Curtiss v. N.Y. State Department of Parole et al
DECISION AND ORDER: No genuine issue of material fact exists in this record, and Defendants are entitled to quasi-judicial immunity for carrying out the sentence and commitment order of the court. Defendants' Motion for Summary Judgment (ECF No. 29) is GRANTED, and this case is DISMISSED WITH PREJUDICE. The Clerk of Court is directed to close this case. SO ORDERED. Signed by Hon. Frank P. Geraci, Jr. on 9/28/17. (SCE)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
Case # 09-CV-6171-FPG
DECISION AND ORDER
ANTHONY ANNUCCI, et al.,
This lawsuit is about one question: did Defendants administratively add a term of post
release supervision (“PRS”) to Plaintiff’s sentence that was not imposed by the sentencing
judge? After eight years of litigation, Defendants move for summary judgment, arguing they are
immune from this suit. Plaintiff opposes the motion, and argues that a trial is necessary to
resolve disputed issues of fact.
After reviewing the submissions and hearing oral argument, the Court finds that
Defendants are indeed immune from this suit, and Defendants’ Motion for Summary Judgment is
The general facts of this case are undisputed. On January 10, 2001, Plaintiff Todd
Curtiss appeared before Ontario County Court Judge James Harvey. Curtiss was 42 at the time,
he was represented by Victor Berger, Esq., and Assistant District Attorney James Ritts
prosecuted the case. The parties appeared before the Court to argue motions, but instead, Curtiss
wished to avail himself of the People’s plea offer, and wished to both plead guilty and to be
sentenced on that same day. Curtiss faced two charges: assault in the second degree, and
The record reveals that Curtiss and Judge Harvey “have been acquainted over the last 25
years, approximately,” in part, because Judge Harvey was the prosecutor on some of Curtiss’
prior cases. In taking the plea, Judge Harvey told Curtiss that he would receive the mandatory
minimum sentence of 5 years to the New York State Department of Corrections (“DOCS”). The
following discussion occurred during the plea:
No. What is this? I plead guilty. I have to do the five years. Then
I still have parole after I get out on it?
There is this term they use now –
Post release supervision.
You do –
Four years, four months.
That’s right. Then you would be on –
Post release supervision for a couple of years. Three years on a D
You are still under their supervision.
I don’t want to be going drinking any way.
After taking the plea, the Court was going to impose sentence on Curtiss, but adjourned
the matter to the afternoon, because the victim wished to be present. After a brief adjournment,
the sentencing commenced. There, the Court stated:
THE COURT: I will give you the minimum mandatory sentence, obviously, Mr. Curtiss
on the first count, which is five years as a violent felony offender and a
second violent felony offender, with the New York State Department of
Corrections, mandated $210 surcharge. You are going to have to pay that.
Some of that money will be taken out of your commissary funds' up to 10
percent that you have there. As you know, the rest will be all due and
payable within six months of your release to the Probation Department.
The second count is to run sixty days concurrent with the first count.
Hopefully if you get off the booze, You can get on the straight and narrow.
You are still a fairly young man, I might say. It is unfortunate that we keep
seeing you in this capacity. If you stay off the booze, you are a hard
working, decent person. But you don’t, and then there is your problem.
Although it was discussed during the plea colloquy, the Judge did not mention PRS
during the sentencing portion of the proceedings.
However, the written sentence and
commitment order does contain a PRS term of 5 years.
There are two different versions of the sentence and commitment order in the record, and
both contain the same information, albeit in slightly different forms. The first version of the
form, which has a business record certification from DOCS as being the copy of Curtiss’
sentence and commitment order received by, and maintained in, DOCS records, has a
handwritten “5Y” in the PRS section of the top of the form. ECF No. 29-2, at 9-10. That
document is dated January 10, 2001 (the date of Curtiss’ sentencing), and is signed by a Court
Assistant on behalf of the Chief Clerk. ECF No. 29-2 at 10. At the bottom of that form, a line
for “Corrections – Original” is checked, indicating that this document is the DOCS copy of the
sentence and commitment order. Id.
The second version of the sentence and commitment order was obtained by Curtiss’
attorney in this matter, and his cover letter describes the document as a “copy of the certified
Ontario County Clerk’s Office Uniform Sentence and Commitment Order” from Curtiss’ case.
ECF No. 29-2 at 12. The letter also states that “there is nothing marked on the post-release
supervision portion of the Commitment Order.” Id. However, that statement is only partially
correct. While it is true that the top portion of the Order (where the handwritten ‘5Y’ appears in
the DOCS version) does not mention PRS, the bottom of the document does contain a provision
for 5 years of PRS. See ECF No. 29-2 at 13. This version of the sentence and commitment order
is also dated January 10, 2001, but also bears a stamp of “Ontario County Clerk’s Office – Filed
– May 8, 2007.” Id. This version of Curtiss’ sentence and commitment order is signed by the
same court assistant who signed the version in DOCS records. Cf. ECF No. 29-2 at 10, ECF No.
29-2 at 13.
The entire basis of this action is Curtiss’ claim that he was administratively subjected to 5
years PRS by DOCS, as opposed to being sentenced to 5 years PRS by the Court, and that an
administrative imposition of 5 years PRS by DOCS is illegal.
On the general legal principle, Curtiss is right that DOCS cannot administratively impose
5 years PRS if it was not imposed by the Court. Courts around the Second Circuit have decided
many cases to this effect, and this principle of law is well settled. Despite this, cases also make
clear that DOCS still administratively imposed PRS on numerous prisoners, and there have been
many suits in that regard.
In this case, Defendants have moved for Summary Judgment, and argue they are entitled
to either qualified immunity or Quasi-Judicial immunity because they were simply carrying out
an Order from the Court – the sentence and commitment order.
Quasi-judicial immunity protects officials who are performing official duties that are
comparable to functions for which judges are immune. Butz v. Economou, 438 U.S. 478, 512
(1978). Put another way, “Government officials carrying out a facially valid court order are
entitled to immunity to suits for damages under § 1983.” Fludd v. Fischer, No. 10–CV–
6603CJS, 2012 WL 3749652 (W.D.N.Y. Aug. 28, 2012), citing Roland v. Phillips, 19 F.3d 552,
556 (11th Cir. 1994) ( “Therefore, law enforcement personnel, acting in furtherance of their
official duties and relying on a facially valid court order, are entitled to absolute quasi-judicial
immunity from suit in a section 1983 action.”). As one court explained:
“Despite potential unfairness to plaintiffs, requiring prison officials to secondguess a court order when questions arise regarding its validity would place prison
officials in a dilemma. On the one hand, public officials could face section 1983
liability if an order is later found to be erroneous. On the other hand, Public
officials ... who do not act to implement decisions when they are made do not
fully and faithfully perform the duties of their office.”
Todd v. Hatin, No. 2:13cv05, 2013 WL 3990815 (D.Vt. Aug. 5, 2013).
There is no doubt that DOCS is bound by the contents of the sentence and commitment
order, and that DOCS officials who carry out court orders are immune from suits based on a
claim of enforcing that order. Indeed, neither party disputes this principle of law.
Instead, Curtiss argues that there is an issue of fact as to whether PRS was
administratively imposed by DOCS. He further argues that if DOCS imposed the PRS term,
then they are not entitled to any form of immunity. In support of his argument, Curtiss points out
that the record contains two slightly different versions of the sentence and commitment order,
and notes that PRS is not mentioned in the sentencing transcript. He argues that it “is also
unclear who or how 5 years post-release supervision was placed in [the sentence and
commitment order] when it is contra to what was stated by [ADA] Ritz at the time of the
sentencing which is that the defendant would receive three years post-release supervision and
this, combined with the fact that the Court was silent as to any type of sentence, demonstrates an
issue of fact in Mr. Curtiss’ case.” ECF No. 30 at 4.
This argument misses the mark. The main problem with Curtiss’ argument is that there is
nothing in this record that a trier of fact could rely on to find that any of the Defendants were
involved in placing the 5 years PRS notations onto the sentence and commitment order. Indeed,
there is nothing in the record at all to establish who wrote “5Y” into the DOCS version of the
sentence and commitment order. What the record does contain are two versions of the sentence
and commitment order, one of which is a certified record from DOCS, which Plaintiff does not
dispute is from DOCS’ records. Critically, both versions of sentence and commitment orders in
the record do provide for the imposition of 5 years PRS. While Plaintiff could have produced
evidence in admissible form to allow a rational jury to draw the conclusion that it was one or
more of the Defendants were the ones who imposed PRS and/or added it into the sentence and
commitment order, he has produced no such evidence.
The only statement Plaintiff has presented in opposition to Defendants’ summary
judgment motion is his own affidavit. The most relevant portion of that short affidavit states
“I was never resentenced to post-release supervision. I believe that the postrelease supervision that I was under was administratively imposed. I further
believe that the 5Y on the original commitment order was not placed by the
Court. I am prepared to testify and believe that this matter needs to move forward
But Plaintiff’s beliefs are not enough to create a material issue of fact. If Curtiss’
statement instead said that he saw the original sentence and commitment order and it did not
have “5Y” on it, or if he said that a DOCS official told him that they added in the “5Y”, or if a
version of the sentence and commitment order existed that was silent as to PRS, then a material
issue of fact would exist. But here, the only evidence in the record establishes that DOCS’
version of the sentence and commitment order -- and in fact, every version of the sentence and
commitment order in the record – does contain a provision for 5 years of PRS. DOCS is entitled
(and indeed, required) to execute that court order, and the DOCS officials who did so are entitled
to quasi-judicial immunity.
To the extent that Curtiss argues that his sentence was illegal because the written
sentence and commitment order varied from the Judge’s oral pronouncement of his sentence, that
argument is irrelevant in this proceeding. If Curtiss wished to make that argument, his remedy
was to appeal his sentence, or to move the sentencing court to correct his sentence. He cannot
argue to DOCS that they should vary from the written sentence and commitment order because it
is incorrect or even void. In fact, DOCS has no authority to vary from the written order of the
Court, and is required to carry out the facially valid court order.
Curtiss cites cases where DOCS officials were held liable for administrative impositions
of PRS or where Courts denied DOCS officials qualified immunity, but they all have one crucial
fact that distinguishes them from this case: the judgment and sentence orders in those cases did
not contain any mention of PRS. See, e.g., Betances v. Fischer, 873 F.3d 162, 165 (2d Cir. 2016)
(“The sentencing judge failed to include PRS in the sentence he pronounced in court and neither
the written judgment nor the written order of commitment indictaed that PRS was to be a part of
That is simply not the case here, and that distinction makes all the difference. Since
Curtiss’ sentence and commitment order contains a provision for 5 years of PRS, absent some
evidence upon which a reasonable juror could find that Defendants or DOCS placed that notation
onto the sentence and commitment order, they are entitled to, and are required to, execute the
Court’s sentence and commitment order, and the Defendants are therefore entitled to quasijudicial immunity.
No genuine issue of material fact exists in this record, and Defendants are entitled to
quasi-judicial immunity for carrying out the sentence and commitment order of the court.
Defendants’ Motion for Summary Judgment (ECF No. 29) is GRANTED, and this case is
DISMISSED WITH PREJUDICE.
The Clerk of Court is directed to close this case.
IT IS SO ORDERED.
September 28, 2017
Rochester, New York
HON. FRANK P. GERACI, JR.
United States District Court
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