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., 282 F.3d 147, 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, 550 U.S.
544, 570 (2007). Although factual allegations in the complaint are assumed to be true, this
tenet is “inapplicable to legal conclusions.” Ashcroft v. Iqbal, 556 U.S. 662, 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, 273 F.3d 56, 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, 115 F.3d 1098, 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., 949 F.2d 42, 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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