Betances v. Fischer et al
OPINION AND ORDER re: 100 MOTION for Partial Summary Judgment on liability against Defendants Fischer, Annucci and Tracy. filed by Gabriel Velez, Lloyd A. Barnes, Paul Betances, 90 MOTION for Summary Judgment . filed by Anthony J. Annucci, Mark Mantei, Lucien J. LeClaire, Jr., Glenn S. Goord, Andrea W. Evans, Terence Tracy, George B. Alexander, Anthony G. Ellis, II, Brian Fischer, Robert J. Dennison. For the foregoing reasons, plaintiffs' motion for summary judgment is GRANTED, and defendants' motion for summary judgment is GRANTED as to defendants Goord, LeClaire, Dennison, Alexander, Evans, Ellis, and Mantei, and DENIED as to the remaining defendants and as to qualified immunity. Defendants' motion to modify the class is also DENIED. The Clerk of the Court is directed to close this motion (Dkt. No. 58). A conference is scheduled for September 2, 2015 at 4:30 p.m. SO ORDERED. (As further set forth within this Order.) (Status Conference set for 9/2/2015 at 04:30 PM before Judge Shira A. Scheindlin.), Robert J. Dennison (in his individual capacity), Robert J. Dennison (former Chair of DOP), Anthony G. Ellis, II (in his individual capacity), Anthony G. Ellis, II (former Executiv e Director of DOP), Andrea W. Evans (in her individual capacity), Andrea W. Evans (in her capacity as Chair and Chief Executive Officer of the New York State Division of Parole (DOP)), Glenn S. Goord (Individually), Glenn S. Goord (former Commiss ioner of DOCS), Lucien J. LeClaire, Jr (former Acting Commissioner of DOCS), Lucien J. LeClaire, Jr (Individually), Mark Mantei (in his capacity as Executive Director of DOP), Mark Mantei (in his individual capacity), George B. Alexander (in his individual capacity) and George B. Alexander (former Chair and Chief Executive Officer of DOP) terminated. (Signed by Judge Leonard B. Sand on 8/6/2015) (ajs)
SHIRA A. SCHEINDLIN, U.S.D.J.:
Beginning in 1998, New York mandated that certain violent felonies
be punished by a determinate prison sentence followed by a mandatory term of
parole, known as post-release supervision (“PRS”).1 The governing statute did not
require that the term of PRS be announced by the judge at sentencing. In
thousands of cases where the judge did not impose a term of PRS at sentencing, the
New York State Department of Correctional Services (“DOCS”) imposed PRS on
convicted felons either before or as they were released from prison and the
Department of Parole (“DOP”) then enforced those terms.
On June 9, 2006, in Earley v. Murray,2 the United States Court of
Appeals for the Second Circuit held that the administrative imposition of PRS by
DOCS violates the federal constitutional right to due process. Lead plaintiffs
brought claims pursuant to section 1983 of Title 42 of the United States Code
against current and former high-ranking officials at DOCS and DOP on behalf of
all persons who were sentenced to prison in New York State for a fixed term that
did not include a term of PRS, but who were nevertheless subjected to PRS after
See N.Y. Penal Law § 70.45(1).
451 F.3d 71 (2d Cir. 2006).
the maximum expiration dates of their determinate sentences and after June 9,
2006. Defendants moved to dismiss the Complaint on the grounds that because
plaintiffs’ constitutional rights were not “clearly established” at the time that those
rights were allegedly violated, state officials were entitled to qualified immunity
for their actions. On February 10, 2012, I held that defendants were not entitled to
qualified immunity. Defendants appealed this ruling, and the Second Circuit
affirmed.3 Plaintiffs subsequently moved for, and this Court granted, class
Defendants now move for summary judgment, asserting (for the third
time) that they are entitled to qualified immunity, as well as other arguments.
Plaintiffs oppose the motion and move for partial summary judgment. For the
following reasons, defendants’ motion is granted in part and denied in part, and
plaintiffs’ motion is granted.
See Bentley v. Dennison, 852 F. Supp. 2d 379 (S.D.N.Y. 2012), aff’d
sub nom. Betances v. Fischer, 519 Fed. App’x 39 (2d Cir. 2013).
See Betances v. Fischer, 304 F.R.D. 416 (S.D.N.Y. 2015).
The background and undisputed material facts are taken from the
parties’ Local Civil Rule 56.1 Statements. Defendants repeatedly assert, in
response to plaintiffs’ 56.1 statement, six blanket objections, including that the
representation is not material, does not accurately reflect the record, and
mischaracterizes deposition testimony. These objections are, in the main, utterly
Administrative Imposition of PRS
In 1998, the New York Legislature enacted Penal Law § 70.45, also
known as Jenna’s Law, which mandated PRS terms for individuals convicted of
violent felonies.6 However, judges did not always pronounce PRS terms when
sentencing defendants covered by the statute or include PRS terms on their
sentence and commitment orders.7 In these circumstances, DOCS calculated terms
of PRS and included those terms on inmates’ records.8 These records were
provided to the Department of Parole (“DOP”).9 DOP enforced the PRS terms as
calculated by DOCS.10
On June 9, 2006, the Second Circuit held in Earley that the
administrative imposition of PRS by DOCS violates the federal constitutional right
frivolous and border on bad faith. As such, for any facts relied on in this Opinion
taken from plaintiffs’ 56.1 statement to which defendants objected, the objection is
See N.Y. Penal Law § 70.45.
See Plaintiffs’ Statement of Undisputed Material Facts Pursuant to
Local Rule 56.1 (“Pl. 56.1”) ¶ 11.
See Defendants’ Statement of Undisputed Material Facts Pursuant to
Rule 56.1 (“Def. 56.1”) ¶ 26.
See Def. 56.1 ¶ 28; Pl. 56.1 ¶ 14.
See Pl. 56.1 ¶ 15.
to due process.11 Earley held that a sentence is “never anything other than” the
sentence imposed by the judge at the sentencing hearing and recorded in the order
of commitment.12 “The additional provision for post-release supervision added by
DOCS is a nullity. . . . The penalty administratively added by the Department of
Corrections was, quite simply, never a part of the sentence.”13 Defendants in
Earley had argued that section 70.45 mandated a period of PRS and therefore was
necessarily a part of the sentence — that is, any sentence without a term of PRS
was illegal.14 The Second Circuit disagreed that the term of PRS was automatic,
and stated that, rather than administratively imposing PRS, New York law
provided a remedy to correct any “illegal sentence[:] the state may move to have
the offending sentence vacated and the defendant resentenced by a judge,”
consistent with New York Criminal Procedure Law Section 440.40.15
Initial Response to Earley
Anthony Annucci served as DOCS’s counsel until October 1, 2007,
when he became executive deputy commissioner and counsel. In December 2008,
Earley, 451 F.3d at 76 & n.1.
Id. at 76.
See id. (citing Bozza v. United States, 330 U.S. 160 (1947)).
he retired as counsel but remained executive deputy counsel of DOCS until April
2011, when he became executive deputy commissioner of the Department of
Corrections and Community Supervision (“DOCCS”), a new entity formed by the
merger of DOCS and DOP.16 As counsel for DOCS, one of Annucci’s duties was
to implement judicial decisions with apparent impact on DOCS’s calculation of
On July 20, 2009, Annucci sent an email to John Amodeo, counsel to
the New York State Office of Court Administration (“OCA”).18 In that email,
Annucci summarized the holding of Earley and anticipated that “numerous inmates
[would] file court actions seeking to eradicate their terms of PRS.”19 He
recommended that an instructional reminder be sent to all sitting criminal term
judges, stating that “[r]ecent case law provides that [PRS] can only be imposed on
the record by the sentencing judge at the time sentence is pronounced, and cannot
subsequently be added by a clerical staff person employed either with the court
See Pl. 56.1 ¶¶ 1–2.
See id. ¶ 17.
See Email from Anthony Annucci to John Amodeo (“OCA Email”),
Ex. A to Declaration of Anthony J. Annucci (“Annucci Decl.”).
system or the correctional system.”20 In August 2006, Annucci directed all DOCS
Inmate Records Coordinators to inform inmates who questioned their PRS terms
that DOCS officials would not follow Earley’s holding.21
Brian Fischer was the commissioner of DOCS, and then
commissioner of DOCCS, from January 1, 2007 until April 2013.22 Fischer was
aware of Earley, and, as commissioner of DOCS, had the authority to decide
whether to change DOCS’s policy relating to the imposition of PRS.23 Fischer
decided to maintain DOCS’s policy of administratively imposing PRS and await
further guidance from the legislature and the courts.24
Terrence Tracy was the chief counsel for DOP from December 1996
through March 2011.25 Tracy was aware of Earley in 2006 and understood that it
could have an impact on the population under DOP’s jurisdiction.26 Tracy was
See Annucci Decl. ¶ 13.
See Pl. 56.1 ¶ 1.
See id. ¶ 27.
See 3/6/15 Deposition of Brian Fischer (“Fischer Dep.”), Ex. 4 to
Declaration of Matthew D. Brinckerhoff (“Brinckerhoff Decl.”), at 23, 40–41, 61.
See Pl. 56.1 ¶ 3.
See id. ¶ 29; 1/26/15 Deposition of Terrence Tracy (“Tracy Dep.”),
Ex. 6 to Brinckerhoff Decl., at 41.
aware of DOCS’s practice of adding PRS to inmates’ sentence calculations where
the sentence and commitment orders were silent, and knew that there were
individuals under DOP supervision who had not been judicially sentenced to
PRS.27 Tracy did not review any files after Earley to determine which parolees
were under supervision but had not been judicially sentenced to PRS.28
In early 2007, DOCS — at Annucci’s order as authorized by Fischer
— began to review inmate files to identify those whose sentence and commitment
orders did not indicate PRS, but who nevertheless had PRS added to their
sentences.29 Over four to six weeks, DOCS created a database to indicate whether
PRS was indicated on the commitment order, and kept this database updated as
new inmates entered DOCS’s custody.30 DOCS identified approximately 8,100
individuals whose sentence and commitment orders were silent regarding PRS but
whose terms of PRS had been calculated and added by DOCS.31
In April 2008, the New York Court of Appeals decided Garner v. New
See Pl. 56.1 ¶¶ 31–32.
See Tracy Dep. at 17.
See Pl. 56.1 ¶¶ 64–66; Def. 56.1 ¶ 58.
See Pl. 56.1 ¶¶ 69–70; Def. 56.1 ¶¶ 60–62.
See Pl. 56.1 ¶ 68; Annucci Decl. ¶ 24.
York State Department of Correctional Services,32 and People v. Sparber,33 which
held that New York’s procedural law required judicial pronouncement of PRS.
DOCS, along with other agencies, including DOP, immediately launched the
“Post-Release Supervision Resentencing Initiatives,” which sought to resentence
individuals in DOCS custody who had not been judicially sentenced to PRS.34
From June 16 through June 20, 2008, DOP reviewed its records to determine
which individuals in its custody were being supervised without PRS terms in their
sentence and commitment orders.35 On June 30, 2008, the New York State
Legislature passed legislation codifying the procedures proposed by DOCS and
DOP to remedy PRS problems.36
Summary judgment is appropriate “only where, construing all the
evidence in the light most favorable to the non-movant and drawing all reasonable
inferences in that party’s favor, there is ‘no genuine issue as to any material fact
See 10 N.Y.3d 358 (2008).
See 10 N.Y.3d 457 (2008).
See Def. 56.1 ¶¶ 74–75.
See id. ¶ 76; Pl. 56.1 ¶¶ 75, 77.
See Def. 56.1 ¶ 80.
and . . . the movant is entitled to judgment as a matter of law.’”37 “A fact is
material if it might affect the outcome of the suit under the governing law, and an
issue of fact is genuine if the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.”38
“[T]he moving party has the burden of showing that no genuine issue
of material fact exists and that the undisputed facts entitle [it] to judgment as a
matter of law.”39 To defeat a motion for summary judgment, the non-moving party
must “do more than simply show that there is some metaphysical doubt as to the
material facts,”40 and “may not rely on conclusory allegations or unsubstantiated
In deciding a motion for summary judgment, “[t]he role of the court is
not to resolve disputed issues of fact but to assess whether there are any factual
Rivera v. Rochester Genesee Reg’l Transp. Auth., 743 F.3d 11, 19 (2d
Cir. 2014) (quoting Fed. R. Civ. P. 56(c)) (some quotation marks omitted).
Windsor v. United States, 699 F.3d 169, 192 (2d Cir. 2012), aff’d, 133
S. Ct. 2675 (2013) (quotations and alterations omitted).
Coollick v. Hughes, 699 F.3d 211, 219 (2d Cir. 2012) (citations
Brown v. Eli Lilly & Co., 654 F.3d 347, 358 (2d Cir. 2011) (quotation
marks and citations omitted).
Id. (quotation marks and citations omitted).
issues to be tried.”42 “‘Credibility determinations, the weighing of the evidence,
and the drawing of legitimate inferences from the facts are jury functions, not those
of a judge.’”43
“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.’”44 Section
1983 “does not create a federal right or benefit; it simply provides a mechanism for
enforcing a right or benefit established elsewhere.”45 Imposition of liability under
section 1983 requires a defendant’s direct involvement in the alleged constitutional
violation: “Because vicarious liability is inapplicable to . . . [section] 1983 suits, a
Cuff ex rel. B.C. v. Valley Cent. Sch. Dist., 677 F.3d 109, 119 (2d Cir.
Barrows v. Seneca Foods Corp., 512 Fed. App’x 115, 117 (2d Cir.
2013) (quoting Redd v. New York Div. of Parole, 678 F.3d 166, 174 (2d Cir.
Velez v. Levy, 401 F.3d 75, 84 (2d Cir. 2005) (quoting Gomez v.
Toledo, 446 U.S. 635, 640 (1980)).
Morris-Hayes v. Board of Educ. of Chester Union Free Sch. Dist., 423
F.3d 153, 159 (2d Cir. 2005) (citing Oklahoma City v. Tuttle, 471 U.S. 808, 816
plaintiff must [prove] that each Government-official defendant, through the
official’s own individual actions, has violated the Constitution.”46 Thus, a
supervisory official cannot be held liable solely on account of the acts or omissions
of her subordinates.47 A supervisor has sufficient personal involvement when she
participates directly in the alleged constitutional violation, creates a policy or
custom under which unconstitutional practices occur, or allows such practices to
continue.48 Additionally, a constitutional due process claim cannot be based on
Ashcroft v. Iqbal, 556 U.S. 662, 676–77 (2009).
See Grullon v. City of New Haven, 720 F.3d 133, 138 (2d Cir. 2013)
(“[I]n order to 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.”).
In 1995, the Second Circuit held that the following are sufficient to
constitute personal involvement: (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. See Colon v.
Coughlin, 58 F.3d 865, 873 (2d Cir. 1995) (citations omitted). However, only the
first and third factors have survived the Supreme Court’s decision in Iqbal. See
Spear v. Hugles, No. 08 Civ. 4026, 2009 WL 2176725, at *2 (S.D.N.Y. July 20,
mere negligence, but rather must arise out of intentional conduct.49
“Qualified immunity shields government officials from civil damages
liability unless the official violated a statutory or constitutional right that was
clearly established at the time of the challenged conduct.”50 The Second Circuit
has held that “[a] right is clearly established if (1) the law is defined with
reasonable clarity, (2) the Supreme Court or Second Circuit has recognized the
right, and (3) a reasonable defendant [would] have understood from the existing
law that [his or her] conduct was unlawful.”51 “[A] conclusion that the defendant
official’s conduct was objectively reasonable as a matter of law may be appropriate
where there is no dispute as to the material historical facts . . . .”52
Statute of Limitations
See Shannon v. Jacobowitz, 394 F.3d 90, 94 (2d Cir. 2005) (citing
Daniels v. Williams, 474 U.S. 327, 328 (1986)).
Taylor v. Barkes, 135 S. Ct. 2042 (2015) (quotation omitted).
Anderson v. Recore, 317 F.3d 194, 197 (2d Cir. 2003) (quotation
omitted). Accord Taravella v. Town of Wolcott, 599 F.3d 129, 134 (2d Cir. 2010)
(“Even where the law is clearly established and the scope of an official’s
permissible conduct is clearly defined, the qualified immunity defense also protects
an official if it was objectively reasonable for him at the time of the challenged
action to believe his acts were lawful.”) (internal quotations and citations omitted).
Taravella, 599 F.3d at 135.
“Federal constitutional claims, brought pursuant to 42 U.S.C. § 1983,
are governed by New York’s three-year statute of limitations for personal injury
actions, as well as the state’s tolling rules.”53 However, federal law determines
when a federal claim accrues.54 “Under federal law, a claim accrues when the
plaintiff knows or has reason to know of the alleged[ ] injury-causing act.”55
Under the doctrine established by the Supreme Court in American
Pipe & Construction Co. v. Utah56 and its progeny:
[T]he commencement of a class action suspends the applicable
statute of limitations as to all asserted members of the class who
would have been parties had the suit been permitted to continue
as a class action. Once the statute of limitations has been tolled,
it remains tolled for all members of the putative class until class
certification is denied.57
In a series of cases, the Supreme Court held that the filing of a class action tolls the
statute of limitations for class members who seek to intervene after the class
certification motion is denied,58 for class members who opt out after the
Connolly v. McCall, 254 F.3d 36, 40–41 (2d Cir. 2001).
See Morse v. University of Vermont, 973 F.2d 122, 125 (2d Cir. 1992).
Hunt v. Meharry Med. Coll., No. 98 Civ. 7193, 2000 WL 739551, at
*3 (S.D.N.Y. June 8, 2000).
414 U.S. 538 (1974).
Crown, Cork & Seal Co. v. Parker, 462 U.S. 345, 353–54 (1983).
See American Pipe, 414 U.S. at 552–53.
certification motion is granted,59 and for class members who file individual actions
after class certification is denied.60 However, “the tolling doctrine enunciated in
American Pipe does not apply to permit a plaintiff to file a subsequent class action
following a definitive determination of the inappropriateness of class
Defendants move for summary judgment on two grounds. First, they
once again assert they are entitled to qualified immunity. Second, they argue that
plaintiffs have failed to demonstrate certain defendants’ personal involvement in
any constitutional deprivation. Defendants also move to modify the class to
exclude certain class members’ claims that defendants allege are barred by the
statute of limitations, and to exclude class members whose claims defendants
allege are collaterally estopped. Plaintiffs dispute defendants’ arguments, and
move for partial summary judgment on the question of personal liability for
Annucci, Fischer, and Tracy.62
See Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 176 n.13 (1974).
See Crown, Cork & Seal, 462 U.S. at 353–54.
Korwek v. Hunt, 827 F.2d 874, 879 (2d Cir. 1987).
Defendants also argue in their moving brief that plaintiffs’ claims are
barred by the Eleventh Amendment, but appear to have abandoned this argument.
In any event, the argument is without merit — the defendants are sued in their
individual capacity for money damages, and plaintiffs’ have dropped any request
This Court has previously held that defendants are not entitled to
qualified immunity.63 Defendants had argued that plaintiffs’ constitutional rights
were not “clearly established” at the time those rights were allegedly violated.
Their argument rested “principally on the claim that for at least two years
following Earley, there was confusion in the state courts about whether the
decision was binding on the State and what remedies it required.”64 I concluded
that their argument was unpersuasive, and that “there was never any disagreement
or confusion about the core constitutional holding announced by Earley: terms of
PRS imposed by the executive branch were nullified and if the State wished to reimpose them, it could seek resentencing before a judge.”65 Defendants appealed
this ruling, and the Second Circuit affirmed it “substantially for the reasons stated
in [its] reversal of the grant of . . . immunity in Vincent [v. Yelich],” a case that
contained “parallel” claims.66
In Vincent, the Second Circuit held that Earley clearly established, for
for injunctive relief or judgment against defendants in their official capacities.
See Bentley, 852 F. Supp. 2d 379.
Id. at 382.
Betances, 519 Fed. App’x at 41.
the purposes of qualified immunity, that administrative imposition of PRS violated
federal due process guarantees, and that the district court had erred in ruling that
Annucci was entitled to qualified immunity as a matter of law.67 The Second
Circuit discussed — and dismissed — all of defendants’ arguments: that
subsequent New York State lower court decisions cast doubt on Earley’s holding,
and that defendants were unclear that the administrative imposition of PRS was
unlawful until the New York Court of Appeals decided Sparber and Garner.
With regard to defendants’ first argument, the court noted that
federal constitutional standards rather than state law define the
requirements of procedural due process. The 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 requires. State court decisions that rejected
Earley’s holding could not disestablish the federal right to due
process for the purposes of qualified immunity analysis.68
The court also observed that “the very conduct” that was challenged in Vincent was
“the conduct that was held unconstitutional in Earley.”69 In response to
defendants’ second argument, the court concluded that the two New York Court of
Appeals cases in 2008 that declared the administrative imposition of PRS unlawful
See Vincent v. Yelich, 718 F.3d 157, 173–74 (2d Cir. 2013).
Id. at 169 (internal quotations, citations, and alterations omitted).
Id. at 170.
under State law “did not affect the invalidity of such impositions under federal law,
which was announced in Earley in 2006. State and local officials are required to
comply not just with state law but with federal law as well.”70
However, the court allowed that further discovery could reveal facts
material to the qualified immunity inquiry. Specifically, the court stated that
evidence might exist “that could establish that Annucci made reasonable efforts
either to seek resentencing [of individuals with administratively-imposed PRS] or
to end their unconstitutional imprisonment and excise PRS from their prison
records.”71 Therefore the court remanded the case to the district court to develop
the record “as to the objective reasonableness of Annucci’s efforts to relieve [the
individuals] of the burdens of those unlawfully imposed terms after he knew it had
been ruled that the imposition violated federal law.”72
Based on this precedent, the only area of inquiry for the purposes of
this motion is whether defendants made objectively reasonable efforts to comply
with Earley. Defendants, however, appear to be following a strategy governed by
the adage “if at first you don’t succeed, try, try again.” Their brief, statement of
Id. at 174.
Id. at 177.
undisputed material facts, and declarations all rehash the same arguments already
rejected by the Second Circuit, and by this Court — twice. As such, this Court will
not address arguments that have previously been considered and dismissed three
There is no dispute about the actions taken by defendants. Soon after
Earley was decided, Annucci sent an email to OCA summarizing Earley’s holding
and recommending that a notification be sent to judges so that, going forward,
defendants would be properly sentenced to terms including PRS.74 Beyond this, no
defendant took any action to comply with Earley. To the contrary, the undisputed
facts indicate that defendants actively opposed compliance. After Earley had
declared the practice unconstitutional, DOCS continued to administratively impose
PRS.75 Annucci instructed DOCS to inform inmates who, in light of Earley,
questioned their PRS terms, that DOCS officials would not follow Earley’s
Defendants raised the same arguments rejected by this Court and by
the Second Circuit in their opposition to plaintiffs’ motion for class certification.
See Betances, 304 F.R.D. at 429.
See Def. 56.1 ¶ 40.
See Pl. 56.1 ¶¶ 28, 45–48. Defendants dispute many of these
assertions, but it appears that defendants object only to the use of the term
“administratively impose” and insist that the practice was governed by state law,
which mandated terms of PRS. Neither of these arguments has merit. Defendants
do not dispute the material fact that DOCS continued to impose terms of PRS
where the commitment papers were silent.
holding.76 Defendants acknowledge this, but insist that they did take reasonable
actions to comply. They assert that they “attempted to refer PRS challenges to
sentencing courts,” but this contention profoundly misrepresents defendants’
actions.77 In reality, when affected individuals sought relief from enforcement of
administrative PRS, DOCS and DOP opposed the petitions and took the position
that PRS was automatic.78 They also asserted — but only as an argument in the
alternative — that if administrative PRS could not be enforced, the petitions
should still be denied and the cases referred to the petitioners’ original sentencing
courts so that PRS could be retroactively imposed.79 Thus defendants’ purported
attempt to resentence affected individuals was only in response to those individuals
seeking relief from administrative PRS, and only as a last resort — they made no
Finally, DOCS created a database to identify affected individuals, and
kept that database updated, but did not take any steps to have any of those
See Annucci Decl. ¶ 13.
Defendants’ Memorandum of Law in Support of Their Motion for
Summary Judgment or to Modify the Class Certified in this Action (“Def. Mem.”)
See Def. 56.1 ¶¶ 47–48.
individuals resentenced, or to expunge the administratively-imposed PRS terms
from their sentences.80 DOP did not begin to identify affected individuals until
almost two years after Earley was decided.81 DOCS and DOP did not take
affirmative steps to resentence any individuals until May 2008.82
Based on this evidence, defendants have failed to show that they made
reasonable efforts to comply with Earley.83 As such, they are not entitled to
Liability of Annucci, Fischer, and Tracy
Plaintiffs move for summary judgment holding Annucci, Fischer, and
Tracy personally liable for the violation of plaintiffs’ due process rights. There is
no question that plaintiffs’ due process rights were violated.84 The only question is
whether these defendants may be held personally liable for the violation. I
conclude, based on the undisputed facts, that all three defendants may be held
See Def. 56.1 ¶¶ 58, 60–62; Annucci Decl. ¶ 24.
See Pl. 56.1 ¶¶ 75–76.
See id. ¶¶ 78–79.
See Vincent, 718 F.3d at 177.
See Earley v. Murray, 462 F.3d 147, 148 (2d Cir. 2006) (“[T]he
inclusion of a . . . period of PRS in [a] sentence when that PRS was not included in
the sentence imposed at [the individual’s] sentencing hearing violated his rights
under the Due Process Clause of the United States Constitution.”).
personally liable as a matter of law.
As counsel to DOCS, one of Annucci’s responsibilities was to
implement judicial decisions with apparent impact on DOCS’s calculation of
sentences.85 Annucci knew about the Earley decision and understood its holding.86
However, instead of complying with Earley’s holding or, at the very least, taking
steps to determine what compliance was possible, the undisputed evidence shows
that Annucci disagreed with Earley and determined that DOCS would not follow
it. He directed DOCS to inform inmates who questioned their PRS terms that
DOCS would not follow Earley.87 Though he sent an email to OCA requesting
that judges orally pronounce PRS for all sentences in the future, he admits that he
took no action to remove PRS from the records of individuals whose sentence and
commitment orders indicated that PRS had not been judicially imposed.88
Annucci argues that “it was not until 2008 when remedial legislation
was enacted by the State Legislature that DOCS and [DOP] were authorized to
See Pl. 56.1 ¶ 17.
See OCA Email.
See Annucci Decl. ¶ 13.
See Pl. 56.1 ¶ 49.
seek resentencing of individuals in their custody, or under their supervision, whose
PRS terms were not pronounced by their sentencing courts.”89 The facts, however,
belie this assertion. After the New York Court of Appeals held in Sparber and
Garner that, as a matter of New York procedural law, PRS terms must be judicially
pronounced, DOCS “was able to address PRS problems by giving notice to the
courts and the State’s District Attorneys that resentencings of thousands of inmates
may be required.”90 On May 14, 2008 — just two weeks after the Garner and
Sparber decisions — OCA sent a memorandum to all administrative judges
alerting them to the Garner and Sparber decisions.91 This memorandum informed
judges that DOCS would be sending letters and proposed orders regarding
individuals who lacked judicially-pronounced PRS terms and requesting that the
sentencing judge “calendar the case and impose the PRS period nunc pro tunc, or .
. . order DOCS to calculate the term of imprisonment without PSR [sic] and . . .
release the inmate without any further supervision . . . .”92 There is nothing in the
record to suggest that Annucci could not have recommended this course of action
Annucci Decl. ¶ 10 (citing Correction Law § 601-d).
Id. ¶ 28.
See 5/14/08 Post-Release Supervision Memorandum (“PRS Memo”),
Ex. D to Annucci Decl.
nearly two years earlier, in the wake of Earley, rather than waiting for the New
York Court of Appeals’ decisions.
It may be, as defendants suggest, that DOCS had no authority to
compel courts to accept the defendants for resentencing. It may also be true —
though it is by no means clear — that DOCS did not have the authority to simply
remove PRS from the records of individuals whose sentence and commitment
orders did not indicate a term of PRS.93 However, the Second Circuit made clear in
Vincent that DOCS “had an obligation to at least attempt to cease its administrative
and custodial operations that had been held to violate federal law.”94 The
undisputed facts indicate that Annucci made no such attempt.
The record unequivocally establishes that Annucci could have taken
action to attempt to comply with Earley, but did not. Six months after Earley,
Annucci directed and oversaw the effort to review inmate files to determine which
Because Earley declared that any sentence beyond that imposed by
the judge was a “nullity,” it seems plausible that striking the term from offenders’
records would not be correcting an illegal sentence (which DOCS does not have
the authority to do), but rather ceasing to enforce a term that was never a part of the
sentence at all. In other words, because the PRS terms were void, no authority was
necessary to eliminate these terms from offenders’ records. However, I need not
decide whether DOCS had the authority to remove terms of PRS because, as
discussed below, DOCS made no attempt to comply with Earley in any respect.
Vincent, 718 F.3d at 172–73.
individuals might be affected.95 Beyond the identification of these individuals,
Annucci took no action to either “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.”96 Instead, Annucci
waited for more than a year until the New York Court of Appeals decided Garner
and Sparber. Annucci therefore “exhibited deliberate indifference to the rights of
inmates by failing to act on information indicating that unconstitutional acts were
occurring.” Moreover, because he took no actions to comply with Earley, and
instead asserted — and continues to assert — that Earley was not binding, Annucci
is liable as a matter of law. Plaintiffs’ motion for summary judgment as to
Annucci is therefore granted.
Defendants also argue that DOCS and DOP lacked the relevant
documentation in many cases to determine whether PRS had been judically
pronounced. In some cases, even though the sentence and commitment orders did
not indicate a term of PRS, the sentencing minutes indicated that the judge had
indeed pronounced a term of PRS. However, DOCS and DOP did not have the
sentencing minutes for many inmates, even though these minutes are required to be
sent to DOCS. Nevertheless, the lack of these minutes does not relieve defendants
of liability. After Garner and Sparber, but before Correction Law § 601-d, DOCS
sent letters to judges requesting the sentencing minutes for inmates whose files
lacked them. See PRS Memo. There is no reason that DOCS could not have done
the same after Earley.
Vincent, 718 F.3d at 172.
For the same reasons as detailed above, I conclude that Fischer is
liable for the violation of plaintiffs’ due process rights as a matter of law. As
commissioner, Fischer had the authority to decide whether to change DOCS’s
policy related to PRS.97 Instead, Fischer decided to maintain DOCS’s policy of
administratively imposing PRS and await further guidance from the legislature and
the courts.98 Fischer was involved in the decision to make a database identifying
individuals whose sentences were potentially affected by Earley.99 He and
Annucci, together, decided how to respond to Earley.100 Thus Fischer exhibited
deliberate indifference by failing to act on information indicating that DOCS was
following a policy that violated the due process rights of individuals in its custody,
and instead knowingly allowed that policy to continue.101 Plaintiffs’ motion for
summary judgment with regard to Fischer is therefore granted.
See Pl. 56.1 ¶ 27.
See Fischer Dep. at 23, 40–41, 61.
See id. at 69.
See id. at 251–252 (“We talked about what PRS law said. We talked
about the federal court decision. . . . So I would say it was a mutual agreement or
discussion on what was presented to us factually and we together made the
decision to do what we did.”).
See Colon, 58 F.3d at 873.
As chief counsel for DOP, Tracy was aware of Earley in 2006,
understood its holding, and understood that it had an impact on the population
under DOP’s jurisdiction.102 Tracy knew of DOCS’s policy of administratively
imposing PRS, and knew that there were individuals under DOP supervision who
had not been judicially sentenced to PRS.103 Nevertheless, Tracy did not direct
DOP to review any records to determine which parolees with administrativelyimposed PRS were being supervised until June of 2008.104 Moreover, Tracy
considered ceasing to supervise these individuals, but decided against it.105 Thus,
at a minimum, Tracy was aware that DOP was supervising individuals whose
terms of PRS had not been judicially pronounced, which the Second Circuit had
concluded was a violation of those individuals’ due process rights, and took no
action to address those violations. In other words, Tracy was deliberately
indifferent to the continuing violations caused by DOP’s enforcement of
See Pl. 56.1 ¶¶ 3, 29; Tracy Dep. at 41–42.
See Pl. 56.1 ¶¶ 31–32.
See Tracy Dep. at 17; Def. 56.1 ¶ 76.
See Tracy Decl. ¶ 19 (“The immediate release of potentially affected
individuals from Parole supervision of DOCS’ custody could have potentially
subjected the public to serious and imminent dangers to their safety and security,
which I and others at the Division, as well as DOCS, determined to be an
Defendants argue that Tracy — and all DOP defendants — are not
liable as a matter of law because they did not calculate terms of PRS and had no
authority to alter the calculations DOP received from DOCS. But the undisputed
facts indicate that DOP did, in fact, take action after Garner and Sparber. In June
2008, DOP reviewed its records to determine which individuals in its custody were
being supervised without PRS terms in their sentence and commitment orders.106
Also in June, at Tracy’s initiative, DOP launched the Post-Release Supervision
Resentencing Initiative to request sentencing minutes where they were lacking, and
to request resentencing for affected individuals.107 As discussed above, there is no
reason that Tracy could not have taken these actions nearly two years earlier.
Therefore, plaintiffs’ motion for summary judgment as to Tracy is granted, and
defendants’ motion for summary judgment as to Tracy is denied.
Liability of Remaining Defendants
Defendants move for summary judgment for all remaining defendants,
arguing that plaintiffs have failed to establish their personal involvement in any
constitutional violation. Plaintiffs oppose summary judgment, contending that
See Def. 56.1 ¶ 76.
See 6/4/08 Email from Timothy O’Brien, Ex. A to Tracy Decl.
there is a genuine question concerning each of these defendants’ levels of personal
Glenn Goord and Lucien LeClaire
Goord was commissioner of DOCS when Earley was decided, and
remained commissioner until August 2006.108 LeClaire then became acting
commissioner until January 2007.109 As commissioners, they had the ultimate
authority over DOCS’s policies.110 Annucci testified that he could not remember if
he had discussions with Goord about Earley and PRS.111 Annucci also testified
generally that the PRS issue “was an issue that required effort at the highest level”
and that “it probably was discussed [at the weekly executive team meetings] but
not every single week.”112 Beyond this testimony, plaintiffs offer no evidence
establishing Goord’s and LeClaire’s personal involvement in the constitutional
violations. Indeed, no evidence exists to establish that they were even aware of
Earley. At best, based on this evidence, a reasonable jury could find that Goord
and LeClaire were negligent in failing to take action to prevent a constitutional
See Pl. 56.1 ¶ 4.
See id. ¶ 5.
See id. ¶ 27.
See Annucci Dep. at 193–194.
Id. at 194–195.
injury. Negligence, however, is not sufficient to support section 1983 liability for
a due process violation.113 Defendants’ motion for summary judgment is therefore
granted as to Goord and LeClaire.
Remaining DOP Defendants
For the same reasons, summary judgment is granted as to the
remaining DOP defendants: Andrea Evans, Mark Mantei, Robert Dennison,
Anthony Ellis, and George Alexander. Plaintiffs argue that “[t]he DOP defendants
could have altered DOP policy so that personnel no longer enforced illegal DOCS
calculations.” But they offer no evidence of any personal involvement beyond the
job titles of each of the defendants. With regard to Alexander, plaintiffs point to a
single fact — that he personally approved of the directive for DOP personnel to
review their files in June 2008.114 This one fact says little about what Alexander
may have known or done in the preceding two years. Again, reading the facts in
the light most favorable to plaintiffs, a reasonable jury could find that these
defendants were negligent, which cannot support liability for a due process
violation. As such, defendants’ motion for summary judgment is granted as to
See Shannon, 394 F.3d at 94 (citing Daniels, 474 U.S. at 328).
See Pl. 56.1 ¶ 75.
Statute of Limitations
Defendants contend that certain class members’ claims are barred by
the statute of limitations, and request that the class definition be modified to
exclude such claims. The statute of limitations for section 1983 claims in New
York is three years.116 Accordingly, defendants contend that any claim that
accrued prior to May 11, 2008 — three years before the date the Complaint was
filed — should be excluded from the class. Plaintiffs respond that, under the
American Pipe tolling doctrine,117 the statute of limitations was tolled during the
pendency of the three prior putative class actions filed after Earley: Sinclair v.
Goord, Gabriel/Hardy v. Fischer, and Smith v. Patterson.118 Therefore, they argue
Defendants also move for summary judgment on the grounds that
defendants’ enforcement of administratively-imposed PRS terms was privileged,
and therefore plaintiffs’ section 1983 false imprisonment and due process
violations fail. This argument has twice been addressed and dismissed by this
Court. See Betances, 304 F.R.D. at 430 n.102; Bentley, 852 F. Supp. 2d at 398.
Defendants further move for summary judgment on plaintiffs’ conspiracy claim. It
appears that plaintiffs have abandoned that claim, and summary judgment is
See Connolly v. McCall, 254 F.3d 36, 40–41 (2d Cir. 2001).
See Crown, Cork & Seal, 462 U.S. at 353–54.
See Memorandum of Law in Opposition to Defendants’ Motion for
Summary Judgment and in Support of Plaintiffs’ Cross-Motion for Partial
Summary Judgment at 20–21 (explaining the procedural history of Sinclair v.
that no claim is time-barred because, at most, only 25 months of non-tolled time
elapsed between June 9, 2006 — the earliest date a claim could have accrued —
and May 11, 2011 — the date this Complaint was filed.
Defendants respond by pointing to Korwek v. Hunt, where the Second
Circuit held that “the tolling doctrine enunciated in American Pipe does not apply
to permit a plaintiff to file a subsequent class action following a definitive
determination of the inappropriateness of class certification.”119 Defendants seem
to contend that Korwek stands for the proposition that American Pipe tolling ends
after a putative class action has been dismissed for any reason. This argument
reads Korwek too broadly. As this Court has previously recognized, “Korwek’s
holding is limited to cases in which class certification is denied and plaintiffs file a
subsequent lawsuit in order to relitigate class certification.”120 That has not
The history of the previous putative class actions is as follows. The
Sinclair action was dismissed on qualified immunity grounds, and no motion for
Goord, No. 07 Civ. 1317 (N.D.N.Y.), filed December 18, 2007; Gabriel/Hardy v.
Fischer, No. 08 Civ. 2460 (S.D.N.Y.), filed March 11, 2008; and Smith v.
Patterson, No. 08 Civ. 3313 (S.D.N.Y.), filed April 2, 2008).
827 F.2d at 879 (emphasis added).
In re Initial Public Offering Sec. Litig., 214 F.R.D. 117, 123 n.9
class certification was ever made.121 In the Gabriel/Hardy action, the court granted
defendants’ motion to dismiss on qualified immunity grounds. On the same day,
the court denied plaintiffs’ motion for a preliminary injunction because they had
not shown a likelihood of success on the merits. This denial also “moot[ed] the
motion for certification of an injunctive class.”122 The court did not address the
merits of the class certification motion. Finally, the Smith action was dismissed
based on qualified immunity and the injunctive relief bar the court had earlier
applied in the Gabriel/Hardy action.
Thus, no court “definitively denied” class certification.123 In two of
these actions, no motion for class certification was ever made. In the third,
plaintiffs moved for class certification, but the motion was denied as moot and the
court never addressed the merits of class certification.
Defendants’ reliance on Giovanniello v. ALM Media, LLC is
misplaced.124 There, in applying Korwek, the Second Circuit held that “the tolling
rule announced in American Pipe  extends only through the denial of class status
Pl. 56.1 ¶¶ 92–94.
Hardy v. Fischer, 701 F. Supp. 2d 614, 616 n.3 (S.D.N.Y. 2010).
See In re Initial Public Offering Securities Litig., No. 01 Civ. 9741,
2004 WL 3015304, at *3 (S.D.N.Y. Dec. 27, 2004).
726 F.3d 106 (2d Cir. 2013).
in the first instance by the district court.”125 Although defendants correctly note
that the district court had dismissed the putative class action for lack of subject
matter jurisdiction, defendants fail to note the underlying reason for the lack of
jurisdiction. The district court determined that New York law did not permit a
class action under those circumstances, and because the plaintiff could not
maintain a class action, the maximum damages he could receive fell short of the
amount required for diversity jurisdiction.126
Because the appropriateness of a class action had not been addressed
in any of the previously-filed putative class actions, American Pipe tolling applies,
and the statute of limitations was tolled during the pendency of the three previous
actions. Therefore, defendants’ motion to exclude claims that are time barred is
Defendants move to modify the class to exclude members whose
claims, they allege, are barred by collateral estoppel. In brief, defendants contend
that class members who filed — and lost — claims for false imprisonment in the
Id. at 107–08 (emphasis added).
See id. at 108.
New York Court of Claims are estopped from relitigating the same issue here.127
This argument is without merit. Collateral estoppel requires, inter alia, that “the
issue in question was actually and necessarily decided in a prior proceeding.”128
The burden of proving whether an issue is identical to one before the court “rests
squarely on the party moving for preclusion.”129 Defendants have failed to meet
that burden. The previous cases found that state claims for false imprisonment
based on administrative PRS failed because plaintiffs were arrested pursuant to
valid warrants, and that negligence claims against the state failed because DOCS’s
actions in recording PRS terms was discretionary, and the state was immune from
liability for the discretionary acts of its officials.130 Neither of these conclusions
“actually and necessarily” decided any issue with regard to defendants’ liability for
violating plaintiffs’ due process rights. The mere fact that plaintiffs seek damages
related to the loss of liberty caused by the violation of their due process rights does
not transform their claims into claims for false imprisonment. Defendants’ motion
See Def. Mem. at 22–25.
Vargas v. City of New York, 377 F.3d 200, 205–06 (2d Cir. 2004).
LaFleur v. Whitman, 300 F.3d 256, 272 (2d Cir. 2002).
See Donald v. State of New York, 17 N.Y.3d 389, 395 (2011).
-AppearancesCounsel for Plaintiffs:
Matthew D. Brinckerhoff, Esq.
Hayley Horowitz, Esq.
Emery Celli Brinckerhoff & Abady, LLP
600 Fifth Avenue, 10th Floor
New York, NY 10020
Counsel for Defendants:
Michael J. Keane
Christina Chinwe Okereke
James Brennan Cooney
Assistant Attorneys General
State of New York
New York, NY 10271
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