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Reyes v. Fischer

United States Court of Appeals, Second Circuit

August 9, 2019

Ciara Reyes, AKA Sheila Rivera, Plaintiff-Appellee,
v.
Brian Fischer, former Commissioner of New York State Department of Correctional Services, in his individual capacity, Anthony J. Annucci, Acting Commissioner of the New York State Department of Corrections and Community Supervision, former Executive Deputy Commissioner, Deputy Commissioner, and Counsel of New York State Department of Correctional Services, in his individual capacity, Terrence X. Tracy, Chief Counsel for New York State Division of Parole, in his individual capacity, Defendants-Appellants, United States Marshals Service, New York State Division of Parole, Oni Penzarvis, Commissioner of the New York State Department of Correctional Services, Mrs. Williams, Superintendent, of Bedford Hills Correctional Facility for Women, John and Jane Does 1-20, New York State Department of Correctional Services Supervisory, Training, and Policy Personnel; New York State Division of Parole Supervisory, Training, and Policy Personnel; New York State Board of Parole Supervisory, Training, and Policy Personnel, in their individual capacity, Defendants.

          Argued: May 9, 2018

          Before: Hall and Carney, Circuit Judges, and Koeltl, District Judge. [*]

          John G. Koeltl, District Judge.

The defendants appeal from an order of the United States District Court for the Eastern District of New York (Donnelly, J.) finding that the defendants violated the constitutional right of the plaintiff, Ciara Reyes, to due process by administratively imposing a period of post-release supervision ("PRS") and that the defendants were not entitled to qualified immunity.

         As to the period of PRS that Reyes served from the expiration of her determinate sentences on November 27, 2008, until her judicial resentencing on December 5, 2008, we agree with the district court that the defendants deprived Reyes of her clearly established due process right to be free from administratively imposed PRS and that the defendants are not entitled to qualified immunity for that period. Accordingly, we AFFIRM the district court's order for that time period.

         As to the period of PRS that Reyes served from her initial release from prison on October 5, 2007, until her determinate sentences expired on November 27, 2008, there are material issues of fact as to whether that period of PRS was more onerous than the period of conditional release Reyes would have been subjected to without PRS and consequently whether Reyes was deprived of a liberty interest during that period. We therefore lack jurisdiction to determine whether the defendants are entitled to qualified immunity for their roles in subjecting Reyes to PRS during that period. Accordingly, with respect to the period of PRS imposed on Reyes from October 5, 2007, until November 27, 2008, we DISMISS the appeal for lack of jurisdiction and REMAND for further proceedings.

         Judge Hall concurs in part and dissents in part in a separate opinion.

         Plaintiff-appellee Ciara Reyes brought this action under 42 U.S.C. § 1983 alleging that her constitutional right to due process was violated when the defendants required her to serve an administratively imposed term of post- release supervision ("PRS") following her release from imprisonment after serving six-sevenths of two concurrent eight-year determinate sentences. The defendants-appellants Brian Fischer, the former Commissioner of the New York State Department of Correctional Services ("DOCS"); Anthony J. Annucci, the former Deputy Commissioner of DOCS; and Terrence X. Tracy, the former Chief Counsel for the New York State Division of Parole ("DOP"), bring this interlocutory appeal from the district court's order denying the defendants' motion for summary judgment on qualified immunity grounds and finding the defendants liable for violating Reyes's constitutional due process rights.

         This appeal requires us to consider whether the defendants are entitled to qualified immunity for administratively imposing PRS prior to a judicial imposition of such supervision. More specifically, the appeal addresses whether the defendants are entitled to qualified immunity for two periods: the period of PRS before the conclusion of a determinate sentence when a plaintiff would otherwise be on conditional release, and the period following the end of a determinate sentence before a judicially imposed period of PRS when a plaintiff would not otherwise have been under supervision.

         BACKGROUND

         A.

         In 1998, the New York State legislature enacted Penal Law § 70.45, which eliminated the parole system and provided that "[e]ach determinate sentence also includes, as a part therefor, an additional period of post-release supervision." Penal Law § 70.45(1) (McKinney 2005), amended by 2008 N.Y. Laws Ch. 141, § 3 (codified at N.Y. Penal Law § 70.45(1) (2009)). Under that provision, the period of PRS to follow most offenses was five years. Id. § 70.45(2). Although § 70.45 required that PRS terms follow determinate prison sentences, in the years after the statute's enactment, "many judges did not include PRS as part of the sentence imposed." Betances v. Fischer, 304 F.R.D. 416, 423 (S.D.N.Y. 2015). Between the years 1998 and 2008, when offenders did not receive a judicially pronounced term of PRS, DOCS unilaterally calculated and imposed PRS terms without consulting the sentencing judge.[1] Id.

         This Court first addressed the constitutionality of administratively imposed PRS terms in Earley v. Murray, 451 F.3d 71 (2d Cir. 2006) ("Earley I"), reh'g denied, 462 F.3d 147 (2d Cir. 2006) ("Earley II"). Earley I involved a prisoner who, while serving his sentence, learned that DOCS had added a period of PRS to his judicially pronounced determinate sentence. Id. at 73. Earley I held that administratively imposing PRS terms that were not judicially pronounced violates due process. Id. at 76 & n.1. This Court held that in cases where a PRS term was not judicially pronounced, the defendants had two options: "either to have [the offenders] resentenced by the court for the imposition of PRS terms in a constitutional manner or to excise the PRS conditions from their records and relieve [the offenders] of those conditions." Vincent v. Yelich, 718 F.3d 157, 172 (2d Cir. 2013).

         The defendants have appeared before this Court many times regarding their imposition of PRS, and their deliberate refusal to follow Earley I's holding is well documented. See, e.g., Hassell v. Fischer, 879 F.3d 41, 49 & n.15 (2d Cir. 2018) (noting that Fischer, Annucci, and Tracy understood Earley I's holding but decided not to follow it for many months); Betances v. Fischer, 837 F.3d 162, 167- 68 (2d Cir. 2016) (same); Vincent, 718 F.3d at 168-69 (discussing Annucci). Defendants Fischer, Annucci, and Tracy each understood the holding of Earley I, and that it "applied to their departments" "but deliberately refused to" comply. Betances, 837 F.3d at 167-68. The defendants waited "to implement Earley I for many months after that decision was rendered." Hassell, 879 F.3d at 49.

         In June 2008, the New York State Legislature passed Correction Law § 601- d to address the problem of DOCS's imposition of PRS terms that had not been pronounced by the sentencing judge. Section 601-d requires DOCS to notify the sentencing court of cases where the commitment order does not contain a term of PRS -- a signal to DOCS that PRS likely had not been judicially pronounced. N.Y. Correct. Law § 601-d(1), (2). When the sentencing court receives such notice from DOCS, § 601-d allows the court to hold a new hearing and impose a term of PRS, although it is not required to do so. See § 601-d(5).

         B.

         In 2001, Reyes was convicted of a violent assault and robbery, for which she received two concurrent eight-year determinate prison sentences. The sentencing judge pronounced Reyes's determinate sentences orally. The sentencing judge did not pronounce a term of PRS, nor was a term of PRS included in Reyes's Sentence and Order of Commitment.

         In September 2007, DOCS calculated a five-year term of PRS and unilaterally imposed that term on Reyes. Reyes signed a DOP form entitled "Certificate of Release to Parole Supervision, Determinate - Post Release Supervision" which stated that Reyes was subject to a PRS term to commence on October 5, 2007, and to end on October 5, 2012.

         Reyes's determinate prison sentences expired on November 27, 2008. However, New York law provides that an offender who serves six-sevenths of a determinate sentence and has earned sufficient good-time credit shall be released from prison early on conditional release, "if he or she so requests." N.Y. Penal Law § 70.40(1)(b); N.Y. Correct. Law § 803(c). A person released early on conditional release "shall be under the supervision of the state department of corrections and community supervision for a period equal to the unserved portion of the term." N.Y. Penal Law § 70.40(1)(b). Reyes met these conditions and was released from prison early on October 5, 2007 -- the date upon which she had completed six-sevenths of her determinate sentences. Her administratively imposed PRS sentence began that day.

         On October 14, 2008, defendant Tracy referred the plaintiff to a state court judge as a "designated person" who may require resentencing pursuant to Correction Law § 601-d. On November 6, 2008, the plaintiff was taken into custody and incarcerated for a violation of the conditions of the five-year PRS term. While in custody for the PRS violation, the maximum expiration date of Reyes's determinate sentences expired on November 27, 2008. On December 5, 2008 -- one week after her determinate sentences expired -- a state court judge resentenced Reyes under Correction Law § 601-d to two concurrent two-and- one-half year terms of PRS.[2]

         Reyes brought this action under 42 U.S.C. § 1983 seeking money damages for alleged due process and double jeopardy[3] violations arising from the administratively imposed PRS term. This appeal focuses on two time periods: first, the time that elapsed from Reyes's release from prison on October 5, 2007, until her determinate sentences expired on November 27, 2008; and second, the following week of PRS that ensued after her determinate sentences expired on November 27, 2008, until she was resentenced to PRS by a judge on December 5, 2008.

         The defendants moved for summary judgment, arguing that (1) Reyes's constitutional rights were not violated, (2) the defendants are entitled to qualified immunity, and (3) Reyes had not established that the defendants were personally involved in the alleged constitutional deprivation. Reyes v. Fischer, No. 13cv1239, 2017 WL 4350440, at *2, *8, *10-11 (E.D.N.Y. Mar. 16, 2017). Reyes also moved for summary judgment, arguing that the defendants violated her right to due process and that the defendants were not entitled to qualified immunity. Id. at *8. The district court found that the defendants violated Reyes's due process rights and were not entitled to qualified immunity. Id. at *12. The district court did not rule on the issue of damages because the parties had further discovery to conduct regarding the extent of Reyes's injuries. Id. The defendants moved for ...


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