Argued: May 9, 2018
Before: Hall and Carney, Circuit Judges, and Koeltl, District
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.
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.
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.
Hall concurs in part and dissents in part in a separate
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.
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.
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. Id.
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).
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.
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).
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.
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.
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.
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
brought this action under 42 U.S.C. § 1983 seeking money
damages for alleged due process and double
jeopardy 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.
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 ...