Santiago v. Fischer et al

Filing 34

MEMORANDUM & ORDER granting in part and denying in part 27 Defendants' Motion for Judgment on the Pleadings. For the reasons set forth in the attached Memorandum and Order, the Court grants in part and denies in part Defendants' motion for judgment on the pleadings. Plaintiff's claims for Defendants' imposition and enforcement of his unlawful post-release supervision term that pre-dated the Second Circuit's decision in Earley v. Murray, 451 F.3d 71 (2d Cir. 2 006), are dismissed as Defendants are entitled to qualified immunity as to those claims. The Court denies Defendants' motion as to Plaintiff's claims based on Defendants' post-Earley conduct. Ordered by Judge Margo K. Brodie on 3/21/2016. (Rolle, Drew)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
--------------------------------------------------------------OMAR SANTIAGO,
Plaintiff,
v.

MEMORANDUM & ORDER
09-CV-1383 (MKB)

BRIAN FISCHER and ANTHONY ANNUCCI,
Defendants.
--------------------------------------------------------------MARGO K. BRODIE, United States District Judge:
On April 2, 2009, Plaintiff, who is currently proceeding pro se, commenced this action
pursuant to 42 U.S.C. § 1983 against Brian Fischer, the former Commissioner of the New York
State Department of Correctional Services (“DOCS”), Anthony J. Annucci, former DOCS
Deputy Commissioner and Counsel, Lucien Leclaire, Jr., former DOCS Acting Commissioner,
Glenn S. Goord, former DOCS Commissioner, and John/Jane Does 1–50, who include DOCS
supervisory, training and policy making personnel. (Compl. ¶¶ 10–14, Docket Entry No. 1.)
Plaintiff alleged violations of his rights under the Fourteenth Amendment to the United States
Constitution arising from the imposition and enforcement of a term of post-release supervision
against Plaintiff. (Id. ¶¶ 28–40.) Defendants moved to dismiss all of Plaintiff’s claims. On
November 18, 2009, the Honorable Dora Irizarry granted in part and denied in part Defendants’
motion, dismissing Defendants Leclaire and Goord from the action. 1 Santiago v. Fischer, No.
09-CV-1383, 2009 WL 3852001, at *9 (E.D.N.Y. Nov. 18, 2009).

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On March 26, 2012, this action was reassigned from Judge Irizarry to the undersigned.
(ECF Entry dated Mar. 26, 2012.)

On July 29, 2011, Defendants answered the Complaint. 2 (Answer, Docket Entry No. 19.)
On November 10, 2014, Defendants moved for judgment on the pleadings pursuant to Rule 12(c)
of the Federal Rules of Civil Procedure. (Defs. Mot. for J. on the Pleadings (“Defs. Mot.”),
Docket Entry No. 27; Defs. Mem. in Supp. of Defs. Mot. (“Defs. Mem.”), Docket Entry No. 28.)
For the reasons discussed below, the Court grants in part and denies in part Defendants’ motion.
I.

Background
a.

Factual background

On or about October 30, 2001, Plaintiff was sentenced to three years’ incarceration for
committing second degree assault. (Compl. ¶ 16.) The sentencing judge imposed a term of
incarceration, and did not impose a term of post-release supervision (“PRS”). (Id.) However, on
April 6, 2004, when Plaintiff completed his three-year sentence, DOCS administratively imposed
a five-year term of PRS on Plaintiff, which was scheduled to expire on August 13, 2009. (Id.)
On June 9, 2006, two years into Plaintiff’s PRS term, the Second Circuit granted a habeas
petition filed by an individual incarcerated on an administratively-imposed PRS term, and held
that it violated the due process clause for DOCS to administratively impose PRS terms in cases
where the sentencing judge did not impose a PRS term. Earley v. Murray, 451 F.3d 71, 75–76 &
n.1 (2d Cir. 2006) (citing Hill v. United States ex rel. Wampler, 298 U.S. 460, 464 (1936)); (see
also Compl. ¶ 24 (citing Earley, 451 F.3d at 75–76).) The Second Circuit held that that clearly
established Supreme Court precedent prohibited PRS terms that were imposed only by DOCS
and not sentencing judges and stated that “[t]he only cognizable sentence is the one imposed by
the judge” and that “[a]ny alteration to that sentence, unless made by a judge in a subsequent

2

On July 30, 2012, Magistrate Judge Robert Levy granted Plaintiff’s counsel’s motion to
withdraw. (Order dated July 30, 2012.)
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proceeding, is of no effect.” Earley, 451 F.3d at 75. As a result, “[a]ny addition to that sentence
not imposed by the judge was unlawful” and the petitioner’s administratively-imposed PRS term
was, therefore, invalid. Id.
Despite the 2006 ruling in Earley, Plaintiff’s PRS term remained in effect. (Compl.
¶ 17.) On February 27, 2008, a parole violation warrant was issued for Plaintiff’s arrest based on
Plaintiff’s violations of his PRS terms. (Id.) After his arrest, Plaintiff was re-incarcerated until
April 17, 2008. (Id.) On April 29, 2008, two years after Earley, the New York State Court of
Appeals struck down administratively-imposed terms of PRS as inconsistent with the New
York Criminal Procedure Law. See People v. Sparber, 10 N.Y.3d 457, 470 (2008); Garner v.
N.Y.S. Dep’t of Corr. Servs., 10 N.Y.3d 358, 362 (2008). In response, the New York State
legislature enacted Correctional Law section 601-d and Penal Law section 70.85, which took
effect on June 30, 2008 and required that individuals who were subject to administrativelyimposed terms of PRS be resentenced. N.Y. Corr. L. § 601-d; N.Y. Penal L. § 70.85.
On or about September 5, 2008, Plaintiff was again arrested for violating the terms of his
PRS, which were still in effect at the time, and he was re-incarcerated. (Compl ¶ 18.) During
that re-incarceration, pursuant to the New York Court of Appeals’ decision in Sparber, and under
Correction Law § 601-d, Plaintiff was brought before the trial court that had originally sentenced
him on the underlying second degree assault conviction. (Defs. Decl. in Supp. Mot. to Dismiss,
Ex. C., Docket Entry No. 7.) The trial judge declined to impose PRS on Plaintiff “in the interests
of justice and equity.” (Id.; Compl. ¶ 19.) Thereafter, on December 8, 2008, Plaintiff was
released pursuant to a writ of habeas corpus. (Compl. ¶ 19.)
Following his release, Plaintiff commenced this action, claiming that Defendants acted
“[i]n flat defiance of [Earley’s] clear constitutional commands” and “promulgated, implemented,

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enforced, and/or failed to rectify a policy practice, and custom mandating administrative
imposition and enforcement of PRS on persons without authorization from a sentencing court.”
(Id. ¶ 25.) Plaintiff alleges that Defendants’ “policy, practice, and custom [of] mandating the
imposition and enforcement of PRS on individuals not sentenced to PRS” was “promulgated,
effectuated, and/or enforced in bad faith and contrary to clearly established law.” (Id. ¶ 22.)
According to Plaintiff, both Defendants Fischer and Annucci were “responsible for enforcing the
rules of DOCS, and for ensuring that DOCS personnel obey the Constitution and laws of the
United States.” (Id. ¶¶ 10–11.)
b.

Procedural background

After Plaintiff commenced this action, the Court granted in part and denied in part
Defendants’ motion to dismiss, dismissing Plaintiff’s state law claims, all claims against
Defendants in their official capacities, and all claims against certain Defendants in their
individual capacities. Santiago, 2009 WL 3852001, at *9. Only the claims against Defendants
Fischer and Annucci in their individual capacity survived, and the Court denied them qualified
immunity. Id. Defendants appealed the denial of qualified immunity to the Second Circuit.
(Docket Entry No. 16.) On October 4, 2010, pursuant to a stipulation between the parties,
Defendants withdrew their appeal. (Docket Entry No. 20.)
On July 29, 2011, Defendants answered the Complaint. (Answer ¶¶ 28–34.) Thereafter,
the parties requested a number of adjournments and extensions in light of ongoing state and
federal litigation related to the legal issues underlying Plaintiff’s claims and Defendants’
qualified immunity defense. (Min. Entry dated Mar. 28, 2012; Min. Entry dated May 4, 2012;
Min. Entry dated June 1, 2012.) On September 18, 2012, the case was stayed pending a
decision by the New York State Court of Appeals related to the imposition of PRS terms. (Min.

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Entry dated Sept. 18, 2012.) The stay remained in effect through the Second Circuit’s 2013
decision in Vincent v. Yelich, 718 F.3d 157 (2d Cir. 2013), cert. denied sub. nom. Vincent v.
Yelich, --- U.S. ---, 135 S. Ct. 948 (2015), and through the July 2014 denial of an en banc
rehearing in Vincent. (Min. Entry dated June 5, 2013; Min. Entry dated July 30, 2014.)
Thereafter, Defendants moved for judgment on the pleadings. (Docket Entry No. 27.)
II. Discussion
a.

Standard of review

“In deciding a Rule 12(c) motion, [courts] ‘employ[ ] the same . . . standard applicable to
dismissals pursuant to [Rule] 12(b)(6). Thus, [courts] will accept all factual allegations in the
[c]omplaint as true and draw all reasonable inferences in [the plaintiff’s] favor.’” L-7 Designs,
Inc. v. Old Navy, LLC, 647 F.3d 419, 429 (2d Cir. 2011) (second, third and fifth alteration in
original) (quoting Johnson v. Rowley, 569 F.3d 40, 43 (2d Cir. 2009)); Cleveland v. Caplaw
Enters., 448 F.3d 518, 521 (2d Cir. 2006) (“The standard for addressing a Rule 12(c) motion for
judgment on the pleadings is the same as that for a Rule 12(b)(6) motion to dismiss for failure to
state a claim.” (citation omitted)). “To survive a Rule 12(c) motion, the complaint must contain
sufficient factual matter to ‘state a claim to relief that is plausible on its face.’” Graziano v.
Pataki, 689 F.3d 110, 114 (2d Cir. 2012) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544,
570 (2007)). “A claim is plausible ‘when the plaintiff pleads factual content that allows the court
to draw the reasonable inference that the defendant is liable for the misconduct alleged.’”
Matson v. Bd. of Educ. of City Sch. Dist. of N.Y., 631 F.3d 57, 63 (2d Cir. 2011) (quoting
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)) (discussing Rule 12(b)(6)); see also Pension Ben.
Guar. Corp. ex rel. St. Vincent Catholic Med. Ctrs. Ret. Plan v. Morgan Stanley Inv. Mgmt. Inc.,
712 F.3d 705, 717–18 (2d Cir. 2013). However, the court need not accord “a legal conclusion

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couched as a factual allegation” the same presumption of truthfulness. N.J. Carpenters Health
Fund v. Royal Bank of Scot. Grp., PLC, 709 F.3d 109, 120 (2d Cir. 2013) (quoting Iqbal, 556
U.S. at 678).
b.

Plaintiff has stated an actionable deprivation of his constitutional rights

Defendants assert that Plaintiff has failed to state any claim against Defendants based on
the imposition and enforcement of Plaintiff’s PRS term. (Defs. Mem. 10–14.) Relying on the
Second Circuit’s decision in Scott v. Fischer, 616 F.3d 100 (2d Cir. 2010), Defendants argue
that Plaintiff cannot state an actionable constitutional deprivation based on any of the following
acts: DOCS’ failure to revoke Plaintiff’s PRS term, the revocation of Plaintiff’s PRS and his
re-incarceration, or DOCS’ failure to release Plaintiff from re-incarceration or to have Plaintiff
resentenced. (Defs. Mem. 11–12.) In a single-page response, Plaintiff rests on the arguments
made in his opposition to Defendants’ motion to dismiss. (Pl. Opp’n Letter Mot. (“Pl.
Opp’n”) 1, Docket Entry No. 32.)
“To prevail on a claim under 42 U.S.C. § 1983, a plaintiff must allege (1) ‘that some
person has deprived him of a federal right,’ and (2) ‘that the person who has deprived him of that
right acted under color of state . . . law.’” Velez v. Levy, 401 F.3d 75, 84 (2d Cir. 2005)
(alteration in original) (quoting Gomez v. Toledo, 446 U.S. 635, 640 (1980)). As the Second
Circuit held in Earley, when an individual is subjected to a PRS term that has been imposed
administratively rather than by the sentencing judge, the individual has been deprived of due
process rights guaranteed by the Fourteenth Amendment. Earley, 451 F.3d at 75–76.
Even where there has been a constitutional deprivation, to state a claim for a damage
award under Section 1983, a plaintiff must also allege the defendant’s direct or personal
involvement in the alleged constitutional deprivation. Victory v. Pataki, --- F.3d. ---, ---, 2016

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WL 373869, at *13 (2d Cir. Feb. 1, 2016) (The “personal involvement of defendants in alleged
constitutional deprivations is a prerequisite to an award of damages under § 1983.” (internal
quotation marks omitted) (quoting Farrell v. Burke, 449 F.3d 470, 484 (2d Cir. 2006))); Grullon
v. City of New Haven, 720 F.3d 133, 138 (2d Cir. 2013) (“[T]o establish a defendant’s individual
liability in a suit brought under § 1983, a plaintiff must show, inter alia, the defendant’s personal
involvement in the alleged constitutional deprivation.” (citations omitted)). Accordingly, “[a]
defendant’s supervisory authority is insufficient in itself to demonstrate liability under § 1983.”
LaMagna v. Brown, 474 F. App’x 788, 789 (2d Cir. 2012) (citing Richardson v. Goord, 347 F.3d
431, 435 (2d Cir. 2003)). A defendant’s personal involvement may be shown by evidence that:
(1) the defendant participated directly in the alleged constitutional
violation, (2) the defendant, after being informed of the violation
through a report or appeal, failed to remedy the wrong, (3) the
defendant created a policy or custom under which unconstitutional
practices occurred, or allowed the continuance of such a policy or
custom, (4) the defendant was grossly negligent in supervising
subordinates who committed the wrongful acts, or (5) the
defendant exhibited deliberate indifference to the rights of inmates
by failing to act on information indicating that unconstitutional
acts were occurring.
Grullon, 720 F.3d at 139 (emphasis omitted) (quoting Colon v. Coughlin, 58 F.3d 865, 873 (2d
Cir. 1995)). As a result, liability may attach “when an official has actual or constructive notice
of unconstitutional practices and demonstrates ‘gross negligence’ or ‘deliberate indifference’ by
failing to act.” Meriwether v. Coughlin, 879 F.2d 1037, 1048 (2d Cir. 1989) (quoting McCann v.
Coughlin, 698 F.2d 112, 125 (2d Cir. 1983)).
In denying Defendants’ motion to dismiss, Judge Irizarry held that Plaintiff alleged an
actionable deprivation of his constitutional rights arising from the administrative imposition and
enforcement of his PRS term. See Santiago, 2009 WL 3852001, at *4 (“[P]laintiff is clearly
alleging a violation of the Fourteenth Amendment’s right against deprivation of liberty ‘without
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due process of law.’”). As Judge Irizarry previously noted, “Plaintiff’s complaint accuses
[D]efendants of ‘promulgat[ing], implement[ing], enforc[ing], and/or fail[ing] to rectify’ the
DOCS policy of administratively imposing PRS, despite the fact that Earley found this policy
unconstitutional.” Id. (citing Compl. ¶ 7). Defendants now argue that, in light of Second Circuit
decisions that post-date Judge Irizarry’s decision, it is clear that Plaintiff has not stated a
constitutional deprivation. (Defs. Mem. 10–14.) As discussed below, however, Defendants’
arguments are premised on a misreading of the Second Circuit decisions on which they rely and
on a recasting of Plaintiff’s Complaint.
In support of their motion for judgment on the pleadings, Defendants rely primarily on
the Second Circuit’s post-Earley decision in Scott. (Id. at 10–12.) In Scott, the plaintiff had
been sentenced in July of 1999 and, upon his release in July of 2002, he was subject to an
administratively-imposed PRS term that was not mentioned at his sentencing. Scott, 616 F.3d at
103. Prior to the decision in Earley, the plaintiff violated the terms of his PRS and was arrested
based on the issuance of an arrest warrant. Id. He was thereafter sentenced to an additional term
of incarceration. Id. During his incarceration, the plaintiff obtained habeas relief, and he
subsequently filed a section 1983 action against the defendant, Fischer, who “caused” his arrest
warrant to issue. Id. at 103–104. In addition to Fischer, the plaintiff also brought claims against
other defendants who “actively participated” in the unconstitutional conduct. Id. The Second
Circuit affirmed the district court’s grant of qualified immunity to the defendants for claims
related to their pre-Earley conduct, holding that “it was not clearly established for qualified
immunity purposes prior to Earley that the administrative imposition of PRS violates the Due
Process Clause.” Id. at 107.
The Second Circuit also rejected the argument presented by the Scott plaintiff that the

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DOCS defendants were liable for their failure to act after Earley was decided, noting that the
complaint was devoid of any allegations to support such a claim. Id. at 108. The Second Circuit
emphasized that:
The only allegation contained in the complaint that addresses the
[DOCS] defendants’ purportedly unconstitutional actions with
respect to Scott’s PRS is that they “adopted, approved, and/or
ratified the imposition of mandatory PRS on individuals such as
plaintiff sentenced to determinate terms of imprisonment in New
York State courts but not sentenced to mandatory PRS.”
Id. at 108 (brackets and citation omitted). As a result, the Second Circuit rejected the plaintiff’s
arguments that the DOCS defendants were liable for failing to excise the plaintiff’s PRS term
and to either release the plaintiff from prison or have her resentenced. Id. at 109 (“[N]o facts are
alleged in the complaint that would support a finding that [DOCS] had the power, through its
employees, unilaterally to revoke Scott’s PRS despite the conceded fact that [DOCS] had
imposed it.”); id. at 110 (“There is no allegation of a failure to release or failure to seek
resentencing in [the] complaint.”).
While Scott dismissed the plaintiff’s claims, it did not alter Earley’s holding — that
administratively-imposed PRS terms violate due process — which the Second Circuit reaffirmed
in Vincent. Vincent, 718 F.3d at 166. In Vincent, the Second Circuit upheld a group of
plaintiffs’ claims against Annucci, based on his alleged failure to act after Earley to rectify
unlawful PRS terms. Id. at 178. The plaintiffs in Vincent, who had been subjected to
administratively-imposed PRS terms, and brought an action against multiple DOCS officials,
including Annucci and Fischer. Id. at 161. The plaintiffs alleged that the DOCS defendants
knew that the plaintiffs had not been sentenced to PRS terms, and that the DOCS defendants
“unlawfully and unconstitutionally devised and promulgated a DOCS policy of administratively
adding a five-year PRS period to prisoners’ records even if the sentencing court had failed to
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mention PRS.” Id. at 164.
The Second Circuit vacated the grant of qualified immunity to Annucci for claims related
to the enforcement of administratively-imposed PRS terms, and the Second Circuit explicitly
distinguished the insufficient pleadings at issue in Scott. Id. at 171. The Second Circuit noted
that in Scott, the complaint “did not assert that DOCS failed to relieve Scott of the PRS
conditions imposed on her in 2002 or to remove PRS from her record,” and that “even read
‘liberally . . . [Scott’s] challenge [was] directed at the administrative imposition of PRS, not the
failure to take action to remove it after it was imposed.’” Id. (quoting Scott, 616 F.3d at 108).
By contrast, the complaint in Vincent “differ[ed] from Scott in that [the Vincent plaintiffs]
challenged the enforcement of administratively imposed PRS.” Id. In vacating the grant of
qualified immunity, the Second Circuit explained that after Earley, “the State was required either
to have [the plaintiffs] 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 them of
those conditions.” Id. at 172. Because the complaint in Vincent alleged that Annucci took no
action and, instead, continued enforcing unlawful PRS terms, those allegations established that
he violated clearly established law and was therefore not entitled to qualified immunity. See id.
at 173–74.
Here, consistent with Judge Irizarry’s prior denial of Defendants’ motion to dismiss, the
Court finds that Plaintiff has plausibly alleged a deprivation of his constitutional rights and
Defendants’ participation in that violation. Defendants do not dispute that Plaintiff was
subjected to an administratively-imposed PRS term and that Plaintiff was re-incarcerated on two
occasions pursuant to the enforcement of that PRS term. (Answer ¶ 18.) In light of Earley,
those facts plausibly allege a due process violation. See Earley, 451 F.3d at 75–76. As to these

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specific Defendants, Plaintiff has plausibly alleged their involvement in that due process
violation. Plaintiff’s allegations include precisely the allegations the Second Circuit found to be
critically absent from the complaint in Scott and present in the complaint in Vincent: Defendants’
failure to act in light of Earley. Compare Scott, 616 F.3d at 109–10 (identifying deficient
pleadings) with Vincent, 718 F.3d at 171–72 (distinguishing Scott’s deficient pleadings).
Plaintiff alleges that Fischer, “[a]s the Commissioner of DOCS,” and Annucci, “[a]s Deputy
Commissioner of, and Counsel to, DOCS,” were both “responsible for enforcing the rules of
DOCS, and for ensuring that DOCS personnel obey the Constitution and laws of the United
States.” (Compl. ¶¶ 10–11.) As Judge Irizarry recognized in denying Defendants’ motion to
dismiss, Plaintiff alleges that after administratively imposing his PRS term, Defendants ignored
Earley’s clear holding by “‘promulgat[ing], implement[ing], enforc[ing], and/or fail[ing] to
rectify’ the DOCS policy of administratively imposing PRS.” Santiago, 2009 WL 3852001,
at *4 (alterations in original). According to Plaintiff, Defendants’ continued enforcement
and failure to act were in bad faith and directly caused Plaintiff to be re-incarcerated. (Compl.
¶¶ 21–22, 27.) Taking Plaintiff’s allegations of Defendants’ inaction as true, these allegations
are sufficient to plausibly allege that Defendants knowingly enforced the unlawful PRS terms or
were deliberately indifferent to the ongoing due process violations created by those PRS terms. 3

3

Citing Scott, Defendants also argue that Plaintiff lacks standing for his claims because
Plaintiff has not alleged that he would have been released earlier had DOCS moved to release
him prior to his writ of habeas corpus. (Defs. Mem. 19–20.) In Scott, the Second Circuit stated
in dicta that assuming the plaintiff had stated a constitutional violation based on DOCS’ failure
to release her from custody, because the plaintiff agreed that DOCS lacked authority to grant
such a remedy, it was unlikely that there was any injury-in-fact traceable to DOCS. Scott v.
Fischer, 616 F.3d 100, 111 (2d Cir. 2010). Here, as discussed above, Plaintiff’s claims are
unlike those in Scott and are more akin to those in Vincent, as they focus on DOCS’ initial
imposition of the unlawful PRS term and subsequent failure to excise or prevent enforcement of
that PRS term even after Earley, rather than on DOCS’ failure to release Plaintiff from custody.
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Defendants argue that they lacked the ability to unilaterally revoke Plaintiff’s PRS term.
(Defs. Mem. 11.) This argument is inapposite, and it recasts Plaintiff’s complaint to mimic the
claims in Scott, where the plaintiff asserted that DOCS committed a constitutional violation by
failing to unilaterally revoke her PRS term. Scott, 616 F.3d at 109. The Second Circuit
explicitly distinguished this argument in Vincent, noting that “[a]lthough Scott concluded . . . that
there was no pleaded basis on which to rule that Earley I obligated [DOCS] ‘unilaterally’ to
revoke Scott’s PRS,” Earley “afford[ed] the State two alternatives” for individuals subject to
unlawful PRS terms: (1) “have them resentenced by the court for the imposition of PRS terms in
a constitutional manner” or (2) “excise the PRS conditions from their records and relieve them of
those conditions.” Vincent, 718 F.3d at 172. As the Second Circuit found, it was DOCS’ failure
to take this or any “prompt action” after Earley that supported the Vincent plaintiff’s claim based
on the defendants’ deliberate indifference to the constitutional violations. Id. at 173. Likewise,
here, the Court finds that Plaintiff’s allegations regarding Defendants’ inaction after Earley to be
sufficient, even assuming DOCS could not unilaterally revoke Plaintiff’s PRS term.
For the same reasons, Defendants’ alleged lack of involvement in Plaintiff’s PRS
violation proceeding and parole revocation proceeding is also unavailing. In Vincent, the Second
Circuit addressed this same argument and found that the issue of Annucci’s role in a parole
revocation proceeding was inapposite because the claim against Annucci was not based on his
role in revoking the plaintiff’s parole, but arose instead from DOCS’ ensuing custody of the
See Vincent v. Yelich, 718 F.3d 157, 172 (2d Cir. 2013). Framed in this manner, because of
DOCS’ conduct, Plaintiff suffered an injury-in-fact when he was subjected to an
administratively-imposed PRS term and later re-incarcerated. Vincent, 718 F.3d at 173 (“[A]s
punishment for their PRS violations they were returned to the custody of DOCS. . . [In Earley]
we ruled that DOCS’s ensuing custody . . . for such violations was unlawful.”); Earley v.
Murray, 451 F.3d 71, 76 (2d Cir. 2006) (“[C]learly established Supreme Court precedent renders
the five-year PRS term added to Earley’s sentence by DOCS invalid . . . .”).
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plaintiff after the violation of the unlawful PRS. Vincent, 718 F.3d at 173 (noting that “as
punishment for their PRS violations [the plaintiffs] were returned to the custody of DOCS”
therefore, as noted in Earley, “whether DOCS had any participation in the parole revocation
proceedings for alleged violation of PRS conditions, . . . DOCS’s ensuing custody of [the
plaintiffs] for such violations was unlawful”). Similarly, here, in addition to relying on
allegations not found in the Complaint, Defendants attempt to reframe Plaintiff’s allegations as
concerning Defendants’ role in his parole revocation proceeding. However, Plaintiff’s claims do
not arise from Defendants’ role in those proceedings. They arise from Defendants’ “flat
defiance” of Earley in continuing to enforce, and failing to rectify, Plaintiff’s unlawful PRS
term, which resulted in his re-incarceration. (Compl. ¶¶ 24–27.) Accordingly, as Judge Irizarry
held in denying Defendants’ motion to dismiss, Plaintiff sufficiently alleges Defendants’
personal involvement in a violation of his Fourteenth Amendment due process rights. Santiago,
2009 WL 3852001, at *4.
c.

Qualified immunity

Defendants argue that they are entitled to qualified immunity based on either their pre- or
post-Earley conduct. (Defs. Mem. 14–18.)
“Qualified immunity protects public officials from liability for civil damages when one of
two conditions is satisfied: (a) the defendant’s action did not violate clearly established law, or
(b) it was objectively reasonable for the defendant to believe that his action did not violate such
law.” Garcia v. Does, 779 F.3d 84, 92 (2d Cir. 2015) (quoting Russo v. City of Bridgeport, 479
F.3d 196, 211 (2d Cir. 2007)). As to whether the right is clearly established, the “dispositive
inquiry . . . is whether it would be clear to a reasonable officer that his conduct was unlawful in
the situation he confronted.” Id. at 92 (quoting Saucier v. Katz, 533 U.S. 194, 202 (2001)).

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“Only Supreme Court and Second Circuit precedent existing at the time of the alleged violation
is relevant in deciding whether a right is clearly established.” Moore v. Vega, 371 F.3d 110, 114
(2d Cir. 2004). Overall, “the relevant question is whether a reasonable officer could have
believed [his or her conduct] to be lawful, in light of clearly established law and the information
[he or she] possessed.” Id. at 115 (quoting Anderson v. Creighton, 483 U.S. 635, 641 (1987)).
Given that “qualified immunity is not only a defense to liability, but also provides
immunity from suit,” a court should resolve a “defendant’s entitlement to qualified
immunity . . . ‘at the earliest possible stage in [the] litigation.’” Lynch v. Ackley, 811 F.3d 569,
576 (2d Cir. 2016) (quoting Pearson v. Callahan, 555 U.S. 223, 231–32 (2009)). “[U]sually, the
defense of qualified immunity cannot support the grant of a Rule 12(b)(6) motion” to dismiss,
but “a district court may grant a Rule 12(b)(6) motion on the ground of qualified immunity if
‘the facts supporting the defense appear on the face of the complaint.’” Hyman v. Abrams, --- F.
App’x ---, ---, 2015 WL 7147455, at *1 (2d Cir. Nov. 16, 2015) (quoting McKenna v. Wright,
386 F.3d 432, 435–36 (2d Cir. 2004)); Wright v. Manetta, No. 14-CV-8976, 2016 WL 482973, at
*4 (S.D.N.Y. Feb. 5, 2016) (citing McKenna and applying this standard in assessing qualified
immunity defense raised on 12(c) motion). As a result, “a defendant presenting an immunity
defense on a Rule 12(b)(6) motion instead of a motion for summary judgment must accept
[that] . . . the plaintiff is entitled to all reasonable inferences from the facts alleged, not only
those that support his claim, but also those that defeat the immunity defense.” Hyman, --- F.
App’x at ---, 2015 WL 7147455, at *1 (alterations in original) (quoting McKenna, 386 F.3d at
436); Cadwallader v. Devlin, No. 15-CV-139, 2016 WL 81493, at *11 (N.D.N.Y. Jan. 7, 2016)
(citing McKenna and applying same standard in assessing 12(c) motion).

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i.

Plaintiff’s claims based on pre-Earley conduct

Defendants are entitled to qualified immunity for conduct pre-dating the Second Circuit’s
decision in Earley. In Scott, the Second Circuit held that “it was not clearly established for
qualified immunity purposes prior to Earley that the administrative imposition of PRS violates
the Due Process Clause.” Scott, 616 F.3d at 107; see Vincent, 718 F.3d at 167 (“We thus ruled in
Scott that Earley I’s holding did not mean that the Wampler principle that there was a right not to
be subjected to administratively imposed PRS was clearly established for purposes of qualified
immunity.” (citations omitted)). Accordingly, to the extent Plaintiff’s claims are based on the
pre-Earley imposition and enforcement of his PRS term, Defendants are entitled to qualified
immunity because it was not yet clearly established that the administrative imposition of PRS
terms was a due process violation. See Garcia v. Alk, No. 09-CV-2045, 2015 WL 1469294, at
*6 (E.D.N.Y. March 30, 2015) (granting qualified immunity for pre- but not post-Earley
conduct).
ii.

Plaintiff’s claims based on post-Earley conduct may continue

Defendants are not entitled to qualified immunity for conduct that post-dated Earley.
Defendants assert that they are entitled to qualified immunity for their post-Earley conduct
because their duty to act in response to Earley was not clearly established. (Defs. Mem. 15–18.)
According to Defendants, Plaintiff has not alleged that Defendants knew about Plaintiff’s
unlawful PRS term and, therefore, to plead a claim for Defendants’ post-Earley conduct, Plaintiff
must establish that Earley “unequivocally created a legal obligation on [D]efendants to [(1)] sort
through both administrative and court records to determine whether or not his sentence had been
imposed judicially or administratively and [(2)] seek resentencing to correct any constitutional
defect.” (Id. at 16.) Defendants assert that the existence of such a duty was far from clear in

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Earley and, moreover, New York State courts questioned the authority of Defendants to engage
in conduct that amounts to “commend[ing] those in their custody to resentencing.” (Id.)
Defendants argue that it could not have been clear to Defendants that Earley created a legal
obligation to refrain from enforcing Plaintiff’s PRS term. (Id.)
Defendants’ arguments misread Plaintiff’s allegations, and ignore the holding in Vincent,
which precludes Defendants’ entitlement to qualified immunity at this stage. Plaintiff alleges
that Defendants administratively imposed PRS on countless individuals who, like Plaintiff, were
not subject to PRS at sentencing. (Compl. ¶ 16.) Defendants enforced those PRS terms in bad
faith against individuals who, like Plaintiff, were not sentenced to PRS. (Id. ¶ 22.) Thereafter,
according to Plaintiff, despite the Second Circuit’s decision in Earley, Defendants failed to
rectify those PRS terms and, instead, acted in “flat defi[ance]” of Earley’s “clear constitutional
commands” by continuing to enforce PRS terms without authorization from a sentencing court.
(Id. ¶ 25.) According to Plaintiff, this was all done “knowingly.” (Id. ¶ 32.)
Taking Plaintiff’s allegations as true, the Court cannot conclude that Defendants are
entitled to qualified immunity at this stage. First, Plaintiff alleges that Defendants knowingly
violated the law in enforcing his PRS term, which precludes qualified immunity. Vincent, 718
F.3d at 173 (“Qualified immunity is not available to those who knowingly violate the law.”
(citations and internal quotation marks omitted)). Second, Plaintiff alleges that despite their
knowledge that “[a]ny addition to [his] sentence not imposed by the judge was unlawful,”
Earley, 451 F.3d at 75, Defendants took no steps to rectify the violation and continued enforcing
his unlawful PRS terms, which was unreasonable in light of Earley. (Compl. ¶¶ 32, 35.) As the
Second Circuit explained in Vincent, it was “clear from the[] alternatives [presented in Earley]
that,” as to individuals subject to administratively-imposed PRS terms, “the State was required

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either to have them 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 them of those conditions.”
Vincent, 718 F.3d at 172. The Second Circuit explained that after Earley:
DOCS, which (a) unconstitutionally imposed PRS, (b) was
custodian of the records in which PRS was imposed and from
which PRS was required to be excised (in the absence of
appropriate resentencing), and (c) resumed custody of persons who
violated the unconstitutionally imposed conditions and were
penalized for those violations by reimprisonment, had an
obligation to at least attempt to cease its administrative and
custodial operations that had been held to violate federal law.
Id. at 172–73. Plaintiff alleges that, contrary to the options available after Earley, Defendants
acted in “flat defiance” of Earley by failing to take any curative measures, and continuing to
enforce the unlawful PRS terms of Plaintiff and others. (Compl. ¶ 25.)
Taken together, the Court finds that, as a number of courts have found in cases
involving similar PRS-related claims against these same Defendants, Defendants’ alleged failure
to act was unreasonable and precludes qualified immunity at this stage. See Betances v. Fischer,
No. 11-CV-3200, 2015 WL 4692441, at *6 (S.D.N.Y. Aug. 6, 2015) (denying Fischer, Annucci
and others’ fourth request for qualified immunity from liability for the imposition and
enforcement of unlawful PRS terms, finding that “defendants have failed to show that they made
reasonable efforts to comply with Earley”); Hassell v. Fischer, 96 F. Supp. 3d 370, 382
(S.D.N.Y. 2015) (denying Fischer, Annucci and others qualified immunity from due process
claim based on the imposition and enforcement of an unlawful PRS term, noting that the
defendants took any action to cure the violation for “over 27 months after . . . Earley and over 6
months after [the] PRS conditions were unconstitutionally-imposed on [the plaintiff]”); Rivera v.
Annucci, No. 13-CV-1239, 2015 WL 590185, at *6 (E.D.N.Y. Feb. 11, 2015) (citing Vincent and
denying qualified immunity for Annucci and Fischer, among other, as to a due process claim
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based on imposition and enforcement of unlawful PRS term); see also Garcia, 2015 WL
1469294, at *7 (denying parole officials qualified immunity from a due process claim based on
enforcement of a PRS term after Earley).
III. Conclusion
For the foregoing reasons, the Court grants in part and denies in part Defendants’ motion
for judgment on the pleadings. Plaintiff’s claims for Defendants’ imposition and enforcement of
his unlawful PRS term that pre-dated the Second Circuit’s decision in Earley are dismissed as
Defendants are entitled to qualified immunity as to those claims. The Court denies Defendants’
motion as to Plaintiff’s claims based on Defendants’ post-Earley conduct.
SO ORDERED:
s/ MKB
MARGO K. BRODIE
United States District Judge
Dated: March 21, 2016
Brooklyn, New York

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