec Indus., Inc. v. Sum Holding

L.P., 

, 47 (2d Cir. 1991) (“[T]he complaint is deemed to include any written

instrument attached to it as an exhibit . . . .”). Because Kearney sued only the Westchester

County Department of Correction, and not the parole officer who issued the warrant, we need

not consider whether that officer had “reasonable cause” to issue the warrant. N.Y. Exec.

Law § 259-i(3)(a)(i).

       We also note that Kearney argues that his imprisonment was unlawful because “Penal

Law Sec. 70.40(b) does not require a person who has been conditionally released to continue

service of his sentence in accordance with and subject to the provisions of the Executive

Law.” Appellant’s Br. at 6. Subsection 70.40(1)(b), to which Kearney refers, establishes that

a person may “be conditionally released” under certain conditions and that “[t]he conditions

of release, including those governing post-release supervision, shall be such as may be
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imposed by the state board of parole in accordance with the provisions of the executive law.”

N.Y. Penal Law § 70.40(1)(b). The lack of the words “continue service of his sentence” is

immaterial, and Kearney’s apparent assertion that a parole warrant may not issue under the

executive law is unavailing.

       We have considered all of Kearney’s remaining arguments and find them to be

without merit. For the reasons stated above, the judgment of the district court is hereby

AFFIRMED.

                                             FOR THE COURT:
                                             Catherine O’Hagan Wolfe, Clerk




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