UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER THIS SUMMARY ORDER WILL NOT BE PUBLISHED IN THE FEDERAL REPORTER AND MAY NOT BE CITED AS PRECEDENTIAL AUTHORITY TO THIS OR ANY OTHER COURT, BUT MAY BE CALLED TO THE ATTENTION OF THIS OR ANY OTHER COURT IN A SUBSEQUENT STAGE OF THIS CASE, IN A RELATED CASE, OR IN ANY CASE FOR PURPOSES OF COLLATERAL ESTOPPEL OR RES JUDICATA.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, at Foley Square, in the City of New York, on the 6th day of October, two thousand and four.

PRESENT:

Hon. John M. Walker, Jr., Chief Judge, Hon. Pierre N. Leval, Hon. Robert A. Katzmann, Circuit Judges.

OSCAR PENA, Plaintiff-Appellant, v. 03-0172

JAMES RECORE, Director Temporary Release Programs; SONIA VARGAS, Corrections Counselor; ELNORA PORTER, Sr. Corrections Counselor, Defendant-Appellees.

FOR PLAINTIFF-APPELLANT Oscar Pena, pro se, Chateaugay, N.Y.

FOR DEFENDANT-APPELLEES Julie Loughran, Assistant Solicitor General (Eliot Spitzer, Attorney General of the State of New York, and Michelle Aronowitz, Deputy Solicitor General, on the brief), New York, NY.

Appeal from the United States District Court for the Eastern District of New York (Frederic Block, Judge).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the judgment of said district court be and it hereby is AFFIRMED.

Plaintiff-Appellant Oscar Pena appeals from a March 20, 2001

judgment of the United States District Court for the Eastern District of New York (Frederic Block, Judge), granting defendant-

appellees' motion for summary judgment with regard to Pena's due process claim under 42 U.S.C. § 1983, and denying Pena's cross-motion for further leave to amend his complaint. Familiarity with the facts and procedural history is assumed. We affirm.

On appeal, Pena argues that the district court erred in: 1)

determining that Pena had not made out a viable due process claim so as to withstand defendant-appellees' summary judgment motion; 2) concluding that the defendant-appellees sufficiently advised him of his burden in opposing summary judgment, see Local Civil Rule 56.2; 3) denying his motion to further amend his complaint as futile and as having been made with inordinate delay; and 4)

denying his Fed. R. Civ. P. 60(b) motion for reconsideration of the court's judgment. Pena also argues, for the first time on appeal, that he is entitled to further discovery pursuant to Fed.

R. Civ. P. 56(f) and 37(b)(2)(C).

Affording Pena all reasonable inferences upon defendant-

appellees' summary judgment motion, Make The Road by Walking, Inc. v. Turner, 378 F.3d 133, 142 (2d Cir. 2004), with regard to Pena's § 1983 claim, we agree with the district court that Pena did not adequately establish, even at the summary judgment stage, that defendants violated his due process rights. The undisputed facts show that, before he was removed from the temporary work release program, Pena was afforded all of the procedural protections required by due process under the circumstances. See Friedl v. City of New York, 210 F.3d 79, 84-85 (2d Cir. 2000).

We have carefully reviewed Pena's remaining arguments and find them to be without merit.

Accordingly, for the foregoing reasons, the judgment of the district court is hereby AFFIRMED.

FOR THE COURT:

Roseann B. MacKechnie, Clerk By:

Lucille Carr, Deputy Clerk