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

by designation.

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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 3 day of March, two thousand and ten. rd

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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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