Garcia v. Division of Parole et al

Filing 44

ORDER ADOPTING REPORT AND RECOMMENDATIONS IN PART AND MODIFYING IN PART -- For the reasons set forth in the ATTACHED MEMORANDUM AND ORDER, and upon a de novo review of the objections made to the Report and Recommendation ("R & R") is sued by the Hon. Lois Bloom on March 11, 2011, the R & R is adopted in part and modified only to the extent that Defendants' motion to dismiss Plaintiff's post-Early claims from June 9, 2006 through 2008 on qualified immunity grounds is denied. Accordingly, Defendants' motion to dismiss the complaint is granted in part and denied in part and Plaintiff's request for leave to amend the complaint is denied without prejudice. This matter is referred to the magistrate jud ge for further pretrial proceedings, including discovery and possible settlement discussions. The Clerk of the Court is directed to mail a copy of this Electronic Order and the Attached Written Memorandum and Order to pro se plaintiff. SO ORDERED by Judge Dora Lizette Irizarry on 3/30/2015. (Irizarry, Dora)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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ROBERT E. GARCIA, pro se,
:
:
Plaintiff,
:
:
- against :
:
MICHAEL F ALK, Area Supervisor, Queens
:
Parole III; PAROLE OFFICER MRS. AMES; :
PAROLE OFFICER MR. V. SUERO;
:
SR. PAROLE OFFICER MR. R. CHONG; and :
SR. PAROLE OFFICER C. BENJAMIN,
:
:
Defendants.
:
-----------------------------------------------------------X
DORA L. IRIZARRY, U.S. District Judge:

MEMORANDUM AND ORDER
09-CV-2045 (DLI)(LB)

Pro se 1 plaintiff Robert Garcia (“Plaintiff”) brings this pro se action pursuant to 42
U.S.C. § 1983 against Parole Supervisor Michael Falk, and Parole Officers Ames, Suero, Chong,
and Benjamin (collectively, “Defendants”).

Plaintiff alleges Defendants violated his

constitutional rights by administratively imposing and enforcing a term of post-release
supervision (“PRS”). Defendants assert qualified immunity and move to dismiss Plaintiff’s
complaint for failure to state a claim under Rule 12(b)(6) of the Federal Rules of Civil
Procedure. Defendants argue that Plaintiff’s claim fails as a matter of law because: (1) it is
barred by the statute of limitations; (2) Defendants are entitled to qualified immunity; and (3)
Defendants were not personally involved in the alleged constitutional violation.

(See

Defendants’ Mem. of Law in Supp. of Motion to Dismiss (“Defs. Mot. to Dismiss”), Docket
Entry No. 13-2, at 5-21.) Plaintiff also moves to amend his pleading. The Court referred
1

In reviewing the complaint, the Court is mindful that, “[a] document filed pro se is to be liberally construed and a
pro se [pleading], however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted
by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007). Accordingly, the Court interprets the complaint “to raise
the strongest arguments that [it] suggest[s].” Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006)
(emphasis omitted).

Defendants’ motion to dismiss to the Honorable Lois Bloom, United States Magistrate Judge, for
a Report and Recommendation (“R & R”).
On March 11, 2011, the magistrate judge issued an R & R recommending that the Court
grant Defendants’ motion to dismiss in part and deny it in part. Plaintiff and Defendants
submitted timely objections to the R & R. (See Plaintiff’s Objections to R&R (“Pl. Obj.”),
Docket Entry No. 35; Government’s Objections to R&R (“Gov’t Obj.”), Docket Entry No. 34.)
Having reviewed the R & R and the parties’ timely objections thereto, the Court adopts in part
and modifies in part the recommendations contained in the R & R, for the reasons set forth
below. Accordingly, Defendants’ motion to dismiss is granted in part and Plaintiff’s motion for
leave to amend is denied without prejudice.
BACKGROUND
I.

Legal Background
In 1998, the New York legislature enacted “Jenna’s Law,” which requires the imposition

of PRS “as a mandatory follow-up period to a determinate sentence for violent felony offenders.”
State v. Myers, 22 Misc. 3d 809, 812-13(Sup. Ct. Albany Co. 2008); see also N.Y. Penal Law §
70.45 (1999) (“Each determinate sentence also includes, as a part thereof, an additional period of
post-release supervision.”). For several years after the enactment, if the sentencing court did not
impose a period of PRS at the time it imposed a determinate sentence, the Department of
Correctional Services (“DOCS”) imposed post-release supervision administratively and New
York appellate courts consistently upheld that administrative imposition of PRS. See, e.g.,
Collins v. State, 69 A.D.3d 46, 50 (4th Dep’t 2009) (citations omitted); Myers, 22 Misc. 3d at
811, 812-13.

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On June 9, 2006, the United States Court of Appeals for the Second Circuit applied the
seventy-year-old United States Supreme Court decision in Hill v. United States ex rel. Wampler
and held that DOCS’s imposition of extra-judicial sentences of PRS violated federal law. Earley
v. Murray, 451 F.3d 71, 76 (2d Cir. 2006).

Nevertheless, following the Second Circuit’s

decision in Earley, three of the four appellate departments in New York continued to uphold the
administrative imposition of PRS. Myers, 22 Misc. 3d at 813 n.9 (listing several cases from the
first, third, and fourth appellate departments (citations omitted)).
In April 2008, approximately two years after Earley, the New York Court of Appeals
held in Garner v. N.Y. State Dep’t Corr. Servs., 10 N.Y.3d 358 (2008) and People v. Sparber, 10
N.Y.3d 457 (2008), that PRS imposed by anyone other than a judge violates New York State
law.

See Garner, 10 N.Y.3d at 362.

After these Court of Appeals decisions, there was

significant confusion in the lower New York State courts “about what to do if the prisoner was
already released on PRS” because “Garner and Sparber did not provide much guidance.”
Mickens v. State, 25 Misc. 3d 191, 196-97 (N.Y. Ct. Cl. 2009). However, in June 2008, the New
York State legislature enacted section 601-d of the Correction Law, which “provide[s] a
mechanism for courts to consider resentencing defendants serving determinate sentences without
court-ordered post-release supervision terms.” People v. Williams, 14 N.Y.3d 198, 206 (2010);
see also Mickens, 25 Misc. 3d at 198.
II.

Factual Background
On March 14, 2000, Plaintiff was convicted of attempted robbery in the second degree

and sentenced to three and a half years’ imprisonment. (Complaint, Docket Entry No. 4-3, at 3;
Declaration of Michael Arcati (“Defs. Decl.”), Docket Entry 13-2, Ex. C (“Certificate of
Release”).) On November 27, 2001, Plaintiff was released to parole. (Certificate of Release at

3

1.) Despite the sentencing court’s silence as to the imposition of PRS, DOCS administratively
imposed a period of five years of PRS pursuant to Section 70.45 of the New York Penal Law.
(Id.; Compl. at 3.) Plaintiff states that he “was given illegal 5 years post release supervision from
a 2000 conviction which caused a heavy burden on [his] life.” (Compl. at 3.) It appears that
Plaintiff was incarcerated at Rikers Island from at least November 2004 to September 2005 for
violating PRS. (ld. at p.5.) Plaintiff was resentenced on January 20, 2009 pursuant to Section
601-d and the sentencing judge did not impose a term of PRS.
DISCUSSION
I.

Legal Standard
When a party objects to a report and recommendation, a district judge must make a de

novo determination with respect to those portions of the report and recommendation to which the
party objects. See Fed. R. Civ. P. 72(b)(3); United States v. Male Juvenile, 121 F. 3d 34, 38 (2d
Cir. 1997). If, however, a party makes conclusory or general objections, or attempts to relitigate
the party’s original arguments, the court will review the report and recommendation for clear
error. See Robinson v. Superintendent, Green Haven Corr. Facility, 2012 WL 123263, at *1
(E.D.N.Y. Jan. 17, 2012) (quoting Walker v. Vaughan, 216 F. Supp. 2d 290, 292 (S.D.N.Y.
2002)). The district court may then “accept, reject, or modify the recommended disposition;
receive further evidence; or return the matter to the magistrate judge with instructions.” Fed. R.
Civ. P. 72(b)(3); see also 28 U.S.C. § 636(b)(1).
II.

Analysis
a. The R & R
The magistrate judge recommends that the Court grant Defendants’ motion to dismiss on

qualified immunity grounds as to Plaintiff’s pre-Earley claims. (R & R at 6-7.) Though Plaintiff

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alleges that Defendants violated his rights in 2001 when DOCS administratively imposed PRS,
and again between November 2004 and September 2005 when he was incarcerated at Rikers
Island for violating PRS, the magistrate judge reasoned that because this conduct all occurred
before Earley, Defendants are entitled to qualified immunity for these claims because the right at
issue was not yet clearly established. The Court agrees and the R & R is adopted on this ground.
With regard to Plaintiff’s post-Earley claims, the magistrate judge recommends that the
Court find that, “[t]o the extent plaintiff claims that defendants violated his constitutional rights
by holding him in custody for the 204 days that elapsed between the passage of Section 601-d
and his resentencing, the instant record does not establish a basis for qualified immunity.” (R
&R at 7.) Defendants object to this conclusion, arguing that the magistrate judge erred by: (1)
assuming facts not alleged in the complaint related to Plaintiff’s period of incarceration; (2)
concluding that any defects in the complaint regarding Defendants’ personal involvement were
insufficient for dismissal; and (3) finding that Defendants are not entitled to qualified immunity
for the period after the enactment of 601-d. (Defs. Mot. to Dismiss at 11-17.) Upon a de novo
review, the Court adopts the recommendation of the magistrate judge that Defendants have not
met their burden of proof on the affirmative defense of qualified immunity after the post 601-d
period, but modifies the R & R to deny qualified immunity for Defendants’ conduct post-Early
but pre-Sparber and Garner.
b. Plaintiff’s Factual Allegations Regarding PRS and Incarceration
Plaintiff alleges in his complaint that the events giving rise to his claim occurred “[f]rom
2001 to 2004, 2005 up to Jan 19 2009.” (Compl. at 2.) Plaintiff also alleges that he was “being
unlawfully imprisoned and illegally detained on a post release supervision violation.” (Id. at 5.)
He notes, “This violation occurred from November 2004 to September 2005 on Rikers Island

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A.M.K.C. correctional facility . . . and I just finished getting the illegal post release lifted on Jan.
19th 2009.” (Id.) In his opposition brief, Plaintiff also claims that “he was illegally detained
because of [an] illegally imposed PRS violation from November 2004 to September 2005 . . .
[and] further held on PRS until 2009 before it was decided that the PRS was null and void.”
(Plaintiff’s Opposition to Defendants’ Mot. to Dismiss, Docket Entry No. 25, at 2.) 2 The
Uniform Sentence and Commitment report attached to Defendants’ motion to dismiss is
ambiguous regarding whether Plaintiff was in custody at the time of resentencing in January
2009. (Defs. Decl., Ex. B.) Based on these alleged facts and a liberal construction of Plaintiff’s
papers, the magistrate judge assumed that “[P]laintiff was held in custody on a PRS violation
until he was resentenced on January 20, 2009.” (R & R at 7.)
Defendants now take issue with whether the abovementioned facts support the magistrate
judge’s conclusion that Plaintiff was in custody on a PRS violation for the 204 days between the
passage of Section 601-d on June 30, 2008 and his resentencing. (See Defs. Mot. To Dismiss at
12.) Defendants do not contest that the alleged facts in the complaint support that Plaintiff was
in DOCS’s custody as a result of his PRS sentence from November 2004 to September 2005.
(See id. at 12.) Defendants do contend, however, that “Plaintiff does not allege that he was in
DOCS’ custody pursuant to his PRS term after September 2005. Furthermore, Plaintiff’s PRS
term was supposed to conclude in late 2007.” (Id. (citing Certificate of Release).)

2

The Court is permitted to consider Plaintiff’s factual allegations within his opposition papers. Generally, “[c]ourts
in this Circuit have made clear that a plaintiff may not shore up a deficient complaint through extrinsic documents
submitted in opposition to a defendant’s motion to dismiss.” Madu, Edozie & Madu, P.C. v. SocketWorks Ltd.
Nigeria, 265 F.R.D. 106, 122-23 (S.D.N.Y. Jan. 26, 2010) (citing Wright v. Ernst & Young LLP, 152 F.3d 169, 178
(2d Cir. 1998)). Nevertheless, “the policy reasons favoring liberal construction of pro se complaints permit a court
to consider allegations of a pro se plaintiff in opposition papers on a motion where . . . those allegations are
consistent with the complaint.” Rodriguez v. McGinnis, 1 F. Supp. 2d 244, 246-47 (S.D.N.Y. 1998) (collecting
cases); see also Walker v. Schult, 717 F.3d 119, 122 n.1 (2d Cir. 2013) (noting that although a court generally should
refrain from considering matters outside the pleadings when reviewing a Rule 12(b)(6) motion to dismiss, “[a]
district court deciding a motion to dismiss may consider factual allegations made by a pro se party in his papers
opposing the motion”).

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Defendants maintain that “[t]here are only two possible ways for Plaintiff’s PRS term to
extend to January 2009.” (Defs. Mot. to Dismiss at 13 (arguing that “(1) he absconded from
parole supervision; and/or (2) he was incarcerated for new a conviction”).) In short, they argue,
“Even though Plaintiff was resentenced in January 2009 to sentence without PRS, there are no
facts in the Complaint to support a conclusion that Plaintiff was in DOCS’ custody serving a
PRS term after November 2006.” (See Defs. Mot. To Dismiss at 12.) The Court disagrees.
“It is well established that the submissions of a pro se litigant must be construed liberally
and interpreted to raise the strongest arguments that they suggest.” Triestman v. Fed. Bureau of
Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (internal citation omitted and emphasis in original.)
Additionally, in considering a Rule 12(b)(6) motion to dismiss, all non-conclusory factual
allegations are accepted as true, Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009), and all
reasonable inferences are drawn in favor of the plaintiff. See In re Elevator Antitrust Litig., 502
F.3d 47, 50 (2d Cir. 2007) (per curiam); Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009) (noting
that, even after Twombly, the court “remain[s] obligated to construe a pro se complaint
liberally.”) However, the liberal pleading standard accorded to pro se litigants “is not without
limits, and all normal rules of pleading are not absolutely suspended.” Stinson v. Sheriff's Dep’t,
499 F. Supp. 259, 262 (S.D.N.Y. 1980).
Applying the liberal reading afforded to pro se plaintiff’s pleadings and interpreting
Plaintiff’s complaint to raise the strongest arguments it suggests, the Court finds that Plaintiff has
alleged facts sufficient to conclude that DOCS either held him in custody for a PRS violation or
otherwise enforced a PRS sentence against him after November 2006 and until January 20, 2009.
While facts to the contrary may rise as the case proceeds with discovery, nothing in the current
record definitively refutes Plaintiff’s allegations.

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c. The Sufficiency of the Allegations of Personal Involvement
In his complaint, Plaintiff alleges that Defendants were personally involved in the
unlawful imposition and enforcement of a term of PRS on him by placing Defendants’ names
under a question that asks “Was anyone else involved?” (See Compl. at 3.) In their motion to
dismiss, Defendants argue that “[t]hese allegations are insufficient to allege personal
involvement by Defendants and are legal conclusions unsupported by well-pleaded, facts that
‘are not entitled to the assumption of truth.’” (Defs. Mot. to Dismiss at 20 (citing Iqbal, 556 U.S.
at 1949-50).) In recommending that the Court deny Defendants’ motion to dismiss on personal
involvement grounds, the magistrate judge stated that, “[a]lthough the individual parole officers
named herein may not have been personally involved in plaintiff’s post-Section 601-d
incarceration, it is difficult to determine under these particular circumstances who the
appropriate defendants would be without conducting discovery.” (R & R at 8.) The magistrate
judge also noted that, “any defect regarding personal involvement could ‘potentially be remedied
by amendments to the pleadings even if the motion [to dismiss] were granted.’” (R & R at 8-9
(citing Ruffins v. N.Y. State Dep’t of Corr. Servs., 701 F. Supp. 2d 385, 390 n.1 (E.D.N.Y. 2010)
(declining to address defendants’ personal involvement argument until after supplemental
briefing on qualified immunity)).) Defendants object to this recommendation and argue that it is
“contrary to the clear holding of the United States Supreme Court in Iqbal that a complaint
cannot be upheld by a court for the sole purpose of continuing discovery.” (Defs. Obj. at 14-15
(citing Iqbal, 556 U.S. at 663).) The Court finds Defendants’ objection unavailing.
To state a constitutional tort claim, “a plaintiff must plead that each Government-official
defendant, through the official’s own individual actions, has violated the Constitution.” Iqbal,
556 U.S. at 663.

Even after Iqbal, a supervisor may be held liable for constitutional torts not

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only if she commits the tort herself, but if she “created a policy or custom under which
unconstitutional practices occurred.” Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995)
(citation omitted). 3 Indeed, in Scott v. Fischer, 616 F.3d 100 (2d Cir. 2010), which was decided
more than a year after Iqbal, the Second Circuit explained that “a supervisory official may be
liable under section 1983 not only because he or she created a policy or custom under which
unconstitutional practices occurred, but also because he or she allowed such a policy or custom
to continue.’” Scott, 616 F.3d at 108-09 (quoting Williams v. Smith, 781 F.2d 319, 323 (2d Cir.
1986)).
Regardless of precisely how the Second Circuit decides to apply Iqbal, Plaintiff has pled
sufficiently detailed and plausible facts to support his allegation that, in the period after Earley,
each of the Defendants personally implemented the policies and practices that led to the
deprivations of Plaintiff’s constitutional rights. (See Compl. at 3.) In accordance with a liberal
construction of Plaintiff’s allegations, Defendants were officials individually responsible for
enforcing DOCS’s policy with respect to PRS — policies that arguably led directly to Plaintiff’s
unlawful custody. (Id.) Given Defendants’ supervisory positions, the allegation that they were
among the relevant enforcers is plausible. Accordingly, these claims allege sufficient personal
involvement to survive a motion to dismiss.

3

Colon described five categories of actions that might expose a supervisor to liability for constitutional torts.
Plaintiff’s claim falls under the third Colon category, which establishes liability for supervisors who “created a
policy or custom under which unconstitutional practices occurred.” Colon, 58 F.3d at 873. The Second Circuit has
not yet addressed the issue. See Hogan v. Fischer, 738 F.3d 509, 519 n.3 (2d Cir. 2013) (“We express no view on
the extent to which the Supreme Court’s decision in Ashcroft v. Iqbal, 556 U.S. 662 (2009), ‘may have heightened
the requirements for showing a supervisor's personal involvement with respect to certain constitutional violations.’”
(citing Grullon v. City of New Haven, 720 F.3d 133, 139 (2d Cir. 2013)). District courts agree that category three
has survived Iqbal. See, e.g., Delgado v. Bezio, 2011 WL 1842294, at *9 (S.D.N.Y. May 9, 2011); Qasem v. Toro,
737 F. Supp. 2d 147, 152 (S.D.N.Y 2010); Bellamy v. Mount Vernon Hosp., 2009 WL 1835939, at *4 (S.D.N.Y.
June 26, 2009).

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d. Defendants are Entitled to Qualified Immunity for Pre-Earley Claims, But Not
for Post-Earley Claims
As the Second Circuit has explained,
Qualified immunity protects public officials performing discretionary
functions from personal liability in a civil suit for damages insofar as their
conduct does not violate clearly established statutory or constitutional rights of
which a reasonable person would have known. Whether an official protected by
qualified immunity may be held personally liable for an allegedly unlawful
official action generally turns on the objective legal reasonableness of the action,
assessed in light of the legal rules that were clearly established at the time it was
taken.
Lore v. City of Syracuse, 670 F.3d 127, 162 (2d Cir. 2012) (internal quotation marks,
citations, and alterations omitted). “A right is clearly established if (1) the law is defined with
reasonable clarity, (2) the Supreme Court or the Second Circuit has recognized the right, and (3)
a reasonable defendant would have understood from the existing law that his conduct was
unlawful.” Anderson v. Recore, 317 F.3d 194, 197 (2d Cir. 2003) (citation and alterations
omitted). Here, Defendants contend that the magistrate judge erred in finding that Defendants
are entitled to qualified immunity only until the passage 601-d on June 30, 2008. (See Defs. Obj.
at 15; R & R at 7-8.) In support of their argument for qualified immunity after June 30, 2008,
Defendants rely on Scott v. Fischer, 616 F.3d 100 (2d Cir. 2010) and Rivers v. Fischer, 390 F.
App’x 22 (2d Cir. 2010).
In Scott, the Second Circuit held that, even though DOCS’s administrative imposition of
a term of PRS violated the due process right of plaintiff Scott, Earley had not been decided at the
time of the alleged violation and, thus, the judicial proscription against administratively imposed
terms of PRS was not clearly established constitutional law at the time of the DOCS’ action in
the case. See Scott, 616 F.3d at 107. In finding that DOCS officials were entitled to qualified
immunity because their action predated Earley, the Scott court held that plaintiff Scott did not

10

plead sufficient facts to demonstrate that DOCS’s actions after Earley showed deliberate
indifference to Scott’s known constitutional rights, i.e., a failure to release Scott from custody or
failure to seek her resentencing. Id. at 109-111. The Scott court also noted that “[u]nder New
York law, DOC was not obligated affirmatively to seek resentencing for defendants with
administratively-imposed PRS until 2008, when New York Correction Law § 601-d became
effective.” Id. at 111.
In Rivers, the Second Circuit issued a summary order that held the defendants were
entitled to qualified immunity for the two-month period plaintiff Rivers was held in custody on a
PRS violation before being resentenced pursuant to Section 601-d. 390 F. App’x at 24. The
Rivers Court remarked that, “[e]ven after Earley, however, it was not clearly established that
Rivers had the right to be immediately released from custody.” Id. at 24 (citing Earley, 451 F.3d
at 77). The Rivers Court concluded that, because “Rivers was brought before a judge and
released less than two months [after the enactment of 601-d]. . . . [and] [g]iven the ambiguity in
the law between Earley and the time of Rivers’s release,” the defendants were entitled to
qualified immunity. Rivers, 390 F. App’x at 24.
Defendants, relying on Earley, Scott, and Rivers, contend they are entitled to qualified
immunity for their alleged conduct before and after Earley. (Defs. Mot. to Dismiss at 18.)
Defendants allege that they followed clearly established law, and, “[i]n response to the change in
the law on how PRS was to be imposed and the mandated remedy, [DOCS] per Correction Law§
601-d had the sentencing court review Plaintiff’s sentencing proceeding. . . . [and] Plaintiff
received the statutory remedy under Correction Law § 601-d when his sentencing court
resentenced Plaintiff without PRS.” (Id. at 19.) The magistrate judge rejected this contention
and noted that Scott only supports qualified immunity for pre-Earley actions and Rivers, as a

11

summary order, does not have precedential effect and, therefore, did not control. (R & R at 6-7.)
The Court agrees.
Defendants’ argument that “[b]oth Scott and Rivers make clear that the Defendants are
entitled to qualified immunity for any period Plaintiff was re-incarcerated and thereafter for the
PRS term he served until he was resentenced in January 2009” is unpersuasive, as both cases are
of limited relevance here. (See Def. Obj. at 15.) First, the magistrate judge’s finding regarding
Scott’s applicability to solely pre-Earley claims is supported by the case itself, where the Second
Circuit specifically noted that “the [plaintiff’s] challenge is directed at the administrative
imposition of PRS, not the failure to take action to remove it after it was imposed.” Scott, 616
F.3d at 108. Second, the magistrate judge’s conclusion that Rivers lacks precedential effect is
accurate.

See 2d Cir. R. 32.1.1(a) (“Rulings by summary order do not have precedential

effect.”). Moreover, in Rivers, the court dealt with a brief two-month window immediately after
the passage of 601-d, during which time presumably hundreds, if not thousands, of state cases
were under review. Lastly, the Second Circuit’s decision in Vincent v. Yelich, 718 F.3d 157 (2d
Cir. 2013) provides dispositive guidance on these issues by clarifying when Plaintiff’s due
process right regarding administratively imposed PRS was clearly established for qualified
immunity purposes.
The Vincent court held that “Earley I itself, decided on June 9, 2006, did clearly establish
the unconstitutionality of the administrative imposition or enforcement of postrelease conditions
that were not judicially imposed.” 718 F.3d at 160. 4 The Vincent court added that “Defendants
4

The Vincent court refers to Earley v. Murray, 451 F.3d 71, 76 (2d Cir. 2006) as “Earley I.” The Second Circuit
denied New York State’s petition for rehearing. See 462 F.3d 147 (2d Cir. 2006). The State argued that “New York
law automatically includes a period of PRS in every determinate sentence,” id. at 148, and that “New York courts
regularly fail to inform defendants of mandatory PRS terms but consider them part of those defendants’ sentence
nonetheless,” id. at 150. The Second Circuit explained that regardless of “[w]hatever conceptualization [New York
State] has about the function of New York Penal Law sections 70.00 and 70.45, they cannot operate to undermine
protections contained in the Federal Constitution.” Id. at 150.

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[who are officials and employees of the DOCS and the New York State Division of Parole] do
not--and could not plausibly--argue that Earley I itself was ambiguous.” Id. at 168. The Vincent
court also noted that the Second Circuit had “left unanswered in Scott ‘[w]hether Earley itself
sufficed clearly to establish the unconstitutionality of administratively imposed PRS for a
reasonable New York State correctional official’ in light of decisions issued by courts of the
New York Appellate Division that ‘thereafter continued to find the practice constitutional.’” Id.
(citing Scott, 616 F.3d at 107).

In response to that open question, the Vincent court

unequivocally stated, “Today, we answer Scott’s question in the affirmative.” Vincent, 718 F.3d
at 169. Moreover, in response to the argument that decisions by some of the New York State
courts subsequent to Earley I had cast doubt on Earley I’s holding, the Vincent court noted that,
while some state court decisions rejected Earley I and others distinguished it, “none of the state
court decisions cited by defendants demonstrate[d] any confusion about whether Earley I
prohibited DOCS from imposing PRS.” Id. Most notably, the New York State Legislature
resolved this issue by the passage of 601-d.
In sum, the Vincent Court’s holding directly undercuts Defendants’ contention in the
instant case that, “based on the holdings in Earley, Scott, and Rivers, a parolee is not entitled to
be released from PRS obligations (even if the parolee was reincarcerated) until the parolee was
resentenced by a court pursuant to § 601-d.” (Def. Obj. at 16.) The Vincent court rejected this
very argument and made clear that the availability, or lack thereof, of a state procedure, such as
Section 601-d, or a change in state law does not limit the reach of federal law. The Vincent court
explained:
As a general matter, “[f]ederal constitutional standards rather than state
law define the requirements of procedural due process. . . . ‘[T]he fact that the
State may have specified its own procedures that it may deem adequate for . . .
official action,’ . . . does not settle what protection the federal due process clause
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requires.” Russell v. Coughlin, 910 F.2d at 78 n.1 (quoting Vitek v. Jones, 445
U.S. 480, 491, 100 S. Ct. 1254, 63 L. Ed. 2d 552 (1980)). State court decisions
that rejected Earley I’s holding could not disestablish the federal right to due
process for the purposes of qualified immunity analysis. See, e.g., Hopkins v.
Bonvicino, 573 F.3d 752, 772 (9th Cir. 2009) (“[A] decision by a state court
contrary to a holding of this court cannot unsettle or ‘de-establish’ the clarity of
federal law” because “we begin our inquiry by looking to binding precedent [and
i]f the right is clearly established by decisional authority of the Supreme Court or
this Circuit, our inquiry should come to an end.” (emphasis in Hopkins) (other
internal quotation marks omitted)). Because Earley I’s explicit ruling that “New
York’s Department of Correctional Services has no . . . power to alter a sentence”
clearly established the contour of the right plaintiffs seek to vindicate, our inquiry
ends there.
Vincent, 718 F.3d at 169-170 (internal citations and quotations omitted). Accordingly,
“[t]he fact that it was not until 2008 that the New York State Court of Appeals declared the
administrative imposition of PRS on prisoners who had not been so sentenced judicially to be
unlawful under State law, however, did not affect the invalidity of such impositions under federal
law, which was announced in Earley I in 2006. State and local officials are required to comply
not just with state law but with federal law as well.” Id. at 170. In light of the Second Circuit’s
holding, the determinative time for considering whether Defendants’ conduct is entitled to
qualified immunity is not the June 2008 enactment of 601-d or the April 2008 New York State
Court of Appeals decisions in Sparber and Garner striking down the administrative imposition
of PRS, but rather is the issuance of the Earley decision in June 2006.
At this point of the litigation, Defendants have failed to meet their burden of proving
qualified immunity for their actions after Earley. See id. at 166 (noting that qualified immunity
is an affirmative defense for which the defendant officials bear the burden of proof). Based on
the abovementioned facts and case law, the magistrate judge correctly concluded that, “[a]s the
right in question, to be resentenced under Section 601-d, was clearly established after June 30,
2008, defendants’ instant motion to dismiss based on qualified immunity for the post-Section

14

601-d period should be denied.” (R & R at 8.) This recommendation is hereby adopted. The
magistrate judge also found that Defendants would be entitled to qualified immunity on claims
regarding Defendants’ conduct after Earley, but before Sparber and Garner. (Id. at 7 n.5.) In
light of Vincent, which was decided after the R & R was issued, the R & R is modified because
Defendants are only entitled to qualified immunity until June 9, 2006, the date of the Earley
decision.
e. Defendants’ Tort is Not Properly Before the Court
Defendants also object to the R & R because it failed to address Defendants’ argument
that “the Complaint must be dismissed because it failed to allege sufficiently the elements of a
tort cause of action under New York State tort law.” (Defs. Obj. at 17.) Defendants first raised
this argument in their reply memorandum. (Defendants’ Reply Mem., Docket Entry No. 30, at
8-9.) However, the Court need not consider arguments raised for the first time in a reply brief.
See, e.g., Howard v. Cannon Indus., Inc., 2012 WL 5373458, *4 n.4 (W.D.N.Y. Oct. 30, 2012)
(citing In re Dobbs, 227 F. App’x 63, 64 (2d Cir. 2007) (“[W]e think that it was entirely proper
for the [court] to decline to consider . . . argument[s] raised for the first time in [a] reply brief”));
Bertuglia v. City of New York, 839 F. Supp. 2d 703, 737 (S.D.N.Y. 2012) (noting “that
arguments raised for the first time in reply . . . because the plaintiffs had no opportunity to
respond to those new arguments.”). Accordingly, the Court will not address this argument.
f. Plaintiff’s Request for Leave to Amend
The magistrate judge recommended that Plaintiff’s motion to amend should be denied
without prejudice, because his proposed amended complaint does not advance his claim
regarding the 204 days he was held in custody prior to his resentencing pursuant to Section 601d. (R & R at 9.) While Plaintiff submitted an objection to this recommendation, the objection in

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fact acknowledged the shortcoming of his request for leave to amend and asked the Court to
accept a “proposed amended complaint with the objections under Rule 15(a) of the Federal Rules
of Civil Procedure at this time concerning his complaint and claim regarding the 204 days he was
held in custody.” (Pl. Obj. at 1.) As noted above, Plaintiff’s claim for this time period has
survived the motion to dismiss stage. Accordingly, Plaintiff’s motion for leave to amend is
denied without prejudice.
CONCLUSION
For the foregoing reasons, the R & R is adopted in part and modified in part.
Accordingly, Defendants’ motion to dismiss is granted in part and Plaintiff’s motion to amend is
denied without prejudice.
SO ORDERED.
Dated: Brooklyn, New York
March 30, 2015
________________/s/________________
DORA L. IRIZARRY
United States District Judge

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