Hassell v. Fisher et al
ORDER AND OPINION GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION FOR JUDGMENT ON THE PLEADINGS re: 62 MOTION to Dismiss the Complaint Pursuant to FRCP 12(c), filed by Anthony J. Annucci, Irma Machado, Gregory Freeman, An drea W. Evans, Jose Bulnes, Monty Bynum, Terrence Tracy, Brian Fischer, Anthony Costantini. For the foregoing reasons, Defendants' motion is DENIED with respect to Hassell's claims against Defendants Fischer, Annucci, Evans, and Tracy for the period between February 29, 2008 (the date when PRS conditions were imposed) and December 3, 2008 (the date of Justice Uviller's re-sentencing), and GRANTED with respect to the period between December 3, 2008 and June 17, 2010 (the date when the PRS conditions were removed). The motion is GRANTED with respect to Defendants Constantini, Freeman, and Doe (the "Dismissed Defendants"), and the claims against them are dismissed. The motion is GRANTED with respect to Hassell 9;s state law claims. The Clerk shall enter judgment dismissing the Complaint against the Dismissed Defendants, with costs in favor of the Dismissed Defendants and mark the motion (Doc. No. 62) terminated. Hassell shall file an Amended Complaint by A pril 17, 2015, consistent with this Order and Opinion. Defendants' Answer shall be filed by April 30, 2015, also consistent with this Order and Opinion. The parties shall appear for a status conference on May 8, 2015, at 10:00 a.m., with a case management plan to regulate further proceedings. (Signed by Judge Alvin K. Hellerstein on 4/1/2015) (spo)
E~E~ •.~fr .\JC\LL V
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
ORDER AND OPINION
GRANTING IN PART ANDi
DENYING IN PART
DEFENDANTS' MOTION FOR
JUDGMENT ON THE
BRIAN FISCHER, Commissioner of the New
York State Department of Corrections (in an
ANTHONY J. ANNUCCI, Acting Commissioner
of the New York State Department of Corrections
(in an individual employee),
NEW YORK STATE CORRECTIONS
EMPLOYEE JOHN DOE (fictitious name) (in an
ANDREA EVANS, Chairwoman of the New
York State Board of Parole (in an individual
TERRANCE TRACY, New York State Parole
Board Employee (in an individual capacity),
ANTHONY CONSTANTINI, New York State
Parole Officer (in an individual capacity),
JOSE BULNES, New York State Parole Officer
(in an individual capacity),
MONTY BYNUM, New York State Parole
Officer (in an individual capacity),
IRMA MACHADO, New York State Parole
Officer (in an individual capacity),
GREGORY FREEMAN, New York State Parole
Officer (in an individual capacity),
NEW YORK STATE PAROLE EMPLOYEE
JANE DOE (fictitious name) (in an individual
ALVIN K. HELLERSTEIN, U.S.D.J.:
Plaintiff William Hassell sues employees and officers of the New York
Department of Corrections ("DOCS") and the New York Department of Parole ("Parole")
(collectively, "Defendants") for administratively adding to his sentence, and subsequently
enforcing, a term of post-release supervision ("PRS") that was not ordered by his sentencing
judge at the time of sentencing in 2002. He also complains that Defendants requested that he be
re-sentenced by the sentencing court after he was released from custody, and that a term of PRS
was imposed on him pursuant to his re-sentencing. Hassell asserts that these actions violated his
due process and double jeopardy rights guaranteed by the Fifth and Fourteenth Amendments to
the United States Constitution, see U.S. Const. amend. V; U.S. Const. amend. XIV§ 1, giving
him a right to sue for damages under sections 1983 and 1988 of the Civil Rights Act. See 42
U.S.C. §§ 1983, 1988. Hassell also asserts violations of the New York State Constitution. See
N.Y. Const. art. I,§ 6 (guaranteeing due process and double jeopardy rights).
Defendants move for judgment on the pleadings to dismiss the complaint, see
Fed. R. Civ. P. 12(c), on the grounds that, inter alia, they are entitled to qualified immunity. For
the following reasons, Defendants' motion is denied in part and granted in part.
On November 21, 2002, while serving a three and a half year sentence on a prior
conviction, Hassell pleaded guilty to assault in the second degree. See Second Am. Compl. ii 19.
He was sentenced to an additional term of three and a half years of confinement, consecutive to
his prior sentence. See id. The sentencing judge did not pronounce a term of PRS to follow
Hassell's term of custody. See id. Hassell alleges that at some point after his sentencing but
prior to his release, Defendants Brian Fischer, Anthony J. Annucci, Terrence Tracy, and Andrea
Evans 1 formulated a plan to administratively add a PRS term to Hassell's sentence. See id. ,-i 26.
Hassell was conditionally released from custody on February 29, 2008, after
serving six-sevenths of his custodial sentence. See id. ,-i 39. Hassell's release from custody was
made subject to a PRS term of five years, calculated to end on March 1, 2013. See id. ,-i,-i 33, 39.
Hassell alleges that Fischer, Annucci, Tracy, and Evans "made a conscious decision" to impose
the five-year PRS term upon Hassell's release even though they "knew, or should have known,
that their actions violated clearly established law." Id. ,-i,-i 27-29, 33, 45. Hassell further alleges
that at the direction of Fischer, Annucci, Tracy, and Evans, several DOCS and Parole employees2
enforced the PRS conditions. 3 See id. ,-i,-i 35-36.
On August 31, 2008, the full term of Hassell' s custodial sentence expired. See id.
,-i 40. On September 15, 2008, Parole informed the New York Supreme Court for New York
County that Hassell required resentencing and ordered Hassell to appear in New York County
Supreme Court. See id. ,-i 42; Defs.' Answer to Second Am. Compl., Exh. I. On December 3,
2008, New York Supreme Court Justice Rena K. Uviller re-sentenced Hassell nunc pro tune to a
Brian Fischer was the Commissioner of DOCS; Anthony J. Annucci was the Executive Deputy Commissioner and
general counsel of DOCS; Terrence Tracy was an attorney at DOCS; and Andrea Evans was the Commissioner of
These employees include Anthony Constantini, Jose Bulnes, Monty Bynum, Irma Machado, and Gregory Freeman,
as well as other unnamed DOCS and Parole employees. See Second Am. Comp!.~~ 9-17, 35-36. The parties agree
that Defendants Bulnes and Bynum were not properly served. These Defendants, therefore, are not currently
represented by the New York State Attorney General's Office and do not join in the instant motion. Defendant
Machado similarly is not currently represented by the New York State Attorney General's Office and does not join
in the instant motion.
The PRS conditions required Hassell to, inter alia, frequently report to Parole, remain in the state of New York
absent permission to leave, permit Parole access to his person and apartment, avoid the company of individuals with
a criminal record, maintain employment, submit to drug testing, and pay a monthly "supervision fee" of 30 dollars.
See Second Am. Comp!. ~ 34.
custodial term of three and a half years, which he already had completed, and a five year PRS
term. See Am. Compl. ii 43. Hassell appealed to the New York Appellate Division, First
Department, which summarily affirmed Justice Uviller's order. See People v. Hassell, 66
A.D.3d 575 (1st Dep't 2009). On June 17, 2010, the New York Court of Appeals reversed the
Appellate Division. The Court of Appeals held that the Supreme Court's resentencing of Hassell
nine months after his release from custody violated the protections guaranteed by the Double
Jeopardy Clause of the federal Constitution. See People v. Hassell, 14 N.Y.3d 925, 926 (2010).
Immediately following the New York Court of Appeals' decision, Hassell was released from
PRS. See Second Am. Compl. ii 44.
Post-Release Supervision in New York
In 1998, the New York Legislature passed a sentencing reform act, commonly
referred to as "Jenna's Law," which provided determinate sentences for violent felony offenders,
eliminated parole for those offenders, and mandated that determinate sentences be followed by
terms of PRS. See 1998 N.Y. Laws Ch. 1, § 15 ("Each determinate sentence also includes, as a
part thereof, an additional period of post-release supervision.") (codified at N.Y. Penal Law§
70.45(1) (McKinney 2004)); see also People v. Catu, 4 N.Y.3d 242, 244 (2005). Following the
enactment of Jenna's Law, because PRS was presumed automatic, some judges did not state
during sentencing that the defendant's sentence included a term of PRS. In some cases, the
defendants' commitment orders similarly omitted any reference to a PRS term. Nonetheless,
DOCS and Parole officials imposed terms of PRS administratively. Several intermediate courts
initially upheld the practice, see, e.g., Matter of Deal v. Goard, 8 A.D.3d 769, 770 (3d Dep't
2004) (denying Article 78 petition seeking prohibition of administratively-imposed PRS term
because respondents were simply "enforcing a statutorily-required part of petitioner's sentence"),
but, in 2005, the New York Court of Appeals ruled that due process required a defendant
pleading guilty to be aware of the mandatory PRS term at the time of the plea. See Catu, 4
N.Y.3d at 245. Thus, the failure of the sentencing court to advise pleading defendants that they
would be subject to a PRS term after their custodial sentence invalidated their plea, even though
Jenna's Law required a PRS term to follow a determinate sentence. See id.
In June 2006, in Earley v. Murray, the Second Circuit Court of Appeals addressed
the issue in the context of a petition for habeas corpus. See 451 F .3d 71 (2d Cir. 2006). Sean
Earley had pleaded guilty in February 2000 to attempted burglary in the second degree and was
sentenced to a six-year custodial term. See id at 73. The judge did not mention a term of PRS at
sentencing, nor include it in the written judgment or order of commitment following sentencing.
See id However, DOCS officials, following common practice, administratively added a fiveyear PRS term some time during Earley's confinement. See id After being released from prison
in 2004, Earley violated the conditions of his PRS and was reincarcerated. See id at 75. He then
filed a petition in federal court seeking, by writ of habeas corpus, to be released from an invalid
custodial sentence imposed for violating invalid PRS conditions. See id at 73.
The Second Circuit held in Earley that "[t]he judgment of the court establishes a
defendant's sentence, and that sentence may not be increased by an administrator's amendment."
451 F.3d at 75 (citing Hill v. United States ex rel. Wampler, 290 U.S. 460 (1936)). Thus, the
Second Circuit held that an administrative modification of a sentence violated "clearly
established federal law" under the standard for habeas review provided by the Anti-Terrorism
and Effective Death Penalty Act. Id. at 77. 4 However, the Court also held that while the
The Second Circuit acknowledged a factual distinction between Wampler and Earley. In Wampler, the defendant
was sentenced to 18 months in prison and a $5,000 fine. See Wampler, 298 U.S. at 461-62. In addition to the
pronounced sentence, the county clerk added an additional requirement that the defendant remain in custody until
the fine was paid. See id. This additional requirement was within the discretion of the sentencing judge, whereas in
sentence was invalid, the invalidity could be cured by a re-sentence of a defendant by the
sentencing court pursuant to New York Criminal Procedure Law§ 440.40. See id at 76-77
("Our ruling is not intended to preclude the state from moving in New York courts to modify
Barley's sentence to include the mandatory PRS term."). As discussed in greater detail below,
the Second Circuit subsequently held in 2013 that, for purposes of qualified immunity, the
decision in Earley "clearly established" the unconstitutionality of administratively adding PRS
conditions to a prisoner's sentence that were not pronounced by the sentencing judge at the time
of sentence. See Vincent v. Yelich, 718 F.3d 157, 160 (2d Cir. 2013).
In April 2008, the New York Court of Appeals addressed the issue of whether
administratively added PRS terms violated the New York Criminal Procedure Law and whether
resentencing could cure such illegal sentences. See People v. Sparber, 10 N. Y.3d 457 (2008). In
Sparber, the sentencing judges in several cases had failed to advise convicted defendants that his
or her sentence included a PRS term. New York Criminal Procedure Law§ 70.45(1) at the time,
although requiring that a term of PRS follow a determinate sentence, did not provide how or
when that term was to be imposed. New York Criminal Procedure Law§ 380.20 and§
380.40(1), however, provided that courts "must pronounce sentence in every case where a
conviction is entered" and that, generally, "[t]he defendant must be personally present at the time
sentence is pronounced." Id at 469. The New York Court of Appeals in Sparber concluded that
the sentencing courts had to pronounce the PRS component of a sentence, and that the "sole
remedy" for the courts' failure to do so is "to vacate the sentence and remit for a resentencing
Earley the five-year PRS term was statutorily mandated. See Earley, 451 F.3d at 74-75. Nonetheless, the Second
Circuit concluded that this factual distinction was irrelevant because the Supreme Court in Wampler went on to hold
broadly that the sentence imposed by the sentencing judge controlled, regardless of whether omitted conditions or
punishments were discretionary or mandatory. See Earley, 451 F.3d at 75; but see Maciel v. Cate, 731 F.3d 928,
934-35 (91h Cir. 2013) ("Another reason why the California courts were reasonable in distinguishing Wampler is that
it expressly applies only to discretionary sentencing terms rather than the statutorily mandated requirements at issue
hearing so that the trial judge can make the required pronouncement." Id. at 469-71; see also
Matter of Garner v. NY State Dep 't of Corr. Servs., 10 N.Y.3d 358 (2008) (prohibiting DOCS,
pursuant to an Article 78 proceeding, from administratively imposing PRS terms not pronounced
In June 2008, in response to these rulings, the New York State Legislature
expressly provided for resentencing inmates whose PRS terms were not announced at the initial
sentencing. New York Correction Law § 601-d instructed DOCS to notify the sentencing court
of the court's prior failure to pronounce a PRS term for an inmate in custody, and the time within
which an inmate must be resentenced. See N.Y. Correct. Law§ 601-d. The Legislature also
enacted New York Penal Law § 70.85 to allow the resentencing court either to add a term of
PRS, or to re-impose the original determinate sentence without a PRS term if the district attorney
consented. 5 N.Y. Penal Law§ 70.85. The Legislature also clarified that the term of PRS
following a determinate sentence must be verbally pronounced at the same time as the
determinate sentence. See N.Y. Penal Law§ 70.45 ("When a court imposes a determinate
sentence it shall in each case state not only the term of imprisonment, but also an additional
period of post-release supervision as determined pursuant to this article."). Following the
enactment of this legislation, DOCS began referring inmates for resentencing. The referrals
The section provides in its entirety:
This section shall apply only to cases in which a determinate sentence was imposed
between September first, nineteen hundred ninety-eight, and the effective date of this
section, and was required by law to include a term of post-release supervision, but the
court did not explicitly state such a term when pronouncing sentence. When such a case
is again before the court pursuant to section six hundred one-d of the correction law or
otherwise, for consideration of whether to resentence, the court may, notwithstanding any
other provision oflaw but only on consent of the district attorney, re-impose the
originally imposed determinate sentence of imprisonment without any term ofpostrelease supervision, which then shall be deemed a lawful sentence.
N.Y. Penal Law§ 70.85. This provision allowed re-sentencing courts to avoid vacating pleas that were unlawful
under the New York Court of Appeals' decision in Catu, 4 N.Y.3d 242.
included both inmates who were still in custody and those who had been released after
completing their initial custodial terms. See, e.g., People v. Lingle, 16 N.Y.3d 621, 636-39
(2011) (Ciparick, J., dissenting) (discussing both circumstances).
In People v. Williams, 14 N.Y.3d 198 (2010), the New York Court of Appeals, in
reviewing five cases involving post-custody resentencing, put a stop to the practice of
resentencing inmates after they had been released. 6 The Court of Appeals held that the
resentencing of a defendant after his or her release from prison violates the Double Jeopardy
Clause of the United States Constitution because, at that point, the defendant has "a legitimate
expectation in the finality of a sentence." Id at 217 ("[I]n a case where PRS was not formally
pronounced by the sentencing court pursuant to CPL 380.20, we hold that the Double Jeopardy
Clause prohibits a court from resentencing the defendant to the mandatory term of PRS after the
defendant has served the determinate term of imprisonment and has been released from
confinement by the DOCS."). In dicta, the Court of Appeals acknowledged that resentencing to
a term of PRS after completion of a determinate sentence would be otherwise lawful, for courts
have the "inherent authority" to correct illegal sentences, and no statute barred such
resentencing. See id at 212; N.Y. Correct. Law§ 601-d; N.Y. Penal Law§ 70.85.
STANDARD OF REVIEW
"After the pleadings are closed-but early enough not to delay trial-a party may
move for judgment on the pleadings." Fed. R. Civ. P. 12(c). In deciding a Rule 12(c) motion, a
court "applies the same legal standard as that applicable to motions to dismiss pursuant to
Federal Rule of Civil Procedure 12(b)(6)." VoiceAge Corp. v. Rea/Networks, Inc., 926 F. Supp.
2d 524, 525 (S.D.N.Y. 2013). A motion to dismiss should be granted if the complaint "fails to
In some cases the defendants were resentenced after being re-incarcerated following a violation of the
administratively-imposed PRS term. See Williams, 14 N.Y.3d at 209-12.
state a claim upon which relief can be granted." Fed .R. Civ. P. 12(b)(6). The complaint must
contain "sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its
face." Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009). "[W]here the well-pleaded facts do not
permit the court to infer more than the mere possibility of misconduct, the complaint has
alleged-but it has not shown-that the pleader is entitled to relief." Id (internal quotations
omitted); see also Fed. R. Civ. P. 8(a)(2). The court accepts the non-moving party's factual
allegations as true and draws all reasonable inferences in its favor. See Ruotolo v. City ofNY,
514 F.3d 184, 188 (2d Cir. 2008).
Qualified immunity "protects public officials performing discretionary functions
from personal liability in a civil suit for damages 'insofar as their conduct does not violate
clearly established statutory or constitutional rights of which a reasonable person would have
known."' Lore v. City ofSyracuse, 670 F.3d 127, 162 (2d Cir. 2012) (quoting Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982)). As an affirmative defense, defendant officials bear the
burden of proof. See Gomez v. Toledo, 446 U.S. 635, 640 (1980).
A public official sued in his or her individual capacity is entitled to qualified
immunity from a claim for damages if either (1) the alleged official conduct was not prohibited
by law, see Cnty. a/Sacramento v. Lewis, 523 U.S. 833, 841 n.5 (1998), or (2) the conduct was
prohibited by law but the plaintiff's right not to be subjected to such conduct was not "clearly
established at the time it was taken," Anderson v. Creighton, 483 U.S. 635, 639 (1987) (internal
quotations omitted). The test is an objective one. Thus, "[a] right is 'clearly established' when
the contours of the right are sufficiently clear that a reasonable official would understand that
what he [or she] is doing violates that right." Jack/er v. Byrne, 658 F.3d 225, 242 (2d Cir. 2011).
Absent "extraordinary circumstances," "[i]f the law was clearly established, the immunity
defense ordinarily should fail, since a reasonably competent public official should know the law
governing his [or her] conduct." Harlow, 457 U.S. at 818-19.
Defendants' entitlement to qualified immunity, therefore, turns on whether and
when the rights that Hassell invokes were "clearly established." Harlow, 457 U.S. at 818.
Hassell alleges that Defendants knowingly violated his constitutional rights on two separate
occasions. First, Defendants ordered that Hassell should be released from custody on February
29, 2008 subject to PRS conditions, even though the sentencing court had not ordered PRS
conditions, and he alleges that the imposition of such conditions violated his right to due process
oflaw. See Second Am. Compl. iii! 27-29, 33, 35-36. Second, Defendants caused Hassell to be
resentenced to a term of PRS on December 3, 2008, in violation of the Double Jeopardy Clause
of the State and Federal Constitutions. See id.
Hassell remained subject to such conditions
until June 17, 2010, when the New York Court of Appeals vacated his resentencing. See id.
42-4 7. Plaintiffs allegations of the two categories of constitutional violations implicate two
different sets of rights and two relevant periods of time.
Defendants' Administrative Imposition and Enforcement of PRS
Conditions between February 29, 2008 and Hassell's Resentencing on
December 3, 2008
The Second Circuit Court of Appeals held in June 2006, in Earley v. Murray, that
a state prisoner may not be subjected to an administratively imposed PRS term not pronounced at
sentencing. See 451 F.3d 71. The Second Circuit Court of Appeals reinforced that ruling in
Vincent v. Yelich, holding that Earley "clearly established" that constitutional right. 718 F.3d
157, 160 (2d Cir. 2013) ("[W]e conclude that Earley I itself, decided on June 9, 2006, did clearly
establish the unconstitutionality of the administrative imposition or enforcement of postrelease
conditions that were not judicially imposed."). Thus, after Earley, state officials who imposed
PRS after the sentencing court had failed to do so, are not entitled to qualified immunity unless,
as Earley added, they take reasonable and prompt steps to remit an inmate to the sentencing
court for resentencing. See id at 173-74 (holding that Anthony J. Annucci was not entitled to
qualified immunity as a matter of law). 7
The plaintiffs in Vincent had been convicted of state crimes and had been released
from their custodial sentences at various times between 2002 and 2007. See id at 161. Either
during the plaintiffs' custodial terms or after their release, the defendants in Vincent imposed
PRS conditions upon them, even though the sentencing court had failed to do so, and their orders
of commitment did not mention PRS. See id In most cases, DOCS imposed the PRS terms
prior to Earley, but continued to enforce the conditions after Earley had declared the practice
unconstitutional, without remitting the cases to the sentencing courts for resentencing. 8 See
Vincent, 718 F.3d at 176. One Vincent plaintiff had his PRS term added after the Second Circuit
decided Earley. See id. at 171. Plaintiffs sued the relevant DOCS and Parole officials in their
individual capacities, including Brian Fischer and Anthony J. Annucci, the Commissioner and
Executive Deputy Commissioner of DOCS. See id Their complaints alleged that the defendant
officials knew that plaintiffs had not been sentenced to PRS terms by the sentencing courts, but
nonetheless "unlawfully and unconstitutionally promulgated a DOCS policy of administratively
adding a five-year PRS period to prisoners' records." Id at 164.
The Second Circuit Court of Appeals held that since the conduct of imposing, or
enforcing, PRS persisted after the Second Circuit decided Earley in 2006, Defendant Anthony J.
Anthony J. Annucci is the same person who is a defendant in the case before me.
Some, but not all, of the Vincent plaintiffs had been reincarcerated after violating administratively added PRS
conditions. See Vincent, 718 F.3d at 161.
Annuci was not entitled to qualified immunity. 9 See id at 173-74. Where the complaints alleged
that the PRS term was imposed prior to June 2006, the Court held that plaintiffs had sufficiently
alleged that they "suffered the consequences of PRS even following [the] decision in Earley I."
Id at 175. The Court noted that Annucci had testified that he did not immediately implement a
resentencing initiative consistent with Earley in 2006. See id at 174-75. While Annuci had
begun a policy of identifying prisoners in need of resentencing by 2007, there was no evidence
that DOCS took any steps to recommend them for resentencing. See id The Court
acknowledged the possibility that DOCS and Parole took reasonable, and timely, steps to do so,
but denied qualified immunity at the early stage of a motion to dismiss, because the facts to
establish immunity had not yet been developed. See id 10
In the case before me, Hassell' s allegations against defendants Fischer, Annucci,
Tracy, and Evans, for the period prior to his resentencing on December 3, 2008, are similar to the
allegations in Vincent. Although the record does not reflect when DOCS ordered PRS to be
added to Hassell's sentence, and therefore whether that action occurred before or after the
Second Circuit's decision in Earley, Hassell's complaint sufficiently alleges that Defendants
caused Hassell to continue to be subject to PRS conditions in 2008, more than two years after
Earley. See Second Am. Compl.
iii! 39-43 (alleging that Hassell was released on February 29,
2008 subject to PRS, and that he was not resentenced until December 3, 2008, 9 months later).
Hassell also alleges that Defendants knew or should have known prior to February 29, 2008, and
after, that an administratively added PRS term without a judicial resentencing violated "clearly
established" federal law. See id.
iii! 26-29, 45-47.
Although Defendants Fischer, Annucci,
The Court of Appeals did not address the allegations against the other defendants because the appellants had failed
to preserve their claims against them on appeal. See Vincent, 718 F.3d at 174-75.
The Supreme Court recently denied the defendant's petition for a writ of certiorari. See Annucci v. Vincent, No.
14-360, - S. Ct. - , 2015 WL 132971 (Jan. 12, 2015).
Tracy, and Evans could have taken timely steps to remit Hassell to the sentencing court for
resentencing, and such steps under Earley could confer a qualified immunity, nothing in the
record supports such a defense. Defendants have not yet answered the Complaint.
Defendants argue that the Second Circuit's decision in Scott v. Fischer in 2010
supports their entitlement to qualified immunity. However, in Scott, the plaintiff failed
sufficiently to allege any actionable post-Earley conduct by the defendants. See 616 F.3d 100
(2d Cir. 2010). Scott was sentenced in July 1999 and conditionally released, subject to an
administratively imposed PRS term, on July 1, 2002. See id. at 103. In March 2004, a Parole
employee recommended the issuance of a warrant after Scott violated the conditions of her PRS
term. See id. Scott was arrested on the warrant in New Jersey in October 2006 and extradited to
New York, where she was sentenced in January 2007 to an 18-month term of imprisonment for
the violations. See id.
After a federal court granted her habeas petition, Scott filed suit under 42 U.S.C. §
1983 against the Parole officer who requested the warrant in 2004, and against DOCS officials
who had adopted and approved the policy of administratively adding PRS conditions. See id. at
103-04. The District Court dismissed the complaint on the basis of qualified immunity,
concluding, first, that the law governing administrative imposition of PRS was not clearly
established prior to the Second Circuit's June 2006 decision in Earley and, second, that Scott had
failed to allege sufficient post-Earley personal involvement by the defendants. See id. at 104.
The Second Circuit affirmed, agreeing that "it was not clearly established for qualified immunity
purposes prior to Earley that the administrative imposition of PRS violates the Due Process
Clause." Id. at 107. Furthermore, Scott failed to allege "affirmative actions" taken by
defendants after Earley was decided, and thus there were no "facts giving rise to a clearly
established affirmative legal obligation on the part of the DOC defendants." Id at 109.
Furthermore, Scott did not allege that the Defendants failed to seek her resentencing, or that they
were aware that her PRS term had been added administratively. See id at 110.
Scott left open the question whether, for purposes of qualified immunity, Earley
"clearly established" the unconstitutionality of the administrative imposition of PRS not
pronounced at sentence. See id. at 107 ("Whether Earley itself sufficed clearly to establish the
unconstitutionality of administratively imposed PRS for a reasonable New York State
correctional official may be open to question .... "). Thus, defendants argue that neither Earley
nor Scott bar their entitlement to qualified immunity for following New York State law. Vincent,
however, clearly does so.
In Vincent, decided in 2013, three years after Scott, the Second Circuit
"answer[ed] Scott's question in the affirmative." Vincent, 718 F.3d at 169. Vincent denied
qualified immunity because the defendants "knew that plaintiffs had not been sentenced to PRS
by a sentencing court" but nonetheless caused PRS conditions to be imposed even after Earley
held that "DOCS-imposed PRS ... deprive[d] plaintiffls]" of their constitutional rights. Vincent,
718 F.3d at 172, 176.
In the case at bar, Hassell alleges that DOCS knowingly enforced the PRS
conditions through 2008, two years after the Second Circuit decided Earley. Thus, like the
complaints in Vincent, and in contrast to those in Scott, Hassell has alleged sufficient post-Earley
conduct. While Earley states that an illegal sentence may be cured by resentencing, there is
insufficient evidence at this stage to determine whether the defendants took reasonable steps,
within a reasonable amount oftime, to have Hassell resentenced. Thus, Hassell has sufficiently
alleged that DOCS and Parole failed to discharge their affirmative duty to promptly recommend
Hassell for resentencing. See Second Am. Compl.
iii! 23-24, 26-29, 33, 35-36, 39, 45.
Second, Defendants argue that it was reasonable for DOCS and Parole officials to
follow New York Penal Law§ 70.45(1) mandating the addition of PRS terms to determinate
sentences even though the Second Circuit Court of Appeals held in Earley that such practice
violated the federal Constitution. See Defs.' Mem. Law Supp. Mot. Judgment Pleadings ("Defs.'
Br.") at 14-15. The Second Circuit categorically rejected this argument in Vincent. Although, in
general, "state officials are entitled to rely on a presumptively valid state statute until and unless
the statute is declared unconstitutional," Vives v. City ofNew York, 405 F.3d 115, 117 (2d Cir.
2005), "that presumption cannot be relied upon once the federal court of appeals for the circuit in
which the officials operate has ruled that the exact conduct of the official, undertaken on the
basis of the state statute, violates federal law." Vincent, 718 F.3d at 170. The square holding of
Vincent is that defendants' purported reliance on state law in direct contradiction to "clearly
established" federal law does not entitle them to qualified immunity.
Third, Defendants argue that they could not have legally sought resentencing prior
to the passage of New York Correction Law§ 601-d in June 2008. The same argument was
made, and rejected, in Vincent. There, the Second Circuit held:
[W]e think it clear that DOCS, which (a) unconstitutionally imposed PRS,
(b) was custodian of the records in which PRS was imposed and from
which PRS was required to be excised (in the absence of appropriate
resentencing), and (c) resumed custody of persons who violated the
unconstitutionally imposed conditions and were penalized for those
violations by reimprisonment, had an obligation to at least attempt to cease
its administrative and custodial operations that had been held to violate
Vincent, 718 F .3d at 172-73. The Second Circuit held that, because there was no evidence in the
record "that Annucci took prompt action in light of Earley!," he was not entitled to qualified
immunity. Id. at 173.
Even though a statutory procedure for resentencing defendants with defective
PRS terms added to their sentences was not expressly provided until the passage of New York
Correction Law § 601-d in June 2008, the sentencing court had inherent authority to remedy
defective sentences at all relevant times. See People v. Williams, 14 N.Y.3d 198, 212 (2010)
("Our precedent has long recognized that courts have the inherent authority to correct illegal
sentences."); see also N.Y. Crim. Proc. Law§ 440.40(1) ("At any time not more than one year
after the entry of a judgment, the court in which it was entered may, upon motion of the people,
set aside the sentence upon the ground that it was invalid as a matter oflaw."). Thus, as the
Court of Appeals stated in Earley, "when DOCS discovered the oversight made by [the]
sentencing judge, the proper course would have been to inform the state of the problem" so that
"[t]he state then could have moved to correct the sentence through a judicial proceeding." 451
F.3d at 76. There is no evidence at this stage that Defendants took any such action prior to
September 15, 2008, over 27 months after the Second Circuit's decision in Earley and over 6
months after PRS conditions were unconstitutionally-imposed on Hassell. 11
While I deny Defendants' motion as to Fischer, Annucci, Tracy, and Evans, I hold
that the remaining Defendants are entitled to qualified immunity. Hassell alleges that these
various lower level DOCS and Parole employees, at the direction of Defendants Annucci,
Fischer, Tracy, and Evans, enforced the conditions imposed by Hassell's administratively added
New York Correction Law§ 601-d itself alludes to other statutory vehicles for resentencing. See N.Y. Correction
Law§ 601-d(S) ("The court shall promptly notify the agency that referred a designated person whenever it (a)
resentences the defendant to a sentence that includes a term of post-release supervision; or (b) determines that it will
not resentence the defendant under this section or otherwise.") (emphasis added).
PRS term. See Second Am. Compl.
35-37. However, even reading the Second Amended
Complaint liberally, as a Court must do at this stage, it lacks any allegation that the lower level
Parole and DOCS employees knew, or should have known, that Hassell's term of PRS had been
administratively imposed but not announced at sentence or resentence. See id
35-37. There is
no allegation that the lower level employees possessed any discretionary authority or played any
role in the purported decision to impose and enforce administratively-added PRS terms after the
Second Circuit's decision in Earley. See id Accordingly, I hold that it was not objectively
unreasonable for Defendants Constantini, Freeman, and Doe to continuing enforcing the PRS
conditions imposed on Hassell pursuant to their duties as employees of DOCS and Parole. See
Scott v. Fischer, No. 07 Civ. 11303, 2009 WL 928195, at *5-6 (S.D.N.Y. Mar. 30, 2009)
(holding that Parole officer who enforced conditions of administratively imposed PRS was
entitled to qualified immunity even if conduct occurred after the Second Circuit's decision in
Earley because the officer "had no way of knowing" the PRS term was improperly added to
defendant's sentence), ajf'd, 616 F.3d 100 (2d Cir. 2010); see also Arizona v. Evans, 514 U.S. 1,
15-16 (1995) (holding that a police officer "was acting objectively reasonably when he relied
upon the police computer record," even though the outstanding warrant on which the officer
arrested defendant was the result of a clerical error); Caldarola v. Calabrese, 298 F.3d 156, 166
(2d Cir. 2002) ("We cannot expect an officer to question the judgment of his superiors,
especially when, as here, he has no basis for doing so."). The claims against these defendants
Defendants' Imposition and Enforcement of PRS Conditions
Pursuant to Resentencing between December 3, 2008 and June 17,
Hassell alleges that Defendants' enforcement of PRS conditions following his
resentencing on December 3, 2008 violated the double jeopardy protections guaranteed by the
New York and federal constitutions. See Second Am. Compl. iii! 25, 40-47, 64, 65; U.S. Const.
amend. V; N.Y. Const. Art. I,§ 6. He relies principally on the New York Court of Appeals'
decision in People v. Williams, which held that the resentencing of a defendant pursuant to New
York Correction Law§ 601-d after the defendant's release from confinement was an
unconstitutional violation of the double jeopardy clause of the United States Constitution
because resentencing after release contradicts a reasonable expectation of finality. See 14
N. Y.3d 198, 217 (2010) (holding that "after release from prison, a legitimate expectation in the
finality of a sentence arises and the Double Jeopardy Clause prevents reformation to attach a
PRS component to the original completed sentence"). The Second Circuit, however, has ruled
that prior to the New York Court of Appeals' February 2010 decision in Williams, public
officials could reasonably rely upon New York Correction Law§ 601-d in remitting a defendant
for resentencing. King v. Cuomo, 465 F. App'x 42, 45 (2d Cir. 2012), ajf'g No. 08 Civ. 6058,
2011 WL 13944 (S.D.N.Y. Jan. 4, 2011). In doing so, public officials did not violate a clearly
established federal right, and are entitled to qualified immunity and the dismissal of the
complaints against them:
No federal or state court has held that such resentencing violates double
jeopardy's reasonable expectation of finality, except in circumstances
where offenders have completed their determinate terms and been released
from custody. Even as to those offenders, no court reached that conclusion
until the New York Court of Appeals decided People v. Williams in 2010.
Thus, because neither clearly established principles of double jeopardy nor
due process prohibited defendants from administratively imposing
legislatively mandated PRS terms before 2006, or from obtaining judicial
resentencing of offenders already released from their determinate prison
terms before 2010, the district court correctly granted dismissal on the
ground of qualified immunity.
Id at 45.
Here, Defendants remitted Hassell for resentencing on September 15, 2008,
pursuant to New York Correction Law§ 601-d. See Second Am. Compl. ii 42; People v.
Hassell, 14 N.Y.3d 925 (2010). On December 3, 2008, Justice Uviller resentenced Hassell to a
PRS term nunc pro tune. See Second Am. Compl. if 43; People v. Hassell, 14 N.Y.3d 925
(2010). It is not disputed that Defendants imposed PRS conditions pursuant to Justice Uviller's
order and before the New York Court of Appeals held in Williams that the resentencing violated
the Double Jeopardy Clause of the United States Constitution. I hold that the Defendants'
conduct was objectively reasonable at the time. See King, 465 F. App'x 42. Accordingly, the
Defendants are entitled to qualified immunity for the period between December 3, 2008 and June
17, 2010, when Hassell was released. Hassell' s claim for that period is dismissed.
Defendants' Remaining Arguments
The Eleventh Amendment Does Not Bar Hassell's Claims
Defendants argue that Hassell's claims, seeking money damages against state
officials acting in their official capacity, are barred by the Eleventh Amendment. See Ying Ging
Gan v. City of New York, 996 F.2d 522, 529 (2d Cir. 1993) ("To the extent that a state official is
sued for damages in his official capacity, such a suit is deemed to be a suit against the state, and
the official is entitled to invoke the Eleventh Amendment immunity belonging to the state.").
Although Hassell styled his Complaint against Defendants in their individual capacities, see
Second Am. Compl. at 2, Defendants argue that New York is the "real substantial party in
interest" because Defendants were "simply acting as [New York Penal Law] § 70.45, a
legislative enactment, required." Defs.' Br. at 22. But New York Penal Law§ 70.45 did not
expressly require DOCS or Parole officials to add, or enforce, PRS conditions to Hassell' s
sentence; it simply provided that determinate sentences are to include PRS terms. See N.Y.
Penal Law§ 70.45 ("Each determinate sentence also includes, as a part thereof, an additional
period of post-release supervision."). Even assuming the Defendants were merely complying
with state law, the Second Circuit has held that compliance with state law does not entitle
officials to immunity for actions taken in violation of "clearly established" federal law. See
Vincent, 718 F.3d at 170 (noting that presumption of state statute's validity "cannot be relied
upon once the federal court of appeals for the circuit in which the officials operate has ruled that
the exact conduct of the official, undertaken on the basis of the state statute, violates federal
law."). The Eleventh Amendment is not a defense to Hassell's claims against Defendants in
their individual capacity.
Hassell Has Sufficiently Alleged Personal Involvement of Defendants
Fischer, Annucci, Tracy, and Evans
Defendants argue that Hassell fails to state a claim for relief because his
complaint lacks allegations of personal involvement on the part of the Defendants. See Defs.'
Br. at 23. It is firmly established that "personal involvement of defendants in alleged
constitutional deprivations is a prerequisite to an award of damages under§ 1983." Wright v.
Smith, 21 F .3d 496, 501 (2d Cir. 1994) (internal quotations omitted). The personal involvement
of a defendant occupying a supervisory position may be established in several ways:
The defendant may have directly participated in the infraction.. . . A
supervisory official, after learning of the violation through a report or
appeal, may have failed to remedy the wrong . . . . A supervisory official
may be liable because he or she created a policy or custom under which
unconstitutional practices occurred, or allowed such a policy or custom to
continue . . . . Lastly, a supervisory official may be personally liable if he
or she was grossly negligent in managing subordinates who caused the
unlawful condition or event ....
Williams v. Smith, 781 F.2d 319, 323-24 (2d Cir. 1986); see also Vincent, 718 F.3d at 173 ("A
supervisory official may be liable in an action brought under§ 1983 ifhe exhibited deliberate
indifference to the rights of inmates by failing to act on information indicating that
unconstitutional acts were occurring.").
Hassell has sufficiently pleaded the personal involvement of the Defendants. The
Complaint alleges that Fischer, Annucci, Tracy, and Evans, as high-ranking officials in DOCS
and Parole, "formulated a plan to administratively add post-release supervision to the Plaintiff's
sentence." Second Am. Compl. ,-i 26. 12 He alleges that each Defendant "individual[ly] or acting
together-intentionally increased the Plaintiff's sentence when they added a five year period of
post-release supervision." Id. ,-i 29. Further, Hassell alleges that each Defendant "knew, or
should have known, that their actions violated clearly established federal law," id. ,-i 45, and that
Fischer, as the former DOCS Commissioner, had an obligation to refer Hassell for resentencing,
see Second Am. Compl. ,-i 23. These allegations are substantially similar to those alleged and
held sufficient in Vincent. See 718 F.3d at 164. Accordingly, I hold that Hassell's Complaint
contains "sufficient factual matter, accepted as true, to state a claim to relief that is plausible on
its face." Iqbal, 556 U.S. at 663. Defendants' motion to dismiss on this ground is denied.
The Court Lacks Jurisdiction Over Hassell's State Law Claims
Hassell also brings various claims under New York state law. See Second Am.
Compl. ,-i,-i 61-69. However, a federal court cannot exercise jurisdiction over pendent state law
claims over which a state court lacks jurisdiction. See Promise! v. First Am. Artificial Flowers,
Inc., 943 F.2d 251, 257 (2d Cir. 1991) ("If a state would not recognize a plaintiff's right to bring
a state claim in state court, a federal court exercising pendent jurisdiction, standing in the shoes
The Court provided Defendants with a sufficient opportunity to identify all DOCS and Parole personnel who were
the decision makers with respect to Hassell's administratively-added PRS term and resentencing. No different
names were provided.
of a state court, must follow the state's jurisdictional determination and not allow that claim to be
appended to a federal law claim in federal court."). New York Correction Law § 24 provides
that New York courts lack jurisdiction over claims for money damages brought against DOCS
and Parole officials in their personal capacities arising from conduct within the scope of their
employment. 13 See N.Y. Correction Law§ 24. The Second Circuit has held that this provision
prevents federal courts from exercising pendent jurisdiction over state law claims appended to
federal claims brought pursuant to 42 U.S.C. § 1983. See Baker v. Coughlin, 77 F.3d 12, 15 (2d
Cir. 1996) ("This provision, by its plain terms, precludes the assertion of claims against
corrections officers in any court, including the federal courts."). Hassell brings state law claims
for money damages against various DOCS and Parole officials in their personal capacity for
actions taken within the scope of their employment. See Second Am. Comp!. iii! 6-69. Because
such claims would be barred in New York state courts, this Court equally lacks jurisdiction over
the claims. 14 Accordingly, Hassell's state law claims are dismissed. The federal claims,
however, are unaffected and continue to stand, consistent with this Order and Opinion.
New York Correction Law § 24 provides in pertinent part:
1. No civil action shall be brought in any court of the state, except by the attorney general
on behalf of the state, against any officer or employee of the department, which for
purposes of this section shall include members of the state board of parole, in his or her
personal capacity, for damages arising out of any act done or the failure to perform any
act within the scope of the employment and in the discharge of the duties by such officer
2. Any claim for damages arising out of any act done or the failure to perform any act
within the scope of the employment and in the discharge of the duties of any officer or
employee of the department shall be brought and maintained in the court of claims as a
claim against the state.
N.Y. Correction Law§ 24.
In Haywood v. Drown, the United States Supreme Court ruled that, to the extent New York Correction Law § 24
precluded plaintiffs from maintaining a federal cause of action under 42 U.S.C. § 1983 against DOCS officials in
New York Supreme Court, it violated the Supremacy Clause of the federal Constitution. See 556 U.S. 729, 740
(2009) ("We therefore hold that, having made the decision to create courts of general jurisdiction that regularly sit to
entertain analogous suits, New York is not at liberty to shut the courthouse door to federal claims that it considers at
For the foregoing reasons, Defendants' motion is DENIED with respect to
Hassell's claims against Defendants Fischer, Annucci, Evans, and Tracy for the period between
February 29, 2008 (the date when PRS conditions were imposed) and December 3, 2008 (the
date of Justice Uviller's re-sentencing), and GRANTED with respect to the period between
December 3, 2008 and June 17, 2010 (the date when the PRS conditions were removed). The
motion is GRANTED with respect to Defendants Constantini, Freeman, and Doe (the
"Dismissed Defendants"), and the claims against them are dismissed. The motion is GRANTED
with respect to Hassell's state law claims. The Clerk shall enter judgment dismissing the
Complaint against the Dismissed Defendants, with costs in favor of the Dismissed Defendants
and mark the motion (Doc. No. 62) terminated.
Hassell shall file an Amended Complaint by April 17, 2015, consistent with this
Order and Opinion. Defendants' Answer shall be filed by April 30, 2015, also consistent with
this Order and Opinion. The parties shall appear for a status conference on May 8, 2015, at
10:00 a.m., with a case management plan to regulate further proceedings.
New York, New York
April 1, 2015
United States District Judge
odds with local policy.") (emphasis added). The decision does not, however, prevent New York Correction Law§
24 from stripping New York state courts of jurisdiction over a plaintiffs analogous state law claims against DOCS
officials. Thus, the Second Circuit's holding in Baker v. Coughlin-that federal courts cannot exercise pendent
jurisdiction over state law claims that a plaintiff could not bring in state court-is unaffected by the Haywood
decision. Accord May v. Donneli, No. 06 Civ. 437, 2009 WL 3049613, at *5 (N.D.N.Y. Sept. 18, 2009) ("A claim
brought pursuant to a state law does not implicate the Supremacy Clause, and therefore, the Haywood decision does
not affect the question of whether this Court has proper jurisdiction to hear this pendent state law claim.").
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