Betances v. Fischer et al

Filing 432

DECISION AND ORDER granting in part and denying in part 390 Motion for Partial Summary Judgment; granting in part and denying in part 400 Motion for Summary Judgment. For the foregoing reasons: (1) the parties' motions for partial summary judgment are granted in part and denied in part as set forth above; (2) the Court vacates its prior holding with respect to Nunc Pro Tunc Plaintiffs; and (3) the class is decertified. Determination of damages shall be resolved on an individual basis. To the extent not discussed above, the Court has considered the parties' arguments and determined them to be without merit. The parties shall meet and confer and by 30 days following entry of this decision and order shall file a joint letter proposing next steps, including prospects for conducting a bellwether trial of named or other plaintiffs. SO ORDERED. Copies transmitted this date to all counsel of record. (Signed by Magistrate Judge Robert W. Lehrburger on 1/17/2024) (mml)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
---------------------------------------------------------------X
PAUL BETANCES, et al., individually
:
and on behalf of others similarly situated,
:
:
Plaintiffs,
:
:
- against :
:
BRIAN FISCHER, in his capacity as
:
Commissioner of the New York State
:
Department of Correctional Services (DOCS), :
and in his individual capacity, et al.,
:
:
Defendants.
:
---------------------------------------------------------------X

1/17/2024
11-CV-3200 (RWL)
DECISION AND ORDER

ROBERT W. LEHRBURGER, United States Magistrate Judge.
For more than a decade, Paul Betances, Lloyd A. Barnes, and Gabriel Velez
(“Named Plaintiffs”) – individually and on behalf of others similarly situated (together,
“Plaintiffs”) – have prosecuted this class action against Brian Fischer, Anthony J. Annucci,
and Terrence Tracy (“Defendants”) for violating their due process rights. Plaintiffs seek
redress for Defendants’ wrongful enforcement of unlawfully imposed terms of postrelease supervision (“PRS”). Defendants already have been found personally liable, a
decision affirmed by the Second Circuit Court of Appeals. Most recently, the case was
poised for trial to determine loss-of-liberty damages on a class-wide basis. In the interim,
however, the Second Circuit issued a decision that addressed determination of damages
in wrongful-PRS cases such as this one. See Vincent v. Annucci, 63 F. 4th 145 (2d Cir.
2023) (“Vincent”).
To assess the implications of Vincent for trial of damages in the instant action, the
parties, at the Court’s request, have cross-moved for partial summary judgment on the

1

extent to which, if at all, any legal or practical impediments delayed Defendants’ ability to
release Plaintiffs from unlawful PRS and from reincarceration after violation of unlawful
PRS. The parties also have cross-moved on two additional issues, namely whether the
subclass of class members who were resentenced to PRS nunc pro tunc may recover
more than nominal damages; and, whether Vincent has any implications for continuing
as a class action for general loss-of-liberty damages. Having considered the parties’
briefs, evidence, and arguments, the Court now resolves these issues as set forth below.
BACKGROUND 1
The facts and history of this case have been summarized in several prior opinions. 2
The Court sets forth below only the information most relevant to the instant motions.
The facts are drawn from previous decisions in this case, the parties’ statements of
material fact and corresponding responses pursuant to Local Civil Rule 56.1, the evidence
submitted by the parties, and the record. The facts are undisputed unless otherwise
indicated. The Court uses the following naming conventions: “Def. 2023 56.1 Resp.”
refers to Defendants’ Response To Plaintiffs’ 56.1 Statement, filed August 14, 2023 (Dkt.
405) (including both Plaintiffs’ asserted statements and Defendants’ responses); “Pl. 2023
56.1 Resp.” refers to Plaintiffs’ Response To Defendants Statement Of Undisputed
Material Facts Pursuant To Local Rule 56.1, filed August 30, 2023 (Dkt. 412) (including
both Defendants’ asserted statements and Plaintiffs’ responses); “Bourland Decl.” refers
to the Declaration of Nick Bourland filed June 23, 2023 (Dkt. 391); “Fischer Decl.” refers
to the Declaration of Brian Fischer, filed August 14, 2023 (Dkt. 401); “Annucci Decl.” refers
to the Declaration of Anthony J. Annucci, filed August 14, 2023 (Dkt. 402); “Tracy Decl.”
refers to the Declaration of Terrence Tracy, filed August 14, 2023 (Dkt. 403); and “Keane
Decl.” refers to the Declaration of Michael J. Keane, filed August 14, 2023 (Dkt. 406-08).
The Court also draws upon sworn testimony from earlier proceedings. “2015 Annucci
Decl.” refers to the Declaration of Anthony J. Annucci, filed May 8, 2015 (Dkt. 91).
1

See Bentley v. Dennison, 852 F. Supp.2d 379 (S.D.N.Y. 2012) (“Bentley”) (denying
Defendants’ motion to dismiss based on qualified immunity in both this class action and
a related action with individual plaintiffs), aff’d sub nom, Betances v. Fischer, 519 F. App’x
39 (2d Cir. 2013) (“Betances I”); Betances v. Fischer, 304 F.R.D. 416 (S.D.N.Y. 2015)
(“Betances Class Opinion”); Betances v. Fischer, 144 F. Supp.3d 441 (S.D.N.Y. 2015)
(“Betances II”) (summary judgment finding Defendants personally liable for violating
Plaintiffs’ constitutional rights); Betances v. Fischer, 837 F.3d 162 (2d Cir. 2016)
(“Betances III”) (affirming Betances II and remanding for appropriate remedies); Betances
v. Fischer, 403 F. Supp.3d 212 (S.D.N.Y. 2019) (“Betances IV”) (granting Defendants’

2

2

A.

The Parties
Plaintiffs were convicted of violent felonies and sentenced by New York State

courts. Although state law required courts to impose a term of PRS for such convicted
felons, the court-ordered sentencing and commitment orders for Plaintiffs did not include
any term of PRS.

Upon taking custody of Plaintiffs, however, the administrators

responsible for incarceration and parole added PRS terms to their sentences. After being
released from prison, class members were compelled to comply with the restrictions of
administratively imposed PRS, and in many cases, were reincarcerated for a period of
time based on their violation of the terms of administratively imposed PRS.
Defendants are the three individuals remaining in the case based on their having
enforced administratively imposed PRS, despite their awareness that administratively
imposed PRS was unconstitutional.

Anthony Annucci was counsel for New York

Department of Correctional Services (“DOCS”) from September 1989 until October 2007,
when he became deputy commissioner and counsel, a position he served until December
2008. (Def. 2023 56.1 Resp. ¶ 2.) Brian Fischer served as commissioner of DOCS from
January 2007 to April 2011. (Def. 2023 56.1 Resp. ¶ 1.) Terrence Tracy was the chief
counsel for the New York Division of Parole (“DOP”) from December 1996 until March
2011. 3 (Def. 2023 56.1 Resp. ¶ 3.) During the relevant time period, DOCS took custody

summary judgment limiting certain class members to nominal damages but denying the
motion in all other respects, including as to class decertification); Betances v. Fischer,
2022 WL 765963 (S.D.N.Y. March 14, 2022) (“Betances V”) (denying Defendants’ motion
for class decertification); Betances v. Fischer, 2023 WL 2609133 (S.D.N.Y Mar. 23, 2023)
(Betances VI) (finding that failure-to-mitigate defense did not warrant decertification).
In 2011, Parole and DOCS merged to create the Department of Correction and
Community Supervision. (Def. 2023 56.1 Resp. ¶ 1.) The merger occurred after the
relevant events giving rise to this lawsuit and does not affect analysis of the issues at bar.

3

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of defendants for their initial imprisonment and for reincarceration after violations of PRS.
DOP was responsible for enforcing PRS. Betances III, 837 F.3d at 165; see also Vincent
v. Yelich, 718 F.3d 157, 160 (2d Cir. 2013) (“Yelich”) (while “the practice of reincarcerating persons who violated their administratively-imposed PRS was a practice of
the Division of Parole, and not of DOCS,” DOCS’s “ensuing custody of [inmates] for such
violations was unlawful”).
B.

Post-Release Supervision
In 1998, the New York Legislature passed “Jenna’s Law,” a sentencing scheme

for defendants found guilty of certain violent felonies mandating that each determinate
sentence of incarceration also include an additional period of PRS. See N.Y. Penal Law
§ 70.45(1) (McKinney 1998). Some judges, however, did not pronounce PRS during
sentencing proceedings. 4 Betances III, 837 F.3d at 165. As a result, some defendants
entered DOCS custody without a judicially imposed sentence of PRS. Id. Instead of
informing the sentencing court of this omission, however, DOCS “simply added the PRS
term administratively.” Id.
Doing so was merely a matter of paperwork and computer entry. When received
by DOCS, inmates were accompanied by their pre-sentence report, a list of their criminal
history, and a sentence and commitment order (“commitment order”). 5 (Pl. 2023 56.1

Jenna’s Law was amended in 2008 to explicitly require sentencing judges to state on
the sentencing record both the term of imprisonment and the additional period of postrelease supervision. N.Y. Penal Law § 70.45(1).

4

Commitment orders had various names. For instance, in some counties, a commitment
order was referred to as a “Sentence and Commitment,” whereas in others it was named
a “Sentence and Order of Commitment.” (Pl. 2023 56.1 Resp. ¶ 6.)

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4

Resp. ¶ 5.) Defendants admit that DOCS calculated inmates’ sentences “based upon the
information on the sentence and commitment sheets that accompanied them to prison.”
(Pl. 2023 56.1 Resp. ¶ 4.) See Betances III, 837 F.3d at 165 (“DOCS employees routinely
entered information about the inmate’s sentence from [the relevant document] into the
DOCS computer system”). Nevertheless, if a commitment order was silent as to PRS,
and DOCS believed that PRS should have been automatically included pursuant to
Jenna’s law, DOCS took it upon themselves to impose PRS when inputting the relevant
information into its computer systems. 6 (Def. 2023 56.1 Resp. ¶¶ 11, 13.) See Betances
III, 837 F.3d at 165 (“If a sentence and commitment order did not include the PRS term
that § 70.45 required, DOCS employees, following guidelines issued by DOCS, entered
for the inmate the shortest PRS term permitted by § 70.45”).
Operations then ran as usual with DOCS informing DOP, near an inmate's prison
release date, of the dates and duration of that inmate's PRS. DOP then supervised the
former inmate while on PRS. Betances III, 837 F.3d at 165. If a former inmate released
on PRS violated their terms of PRS, “DOCS and DOP were authorized to reincarcerate

Throughout their responses to Plaintiffs’ statements of undisputed fact, Defendants deny
that DOCS ever “imposed” PRS and instead “calculated” a sentence that the court was
required to impose. (See, e.g., Def. 2023 56.1 Resp. ¶¶ 11, 15, 17, 26-28, 30, 36, 38-40,
43-46, 48-50, 54-57, 59-64.) Defendants’ objection to the term “imposed” is frivolous.
The Second Circuit’s decisions addressing Defendants’ liability repeatedly have couched
their conduct in terms of DOCS having unlawfully “imposed” or “added” PRS. See, e.g.,
Yelich, 718 at 160; Betances III, 837 F.3d at 170; Hassell v. Fischer, 879 F.3d 41, 47 (2d
Cir. 2018); Vincent, 63 F.4th at 148. This is not the first time Defendants have peppered
their summary judgment papers with suspect objections and denials. See Betances II,
114 F. Supp.3d at 445 n.5 (finding Defendants’ blanket objections in response to Plaintiffs’
56.1 statement in 2015 to be “in the main, utterly frivolous and border[ing] on bad faith”).

6

5

an offender who, after a hearing, was found to have violated the conditions of release.”
Id.
C.

Administrative Imposition Of PRS Held Unconstitutional
On June 9, 2006, the Second Circuit Court of Appeals held that administrative

imposition of PRS was unconstitutional. 7 Earley v. Murray, 451 F.3d 71 (2d Cir. 2006),
rehearing denied, 462 F.3d 147 (2d Cir. Aug. 31, 2006) (“Earley”), cert. denied, 551 U.S.
1159 (2007). As the Second Circuit later explained in Betances III, “the Constitution
forbids DOCS from modifying a sentence imposed by a judge,” including in cases where
DOCS administratively modified a sentence to add a period of PRS where such a term
was mandated by Jenna’s Law but had not been imposed by a sentencing judge.
Betances III, 837 F.3d at 165 (citing Earley, 451 F.3d at 74-76); see also Yelich, 718 F.3d
at 166 (holding that Earley clearly established the unconstitutionality of administratively
imposed PRS).
As a consequence of its constitutional impropriety, any PRS imposed by DOCS
was rendered “null and void.” Vincent, 63 F.4th at 148; see also Betances III, 837 F.3d
at 166 (PRS imposed by DOCS was a “nullity”).

Upon Earley’s holding, “[i]t was

incumbent on the state to rectify the constitutional violations that were ongoing.” Vincent,
63 F.4th at 152 (emphasis in original). More particularly, the state was required to either
arrange for convicts to be “resentenced by the court for the imposition of PRS terms in a
constitutional manner or … excise the PRS conditions from their records and relieve

Throughout this opinion, the Court uses interchangeably various terms referring to PRS
that was unlawfully imposed, including “administratively imposed PRS,” “unconstitutional
PRS,” “wrongful PRS,” and “unlawful PRS.”
7

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them of those conditions.” Id. (emphasis in original). While both those remedies were
available to individuals whose determinate sentences had not yet expired, only the latter
option – excision of and release from PRS – was available for individuals, like many
Plaintiffs, “who had served their judicially imposed determinate sentences and had been
released from custody, only to be re-incarcerated for violating the terms of their
administratively imposed PRS.” Id. at 152.
D.

Defendants' Deliberate Failure To Timely Comply With Earley
Annucci, Fischer, and Tracy each had the ability and authority to immediately take

steps to discontinue imposing and enforcing unlawfully imposed PRS. Yet, rather than
comply with Earley, they defied it. The Second Circuit has repeatedly admonished the
three Defendants for their recalcitrance:

“The defendants [(including Fischer and

Annucci)] have appeared before this Court many times regarding their imposition of PRS,
and their deliberate refusal to follow Early I’s holding is well documented.” Reyes v.
Fischer, 934 F.3d 97, 101 (2d Cir. 2019). Indeed, the Second Circuit recently held that
punitive damages are available and “may be especially appropriate” for Defendants’
failure to cease imposing and enforcing unlawful PRS. Aponte v. Perez, 75 F.4th 49, 56
(2d Cir. 2023); see also Santiago v. Fischer, No. 12-CV-2137, 2023 WL 2974201, at *14
(E.D.N.Y. Apr. 16, 2023) (upholding jury’s punitive damages award for wrongful PRS and
finding each Defendant’s conduct to be “reprehensible … as it was repeated, reckless
and culminated in depriving Plaintiff’s liberty and thousands of others of their liberty).
What could Defendants have done to comply with Earley? First, DOCS could have
immediately discontinued imposing PRS where commitment orders were silent on the
subject. Nothing prevented Defendants from doing so. (Def. 2023 56.1 Resp. ¶ 36.)

7

Second, DOCS and DOP could have immediately reviewed their files to determine
which individuals were already subjected to PRS even though their commitment order did
not include a PRS term. (Def. 2023 56.1 Resp. ¶¶ 35, 37.) DOCS undertook such a
review in 2007, and it took only four to six weeks. (Def. 2023 56.1 Resp. ¶¶ 56-61.)
Ultimately, DOCS determined that for 8,100 individuals currently serving sentences or
released to PRS, “the sentence and commitment order was silent as to PRS, leading to
the conclusion that DOCS had added the terms to these inmates’ sentences.” Betances
III, 837 F.3d at 169. But instead of acting on that information, DOCS employees “simply
sat on the information they had collected.” Id. at 172. For its part, DOP needed less than
a week to review the files of all individuals under their supervision to determine whether
their commitment orders reflected judicially imposed PRS, but did not conduct that review
until June 2008. (Def. 2023 56.1 Resp. ¶ 68.)
Third, following review of the files, DOCS could have excised PRS from the records
of the individuals identified; no impediment prevented DOCS from doing so. (Def. 2023
56.1 Resp. ¶¶ 36, 38.)

As Fischer testified:

Q. And then one thing you could have done at that
point in time [having identified all people affected by the policy
of administratively imposed PRS] was just remove the PRS
from all those people that had been imposed pursuant to the
DOCS policy that it was now clear was inconsistent at least
with Earley versus Murray, right? That’s one option that you
had?
A. Yes.
Q. And as I understand your testimony your decision
was to not do that, right?
A. Correct.

8

(Bourland Decl. Ex. B at 82:18-83:7; see also id. at 222:21-224:2 (Fischer admitting that
he and his predecessors had “the authority and the power” to recalculate sentences for
anyone subject to PRS imposed by DOCS).) Similarly, Annucci conceded that, based on
complete information, he could have “nullified any DOCS sentences to PRS that were
inconsistent with the commitment orders,” although he probably would have first
consulted with the Commissioner of DOCS and possibly the Governor’s office. (Bourland
Decl. Ex. C at 167:7-168:2.)
Defendants were not alone in their non-compliant response to Earley.

For

instance, some district attorneys did not seek resentencings in cases involving PRS, not
even for Earley. (Pl. Resp. 2023 56.1 ¶¶ 2-3.) And the state courts “were inconsistent”
in following Earley, with two of the four departments adhering to Earley, while the other
two initially did not apply its holding. Betances III, 837 F.3d at 166.
E.

Action Upon Change In New York Law
Despite their constitutional obligations as established in Earley, DOCS did not act

to address unlawful PRS until May 2008 in response to two New York Court of Appeals
decisions holding that administrative imposition of PRS violated New York law. See
Matter Of Garner v. New York State Department Of Correctional Services, 10 N.Y.3d 358,
362-63, 859 N.Y.S.2d 590, 592-93 (2008) (prohibiting DOCS from imposing PRS); People
v. Sparber, 10 N.Y.3d 457, 469-70, 859 N.Y.S.2d 582, 587 (2008) (finding that the
administrative addition of PRS was not a valid statutory interpretation of New York law).
At that time, “DOCS launched a ‘Post-Release Supervision Resentencing Initiative’ to
obtain resentencing of individuals in its custody whose sentencing judges had not
pronounced PRS terms required by § 70.45.” Betances III, 837 F.3d at 169. As part of

9

the initiative, in addition to reviewing the data already collected indicating which inmates
had commitment orders that were silent about PRS, DOCS sought to obtain the
sentencing minutes of all 8,100 individuals to determine if the sentencing judge had orally
pronounced PRS even if it was not recorded in the inmate’s commitment order. Id. at
169.

DOCS also notified courts and district attorneys of inmates who might need

resentencing, and, with DOP, brought a declaratory judgment action seeking judicial
approval of a mass-resentencing plan. Id. at 171-72.
In June 2008, the New York State Legislature amended New York criminal law to
establish a process for DOCS and Parole to refer for resentencing inmates who appeared
to have had PRS unlawfully added to their sentencing.8 (Pl. 2023 56.1 Resp. ¶¶ 25-26.)
See N.Y. Correction Law § 601-d. In order to not overwhelm the courts, DOCS, DOP,
and the Office of Court Administration entered into a memorandum of understanding that
required defendants be sent back to their sentencing courts in phases. (Pl. 2023 56.1
Resp. ¶ 27.) By January 2009, almost all relevant individuals had been referred to their
sentencing courts; some were resentenced with PRS, some with abbreviated PRS, and
some without PRS. (Def. 2018 56.1 ¶ 17.9) Ultimately, “it [had taken] Annucci 19 months,
Tracy 15 months, and Fischer 14 months to take the first meaningful steps to bring their
departments into compliance with Earley I.” Betances III, 837 F.3d at 172. “All three

Many of those affected by an unlawful PRS had previously pled guilty. The new
legislative scheme was established in part to avoid vacatur of guilty pleas in cases where
PRS was administratively imposed. People v. Catu, 4 N.Y.3d 242, 245, 792 N.Y.S.2d
887, 888-89 (2005); see also Sparber, 10 N.Y.3d at 471-72, 859 N.Y.S.2d at 588-89.
8

“Def. 2018 56.1” refers to Defendants’ August 10, 2018 Statement Of Undisputed
Material Facts Pursuant to Rule 56.1 (Dkt. 200).

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confirmed that their noncompliance was not the result of oversight or confusion; they
understood that Earley I required them to change their practices but affirmatively decided
not to do so.” Id. And all three Defendants “admitted that nothing prevented them from
taking [the] same actions [they eventually took] when they first understood the
requirements of Earley I.” Id.
In February 2010, the New York Court of Appeals held that the Double Jeopardy
and Due Process Clauses of the United States Constitution barred resentencing (for the
purpose of judicially imposing PRS) on defendants who had served their determinate term
of imprisonment and had been released from confinement by DOCS. People v. Williams,
14 N.Y.3d 198, 217, 899 N.Y.S.2d 76, 87 (2010).
PROCEDURAL HISTORY
A.

Proceedings Prior To The Second Circuit’s Vincent Decision
Plaintiffs commenced this action on May 11, 2011, alleging that administrative

imposition of PRS, and enforcement of that PRS, violated their constitutional rights under
the Fourth and Fourteenth Amendments. (Complaint (“Compl.”), Dkt 1.) Plaintiffs’ claims
survived Defendants’ motion to dismiss based on qualified immunity, and the Second
Circuit affirmed Judge Scheindlin’s analysis that Earley “clearly established that the
administrative imposition of post-release supervision terms not imposed by the court is
unconstitutional.” Betances I, 519 F. App’x at 41; see also Bentley, 852 F. Supp. 2d at
386.
On January 28, 2015, Judge Scheindlin certified a class of “individuals who were
convicted of various crimes in New York State courts on or after September 1, 1998; were
sentenced to terms of incarceration but not to terms of PRS; but were nonetheless
subjected to enforcement by defendants of PRS terms after the maximum expiration
11

dates of their determinate sentences after June 9, 2006” (when Earley was decided).
Betances Class Opinion, 304 F.R.D. at 427. The Court determined that liability and
general damages for loss of liberty should be resolved on a class basis, while
individualized damages issues could be addressed in the future by, for example,
decertifying the class. Id. at 432.
Following class certification, the parties cross-moved for summary judgment on
the merits. (Dkts. 90, 100.) Judge Scheindlin granted Plaintiffs’ motion and found
Defendants Annucci, Fischer, and Tracy personally liable for violating Plaintiffs’ due
process rights. Betances II, 144 F. Supp. 3d at 453. The Second Circuit affirmed the
decision, stating “we agree with the district court that the defendants did not make an
objectively reasonabl[e] effort to relieve plaintiffs of the burdens of those unlawfully
imposed terms [of PRS] after they knew it had been ruled that the imposition violated
federal law.”10 Betances III, 837 F.3d at 174 (internal quotation marks and modifications
removed).
With liability determined, the only remaining issues concern damages. Plaintiffs
seek damages for the time they were wrongfully subject to the restrictions of PRS and
incarcerated based on PRS violations, including the commission of new crimes. They do
not seek damages for the time they were incarcerated for the underlying crimes that led
to their being newly arrested and incarcerated.
On August 10, 2018, Defendants filed a motion for partial summary judgment on
several issues and to modify or decertify the class. (Dkt. 199.) On February 21, 2019,

The Second Circuit held that Defendants could not be held liable for any period of time
prior to August 31, 2006, the date when the Court denied Defendants’ motion for
reconsideration in Earley. 837 F.3d at 172.
10

12

the Court denied summary judgment on all issues except one pertaining to nominal
damages and denied decertification. Betances IV, 403 F. Supp.3d 212. In discussing
damages, the Court categorized the plaintiffs into three groups: Plaintiffs who were
reincarcerated based on a violation of their unlawful PRS (“Incarcerated Plaintiffs”);
Plaintiffs who were subject to illegal PRS but who were not subsequently incarcerated for
violating that PRS (“PRS Only Plaintiffs”); 11 and Plaintiffs who were referred for
resentencing and received the same terms of PRS nunc pro tunc as they had received
under unconstitutionally-imposed PRS (“Nunc Pro Tunc Plaintiffs”). Id. at 230-32. The
Court held that Incarcerated Plaintiffs and PRS Plaintiffs were not limited to nominal
damages, while Nunc Pro Tunc Plaintiffs were limited to nominal damages. Id. at 23034.
The Court denied Defendants’ request to decertify the class. In so doing, the
Court noted that Judge Scheindlin previously had certified the class with the expectation
damages for loss of liberty would be included in the class phase. Id. at 237. Defendants
did not present any new evidence or authority to depart from a class trial on general
damages for loss of liberty. Id. at 238. At the same time, the Court recognized that certain
issues were not yet sufficiently developed to fully resolve the matter. Id.

Within the PRS Only Plaintiff group, the Court identified three subgroups based on
procedural differences: (1) Plaintiffs who prevailed on an Article 70 or Article 78
proceeding and had their PRS excised; (2) Plaintiffs who were referred for resentencing
but the sentencing judge imposed no or only an abbreviated term of PRS; and (3) Plaintiffs
not referred for resentencing (or referred too late) but who were relieved of their PRS
following the New York Court of Appeals decision in People v. Williams, 14 N.Y.3d 198,
899 N.Y.S.2d 76 (2010).
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13

In 2021, Defendants moved again to decertify the class, arguing that individual
damages issues predominate. (Dkt. 307.) Plaintiffs opposed, and on March 14, 2022,
the Court denied Defendants’ motion, reasoning that the class could be maintained for
damages for loss of liberty. Betances V, 2022 WL 765963, at *13. The Court explained
Judge Scheindlin’s previous reasoning in certifying the class at the outset, noting that in
Kerman v. City Of New York, 374 F.3d 93, 125 (2d Cir. 2004), the Second Circuit
recognized that general damages could be awarded for loss of liberty independent of
other types of harms. See 2022 WL 765963, at *2-3. The Court then described analogous
cases in which courts proceeded with class actions for loss-of-liberty or similar damages
for wrongful strip searches and detentions. See Dellums v. Powell, 566 F.2d 167 (D.C.
Cir. 1977) (damages for false arrest and imprisonment based on number of hours and
conditions of detention); Barnes v. District Of Columbia, 278 F.R.D. 14 (D.D.C. 2011)
(damages for injury to human dignity based on length of unlawful detention and value for
each strip search); In re Nassau County Strip Search Cases, No. 99-CV-3126, 2008 WL
850268, at *3-7 (E.D.N.Y. March 27, 2008) (general damages for loss of dignity for
unlawful strip search).
On November 17, 2022, the Court held a pre-trial conference to address motions
in limine and other issues for trial. Among the issues decided was Plaintiffs’ motion in
limine to exclude any argument and testimony concerning Defendants’ liability and the
element of proximate cause. (See Dkt. 306 at 4.) As Defendants already had been held
liable to Plaintiffs on summary judgment, the Court granted Plaintiffs’ motion and denied

14

Defendants’ related motion to include testimony and argument concerning causation. 12
(Dkt. 364 at 2.) Following additional briefing, on March 23, 2023, the Court denied
Defendants’ renewed motion to decertify the class premised on their defense of Plaintiffs’
failure to mitigate damages. The Court found that while mitigation could be a relevant
defense for individual damages claims, it was not relevant for trial of general damages for
loss of liberty. Betances VI, 2023 WL 2609133, at *4 (S.D.N.Y. Mar. 23, 2023).
B.

Vincent
The next day, the Second Circuit issued its decision in Vincent. Vincent, like the

current Plaintiffs, was subject to unlawful PRS. After completing his judicially determined
sentence in 2005, Vincent was arrested and reincarcerated for violating the terms of his
unlawful PRS. 63 F.4th at 148. In 2006, while Vincent was still in custody, the Second
Circuit decided Earley. By form letter dated June 1, 2008 – nearly two years after Earley
– Annucci advised Vincent’s sentencing judge that he had not imposed PRS in 2001 and
requested a hearing to determine whether to resentence Vincent or direct DOCS to
release him. Id. The state sentencing judge never resentenced Vincent nor issued an
order in response to Annucci’s letter. Id. Vincent ultimately was released only as a result
of his successfully filing a state habeas petition in July 2008. Id.

In a footnote in Betances III, the Second Circuit expressly left open the question of
“how, if at all, the actions of others might inform any assessment of causation for specific
injuries claimed by plaintiffs against these defendants.” 837 F.3d at 174 n.2. Consistent
with the Second Circuit’s footnote, and while not permitting a wholesale revisiting of
causation, this Court left open the opportunity for Defendants to argue at individual
damages trials that certain individual injuries may be due to the action of others and
therefore not attributable to Defendants. Betances IV, 403 F. Supp.3d at 235. As
discussed below, Vincent requires a broader examination of damages causation
concerning impediments to Defendants’ ability to immediately and unilaterally discontinue
enforcement of unlawful PRS. The Court vacates its earlier decision regarding causation
to the extent it is inconsistent with Vincent.
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15

Vincent sued for compensatory damages.

On summary judgment, Annucci

argued, inter alia, that Vincent was entitled to no more than nominal damages because
“Vincent was at most ‘deprived of his due process right to have a judge pronounce his
PRS term’ and would have remained incarcerated anyway, so he suffered no actual injury
for which he could be compensated.” Id. at 150. The district court rejected that argument,
reasoning that “’but for Annucci’s failure to promptly excise Vincent’s PRS or to refer him
for curative resentencing,’ Vincent might have been spared some part of the 686 days he
was incarcerated.” Id. The district court then held a hearing on damages and awarded
Vincent $175,000. Id.
The Second Circuit, in a two to one decision, reversed in part and remanded for
further consideration of damages. As relevant here, the Court held that the district court
gave only “cursory treatment” to damages causation.

Id. at 152. The district court

“improperly declined to consider what steps were feasibly and legally available to
Annucci, did not discuss Vincent’s burden of proving damages, and did not determine
whether Vincent had met that burden.” Id. The Second Circuit acknowledged that in
response to Earley, the state was required to either refer individuals for resentencing or
excise their wrongfully imposed terms of PRS.

Id.

The Court held, however, that

resentencing nunc pro tunc was not an option for individuals, like Vincent, who had
completed their determinate sentence before being reincarcerated for violation of
unconstitutionally imposed PRS. Id. at 153. “For defendants like Vincent, resentencing
was not an available corrective measure for the simple reason that their incarceration was
a consequence of an unconstitutional sentence that DOCS, not the court, had imposed.”
Id. (emphasis in original).

16

With resentencing off the table as a curative option, “[t]he remaining option … was
to excise the term of the null and void administratively imposed PRS and relieve Vincent
of the conditions associated with it.” Id. at 154. But that left one open question: “whether
DOCS needed court approval to eliminate the PRS term that it alone had imposed.” Id.
On the record before the court, it [was] not clear whether there was any impediment,
legal or otherwise, to Annucci’s simply and unilaterally releasing Vincent.” Id. (emphasis
added). The Court thus directed the district court on remand to “clarify that question,
bearing in mind that the burden rests upon the plaintiff to establish the onset date
for calculating any compensatory damages to which he may be entitled. If no such
impediment existed, the plaintiff will have satisfied his burden upon the existing record. If
an impediment is claimed, the district court must determine its validity and effect,
if any, upon the length of Vincent’s unlawful incarceration.” Id. (emphasis added); see
also id. n.58 (“Because there remains the possibility that Vincent would have been
incarcerated for some period of time despite Annucci’s best efforts to secure his release,
there remains a question as to what harm Annucci’s inaction caused Vincent. This
question must be answered on remand.”).
C.

The Instant Motions
Recognizing that Vincent had implications for the instant case, the Court invited

proposals from the parties as to how they wished to proceed. (Dkt. 372.) Plaintiffs
requested that the Court adjourn trial, which was scheduled to start on May 9, 2023, to
allow for limited discovery and expedited summary judgment briefing.

(Dkt. 378.)

Defendants endorsed that approach, as did the Court. Accordingly, on April 19, 2023,
the Court ordered Plaintiffs to serve, and Defendants to answer, contention
interrogatories directed to any impediments to release from PRS claimed by Defendants.
17

(Dkt. 382.) The Court further directed that if Plaintiffs believed that the answer to the
interrogatories warranted further factual discovery, they should notify the Court. (Id.)
Finally, the Court ordered the parties to file cross-motions for summary judgment to
address three issues: (i) the impediment/causation issue identified by the majority in
Vincent, (ii) this Court’s previous ruling with respect to Nunc Pro Tunc class members,
and (iii) implications for continuation as a class action for general loss-of-liberty damages.
(Id.)
Following Defendants’ answers to the contention interrogatories, Plaintiffs did not
seek further discovery. Instead, they relied on the discovery obtained earlier in the case.
The cross-motions are now fully briefed. In addition to their briefs, Defendants filed
declarations from Annucci, Fischer, and Tracy. (Dkts. 401-03.) Plaintiffs correctly point
out that, to some extent, Defendants’ declarations either are inconsistent with their prior
testimony or recycle previously rejected excuses for their failure to follow Earley. (See
Pl. Reply Mem. at 4-6. 13) But to the extent Defendants’ declarations are not inconsistent
with prior testimony, the Court has considered them. See Palazzo ex rel. Delmage v.
Corio, 232 F.3d 38, 43 (2d Cir. 2000) (parties may not raise issues of fact on summary
judgment by submitting affidavits that are inconsistent with their prior sworn deposition
testimony); Mack v. United States, 814 F.2d 120, 124 (2d Cir. 1987) (same).
The Court heard oral argument on November 21, 2023.

“Pl. Rep. Mem.” refers to Plaintiffs’ Memorandum Of Law In Further Support Of
Plaintiffs’ Motion For Partial Summary Judgment And In Opposition To Defendants’
Cross-Motion For Partial Summary Judgment filed Aug. 30, 2023 (Dkt. 411.)
13

18

SUMMARY JUDGMENT STANDARDS
To obtain summary judgment under Rule 56, the movant must show that there is
no genuine dispute of material fact. Fed. R. Civ. P. 56(a). The Court may grant summary
judgment “only if no reasonable trier of fact could find in favor of the nonmoving party.”
Sutera v. Schering Corp., 73 F.3d 13, 16 (2d Cir. 1995); accord Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 249 (1986).
The moving party bears the initial burden of identifying “the absence of a genuine
issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The moving
party may demonstrate the absence of a genuine issue of material fact “in either of two
ways: (1) by submitting evidence that negates an essential element of the non-moving
party's claim, or (2) by demonstrating that the non-moving party's evidence is insufficient
to establish an essential element of the non-moving party's claim.” Nick's Garage, Inc. v.
Progressive Casualty Insurance Co., 875 F.3d 107, 114 (2d Cir. 2017) (quoting Farid v.
Smith, 850 F.2d 917, 924 (2d Cir. 1988)).
The opposing party must then come forward with specific evidence establishing
the existence of a genuine dispute; conclusory statements or mere allegations are not
sufficient to defeat summary judgment. Anderson, 477 U.S. at 248; Geyer v. Choinski,
262 F. App'x 318, 318 (2d Cir. 2008). Where the nonmoving party “fails to make a
showing sufficient to establish the existence of an element essential to that party’s case,
and on which that party will bear the burden of proof at trial,” summary judgment must be
granted. Celotex, 477 U.S. at 322; accord El-Nahal v. Yassky, 835 F.3d 248, 252 (2d Cir.
2016).

19

In assessing the record to determine whether there is a genuine issue of material
fact, a court must resolve all ambiguities and draw all factual inferences in favor of the
nonmoving party. Anderson, 477 U.S. at 255 (“[t]he evidence of the non-movant is to be
believed, and all justifiable inferences are to be drawn in his favor”). The Court must
“eschew credibility assessments.” Smith v. Barnesandnoble.com, LLC, 839 F.3d 163,
166 (2d Cir. 2016) (internal citation marks omitted). However, conclusory statements or
mere allegations are not sufficient to defeat summary judgment. Anderson, 477 U.S. at
248. Summary judgment thus may be granted “where the nonmovant’s evidence is
conclusory, speculative, or not significantly probative.” Zeno v. Pine Plains Central
School District, No. 07-CV-6508, 2009 WL 1403935, at *2 (S.D.N.Y. May 20, 2009) (citing
Anderson, 477 U.S. at 249-50); see Matsushita Electric Industrial Co., Ltd. v. Zenith Radio
Corp., 475 U.S. 574, 586 (1986) (finding that, if there is nothing more than a “metaphysical
doubt as to the material facts,” summary judgment is proper).
I. IMPEDIMENTS
The question posed by Vincent is to what extent legal or practical impediments
stood in the way of Defendants’ immediately and unilaterally excising Plaintiffs’ unlawful
PRS and releasing them from their incarceration for violating the terms of that PRS; and,
if so, to what extent those impediments affect determination of damages attributable to
Defendants. See 63 F.4th at 154. To a large extent, although not entirely as will be
explained, the record establishes indisputably that, upon learning of Earley, Defendants
had the authority and ability to act unilaterally.

Nonetheless, there were practical

impediments that affected the immediacy with which Defendants could release individuals

20

from administratively imposed PRS, the facts of which remain to be established and
necessarily vary from class member to class member.
A.

No Need For Court Order
DOCS unlawfully added terms of PRS to class members’ sentences without a court

order. No court order was required for DOCS to undo, or DOP to cease enforcing, the
unlawful PRS terms DOCS unilaterally imposed. After all, the administratively imposed
PRS terms were “null and void.” Vincent, 63 F.4th at 148; Betances III, 837 F.3d at 166
(PRS imposed by DOCS was a “nullity”). No court action was required to undo what was
never judicially ordered or legally effective. Judge Scheindlin directly addressed the point
in Betances II, explaining:
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.
144 F. Supp.3d at 454 n. 93.
To be sure, court action was necessary to resentence individuals for whom their
sentencing court did not pronounce PRS. But as explained above, resentencing was an
alternative to excision of PRS. Vincent, 63 F.4th 148 (explaining that following Earley,
the state was required to either arrange for people to be “resentenced by the court for the
imposition of PRS terms in a constitutional manner or … excise the PRS conditions from
their records and relieve them of those conditions.” (emphasis omitted). Defendants,
however, pursued neither alternative, instead deliberately choosing not to act in any
meaningful way.

Moreover, as also explained above, resentencing was not a

21

constitutionally valid option for individuals, like Incarcerated Plaintiffs, “who had served
their judicially imposed determinate sentences and had been released from custody, only
to be re-incarcerated for violating the terms of their administratively imposed PRS.” Id. at
152. For those class members, excision was the only option. In any event, no class
member needed to be resentenced in order for DOCS to remove, or DOP to cease
enforcing, their administratively imposed, null-and-void PRS because it was never part of
their lawful court-imposed sentence to begin with.
Despite taking a contrary position in their briefing, Fischer and Annucci admitted
that they could have acted without a court order to remove the PRS they wrongfully
imposed. Fischer’s testimony is particularly apt:
Q.
And I think we established earlier but I want to
make sure, that DOCS had the sole responsibility for
computing and maintaining sentence calculations, right?
MR. KEANE [defense counsel]: Objection.
A.

That’s correct.

Q.
And so one action that you had within your
authority to take would be to issue a directive saying we are
going to recalculate the sentences of anyone who’s been
released but is in the group we’ve identified who is being
subjected to post-release supervision because we added it
even though it wasn’t on the commitment order, right?
MR. KEANE: Objection.
A.

Yes.

Q.
So you had the authority and the power to
accomplish that by ordering the recalculation of those
sentences, right?
MR. KEANE: Objection.
A.

Correct.

22

Q.
And that’s power and authority that you had
from the minute you became commissioner in January 2007,
right?
MR. KEANE: Objection.
A.

Correct.

Q.
And your predecessors had that same power
and authority, to order the recalculation of sentences to
remove PRS that had only been imposed by DOCS because
it wasn’t on the commitment order, right?
MR. KEANE: Objection.
A.

That’s correct.

(Bourland Decl. Ex. B at 222:21-224:2.) Annucci similarly conceded that, based on
complete information, he could have “nullified any DOCS sentences to PRS that were
inconsistent with the commitment orders,” although he probably would have first
consulted with the Commissioner of DOCS and possibly the Governor’s office. (Bourland
Decl. Ex. C at 167:7-168:2.)
As for Tracy, Defendants argue that he could not act unilaterally because DOP
was required to rely on the sentence calculations received from DOCS, and Tracy “would
not have been authorized to reject DOCS calculations.”

(Def. Mem. at 26-27. 14)

Defendants are correct that DOP followed DOCS’ lead. See Bourland Decl. Ex. B at
226:6-14 (Fischer testifying that DOCS is “the sole authority when it comes to sentences
and calculations, and the basic rule is parole has to follow whatever the calculations are

“Def. Mem.” refers to Defendants’ Memorandum Of Law In Opposition To Plaintiffs’
Motion For Partial Summary Judgment And In Support Of Defendants’ Cross Motion For
Partial Summary Judgment And Motion To Modify Or Decertify The Class filed Aug. 14,
2023 (Dkt. 404.)
14

23

that are made by DOCS”). But that does not mean either that DOP needed a court order
to release inmates subject to unlawful PRS or that DOP could invoke state procedures or
laws as an excuse for not adhering to the federal constitutional dictates pronounced in
Earley. See Yelich, 718 F.3d at 169. Moreover, had DOCS excised unlawfully imposed
PRS as required by Earley, DOP would not then be in a position to continue enforcing it.
As Fischer testified, DOP “would have to release” from parole anyone whose sentence
was recalculated to omit PRS. (Bourland Decl. Ex. B at 225:13-226:5.) Fischer qualified
that BOP may have made the decision not to release individuals and instead challenge
the recalculation in some way (Id. at 226:15-25); but he did not testify to any impediment
preventing BOP from adhering to the newly calculated sentence. Nor did Tracy.
Notwithstanding their admissions, Defendants argue that they were powerless to
act in the absence of a formally blessed legal mechanism for pursuing resentencing for
individuals subject to wrongful PRS. (Def. Mem. at 21-24.) In Defendants’ view, they
“had legal authority to refer individuals for resentencing only after June 30, 2008” with
New York’s enactment of Correction Law § 601-d, and therefore “did not cause damages
earlier than that date.” (Def. Mem. at 22.) Conversely, Defendants argue, once § 601-d
was enacted, they had no choice but to follow its procedures for resentencing and could
not unilaterally release individuals subject to wrongful PRS. (Id. at 22-23.) Not so. As
the Second Circuit has explained: “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

24

what protection the federal due process clause requires.” 15 Yelich, 718 F.3d at 169
(internal quotation marks and modifications omitted); see also Garcia v. Elk, No. 09-CV2045, 2015 WL 1469294, at *7 (E.D.N.Y. Mar. 30, 2015) (recognizing that the Court in
Yelich “rejected” the argument that “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”).
Defendants also once again invoke the requirements of Jenna’s Law and the
“widespread understanding” of state courts and district attorneys that PRS was “an
automatic component of a determinate sentence” as reasons they “reasonably
understood that the sentencing courts generally intended to impose PRS terms.” (Def.
Mem. at 18.) What Defendants understood about state sentencing law or the reaction of
other state actors is irrelevant to whether they were impeded from acting once Earley
clearly established the illegality of administratively-imposed PRS. The reluctance of some
state courts and district attorneys to act in compliance with Earley may have been an
impediment if their action was necessary to excision and release, as it was for
resentencing. But, for the reasons explained, it was not.
The Court finds that Plaintiffs have indisputably established that Defendants
Fischer and Annucci did not need a court order to excise the unlawful PRS terms imposed
by DOCS, and that Tracy did not need a court order to cease enforcing those terms.

For the same reasons, Correction Law § 601-a was no more an impediment to action
than § 601-d. Moreover, § 601-a addresses resentencing for defendants whose original
court-imposed sentence was unlawful, not resentencing for defendants subject to
administratively imposed PRS. N.Y. Corr. Law § 601-a.
15

25

B.

Practical Impediments
That Defendants could have acted unilaterally does not mean that class members

would have been freed from unlawful PRS or reincarceration as soon as the Second
Circuit issued its decision in Earley. Defendants were found liable for failing to make
reasonable efforts to comply within a reasonable time. See Betances III, 837 F.3d at 172
(finding that Defendants eventually took “reasonable steps” to comply with Earley
following the New York Court of Appeals’ decisions in Garner and Sparber but
“unreasonably delayed” in doing so) (emphasis added); Yelich, 718 F.3d at 172-73
(stating that DOCS “had an obligation to at least attempt to cease its administrative and
custodial operations that had been held to violate federal law”) (emphasis added). Even
if Defendants had acted the day that Earley issued, practical impediments would have
delayed class members’ release from unlawful PRS. See Earley v. Annucci, No. 08-CV669, 2018 WL 5993683, at *3 (N.D.N.Y. Nov. 15, 2018) (“Earley II”) (“even if Defendant
Annucci addressed the issue immediately upon the issuance of Earley … it would still
take a period of time to take whatever corrective action was necessary”), rev’d on other
grounds, 810 F. App’x 60 (2d Cir. 2020); cf. Hassell v. Fischer, 879 F.3d 41, 47 (2d Cir.
2018) (describing trial court’s determination that damages period excluded initial 90-days
because Defendants should have been able to file a resentencing motion within 45 days,
and the state court should have acted within 45 days after that).
1.

Time For Review Of Records

In order to determine who should have been released from administratively
imposed PRS, DOCS and DOP needed to first conduct a review of records to identify
individuals whose commitment orders did not include PRS but nonetheless were
subjected to PRS added by DOCS. It is undisputed that such a review could have been
26

conducted and would have taken four to six weeks; the belated review DOCS conducted
in 2007 and on which it sat confirms the point. (See Def. 2023 56.1 Resp. ¶¶ 56-58.)
Pursuant to Vincent, that review period would precede the “onset date” for calculating any
compensatory damages to which class members may be entitled. 63 F.4th at 154. That
is not, however, the end of the inquiry.
2.

“Silent Ambiguity” And Incomplete Documentation

Defendants contend that their review of records required more than just compiling
the information from commitment orders. They argue that commitment orders that did
not include any PRS term were ambiguous by their silence; that there were instances
where courts had orally pronounced PRS terms at sentencing even though the
commitment orders did not reflect it; and that “unilateral release risked violating a term of
PRS expressly pronounced at sentencing.” (Def. Mem. at 15.) Defendants further assert
that they would have had to obtain and review additional documentation, such as
sentencing minutes, that they did not have in their possession or could not track down.
(Id. at 19.) Plaintiffs do not agree. They assert that the commitment order is the definitive
source governing DOCS sentencing entries and that Defendants did not need to look
beyond the commitment order to remedy unlawful PRS any more than they did when it
was wrongfully imposed in the first place. (Pl. Reply Mem. at 12-13.) The law, however,
is more nuanced than Plaintiffs would have it.
The Second Circuit in Earley grounded its holding on Hill v. United States ex rel.
Wampler, 298 U.S. 460 (1936). “In Wampler, a federal judge orally sentenced the
petitioner to eighteen months in prison and imposed a $5,000 fine. The clerk of the court,
following a local practice known to the court, added the condition that the defendant
remain in custody until his fine was paid. The Supreme Court held that the clerk did not
27

have the power to alter the sentence imposed by the court, and therefore the added
condition was void.” Earley, 451 F.3d at 74. In holding as it did, the Supreme Court
expressly addressed the force of the sentence pronounced by the court compared to a
commitment order that departs from that sentence: a “warrant of commitment [prepared
by the clerk] departing in matter of substance from the judgment back of it is void…. The
prisoner is detained, not by virtue of the warrant of commitment, but on account of the
judgment and sentence.”

Wampler, 298 U.S. at 465 (internal quotation marks and

citations omitted). In short, “[o]nly the judgment of a court, as expressed through the
sentence imposed by the judge, has the power to constrain a person’s liberty.” Earley,
451 F.3d at 75 (citing Wampler, 298 U.S. at 464); see also id. at 74 (“the Supreme Court
established that the sentence imposed by the sentencing judge is controlling; it is this
sentence that constitutes the court’s judgment and authorizes the custody of the
defendant.”).
Together, Wampler and Earley establish the supremacy of the judgment
pronounced by the sentencing court over an incorrect commitment order or a term added
administratively. Defendants thus are correct in recognizing that they could not lawfully
release inmates from PRS, or reincarceration for violation of PRS, that had been
pronounced by the sentencing court but mistakenly omitted from the corresponding
commitment order.
Still, Plaintiffs contend that Defendants need not have concerned themselves with
what actually happened at sentencing and instead only needed to review and be guided
by the presence or absence of PRS terms in the commitment order. (Pl. Reply Mem. at
15-16.) In support, Plaintiffs rely on a statement from the New York Court of Appeals that

28

“’prison officials are conclusively bound by the contents of commitment papers
accompanying a prisoner.’” (Pl. Mem at 12. 16) (quoting Matter of Murray v. Goord, 1
N.Y.3d 29 (2003) (quoting Middleton v. State of New York, 54 A.D.2d 450, 452, 389
N.Y.S.2d 159 (3rd Dep’t 1976), aff’d, 43 N.Y.2d 678 (1977)) (emphasis added by Court
of Appeals). That statement, however, must be considered in the context in which it was
made.
The question addressed in Murray was the priority to be given between one court’s
order that terms of imprisonment be served consecutively and a later court’s order, after
appeal and a guilty plea to shorter periods of confinement, that they be served
concurrently. See 1 N.Y.3d at 32. More specifically, the issue “boil[ed] down to the
question of whether, when there is a vacated judgment of conviction and subsequent
resentencing of someone subject to an undischarged term of imprisonment, the
prerogative to decide whether sentences should run consecutively or concurrently always
remains with the second judge who acts in the sentencing sequence.” Id. The Court of
Appeals noted that DOCS claimed to have been forced to choose between inconsistent
directives. Id. While appreciating that “dilemma,” the Court countered with the statement
that prison officials are conclusively bound by the commitment papers accompanying a
prisoner as a segue into its ultimate holding that “DOCS’ only valid option in
circumstances such as these is to comply with the plain terms of the last commitment
order received.” Id. (emphasis added). The Court of Appeals thus was addressing the

“Pl. Mem.” refers to Memorandum Of Law In Support Of Plaintiff’s Motion For Partial
Summary Judgment filed June 23, 2023 (Dkt. 393).
16

29

priority of sequential commitment orders. It did not address the obligation of whether a
commitment order took precedence over the court’s sentence pronounced at sentencing.
In addition to taking the statement in Murray out of context, Plaintiffs also rely on
statements and admissions by Defendants taken out of context. For instance, Plaintiffs
point to Tracy’s agreement that “ultimately the sentence and commitment order is the
controlling document,” that BOP “act[s] on that order,” and “there is no need to go to look
to sentencing minutes or plea minutes to double check and make sure the [commitment
order] is correct. (Pl. Mem. at 13; Bourland Decl. Ex. D at 106:1-19.) Tracy’s testimony,
however, was given in the context of his being asked about a commitment order that
includes a term of PRS. (Bourland Decl. Ex. D at 105:13-16, 106:8-13.) Tracy was not
asked whether he would need to look at the sentencing or plea minutes in instances
where the commitment order was silent as to PRS.
Similarly, Plaintiffs cite to testimony in which Annucci agreed that in 2006 DOCS
“had the capability to manually look at every [commitment order] for determinate sentence
and figure out which ones there was no indication of PRS.” (Pl. Mem. at 13 (quoting
Bourland Decl. Ex. C at 168:12-20).) That admission, however, says nothing about
whether DOCS would need to look to sentencing minutes or other information to
determine if commitment orders that had “no indication of PRS” did not reflect PRS orally
pronounced at sentencing. Plaintiffs also cite other Annucci admissions as if they were
absolutes, when in fact they were qualified. The following exchange is illustrative:
Q.
When DOCS has jurisdiction over an inmate, as
I understand it, that jurisdiction flows solely and exclusively
from the sentence and commitment order of the court, right?
MR. KEANE: Objection.

30

A.

In general, yes.

Q.
Is there anything else, any other court document
that gives DOCS the power to incarcerate a human being
aside from the sentence and commitment order?
MR. KEANE: Objection.
A.
I believe it’s only the sentence and commitment
order that gives DOCS the authority to confine an individual.
Q.
Right, it’s – that’s basically the judgment of the
court, right?
MR. KEANE: Objection.
A.

Yes.

Q.
And is that judgment that to be effectuated by,
in this case, DOCS taking custody of an individual and
complying with that judgment, right?
MR. KEANE: Objection.
A.

Yes.

(Bourland Decl. Ex. C at 62:12-63:9 (emphasis added).)
There is no dispute that Defendants considered and acted on commitment orders
to calculate sentences or that they considered commitment orders to embody the
sentence and judgment of the Court. Indeed, except for instances of commitment orders
silent on PRS, DOCS’ practice was to implement the terms of the commitment orders as
written even if they were plainly inconsistent with what the law required unless and until
corrected by a court. (Bourland Decl. Ex. E (deposition testimony of Richard de Simone,
Associate General Counsel in charge of the Office of Sentencing Review) at 111:18-25.)
And there is no dispute Defendants added or enforced PRS terms that did not appear in
the commitment order. But that does not then mean that Defendants did not need to look

31

beyond the commitment order for purposes of releasing persons from administratively
imposed PRS and making sure the commitment order did not mistakenly omit PRS. Both
Wampler and Earley dictate that the sentence pronounced, not the commitment order, is
the judgment pursuant to which DOCS and DOP may exercise custody over inmates.
Defendants are thus correct that simply releasing any inmate whose commitment order
was silent as to PRS risked releasing persons who had PRS imposed at sentencing.
Concern for that risk was not without reason. As Defendants have emphasized
over and over, the Penal Law required that PRS be imposed on individuals convicted of
crimes the same as those for which the class members were convicted and, as a result,
Defendants believed courts had intended to impose PRS even if not reflected in the
commitment order. While that does not excuse Defendants from having immediately
taken steps to adhere to Earley, it explains why Defendants could have expected there
may have been inmates whose commitment orders did not reflect PRS actually
pronounced at sentencing. And, in fact, the concern was not hypothetical as Plaintiffs
would have it. 17 (See Pl. Reply Mem. at 11.) Plaintiffs concede that DOCS did not always

In attempting to minimize the import of commitment orders that errantly omitted PRS
pronounced at sentencing, Plaintiffs undercut the notion that Defendants could, or should,
have immediately excised terms of unlawful PRS and released persons reincarcerated
for violating those terms. Specifically, Plaintiffs argue that the fact of there being some
quantity of commitment orders that incorrectly omitted PRS “does not excuse Defendants’
wholesale, undisputed failure to” immediately identify criminal defendants whose
commitment orders were silent as to PRS but were subject to administratively imposed
PRS and then “use that information to alert the impacted criminal defendants and their
sentencing courts about these potentially infirm sentences.” (Pl. Reply Mem. at 12.)
Agreed. But the argument that Defendants should have first used the information they
had to “alert” criminal defendants and their sentencing courts about “potentially infirm
sentences” undercuts Plaintiffs’ argument that Defendants could, or should, have
immediately and unilaterally released individuals from administratively-imposed PRS.
The argument also suggests the individualized nature of the impediment inquiry.
17

32

receive sentencing minutes even though the Penal Law required sentencing minutes to
be sent to DOCS. (Pl. 2023 56.1 Resp. ¶ 7.) Indeed, that was so for a majority of cases.
(2015 Annucci Decl. ¶ 6.) Plaintiffs further concede that DOCS did not always have
sufficient records to determine whether the sentencing judge orally pronounced PRS. (Pl.
2023 56.1 Resp. ¶ 13.) And they concede that in some cases in which DOCS did have
sentencing minutes, PRS had in fact been pronounced by the sentencing court even
though the commitment order was silent on the subject. (Id. ¶ 14.) In its review of records
in May 2008, DOCS identified 45 such cases. (Annucci Decl. ¶ 44.)
Plaintiffs brush the silent ambiguity problem aside by arguing that the Court
previously rejected Defendants’ need to review sentencing minutes in holding that “the
lack of these minutes does not relieve defendants of liability.” (Pl. Reply Mem. at 14
(quoting Betances II, 114 F. Supp3d at 454 n.95).) Defendants are correct, however, that
Plaintiffs unduly conflate liability with the question of damages causation posed in
Vincent. Defendants have been held liable for not taking affirmative steps to seek a
remedy within a reasonable time following Earley. That is a different matter than how
long it would have taken Defendants to achieve a remedy had they acted reasonably and
timely.
3.

An Individualized Inquiry

To sum up, Defendants had the authority to unilaterally excise unlawful PRS and
to release persons reincarcerated for violating unlawful PRS.

Before doing so,

Defendants needed to review records to determine who had been subject to unlawful
PRS. In some instances, Defendants had in hand all the information they needed. In
other instances, they needed more information and, eventually, were able to obtain it. In

33

still other instances, it may be that they were not able to obtain all necessary information
to make the determination. 18
That does not mean, however, that it would be reasonable for Defendants to wait
to excise wrongful PRS and release persons wrongfully reincarcerated until Defendants
had the necessary information for all 8,100 individuals whose commitment orders were
silent. Nor was it reasonable as between “continuing to supervise or detain somebody
without authority or suspending supervision only to find out later that Parole had
authority,” to, as Tracy did, “err on the side of continuing supervision and continuing
incarceration until [the agency] could get those people back before court ….” (Def. 56.1
Resp. ¶ 34.) Rather, as excision was the only option for class members, it was incumbent
on Defendants to start taking affirmative steps immediately after Earley to review files,
obtain records, and act to excise and release.
As noted, the record indisputably establishes that a review of all relevant
commitment orders would have taken no more than four to six weeks. There is insufficient
record information, however, to assess what length of time was needed to confirm that

Defendants assert in their 56.1 statement that as of June 4, 2008, DOCS had 546
individuals in custody for PRS violations whose commitment orders were silent as to PRS
and for whom DOCS did not have all of the necessary documentation to determine
whether a term of PRS had been pronounced. (Pl. 2023 56.1 Response ¶16.) As
support, the statement cites to Annucci Decl. ¶¶ 47, 52, neither of which address the fact
asserted. Many of Defendants’ other 56.1 statements similarly cite to declarations or
other record material that do not address the matter asserted. In some instances, the
Court has located the supporting information in other portions of the record (such as
declarations submitted in connection with earlier summary judgment motions). In other
instances, the Court has not located supporting information, in which instances the Court
has not credited the assertion.
18

34

PRS had not been orally pronounced at sentencing. 19 Again, Defendants already had
that information in hand for some and not others. The additional time needed to review
those materials would be minimal. For other individuals, the information may have been
sought and received quickly. For others, information may have been obtained only after
some difficulty. To the extent insufficient information was available, Defendants could
have then promptly sought relief in the Court. Consequently, there is no uniform length
of time that would apply to all class members. The inquiry necessarily is individualized
and cannot be resolved as a matter of summary judgment on the record before the Court.
And, that has implications for class decertification addressed in Part III below.
C.

Other Alleged Impediments
Defendants contend that three other impediments apply to some but not all class

members: (1) detainers, (2) court orders upholding a term of PRS as lawful, and (3)
administrative decisions within DOP imposing a time assessment for PRS violations.
(Def. Mem. at 24-26.) The Court addresses each in turn.
First, Defendants assert that they could not unilaterally release individuals who
were subject to other lawful detention orders or laws, including orders to produce
individuals for resentencing in accordance with Correction Law § 601-d (which did not
even come into effect until 2008); detainers from other state, local and federal law
enforcement agencies; and statutory holds for sex offenders, mental health patients, or
medical patients. (Def. Mem. at 24.) As Plaintiffs correctly note, however, none of those
At oral argument, Plaintiffs asserted that all investigation necessary to determine what
had happened at sentencing would have been completed in all or most all cases between
the Second Circuit’s initial decision in Earley on June 9, 2006, and denial of
reconsideration on August 31, 2006. (Oral Arg. Tr. at 24:25-25:1.) Plaintiffs did not cite
any evidence in the record for that assertion. While the proposition may prove to be true,
the Court has no basis to make that factual finding at this time.
19

35

reasons for detaining an individual prevented Defendants from releasing the individual
from wrongful PRS and then either turning over the individual to the relevant detaining
authority or holding the individual pursuant to other lawful requirements. (Pl. Mem. at 1617.) That is not to say that the various detention orders and requirements are irrelevant.
To the contrary, as Plaintiffs acknowledge, such detainers are a factor in determining the
period of damages for which Defendants may be held responsible for individuals subject
to those detainers. (Id. at 17.)
Defendants also assert that they were impeded from releasing individuals in
instances where a court had upheld a term of PRS as lawful. (Def. Mem. at 25.) They
provide an example of a plaintiff from another action who challenged his PRS in an Article
70 habeas corpus proceeding in 2007, only to have his challenge rejected, and the PRS
validated by a Supreme Court judge. (Id.) As with detainers, the fact that a state court
had validated PRS previously imposed would be a factor in determining the time period
for which Defendants could be held responsible for damages. See Aponte, 75 F.4th at
60-61 (holding that “in the circumstances of this case,” Defendants were shielded by
qualified immunity both before and after New York Court of Appeals decision in Williams
for adhering to court order resentencing plaintiff to include PRS terms). Indeed, “Plaintiffs
have never claimed that they are entitled to damages related to PRS or its consequences
that occurred after and resulted from their resentencing to a term of PRS by a state court.”
(Pl. Reply Mem. at 21.)
Third, Defendants assert that they were impeded from acting immediately and
unilaterally in cases where administrative law judges, or hearing officers, had revoked
release and imposed additional time in custody for violating the terms of administratively

36

imposed PRS. (Def. Mem. at 25-26.) Defendants describe the procedures provided by
state law for appealing a time assessment to the Parole Board within DOP and then
seeking judicial review in a state court proceeding. (Id.; see also Tracy Decl. ¶¶ 19-20.)
Based on those prescribed administrative and available judicial procedures, Defendants
state they could not unilaterally expunge a determination of the Parole Board. Fischer
and Annucci purportedly could not do so because they were DOCS officials, which
operated separately from DOP before 2011. (Id. at 26; see also Tracy Decl. ¶ 2.) And
Tracy avers that he lacked legal authority to unilaterally vacate a final time assessment
imposed by the Parole Board. (Tracy Decl. ¶ 21.)
Defendants, however, cite no legal authority that would have barred Tracy from
directing BOP officials from expunging a time assessment with respect to individuals who
were reincarcerated pursuant to unlawful PRS. As explained above, the PRS imposed
by DOCS was null and void. Reincarceration for violating a legal nullity was no less a
nullity.

See Vincent, 63 F.4th at 153 (“the consequences that flowed from the

administratively-imposed PRS – including [plaintiff’s] PRS-based incarceration – were
likewise unauthorized and without legal effect”). And notwithstanding the quasi-judicial
nature of hearings presided over by administrative law judges, the revocation and
reincarceration process was still wholly within DOP’s administrative domain. The fact that
inmates could have challenged their reincarceration through administrative and judicial
procedures does not mean that they were required to do so to obtain release from the
consequences of unlawful PRS. See Vincent, 718 F.3d at 169 (“The fact that the State
may have specified its own procedures that it may deem adequate for official action does

37

not settle what protection the federal due process clause requires”) (internal quotation
marks and modifications omitted).
D.

Conclusion On Impediments
Both parties have moved for summary judgment on the issue of whether or not

impediments existed that would have prevented or delayed Defendants’ ability to
unilaterally and immediately excise unlawful PRS and release individuals who were
reincarcerated pursuant to unlawful PRS. The Court grants in part and denies in part the
cross-motions concerning impediments. Defendants had the authority to unilaterally
excise unlawful PRS and to release persons reincarcerated for violating unlawful PRS.
They could not, however, do so immediately. Four to six weeks was required for DOCS
to review all commitment orders, and additional time was required to confirm whether or
not PRS had been pronounced at sentencing. The length of time that additional step
would have taken is a factual matter that cannot be determined on the present record and
that will vary among individual cases. Further, Defendants could not release inmates
subject to detainers or other legal detention requirements, a fact that may cabin the length
of time for which class members are entitled to recover damages against Defendants.
Whether that is so will also vary from case to case.
II. NUNC PRO TUNC PLAINTIFFS
In Betances IV, this Court held that the Nunc Pro Tunc Plaintiffs – who were
referred for resentencing and received the same terms of PRS nunc pro tunc as they had
received when administratively imposed by DOCS – were limited to nominal damages.
403 F. Supp.3d at 230-34. Plaintiffs contend that Vincent requires the Court to revisit that
determination and hold instead that Nunc Pro Tunc Plaintiffs are entitled to more than
nominal damages. (Pl. Mem. at 18-20.) Defendants argue that the Court’s earlier holding
38

is consistent with Vincent and need not be undone. (Def. Mem. at 27-28.) The Court
agrees with Plaintiffs, at least insofar as Nunc Pro Tunc Plaintiffs are not categorically
limited to nominal damages.
The Court based its decision in Betances IV on Hassell v. Fischer, 879 F.3d 41 (2d
Cir. 2018). There, Hassell was subject to administratively imposed PRS but was not
reincarcerated for violating its terms. He sought damages for a period of delay following
his release from prison but prior to his resentencing when the trial court resentenced
Hassell to his original sentence as well as five years of PRS nunc pro tunc. Id. at 45. The
district court found that despite the delay, Hassell was entitled to only nominal damages
because the result would have been the same even without the delay; that is, Hassell
would have been resentenced with PRS nunc pro tunc. Id. at 47 (restating the district
court’s observation that “no matter when [the state judge] resentenced Hassell, she would
have imposed the same five-year term of PRS that she imposed [after the delay period],
and done so nunc pro tunc,” and thus the delay “‘would not have changed Hassell’s life
in the slightest’”). This Court applied similar reasoning to the Nunc Pro Tunc Plaintiffs.
403 F. Supp.3d at 232.
In Vincent, Annucci made a similar argument as made in Hassell – “had he
promptly referred Vincent for judicial resentencing after Earley, the state court would have
likely imposed PRS nunc pro tunc.” 63 F.4th at 153. The Second Circuit rejected that
argument, however, because resentencing was not a constitutionally viable option for
persons like Vincent who had served their judicially imposed determinate sentence but
were subsequently reincarcerated for violating unlawful PRS. Id. “Put differently, a
defendant, like Vincent, who was incarcerated for violating the terms of an

39

administratively imposed PRS could not have been resentenced nunc pro tunc for the
simple reason that courts do not have the power to substantively rewrite history or
backdate events.” 20 Id.
For Vincent, resentencing was a hypothetical alternative that never happened and
would not have been valid even if it had. In contrast, the Nunc Pro Tunc Plaintiffs were
actually resentenced but after their determinate sentence had ended. Hypothetical or
not, the result is the same under Vincent: resentencing of an individual following
completion of their determinate sentence cannot remedy nunc pro tunc their
reincarceration for violating PRS imposed by DOCS. Accordingly, even Nunc Pro Tunc
Plaintiffs, at least those who were reincarcerated, potentially can recover more than
nominal damages. 21
Defendants do not engage with the implications of Vincent’s holding about the
unavailability of nunc pro tunc resentencing. Instead, they merely reiterate their argument

The Court distinguished its holding in Vincent from its decision in Hassell on the basis
that Vincent was subject to reincarceration for violating the terms of his administratively
imposed PRS, whereas Hassell “was resentenced by the court and was not incarcerated
for violating his administratively imposed PRS.” 63 F.4th at 153 n.48.
20

The Second Circuit in Vincent did not express an opinion as to whether resentencing
would have been possible for individuals whose determinate sentences had concluded
and were serving administratively imposed PRS but were not reincarcerated for violating
PRS (i.e., PRS Only Plaintiffs). 63 F.4th at 154 n.53. The Court does not see why the
relevant concerns such as the bar against double-jeopardy would not apply just as well
to resentencing of PRS Only Plaintiffs. But even if resentencing were an option for such
individuals, so was excision and release from wrongful PRS, at least until such time as
the individuals were resentenced. Accordingly, such individuals would not necessarily be
precluded from seeking more than nominal damages. At oral argument, however,
Plaintiffs conceded that there may be, or at least there is an open question as to whether
there are, some individuals who ultimately would be entitled only to nominal damages in
instances where the individual was resentenced while on PRS and before the maximum
expiration date of their determinate sentence. (Oral Arg. Tr. at 4:9-7:9.)
21

40

that Plaintiffs faced impediments to their release (Def. Reply at 10 22), and otherwise raise
a straw man, arguing that Vincent, along with the Second Circuit’s decision in Aponte,
establish that Defendants are entitled to qualified immunity for the time period after any
Plaintiff was resentenced by a court because “a reasonable prison official might very well
have properly followed the court order.” (Def. Mem. at 28 (citing Aponte, 75 F.4th at 61).)
As Plaintiffs correctly observe, “Defendants miss the point.” (Pl. Reply at 21.) The Nunc
Pro Tunc Plaintiffs do not seek damages for any post-resentencing period. Rather, they
seek damages incurred before resentencing – the period of time during which the history
of administratively-imposed PRS cannot be “rewrite[ten].” Vincent, 63 F.4th at 153.
In view of Vincent, the Court vacates its previous holding that all Nunc Pro Tunc
Plaintiffs are limited to only nominal damages.
III. DECERTIFICATION
Defendants contend that in the wake of Vincent, the time has come to decertify the
class to allow for individualized trials on damages. (Def. Mem. at 29.) The Court has
denied Defendants’ three previous motions to decertify. See Betances IV, 403 F. Supp.3d
at 237-38 (denying decertification in conjunction with resolving availability of
compensatory and nominal damages); Betances V, 2022 WL 765963, at *12-13 (denying
decertification in the context of pre-trial motions); Betances VI, 2023 WL 2609133, at *1
(finding mitigation defense did not warrant decertification). Plaintiffs argue that the class
should proceed to a trial on loss-of-liberty damages and that nothing has changed to

“Def. Reply” refers to Defendants’ Reply Memorandum Of Law In Further Support Of
Defendants’ Cross Motion For Partial Summary Judgment And To Modify Or Decertify
The Class filed Sept. 15, 2023 (Dkt. 415).
22

41

warrant decertification before then. (Pl. Reply Mem. at 22.) The Court agrees with
Defendants.
A.

Relevant Procedural History Of Class Certification
Judge Scheindlin granted class certification in 2014. She found satisfied the

prerequisites of Fed. R. Civ. P. 23(a), namely numerosity, commonality, typicality, and
adequacy of representation, as well as the implied requirement of ascertainability.
Betances Class Opinion, 304 F.R.D. 416, 427-29. She then found that proceeding as a
class action was appropriate under Fed. R. Civ. P. 23(b)(3), which requires “that the
questions of law or fact common to class members predominate over any questions
affecting only individual members, and that a class action is superior to other available
methods for fairly and efficiently adjudicating the controversy.” Fed. R. Civ. P. 23(b)(3);
304 F.R.D. at 426, 429-32. In granting class certification, Judge Scheindlin expressly
contemplated that the class would be maintained for purposes of determining not only
Defendants’ individual liability but also general damages for loss of liberty. Id. at 430-32.
Following those class-wide determinations, the court could then turn to other case
management tools, such as decertification, to address individualized damages issues.
Id. at 432; see also Betances IV, 403 F. Supp.3d at 237 (“It is not uncommon for a class
action to be bifurcated into a certified class for liability followed by decertification for
purposes of determining damages”) (citing cases).
In February 2019, this Court followed suit, maintaining the class, and agreeing with
Plaintiffs that “[a]ny individualized damages can be dealt with after class-wide damages
[for loss of liberty] are determined.” Betances IV, 403 F. Supp.3d at 236. At that time,
Defendants failed to point the Court to newly discovered evidence or new authority that
would merit decertification. Id. at 238. In March 2022, when they next moved to decertify,
42

Defendants similarly did not bring to the Court’s attention any change of law or fact
meriting a different outcome. Betances V, 2022 WL 765963, at *9. And, a year later in
March 2023, the Court held that the defense of failure to mitigate damages was relevant
to individualized damages trials, but not to general loss-of-liberty damages. Betances VI,
2023 WL 2609133, at *4.
B.

Legal Standard Relevant To Decertification
Class certification orders under Rule 23 are not immutable. An “order that grants

or denies class certification may be altered or amended before final judgment.” Fed. R.
Civ. P. 23(c)(1)(C). Indeed, “courts are required to reassess their ruling as the case
develops.” Boucher v. Syracuse University, 164 F.3d 113, 118 (2d Cir.1999) (internal
quotation marks omitted); see also Mazzei v. Money Store, 829 F.3d 260, 266 (2d Cir.
2016) (“the district court has the affirmative duty of monitoring its class decisions in light
of the evidentiary development of the case.” (internal quotation marks omitted)).
Courts may decertify classes “if it appears that the requirements of Rule 23 are not
in fact met.” Sirota v. Solitron Devices, Inc., 673 F.2d 566, 572 (2d Cir.1982) cert. denied,
459 U.S. 838 (1982). Reconsideration of class certification is appropriate where there is
a “significant intervening event” or “compelling reasons” that the Rule 23 requirements
are no longer satisfied. Doe v. Karadzic, 192 F.R.D. 133, 136-37 (S.D.N.Y. 2000) (internal
citations omitted). Thus, not only is this Court able to reevaluate its earlier determinations
regarding class certification, it has an obligation to do so. Boucher, 164 F.3d at 118;
Betances IV, 403 F. Supp.3d at 236. In opposing decertification, the plaintiff retains “the
burden to demonstrate that [the Rule 23] requirements [a]re satisfied.” Mazzei, 829 F.3d
at 270 (citing Rossini v. Ogilvy and Mather, Inc., 798 F.2d 590, 596-600 (2d Cir. 1986)).

43

C.

Decertification Is Warranted
This action can no longer sustain its class status.

That is because the

requirements of Fed. R. Civ. 23(b)(3) are no longer satisfied. 23

Vincent, and the

individualized impediment-related issues identified above, tip the scales of predominance
and superiority.

The case can no longer bear the weight of individualized issues

necessary to a damages determination.
Rule 23(b)(3) has two requirements: (1) predominance, meaning that questions
of law or fact common to the class members predominate over questions affecting only
individual members, and (2) superiority, meaning class litigation is superior to other
available methods for the fair and efficient adjudication of the dispute. Fed. R. Civ. P.
23(b)(3).
1.

Predominance

“The ‘predominance inquiry tests whether proposed classes are sufficiently
cohesive to warrant adjudication by representation.’” Tyson Foods, Inc. v. Bouaphakeo,
577 U.S. 442, 453 (2016) (quoting Amchem Products, Inc. v. Windsor, 521 U.S. 591, 623
(1997)). “An individual question is one where ‘members of a proposed class will need to
present evidence that varies from member to member,’ while a common question is one
where ‘the same evidence will suffice for each member to make a prima facie showing
[or] the issue is susceptible to generalized, class-wide proof.’” Id. (quoting 2 W.
The Court finds that the requirements under Fed. R. Civ. P. 23(a) for numerosity,
commonality, adequacy of representation, and ascertainability remain satisfied.
Defendants have not suggested otherwise. Defendants do suggest, however, that the
named Plaintiffs are not sufficiently typical of the class based on impediment and
causation issues. (See Def. Mem. at 30-32 (citing typicality requirement; stating that
Plaintiff Belize is not typical of the class; and characterizing Plaintiff Barnes as atypical of
the class).) Because the Court bases its decision to decertify on the requirements of Fed.
R. Civ. P. 23(b)(3), the Court does not address typicality.
23

44

Rubenstein, Newberg on Class Actions § 4:50, pp. 196–197 (5th ed. 2012) (internal
quotation marks omitted)) (modification in original).
“The predominance inquiry is a core feature of the Rule 23(b)(3) class mechanism,
and is not satisfied simply by showing that the class claims are framed by the common
harm suffered by potential plaintiffs.” In re Petrobas Securities, 862 F.3d 250, 270 (2d
Cir. 2017). The requirement thus is “’far more demanding’” than the “’commonality’”
requirement under Rule 23(a).” Id. (quoting Amchem Products, 521 U.S. at 623–24). As
the Second Circuit has explained, class-wide issues predominate “if resolution of some
of the legal or factual questions that qualify each class member’s case as a genuine
controversy can be achieved through generalized proof, and if these particular issues are
more substantial than the issues subject to only individualized proof.”

In re U.S.

Foodservice Inc. Pricing Litigation, 729 F.3d 108, 118 (2d Cir. 2013) (internal quotation
marks omitted). While “Rule 23(b)(3) requires that common questions predominate,”
however, it does not require “that the action include only common questions.” Brown v.
Kelly, 609 F.3d 467, 484 (2d Cir. 2010).
At this juncture, common issues no longer predominate over individual issues. The
sole common issue is the inherent value of a day of lost liberty due either to
reincarceration or the limitations on freedom posed by PRS. While that is an important
and substantial issue, significant individual damages issues predominate, and it is no
longer feasible to proceed further without addressing individual fact issues. See, e.g.,
Johnson v. GEICO Casualty Co., 310 F.R.D. 246, 254-55 (D. Del. 2015), aff’d, 627 F.
App’x 150 (3d Cir. 2016) (decertifying class for purposes of damages due to individualized
issues); Brazil v. Dole Packaged Foods, LLC, No. 12-CV-1831, 2014 WL 5794873, at *14

45

(N.D. Cal. Nov. 6, 2014) (decertifying class with respect to damages due to failure of
model to show means of determining classwide damages with common proof); Jacob v.
Duane Reade, Inc., 293 F.R.D. 578, 595 (S.D.N.Y. 2013), aff’d, 602 F. App’x. 3 (2d Cir.
2015) (denying decertification for purposes of liability but granting decertification with
respect to damages because individualized nature of damages would defeat
predominance).
For reasons explained above, there is no uniformity of the facts relevant to the
causation determination required by Vincent. 24 In particular, there is no uniform “onset
date” of the damages that can be attributed to Defendants due to the partial impediments
with which they needed to contend. The only remaining issue for which the class has
been retained to date is to determine the value of damages for liberty lost due to common
restrictions of PRS and due to reincarceration for violating unlawful PRS. In theory, a trial
could be had to determine a daily value of those general damages for lost liberty, although
doing so, as has become clearer and clearer as this case has evolved, would be largely
in a vacuum and untethered from any testimony beyond the most generalized.

In

contrast, the PRS cases that have been tried to a damages verdict have been non-class
cases addressing loss of liberty, physical harm, and emotional harm together in an
individualized context. See, e.g., Santiago, 2023 WL 2974201, at *18 (upholding single
$150,000 compensatory damages jury award in individual unlawful-PRS case without
breaking out damages for loss of liberty, physical harm, and emotional harm); Vincent v.

As noted earlier, this Court previously has ruled that Defendants may not relitigate the
issue of causation in regard to liability. Vincent, however, requires Plaintiffs to further
prove “damages causation,” which encompasses potential impediments as discussed
above. Vincent, 63 F.4th at 152, 154.
24

46

Yelich, No. 08-CV-6570L, 2020 WL 7090768, at *3 (W.D.N.Y. Dec. 4, 2020) (on damages
inquest after granting summary judgment against Annucci for unlawful-PRS liability,
awarding single figure of $175,000 to compensate collectively for loss of liberty and for
pain and suffering and mental anguish associated with that detention), aff’d in part,
vacated in part; remanded, 63 F.4th 145 (2d Cir. 2023); Earley, 2018 WL 5993683, at *6
(in evaluating damages for unlawful PRS, noting that Plaintiff identified personalized
“aggravating factors” that made his life while incarcerated more difficult, and observing
that “awards for a plaintiff who has a history of incarceration are generally lower than for
a plaintiff who has never previously been incarcerated”), rev’d and remanded on other
grounds, 810 F. App’x 60 (2d Cir. 2020).
But no such damages can be awarded until individual trials are held to determine
for each class member the fact issues specific to their circumstances, such as, for
example, whether DOCS and DOP had sentencing minutes in their possession; if not,
what was needed to obtain those sentencing minutes, and how long would it have taken;
if no sentencing minutes could be located, were there other relevant sources for that
individual that DOCS and DOP could have obtained and reviewed, and, if so, how long
would that have taken; what do the sentencing minutes or other materials indicate as to
whether the sentencing court orally pronounced a term of PRS; and was the individual
subject to a detainer or statutory hold requirement that would have shortened the time
period for which he could recover damages, and, if so, what consequence did it have for
that individual? 25

In Fant v. City of Ferguson, Missouri, the court was confronted with assessing the
propriety of class action status for, among other things, claims for loss-of-liberty damages
due to unlawful detention arising out of City officials’ purposeful delay in processing newly

25

47

Plaintiffs assert that detainers present no basis for decertification because relevant
records can be reviewed and considered when calculating the number of days of loss-ofliberty damages.

(Pl. Mem. at 17.) That assumes, however, that the facts of any

individual’s detainer and its effect on damages will be beyond dispute. Plaintiffs, however,
have not presented any basis to make that assumption. 26 Instead, they allude to this
Court’s statement in Betances IV that “[c]omplexity and the need to review documentation
is not a basis to decertify the class.” 403 F. Supp.3d at 238-39. But that statement is
taken out of context. The Court’s observation that complexity and the need for review of
documentation was not an impediment to proceeding as a class action came in the
context of discussing ascertainability of the class and whether objective criteria existed

arrested defendants. No. 15-CV-0253, 2022 WL 2072647 (E.D.Mo. June 9, 2022).
Similar to the “onset” inquiry here, the parties and court recognized that some period of
administrative processing incident to arrest was necessary and therefore should be
excluded from damages. Id. at *12. Unlike here, however, the plaintiffs in Fant offered
expert analysis of the median number of hours it took for the necessary administrative
steps thereby providing common proof for the class to establish the onset of compensable
harm. Id.
Fant v. City of Ferguson again serves as a point of comparison. There, the defendant
City argued that portions of some class members’ detention were due to reasons
unrelated to plaintiffs’ theory of liability, such as warrants from other jurisdictions. 2022
WL 2072647, at *12. The court did not find that issue to be an impediment to class status
because, as with the onset issue, plaintiffs provided expert analysis identifying those
cases involving warrants from another jurisdiction and, additionally because the City
would “be asking the Court to make assumptions regarding … delineation” between the
time an arrestee was held on an outside warrant versus a City warrant or charge,
“regardless of whether these claims were pursued on an individual or classwide basis.”
Id. Again based on expert analysis offered by the plaintiffs – of the median time inmates
were held in the City jail solely on warrants from other jurisdictions – the court noted that
the detainer issue could be litigated with representative evidence. Id. n.12. No such
evidence has been offered here, and Plaintiffs have not offered any expert to perform
such an analysis.
26

48

by which to define the class. Id. at 238-39. That is a materially different issue than the
prevalence of individualized fact issues that make continuing as a class unmanageable.
2.

Superiority

Rule 23(b)(3) offers guidance in considering superiority, providing that “the matters
pertinent to these findings include (A) the class members’ interests in individually
controlling the prosecution or defense of separate actions; (B) the extent and nature of
any litigation concerning the controversy already begun by or against class members; (C)
the desirability or undesirability of concentrating the litigation of the claims in the particular
forum; and (D) the likely difficulties in managing a class action.” Fed. R. Civ. P. 24(b)(3);
Betances V, 2022 WL 765963, at *13.
Several relevant factors that made initially proceeding with the instant case as a
class action a superior vehicle remain unchanged.

While there are a number of

individuals who would fall within the class that have prosecuted their own cases
individually, thousands remain in the class and have not indicated interest in individually
controlling their actions; the action has proceeded as a class for many years in this forum,
resulting in substantial efficiencies; and the class is composed of individuals – former,
and perhaps current, inmates – who may lack the resources or know-how to proceed
individually. See id. a *14. And there is no doubt that the common policy and failures to
act that lie at the heart of Defendants’ liability were best addressed by proceeding as a
class. See In re Nassau Strip Search Cases, 461 F.3d 219, 228 (2d Cir. 2006) (“when
plaintiffs are allegedly aggrieved by a single policy of defendants, … the case presents
precisely the type of situation for which the class action is suited”) (internal quotation
marks omitted).

49

But, for the same reasons that common issues no longer predominate, it is no
longer sensible to manage the case as a class action. As individual trials are needed to
award even loss-of-liberty damages, it will be fairer and more efficient to include all issues
of individual damages in the same proceeding. See In re Petrobas, 862 F.3d at 270
(“Where individualized questions permeate the litigation, those ‘fatal dissimilarit[ies]’
among putative class members ‘make use of the class-action device inefficient or unfair.’”
(quoting Amgen Inc. v. Connecticut Retired Plans & Trust Funds, 568 U.S. 455, 470)
(2013), and citing 7AA Charles Alan Wright & Arthur R. Miller, Federal Practice and
Procedure § 1778, at 141 (3d ed. 2005) (“[W]hen individual rather than common issues
predominate, the economy and efficiency of class-action treatment are lost and... the risk
of confusion is magnified” (footnote omitted)) (modification in original)).
In short, proceeding as a class action is no longer a superior vehicle to other
mechanisms for resolving damages. The class will be decertified.
CONCLUSION
For the foregoing reasons: (1) the parties’ motions for partial summary judgment
are granted in part and denied in part as set forth above; (2) the Court vacates its prior
holding with respect to Nunc Pro Tunc Plaintiffs; and (3) the class is decertified.
Determination of damages shall be resolved on an individual basis. To the extent not
discussed above, the Court has considered the parties’ arguments and determined them
to be without merit. The parties shall meet and confer and by 30 days following entry of
this decision and order shall file a joint letter proposing next steps, including prospects for
conducting a bellwether trial of named or other plaintiffs.

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SO ORDERED.

_________________________________
ROBERT W. LEHRBURGER
UNITED STATES MAGISTRATE JUDGE
Dated: January 17, 2024
New York, New York
Copies transmitted this date to all counsel of record.

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