
    Karl AHLERS, Plaintiff-Appellant, v. Eliot SPITZER, Ex Governor, New York State, et al., Defendants-Appellees.
    No. 10-3764-pr.
    United States Court of Appeals, Second Circuit.
    Sept. 27, 2011.
    Karl Ahlers, pro se, Marcy, for Appellant.
    Joshua Pepper, Assistant Attorney General (of Counsel), Cecelia C. Chang, Assistant Solicitor General, Benjamin N. Gut-man, Deputy Solicitor General, Barbara D. Underwood, Solicitor General, Eric T. Schneiderman, Attorney General of the State of New York, New York, for Appellees.
    
      PRESENT: ROSEMARY S. POOLER, B.D. PARKER, DENNY CHIN, Circuit Judges.
   Appellant Karl Ahlers, proceeding pro se, appeals from the district court’s judgment granting the defendants’ motion to dismiss his 42 U.S.C. § 1983 action. We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.

In reviewing a district court’s dismissal of a complaint for lack of subject matter jurisdiction pursuant to Fed.R.Civ.P. 12(b)(1), we review factual findings for clear error and legal conclusions de novo, accepting all material facts alleged in the complaint as true and drawing all reasonable inferences in the plaintiffs favor. See Morrison v. Nat’l Austl. Bank Ltd., 547 F.3d 167, 170 (2d Cir.2008). Dismissal under Rule 12(b)(1) is proper “when the district court lacks the statutory or constitutional power to adjudicate” the case. Makarova v. United States, 201 F.3d 110, 113 (2d Cir.2000).

Having conducted an independent review of the record in light of these principles, we affirm the district court’s judgment for substantially the same reasons stated by the district court in its well-reasoned decision. On appeal, Ahlers primarily relies on case law standing for the proposition that, in order for an Article III case or controversy to exist, a plaintiff need not actually expose himself to liability before challenging a law as unconstitutional, as a case or controversy exists where a litigant is forced to choose between abandoning his rights or risking prosecution. See, e.g., MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 128-29, 127 S.Ct. 764, 166 L.Ed.2d 604 (2007). However, Ahlers has not alleged that he faces a threat of prosecution. Moreover, given the contingent nature of his release into a regimen of “strict and intensive supervision and treatment” and of the supervisory conditions imposed under that regimen, Ahlers has not been forced to choose between abandoning his rights or risking further confinement, and it is not certain when, or if, he will face such a dilemma. See generally N.Y. Mental Hyg. Law §§ 10.09, 10.11. In the cases relied on by Ahlers, unlike here, “the plaintiff ... eliminated the imminent threat of harm by simply not doing what he claimed the right to do.” MedImmune, 549 U.S. at 129, 127 S.Ct. 764.

We have considered Ahlers’s other arguments on appeal and have found them to be without merit. Accordingly, the judgment of the district court is hereby AFFIRMED.  