Case 1:11-cv-03200-SAS Document 1 Filed 05/11/11 Page 1 of 15

11 cv
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
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PAUL BETANCES, individually and on behalf of all others similarly situated,
Plaintiffs,
- against-

o -~ln~Ji;lm - -:.:-~.........
M~Y ~~.tUl1 Pi IT:
f~ ,D,C. S.D N
CLA S " < _H!ERS ...
COMPLAINT AND JURY DEMAND

BRIAN FISCHER, in his capacity as Commissioner of the New York State Department of Correctional Services (DOCS), and in his individual capacity; ANTHONY J. ANNUCCI, in his capacity as Deputy Commissioner and Counsel for DOCS, and in his individual capacity; LUCIEN J. LECLAIRE, JR., former Acting Commissioner of DOCS, in his individual capacity; GLENN S. GOORD, former Commissioner of DOCS, in his individual capacity; and JOHN/JANE DOES 1-25 (DOCS Supervisory, Training, and Policy Personnel), ANDREA W. EYANS, in her capacity as Chair and Chief E)(ecutive Officer of the New York State Division of Parole (DOP), and in her individual capacity; MARK MANTEI, in his capacity as E)(ecutive Director ofDOP, and in his individual capacity; TERENCE TRACY, in his capacity as Chief Counsel for DOP, and in his individual capacity; ROBERT J. DENNISON, former Chair ofDOP, in his individual capacity; ANTHONY G. ELLIS II, former E)(ecutive Director ofDOP, in his individual capacity; GEORGE B.ALEXANDER, former Chair and ChiefE)(ecutive Officer ofDOP, in his individual capacity and JOHN/JANE DOES 26-50 CDOP Supervisory, Training, and Policy Personnel),

Defendants.
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Plaintiff Paul Betances, on behalf of himself and others similarly situated, for his

Complaint, all.~ge as follows:

INTRODUCTION

1. More than seventy years ago, a unanimous Supreme Court held that only the

judgment of a court establishes a defendant's sentence, and that imposition of an e)(tra-judicial

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sentence violates a defendant's constitutional rights. Hill v. United States ex reI. Wampler, 298 U.S. 460 (1936) (Cardozo, 1.).
2. Consistent with Wampler, the Court of Appeals for the Second Circuit has held that the imposition of an extra-judicial sentence of post-release supervision ("PRS") by the New York State Department of Correctional Services ("DOCS") and the New York State Division of Parole ("DOP") violated clearly established law. Earley v. Murray, 451 F.3d 71 (2d Cir. 2006).
3. Notwithstanding the unambiguous command of Wampler and Earley, defendants continued to administratively impose and enforce PRS on individuals such as plaintiff Betances, and thousands of others, whose sentences never included PRS (the "PRS Policy"). And, if imposing illegal and onerous supervision terms and collecting supervision fees were not enough, DOCS has also imprisoned individuals, such as plaintiff Betances, who are accused of violating PRS conditions.
4. Plaintiff Betances brings this action for injunctive and declaratory relief, and for compensatory and punitive damages, on behalf of himself and others similarly situated whose judicially imposed sentence(s) did not include a term ofPRS, but whom nevertheless have been, subjected to PRS and/or incarcerated after the maximum expiration date of their determinate sentence(s).
JURISDICTION AND VENUE 5. This action arises under the Fourth and Fourteenth Amendment to the United States Constitution and the Civil Rights Act of 1871,42 U.S.C. § 1983. 6. The jurisdiction of this Court is predicated upon 28 U.S.C. §§ 1331, 1343(a) and 2201.
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7. Venue is lodged in this Court pursuant to 28 U.S.C. 1391(b). JURY DEMAND
8. Plaintiff demands trial by jury in this action THE PARTIES
9. Plaintiff Paul Betances "plead guilty to Robbery in the First Degree and with a promised sentence of five years incarceration" on or about July 20, 2004. Consistent with that agreement, Mr. Betances was sentenced to "a detenninate tenn of five years." Mr. Betances was not sentenced to PRS. Although Mr. Betances was never sentenced to PRS, DOCS and DOP administratively imposed a five year term of prison for PRS on April 24, 2008, upon his release from prison after having served 617ths of his five year detenninate sentence. Mr. Betances's maximum determinate sentence expired on January 14,2009. His unconstitutionally imposed PRS sentence was not scheduled to expire until April 24, 2013. Thereafter, starting on or about July 9,2009, DOCS and DOP imprisoned Mr. Betances for violating the conditions of his PRS.
10. Defendant Brian Fischer is the Commissioner of DOCS. Since he was appointed to that position on January 1,2007, he has been and continues to be responsible for the policy, practice, supervision, implementation, and conduct of all DOCS matters and responsible for the appointment, training, supervision, and conduct of all DOCS personnel. In addition, Commissioner Fischer has been and continues to be responsible for enforcing the rules of DOCS, and for ensuring that DOCS personnel obey the Constitution and laws of the United States. As Commissioner of DOCS, Fischer is a policy-maker with respect to DOCS's decisions to administratively impose PRS. Commissioner Fischer is sued in his individual and official capacities.
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11. Defendant Anthony J. Annucci is a Deputy Commissioner of, and Counsel to, DOCS. At all times relevant to this action, defendant Annucci has been, and continues to be, responsible for the policy, practice, supervision, implementation, and conduct of all DOCS matters and responsible for the appointment, training, supervision, and conduct of all DOCS personnel. In addition, Deputy Commissioner Annucci has been and continues to be responsible for enforcing the rules of DOCS, and for ensuring that DOCS personnel obey the Constitution and laws of the United States. As a Deputy Commissioner of, and Counsel to, DOCS, Annucci is a policy-maker with respect to DOCS's decisions to administratively impose PRS. Defendant Annucci is sued in his individual and official capacities.
12. Defendant Lucien J. Leclaire, Jr., was Acting Commissioner of DOCS from August 30 to December 31, 2006. Throughout that time, Acting Commissioner LeClaire was responsible for the policy, practice, supervision, implementation, and conduct of all DOCS matters and responsible for the appointment, training, supervision, and conduct of all DOCS personnel. In addition, Commissioner Leclaire was responsible for enforcing the rules of DOCS, and for ensuring that DOCS personnel obey the Constitution and laws of the United States. As Acting Commissioner of DOCS, Leclaire was a policy-maker with respect to DOCS's decisions to administratively impose PRS. Former Acting Commissioner Leclaire is sued in his individual capacity.
13. Defendant Glenn S. Goord was the Commissioner of DOCS from 1996 to August 30, 2006. Throughout that time, Commissioner Goord was responsible for the policy, practice, supervision, implementation, and conduct of all DOCS matters and responsible for the appointment, training, supervision, and conduct of all DOCS personnel. In addition, Commissioner Goord was responsible for enforcing the rules of DOCS, and for ensuring that
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DOCS personnel obey the Constitution and laws of the United States. As a fOlmer Commissioner of DOCS, Goard was a policy-maker with respect to DOCS's decisions to administratively impose PRS. Former Commissioner Goord is sued in his individual capacity.
14. At all relevant times, defendants "Jane/John Does 1-25" were training, supervisory and policy making personnel within DOCS who implemented, enforced, perpetuated and/or allowed the unconscionable PRS Policy that is the subject of this action, acting in their capacity of agents, servants and employees of defendants Commissioners Fischer, Annucci, Leclaire and Goord and within the scope of their employment as such. Plaintiff is unable to determine the names of these DOCS supervisory defendants at this time and thus sue them under a fictitious designation. All are sued in their individual capacities.
15. Defendant Andrea W. Evans is the Chair and Chief Executive Officer ofDOP. In that capacity, she has been and continues to be responsible for the policy, practice, supervision, implementation, and conduct of all DOP matters and responsible for the appointment, training, supervision, and conduct of all DOP personnel. In addition, Chair Evans has been and continues to be responsible for enforcing the rules of DOP, and for ensuring that DOP personnel obey the Constitution and laws of the United States. As Chair ofDOP beginning on June 8,2009, and prior thereto as a Director ofDOP, Evans has been a policy-maker with respect to DOP's decisions to administratively impose and/or enforce PRS. Chair Evans is sued in her individual and official capacities.
16. Defendant Mark Mantei is Executive Director ofDOP. In that capacity, he has been and continues to be responsible for the policy, practice, supervision, implementation, and conduct of all DOP matters and responsible for the appointment, training, supervision, and conduct of all DOP personnel. In addition, Director Mantei has been and continues to be
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responsible for enforcing the rules ofDOP, and for ensuring that DOP personnel obey the Constitution and laws of the United States. As Executive Director ofDOP, Mantei has been a policy-maker with respect to DOP's decisions to administratively impose and/or enforce PRS. Director Mantei is sued in his individual and official capacities.
17. Defendant Terence Tracy, is Chief Counsel for DOP. At all times relevant to this action, defendant Tracy has been, and continues to be, responsible for the policy, practice, supervision, implementation, and conduct of all DOP matters and responsible for the appointment, training, supervision, and conduct of all DOP personnel. In addition, defendant Tracy, has been and continues to be responsible for enforcing the rules of DOP, and for ensuring that DOP personnel obey the Constitution and laws of the United States. As Chief Counsel to DOP, Tracy is a policy-maker with respect to DOP's decisions to administratively impose and/or enforce PRS. Defendant Tracy is sued in his individual and official capacities.
18. Defendant George B. Alexander was Acting Chair and Chief Executive Officer ofDOP from May 2007 until June 2009. During his tenure, Acting Chair Alexander was responsible for the policy, practice, supervision, implementation, and conduct of all DOP matters and responsible for the appointment, training, supervision, and conduct of all DOP personnel. In addition, Acting Chair Alexander was responsible for enforcing the rules ofDOP, and for ensuring that DOP personnel obey the Constitution and laws ofthe United States. As Acting Chair ofDOP, Alexander was a policy-maker with respect to DOP's decisions to administratively impose and/or enforce PRS. Former Acting Chair Alexander is sued in his individual capacity.
19. Defendant Robert J. Dennison was Chair ofDOP prior to defendant Alexander. During his tenure, Chair Dennison was responsible for the policy, practice,
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supervision, implementation, and conduct of all DOP matters and responsible for the appointment, training, supervision, and conduct of all DOP personnel. In addition, Chair Dennison was responsible for enforcing the rules of DOP, and for ensuring that DOP personnel obey the Constitution and laws of the United States. As Chair ofDOP, Dennison was a policymaker with respect to DOP's decisions to administratively impose and/or enforce PRS. Former Chair Dennison is sued in his individual capacity.
20. Defendant Anthony G. Ellis II, was Executive Director ofDOP prior to defendant Mantei. During his tenure, Director Ellis was responsible for the policy, practice, supervision, implementation, and conduct of all DOP matters and responsible for the appointment, training, supervision, and conduct of all DOP personnel. In addition, Director Ellis was responsible for enforcing the rules ofDOP, and for ensuring that DOCS personnel obey the Constitution and laws of the United States. As a former Executive Director of DOP, Ellis was a policy-maker with respect to DOP's decisions to administratively impose and/or enforce PRS. Former Director Ellis is sued in his individual capacity.
21. At all relevant times, defendants "Jane/John Does 26-50" were training, supervisory and policy making personnel within DOP who implemented, enforced, perpetuated and/or allowed the unconscionable PRS Policy that is the subject of this action, acting in their capacity of agents, servants and employees of defendants defendants Evans, Mantei, Tracy, Alexander, Dennison and Ellis and within the scope of their employment as such. Plaintiff is unable to determine the names of these DOP supervisory defendants at this time and thus sues them under a fictitious designation. All are sued in their individual capacities.
22. During all times mentioned in this complaint, defendants, separately and in concert, engaged in acts and/or omissions which constituted deprivations ofplaintiffs
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constitutional rights, and the privileges and immunities of the plaintiff, and while these acts were carried out under color of law, they had no justification or excuse, and were instead gratuitous, illegal and improper.
CLASS ACTION ALLEGATIONS 23. PlaintiffBetances brings this case as a class action under Fed. R. Civ. P. 23(b)(2) and (b)(3) on behalf of all persons whose judicially imposed sentence(s) did not include a term ofPRS, but whom nevertheless have been, or will be, subjected to PRS and/or incarcerated after the maximum expiration date of their determinate sentence(s). 24. This case is appropriate for treatment as an injunctive class under Rule 23(b)(2) because defendants have acted, or failed to act, on grounds generally applicable to the putative class, thereby making appropriate final injunctive relief with respect to the Rule (b)(2) Class as a whole. 25. This case is also appropriate for treatment as a damages class under Rule 23(b)(3) because common issues predominate over individual issues and a class action resolving the claims of this putative damages class is superior to any other method of fair and efficient adjudication. 26. On information and belief, the class includes hundreds of members. They are so numerous that joinder is impracticable. 27. On information and belief, joinder also is impracticable because many members ofthe class are low-income persons, may not speak English, and likely would have great difficulty in pursuing their rights individually.
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28. The questions of law and fact presented by plaintiffs' claims are common to the absent class members they seek to represent. Among others, the questions of law and fact common to the Class are: (i) whether defendants enforced or failed to prevent the enforcement of the PRS Policy; (ii) the degree of acquiescence of supervisory personnel in DOCS and DOP to the known unlawful acts of subordinates, and the failure of supervisory defendants to train, supervise, and discipline DOCS and DOP subordinates; (iii) whether the PRS Policy violates due process; (iv) whether defendants actions were sufficiently wanton as to warrant the imposition of punitive damages; (v) whether defendants are immune from suit; and (vi) the nature of injunctive relief necessary to ameliorate the effects of the PRS Policy and protect the class from future harm.
29. Common issues of law and fact such as those set forth above (and many others) predominate over any individual issues.
30. The PRS Policy has resulted in the wrongful detention and confinement of, and the infliction of injuries upon, plaintiff and the Class. The claims alleged and the practices challenged in this complaint are common to all members of the class.
31. The violations suffered by plaintiff Betances are typical of those suffered by the class. The entire class will benefit from the remedial and monetary relief sought.
32. PlaintiffBetances has no conflict of interest with Class members, and will fairly and adequately protect the interests of the class. Counsel competent and experienced in federal class actions, federal civil rights litigation and criminal defense has been retained to represent the class. Emery Celli Brinckerhoff & Abady LLP is a law firm with offices in New York City with extensive experience in civil rights litigation and as class counsel in numerous lawsuits against state and local governments.
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33. A class action is superior to other available methods for the fair and efficient adjudication of this controversy because: (a) the prosecution of hundreds of separate actions would be inefficient and wasteful oflegal resources; (b) the members of the class are scattered throughout New York State and are not likely to be able to vindicate and enforce their Constitutional and statutory rights unless this action is maintained as a class action; (c) the issues raised can be more fairly and efficiently resolved in the context of a single class action than piecemeal in many separate actions; (d) the resolution of litigation in a single forum will avoid the danger and resultant confusion of possible inconsistent determinations; (e) the prosecution of separate actions would create the risk of inconsistent or varying adjudications with respect to individuals pursuing claims against defendants which would establish incompatible standards of conduct for defendants; (f) defendants have acted and will act on grounds applicable to all class members, making final declaratory and injunctive relief on behalf of all members necessary and appropriate; and (g) questions of law and/or fact common to members of the class especially on issues of liability predominate over any question, such as that of individual damages, that affect individual members.
34. There will be no extraordinary difficulty in the management ofthe class action.
FACTS 35. The United States Constitution prohibits public officials, such as the Commissioner ofthe State DOCS and the Chair ofDOP, or any oftheir subordinates, from administratively imposing and/or enforcing any term of detention on an individual beyond what a sentencing court has authorized.
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36. Defendants know that they may not institute, enforce, or permit the imposition of PRS absent an express statement or judgment from a sentencing court to that effect.
37. Defendants' policy, practice, and custom mandating the imposition and enforcement ofPRS on individuals not sentenced to PRS has been promulgated, effectuated, andlor enforced in bad faith and contrary to clearly established law.
38. In 1936, a unanimous Supreme Court held that the judgment of a court establishes a defendant's sentence, and that imposition of an additional sentence by an administrator violates a defendant's constitutional rights. Hill v. United States ex reI. Wampler, 298 U.S. 460 (1936) (Cardozo, 1.). "The only sentence known to the law is the sentence or judgment entered upon the records of the court." Id at 464. Any administratively added provision prolonging that sentence is void. Id at 467.
39. In 2006, the Court of Appeals for the Second Circuit, relying on Wampler, held unconstitutional DOCS's administrative addition of a PRS term to the sentence of an individual whose sentence did not include PRS. Earley v. Murray, 451 F.3d 71 (2d Cir. 2006). Describing Wampler as "clearly established Supreme Court precedent," the Second Circuit declared: "The only cognizable sentence is the one imposed by the judge." 451 F.3d at 75. "Only the judgment of a court, as expressed through the sentence imposed by a judge, has the power to constrain a person's liberty." Id Thus, "[t]he additional provision for post-release supervision added by DOCS is a nullity. The imposition of a sentence is a judicial act; only a judge can do it. The penalty [of PRS] administratively added by the Department of Corrections was, quite simply, never a part of the sentence." Id. at 76. DOCS's imposition ofPRS violated the individual's due process rights. Id at 76.
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40. In flat defiance of the clear constitutional commands of Wampler and Earley, defendants have promulgated, implemented, enforced, and/or failed to rectify a policy, practice, and custom mandating the administrative imposition and enforcement of PRS on persons without authorization from a sentencing court.
41. On information and belief, hundreds (perhaps thousands) of individuals have been and continue to be subject to PRS pursuant to defendants' PRS Policy.
42. Each member of the class, including plaintiff Betances, was a victim of the PRS Policy.
43. As a direct result of the unlawful imposition and enforcement ofPRS pursuant to the PRS Policy, each member of the Class has suffered or will suffer actual damages in forms involving, without limitation, mental anguish, pain and suffering.
Plaintiff Betances 44. Plaintiff Paul Betances's experience is representative of those of the putative class. 45. On or about July 20,2004, Mr. Betances received a five year determinate sentence. 46. The Court did not impose a period ofPRS as part of the sentence. Nor was PRS mentioned on the sentencing commitment sheet. 47. Due to credit for time served awaiting trial, Mr. Betances's maximum determinate sentence expiration date was January 14,2009. 48. Due to a 117th reduction for good time, Mr. Betances was released from prison on April 24, 2008, and subjected to a five year term ofPRS imposed by defendants.
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49. In November 2008, Mr. Betances was arrested and charged thereafter was charged with violating the terms of his PRS.
50. On or about January 23,2009, after the expiration of his maximum determinate sentence, Mr. Betances pleaded guilty to misdemeanor drug possession and was sentenced to a term that would expire on or about July 9, 2009.
51. On or about February 23,2009, after the expiration of his maximum determinate sentence, the DOP sentenced Mr. Betances to 12 months based on his alleged violation of the terms of his PRS.
52. On or about early July 2009, when Mr. Betances's sentence for misdemeanor drug possession was fully served, defendants continued to detain and incarcerate Mr. Betances based on the alleged violation of the terms ofPRS.
53. Mr. Betances was not released by defendants until after Justice Richard L. Price granted his petition for a writ of habeas corpus and directed his immediate release because "DOCS exceeded its authority by unilaterally imposing a five-year period of post release supervision" when "the sentencing minutes clearly reflect that no period of post release supervision was imposed" by the sentencing court.
54. As a direct and proximate result of defendants' unlawful imposition and enforcement ofPRS on Mr. Betances, pursuant to the PRS Policy, and the unlawful period of imprisonment pursuant to the same Policy, Mr. Betances has suffered and continues to suffer loss ofliberty, loss of wages, psychological pain, suffering, and mental anguish.
FIRST CAUSE OF ACTION 42 U.S.C. § 1983; Fourth and Fourteenth Amendment 55. Plaintiffs repeat and reallege the foregoing paragraphs as ifthe same were fully set forth at length herein.
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56. By implementing, promulgating, and enforcing and/or effectuating a policy, practice and custom pursuant to which the named plaintiff and other members of the plaintiff class were or will be subject to PRS when imposition ofPRS was never authorized by any sentencing court, defendants have deprived plaintiff and members of the plaintiff class of rights, remedies, privileges and immunities guaranteed to every citizen of the United States, in violation of 42 U.S.C. § 1983, and of rights guaranteed by the Fourth and Fourteenth Amendment of the United States Constitution. Defendants also conspired among themselves to do so (taking numerous overt steps in furtherance thereof), and/or failed to prevent one another from doing so.
57. Defendants acted under pretense and color of state law and in their individual and official capacities and within the scope of their employment.
58. Defendants acted beyond the scope of their jurisdiction, without authority of law, and abused their powers.
59. Defendants acted willfully, knowingly, and with the specific intent to deprive plaintiffs of their constitutional rights secured by 42 U.S.C. § 1983, and by the Fourteenth Amendment to the United States Constitution.
60. As a direct and proximate result ofthe misconduct and abuse of authority detailed above, each and every plaintiff and members of the plaintiff class suffered and continues to suffer the damages hereinbefore alleged.
RELIEF REQUESTED WHEREFORE, plaintiffs and members of the putative Class request the following relief: 1. A judgment declaring that defendants have committed the violations of law alleged in this action;
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2. An order directing defendants Fischer, Annuci, Evans, Matei and Tracy to disgorge any money collected from plaintiff and members of the plaintiff class as a result of defendants' PRS policy.
3. Compensatory damages against all defendants in an amount to be proven at trial; 4. Punitive damages against all defendants in an amount to be proven at trial; 5. An order awarding disbursements, costs, and attorneys' fees; and 6. Such other and further reliefthat may be just and proper.

Dated: May 11,2011 New York, New York

EMERY CELLI BRINCKERHOFF &ABADYLLP

By:
75 Rockefeller Plaza, 20th Floor New York, NY 10019 (212) 763-5000

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 Case 1:11-cv-03200-SAS Document 5 Filed 10/20/11 Page 1 of 33

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
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PAUL BETANCES, LLOYD A. BARNES, GABRIEL VELEZ a/k/a GABRIEL BELIZE, individually and on behalf of all others similarly situated,

- against-

Plaintiffs,

BRIAN FISCHER, in his capacity as Commissioner of the New York State Department of Correctional Services (DOCS), and in his individual capacity; ANTHONY J. ANNUCCI, in his capacity as Deputy Commissioner and Counsel for DOCS, and in his individual capacity; LUCIEN J. LECLAIRE, JR., former Acting Commissioner of DOCS, in his individual capacity; GLENN S. GOORD, former Commissioner of DOCS, in his individual capacity; JOHN/JANE DOES 1-25 (DOCS Supervisory, Training, and Policy Personnel); ANDREA W. EVANS, in her capacity as Chair and Chief Executive Officer of the New York State Division of Parole (DOP), and in her individual capacity; MARK MANTEI, in his capacity as Executive Director of DOP, and in his individual capacity; TERENCE TRACY, in his capacity as Chief Counsel for DOP, and in his individual capacity; ROBERT J. DENNISON, former Chair ofDOP, in his individual capacity; ANTHONY G. ELLIS II, former Executive Director of DOP, in his individual capacity; GEORGE B.ALEXANDER, former Chair and Chief Executive Officer ofDOP, in his individual capacity; and JOHN/JANE DOES 26-50 (DOP Supervisory, Training, and Policy Personnel),

11 Civ. 3200 (SAS)
AMENDED CLASS ACTION COMPLAINT AND JURY DEMAND

Defendants.
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Plaintiffs Paul Betances, Lloyd A. Barnes and Gabriel Velez (a/k/a Gabriel

Belize) on behalf of themselves and others similarly situated, for their Amended Complaint,

allege as follows:

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INTRODUCTION 1. More than seventy-five years ago, a unanimous Supreme Court held that only the judgment of a court establishes a defendant's sentence, and that imposition of an extrajudicial sentence violates a defendant's constitutional rights. Hill v. United States ex reI. Wampler, 298 U.S. 460 (1936) (Cardozo, J.). 2. Consistent with Wampler, on June 9, 2006, the Court of Appeals for the Second Circuit held that the imposition of an extra-judicial sentence of post-release supervision ("PRS") by the New York State Department of Correctional Services ("DOCS") and the New York State Division of Parole ("DOP") violated clearly established Supreme Court precedent. Earley v. Murray, 451 F.3d 71 (2d Cir. 2006). 3. Notwithstanding the unambiguous command of Wampler and Earley, defendants continued to administratively impose and enforce PRS on and against individuals such as plaintiffs Betances, Barnes and Velez, and thousands of others, whose sentences never included PRS (the "PRS Policy") even after Earley was decided. In its most egregious form, defendants' unlawful imposition and enforcement ofPRS in violation of clearly established law included the post-Earley imprisonment of plaintiffs Betances, Barnes and Velez, and thousands of others, based on nothing more than a violation of the terms of their unconstitutionally imposed PRS. 4. Notably, in the immediate aftermath of the Second Circuit's decision in Earley, defendants, including defendant Annucci, undertook an analysis of DOCS records in order to identify all inmates, or former inmates, who were administratively sentenced to PRS by DOCS notwithstanding any indication that a court had actually sentenced that person to PRS, whether in their sentencing and commitment paperwork or the minutes of their sentencing. That
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analysis identified 8,100 inmates that could not be subjected to PRS under Earley, including 1,600 that had already been released and subjected to PRS. We know this happened because defendant Annucci swore to the truth of these facts under penalty of perjury in an affirmation dated June 4, 2008 and submitted to a court.
5. Defendants, however, did nothing with the information that was gathered. Instead of lifting the tenus and conditions of PRS for everyone that had already been released and changing the policy of imposing and/or enforcing PRS sentences after the maximum sentence expiration date for each released inmate was reached, defendants brazenly continued their unconstitutional policy and practice in violation of clearly established law.
6. Indeed, on July 7, 2007, defendant Annucci, on behalf of himself and defendant Fischer, sent a letter to an inmate who had invoked his rights under Earley (attached as Ex. A). In the letter, defendant Annucci made it clear that defendants did not consider themselves to be bound by Earley, but instead would continue to impose and enforce DOCS own administratively imposed PRS sentences unless and until they were "specifically ordered" to "set aside" an individual inmate's "period of post-release supervision ... by a state or federal court." ld.
7. Consistent with the July 7, 2007 Annucci letter, defendants engaged in a vigorous campaign of defying Earley's command. Indeed, defendants actively opposed every attempt by any irunate, whether through a court proceeding or otherwise, to obtain the relief required by Earley. See Declaration of Elon Harpaz, dated October 12,2011, which is incorporated by reference (attached as Ex. B).
8. Plaintiffs Betances, Barnes and Velez bring this action for injunctive and declaratory relief, and for compensatory and punitive damages, on behalf of themselves and
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others similarly situated who were sentenced to prison in New York State for a fixed term that did not include a term of PRS, but were nevertheless subjected to PRS and/or incarcerated for nothing more than a violation of PRS after the maximum expiration date of their determinate sentence( s).
JURISDICTION AND VENUE 9. This action arises under the Fourth and Fourteenth Amendment to the United States Constitution and the Civil Rights Act of 1871,42 U.S.C. § 1983. 10. The jurisdiction of this Court is predicated upon 28 U.S.c. §§ 1331, 1343(a) and 2201. 11. Venue is lodged in this Court pursuant to 28 U.S.C. 1391(b).
JURY DEMAND 12. Plaintiff demands trial by jury in this action
THE PARTIES 13. Plaintiff Paul Betances "plead guilty to Robbery in the First Degree and with a promised sentence of five years incarceration" on or about July 20, 2004. Consistent with that agreement, Mr. Betances was sentenced to "a determinate term of five years." Mr. Betances was not sentenced to PRS. Although Mr. Betances was never sentenced to PRS, DOCS and DOP administratively imposed a five year term of PRS on April 24, 2008, upon his release from prison after having served 617ths of his five year determinate sentence. Mr. Betances's maximum determinate sentence expired on January 14,2009. His unconstitutionally imposed PRS sentence was not scheduled to expire until April 24, 2013. Thereafter, starting on or about July 9,2009, DOCS and DOP imprisoned Mr. Betances for violating the conditions of his PRS.
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14. Plaintiff Lloyd A. Barnes plead guilty to attempted assault and attempted burglary on July 31, 2000 and was sentenced on August 15, 2000 to a determinate term of five years and a second determinate term of six years to run concurrently. Although Mr. Barnes was never sentenced to PRS, DOCS and DOP administratively imposed a five year term of PRS on October 19, 2005, upon his release from prison after having served 617ths of his six year determinate sentence. Mr. Barnes's maximum determinate sentence expired in 2006. His unconstitutionally imposed PRS sentence was not scheduled to expire until November 13,2010. Thereafter, starting in or around the Summer of 2008, DOCS and DOP imprisoned Mr. Barnes for violating the conditions of his PRS.
15. Plaintiff Gabriel Velez (a/kJa Gabriel Belize) plead guilty to attempted robbery and was sentenced on February 20,2001 to a determinate term of five years. Although Mr. Velez was never sentenced to PRS, DOCS and DOP administratively imposed a five year term ofPRS. Mr. Velez was released from prison on July 2, 2004 after having served 617ths of his five year determinate sentence. Mr. Velez's maximum determinate sentence expired on March 22,2005. His unconstitutionally imposed PRS sentence was not scheduled to expire until July 2,2009. Thereafter, starting on or about July 8, 2008, DOCS and DOP imprisoned Mr. Velez for violating the conditions of his PRS.
16. Defendant Brian Fischer is the Commissioner of DOCS. Since he was appointed to that position on January 1,2007, he has been and continues to be responsible for the policy, practice, supervision, implementation, and conduct of all DOCS matters and responsible for the appointment, training, supervision, and conduct of all DOCS personnel. In addition, Commissioner Fischer has been and continues to be responsible for enforcing the rules of DOCS, and for ensuring that DOCS personnel obey the Constitution and laws of the United States. As
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Commissioner of DOCS, Fischer is a policy-maker with respect to DOCS's decisions to administratively impose PRS. Commissioner Fischer is sued in his individual and official capacities.
17. Defendant Anthony 1. Annucci is a Deputy Commissioner of, and Counsel to, DOCS. At all times relevant to this action, defendant Annucci has been, and continues to be, responsible for the policy, practice, supervision, implementation, and conduct of all DOCS matters and responsible for the appointment, training, supervision, and conduct of all DOCS personnel. In addition, Deputy Commissioner Annucci has been and continues to be responsible for enforcing the rules of DOCS, and for ensuring that DOCS personnel obey the Constitution and laws of the United States. As a Deputy Commissioner of, and Counsel to, DOCS, Annucci is a policy-maker with respect to DOCS's decisions to administratively impose PRS. Defendant Annucci is sued in his individual and official capacities.
18. Defendant Lucien J. Leclaire, Jr., was Acting Commissioner of DOCS from August 30 to December 31,2006. Throughout that time, Acting Commissioner LeClaire was responsible for the policy, practice, supervision, implementation, and conduct of all DOCS matters and responsible for the appointment, training, supervision, and conduct of all DOCS personnel. In addition, Commissioner Leclaire was responsible for enforcing the rules of DOCS, and for ensuring that DOCS personnel obey the Constitution and laws of the United States. As Acting Commissioner of DOCS, Leclaire was a policy-maker with respect to DOCS's decisions to administratively impose PRS. Former Acting Commissioner Leclaire is sued in his individual capacity.
19. Defendant Glenn S. Goord was the Commissioner of DOCS from 1996 to August 30, 2006. Throughout that time, Commissioner Goord was responsible for the policy,
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practice, supervision, implementation, and conduct of all DOCS matters and responsible for the appointment, training, supervision, and conduct of all DOCS personnel. In addition, Commissioner Goord was responsible for enforcing the rules of DOCS, and for ensuring that DOCS personnel obey the Constitution and laws of the United States. As a former Commissioner of DOCS, Goord was a policy-maker with respect to DOCS's decisions to administratively impose PRS. Former Commissioner Goord is sued in his individual capacity.
20. At all relevant times, defendants "Jane/John Does 1-25" were training, supervisory and policy making personnel within DOCS who implemented, enforced, perpetuated and/or allowed the unconscionable PRS Policy that is the subject of this action, acting in their capacity of agents, servants and employees of defendants Commissioners Fischer, Annucci, Leclaire and Goord and within the scope of their employment as such. Plaintiff is unable to determine the names of these DOCS supervisory defendants at this time and thus sue them under a fictitious designation. All are sued in their individual capacities.
21. Defendant Andrea W. Evans is the Chair and Chief Executive Officer ofDOP. In that capacity, she has been and continues to be responsible for the policy, practice, supervision, implementation, and conduct of all DOP matters and responsible for the appointment, training, supervision, and conduct of all DOP personnel. In addition, Chair Evans has been and continues to be responsible for enforcing the rules of DOP, and for ensuring that DOP personnel obey the Constitution and laws of the United States. As Chair ofDOP beginning on June 8, 2009, and prior thereto as a Director ofDOP, Evans has been a policy-maker with respect to DOP's decisions to administratively impose and/or enforce PRS. Chair Evans is sued in her individual and official capacities.
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22. Defendant Mark Mantei is Executive Director ofDOP. In that capacity, he has been and continues to be responsible for the policy, practice, supervision, implementation, and conduct of all DOP matters and responsible for the appointment, training, supervision, and conduct of all DOP personnel. In addition, Director Mantei has been and continues to be responsible for enforcing the rules ofDOP, and for ensuring that DOP personnel obey the Constitution and laws of the United States. As Executive Director of DOP, Mantei has been a policy-maker with respect to DOP's decisions to administratively impose and/or enforce PRS. Director Mantei is sued in his individual and official capacities.
23. Defendant Terence Tracy, is Chief Counsel for DOP. At all times relevant to this action, defendant Tracy has been, and continues to be, responsible for the policy, practice, supervision, implementation, and conduct of all DOP matters and responsible for the appointment, training, supervision, and conduct of all DOP personnel. In addition, defendant Tracy, has been and continues to be responsible for enforcing the rules ofDOP, and for ensuring that DOP personnel obey the Constitution and laws of the United States. As Chief Counsel to DOP, Tracy is a policy-maker with respect to DOP's decisions to administratively impose and/or enforce PRS. Defendant Tracy is sued in his individual and official capacities.
24. Defendant George B. Alexander was Acting Chair and Chief Executive Officer of DOP from May 2007 until June 2009. During his tenure, Acting Chair Alexander was responsible for the policy, practice, supervision, implementation, and conduct of all DOP matters and responsible for the appointment, training, supervision, and conduct of all DOP personnel. In addition, Acting Chair Alexander was responsible for enforcing the rules ofDOP, and for ensuring that DOP personnel obey the Constitution and laws of the United States. As Acting Chair ofDOP, Alexander was a policy-maker with respect to DOP's decisions to
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administratively impose and/or enforce PRS. Former Acting Chair Alexander is sued in his individual capacity.
25. Defendant Robert J. Dennison was Chair ofDOP prior to defendant Alexander. During his tenure, Chair Dennison was responsible for the policy, practice, supervision, implementation, and conduct of all DOP matters and responsible for the appointment, training, supervision, and conduct of all DOP personnel. In addition, Chair Dennison was responsible for enforcing the rules ofDOP, and for ensuring that DOP personnel obey the Constitution and laws ofthe United States. As Chair of DOP, Dennison was a policymaker with respect to DOP's decisions to administratively impose and/or enforce PRS. Former Chair Dennison is sued in his individual capacity.
26. Defendant Anthony G. Ellis II, was Executive Director ofDOP prior to defendant Mantei. During his tenure, Director Ellis was responsible for the policy, practice, supervision, implementation, and conduct of all DOP matters and responsible for the appointment, training, supervision, and conduct of all DOP personnel. In addition, Director Ellis was responsible for enforcing the rules ofDOP, and for ensuring that DOCS personnel obey the Constitution and laws of the United States. As a former Executive Director ofDOP, Ellis was a policy-maker with respect to DOP's decisions to administratively impose and/or enforce PRS. Former Director Ellis is sued in his individual capacity.
27. At all relevant times, defendants "Jane/John Does 26-50" were training, supervisory and policy making personnel within DOP who implemented, enforced, perpetuated and/or allowed the unconscionable PRS Policy that is the subject of this action, acting in their capacity of agents, servants and employees of defendants Evans, Mantei, Tracy, Alexander, Dennison and Ellis and within the scope of their employment as such. Plaintiffs are unable to
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determine the names of these DOP supervisory defendants at this time and thus sues them under a fictitious designation. All are sued in their individual capacities.
28. During all times mentioned in this complaint, defendants, separately and in concert, engaged in acts and/or omissions which constituted deprivations of plaintiffs' constitutional rights, and the privileges and immunities of the plaintiffs, and while these acts were carried out under color of law, they had no justification or excuse, and were instead gratuitous, illegal and improper.
CLASS ACTION ALLEGATIONS 29. Plaintiffs Betances, Barnes and Velez bring this case as a class action under Fed. R. Civ. P. 23(b)(l)(A), (b)(2) and (b)(3) on behalf of all persons who were sentenced to prison in New York State for a fixed term that did not include a term ofPRS, but were nevertheless subjected to PRS and/or incarcerated for nothing more than a violation ofPRS after the maximum expiration date of their determinate sentence(s). 30. This case is appropriate for treatment as a class action under Rule 23(b)(l)(A) because the prosecution of separate actions by or against will create the risk of inconsistent or varying adjudications, thus establishing incompatible standards of conduct for defendants. 31. This case should also be certified as an injunctive class under Rule 23(b)(2) because defendants have acted, or failed to act, on grounds generally applicable to the putative class, thereby making appropriate final injunctive relief with respect to the Rule (b)(2) Class as a whole. 32. This case is also appropriate for treatment as a damages class under Rule 23(b)(3) because common issues predominate over individual issues and a class action resolving
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the claims of this putative damages class is superior to any other method of fair and efficient adjudication.
33. On information and belief, the Class includes hundreds of members. They are so numerous that joinder is impracticable.
34. On information and belief, joinder also is impracticable because many members of the Class are low-income persons, may not speak English, and likely would have great difficulty in pursuing their rights individually.
35. The questions oflaw and fact presented by plaintiffs' claims are common to the absent class members they seek to represent. Among others, the questions of law and fact common to the Class are: (i) whether defendants enforced or failed to prevent the enforcement of the PRS Policy; (ii) the degree of acquiescence of supervisory personnel in DOCS and DOP to the known unlawful acts of subordinates, and the failure of supervisory defendants to train, supervise, and discipline DOCS and DOP subordinates; (iii) whether the PRS Policy violates due process; (iv) whether defendants' actions were sufficiently wanton as to warrant the imposition of punitive damages; (v) whether defendants are immune from suit; and (vi) the nature of injunctive relief necessary to ameliorate the effects of the PRS Policy and protect the class from future harm.
36. Common issues oflaw and fact such as those set forth above (and many others) predominate over any individual issues.
37. The PRS Policy has resulted in the wrongful detention and confinement of, and the infliction of injuries upon, plaintiffs and the Class. The claims alleged and the practices challenged in this complaint are common to all members of the Class.
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38. The violations suffered by plaintiffs Betances, Barnes and Velez are typical of those suffered by the Class. The entire Class will benefit from the remedial and monetary relief sought.
39. Plaintiffs Betances, Barnes and Velez have no conflict of interest with Class members, and will fairly and adequately protect the interests of the class. Counsel competent and experienced in federal class actions, federal civil rights litigation and criminal defense has been retained to represent the class. Emery Celli Brinckerhoff & Abady LLP is a law firm with offices in New York City with extensive experience in civil rights litigation and as class counsel in numerous lawsuits against state and local governments.
40. A class action is superior to other available methods for the fair and efficient adjudication of this controversy because: (a) the prosecution of hundreds of separate actions would be inefficient and wasteful oflegal resources; (b) the members of the class are scattered throughout New York State and are not likely to be able to vindicate and enforce their Constitutional and statutory rights unless this action is maintained as a class action; (c) the issues raised can be more fairly and efficiently resolved in the context of a single class action than piecemeal in many separate actions; (d) the resolution of litigation in a single forum will avoid the danger and resultant confusion of possible inconsistent determinations; (e) the prosecution of separate actions would create the risk of inconsistent or varying adjudications with respect to individuals pursuing claims against defendants which would establish incompatible standards of conduct for defendants; (f) defendants have acted and will act on grounds applicable to all class members, making final declaratory and injunctive relief on behalf of all members necessary and appropriate; and (g) questions oflaw and/or fact common to members of the class, especially on
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issues of liability predominate over any question, such as that of individual damages, that affect individual members.
41. There will be no extraordinary difficulty in the management of the class action.
FACTS 42. The United States Constitution prohibits public officials, such as the Commissioner of the State DOCS and the Chair ofDOP, or any of their subordinates, from administratively imposing and/or enforcing any term of detention on an individual beyond what a sentencing court has authorized. 43. Defendants know that they may not institute, enforce, or permit the imposition of PRS absent an express statement or judgment from a sentencing court to that effect. 44. Defendants' policy, practice, and custom mandating the imposition and enforcement ofPRS on individuals not sentenced to PRS has been promulgated, effectuated, and/or enforced in bad faith and contrary to clearly established law. 45. In 1936, a unanimous Supreme Court held that the judgment of a court establishes a defendant's sentence, and that imposition of an additional sentence by an administrator violates a defendant's constitutional rights. Hill v. United States ex reI. Wampler, 298 U.S. 460 (1936) (Cardozo, J.). "The only sentence known to the law is the sentence or judgment entered upon the records of the court." Id. at 464. Any administratively added provision prolonging that sentence is void. Id. at 467. 46. In 2006, the Court of Appeals for the Second Circuit, relying on Wampler, held unconstitutional DOCS's administrative addition of a PRS term to the sentence of an individual whose sentence did not include PRS. Earley v. Murray, 451 F.3d 71 (2d Cir. 2006).
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Describing Wampler as "clearly established Supreme Court precedent," the Second Circuit declared: "The only cognizable sentence is the one imposed by the judge." 451 F.3d at 75. "Only the judgment of a court, as expressed through the sentence imposed by a judge, has the power to constrain a person's liberty." Id. Thus, "[t]he additional provision for post-release supervision added by DOCS is a nullity. The imposition of a sentence is a judicial act; only a judge can do it. The penalty [of PRS] administratively added by the Department of Corrections was, quite simply, never a part of the sentence." Id. at 76. DOCS's imposition ofPRS violated the individual's due process rights. Id. at 76.
47. In flat defiance of the clear constitutional commands of Wampler and Earley, defendants have promulgated, implemented, enforced, and/or failed to rectify a policy, practice, and custom mandating the administrative imposition and enforcement of PRS on persons without authorization from a sentencing court.
48. On information and belief, hundreds (perhaps thousands) of individuals have been subjected to PRS pursuant to defendants' PRS Policy.
49. Each member of the class, including plaintiffs Betances, Barnes and Velez, were victims of the PRS Policy.
50. As a direct result of the unlawful imposition and enforcement ofPRS pursuant to the PRS Policy, each member of the Class has suffered or will suffer actual damages in forms involving, without limitation, mental anguish, pain and suffering.
Plaintiff Betances 51. Plaintiff Paul Betances' s experience is representative of those of the putative class.
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52. On or about July 20,2004, Mr. Betances plead guilty to a crime and received a five year determinate sentence.
53. The Court did not impose a period ofPRS as part of the sentence. Nor was PRS mentioned on the sentencing commitment sheet.
54. Due to credit for time served awaiting trial, Mr. Betances's maximum determinate sentence expiration date was January 14,2009.
55. Due to a l/7th reduction for good time, Mr. Betances was released from prison on April 24, 2008, and subjected to a five year term ofPRS imposed by defendants.
56. In November 2008, Mr. Betances was arrested and thereafter was charged with violating the terms of his PRS.
57. On or about January 23, 2009, after the expiration of his maximum determinate sentence, Mr. Betances pleaded guilty to misdemeanor drug possession and was sentenced to a term that would expire on or about July 9, 2009.
58. On or about February 23,2009, after the expiration of his maximum determinate sentence, the DOP sentenced Mr. Betances to 12 months based on his alleged violation of the terms of his PRS.
59. On or about early July 2009, when Mr. Betances's sentence for misdemeanor drug possession was fully served, defendants continued to detain and incarcerate Mr. Betances based on the alleged violation of the terms ofPRS.
60. Mr. Betances was not released by defendants until after Justice Richard L. Price granted his petition for a writ of habeas corpus and directed his immediate release because "DOCS exceeded its authority by unilaterally imposing a five-year period of post release
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supervision" when "the sentencing minutes clearly reflect that no period of post release supervision was imposed" by the sentencing court.
61. As a direct and proximate result of defendants' unlawful imposition and enforcement ofPRS on Mr. Betances, pursuant to the PRS Policy, and the unlawful period of imprisonment pursuant to the same Policy, Mr. Betances has suffered and continues to suffer loss ofliberty, loss of wages, psychological pain, suffering, and mental anguish.
Plaintiff Barnes 62. Plaintiff Lloyd A. Barnes's experience is representative of those of the putative class. 63. On or about July 31, 2000, Mr. Barnes plead guilty to charges of attempted assault and attempted burglary and was later sentenced to a six year determinate sentence. 64. The Court did not impose a period ofPRS as part of the sentence. Nor was PRS mentioned on the sentencing commitment sheet. 65. Due to credit for time served awaiting trial, Mr. Barnes's maximum determinate sentence expiration date was in or around late 2005 or early 2006. 66. Mr. Barnes was released from prison on or around October 19, 2005, and subjected to a five year term ofPRS imposed by defendants. 67. In the summer of2008, Mr. Barnes was arrested and thereafter was charged with violating the terms of his PRS. 68. On or about June 2008, after the expiration of his maximum determinate sentence, the DOP sentenced Mr. Barnes to three months based on his alleged violation of the terms of his PRS.
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69. After being incarcerated for three months based solely on the charge that he had violated the conditions of his PRS, Mr. Barnes was released in or around September or October 2008.
70. On November 14,2008, Richmond County Supreme Court Justice Stephen Rooney confirmed that "no mention of post-release supervision was made" in initially sentencing Mr. Barnes and "reimpose[d] the originally imposed determinate sentences of imprisonment without any term of post-release supervision."
71. As a direct and proximate result of defendants' unlawful imposition and enforcement of PRS on Mr. Barnes, pursuant to the PRS Policy, and the unlawful period of imprisonment pursuant to the same Policy, Mr. Barnes has suffered and continues to suffer loss ofliberty, loss of wages, psychological pain, suffering, and mental anguish.
Plaintiff Velez 72. Plaintiff Gabriel Velez's experience is representative of those of the putative class. 73. On or about February 20,2001, Mr. Velez, incorrectly referred to by the District Attorney and trial court as Gabriel "Belize", plead guilty to a crime and received a five year determinate sentence. 74. The Court did not impose a period ofPRS as part of the sentence. Nor was PRS mentioned on the sentencing commitment sheet. 75. Due to credit for time served awaiting trial, Mr. Velez's maximum determinate sentence expiration date was March 22, 2005. 76. Due to a 117th reduction for good time, Mr. Velez was released from prison on July 2,2004, and subjected to a five year term ofPRS imposed by defendants.
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77. In July 2008, Mr. Velez was arrested and thereafter was charged with violating the terms of his PRS.
78. On or about October 6, 2008, after the expiration of his maximum determinate sentence, Mr. Velez plead guilty to a charge of violating the terms of his unlawfully-imposed PRS, and was sentenced to a mental health treatment facility.
79. After being incarcerated for three months based solely on the charge that he had violated the conditions of his PRS, Mr. Velez was released on October 8, 2008.
80. On or around October 15,2008, Mr. Velez was ordered released from the terms of PRS by the Supreme Court of New York, Bronx County, in response to a habeas corpus petition.
81. As a direct and proximate result of defendants' unlawful imposition and enforcement of PRS on Mr. Velez, pursuant to the PRS Policy, and the unlawful period of imprisonment pursuant to the same Policy, Mr. Velez has suffered and continues to suffer loss of liberty, loss of wages, psychological pain, suffering, and mental anguish.
FIRST CAUSE OF ACTION 42 U.S.C. § 1983; Fourth and Fourteenth Amendment 82. Plaintiffs repeat and reallege the foregoing paragraphs as if the same were fully set forth at length herein. 83. By implementing, promulgating, and enforcing and/or effectuating a policy, practice and custom pursuant to which the named plaintiffs and other members of the plaintiff class were or will be subject to PRS when imposition ofPRS was never authorized by any sentencing court, defendants have deprived plaintiff and members of the plaintiff class of rights, remedies, privileges and immunities guaranteed to every citizen of the United States, in violation
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of 42 U.S.C. § 1983, and of rights guaranteed by the Fourth and Fourteenth Amendment of the United States Constitution. Defendants also conspired among themselves to do so (taking numerous overt steps in furtherance thereof), and/or failed to prevent one another from doing so.
84. Defendants acted under pretense and color of state law and in their individual and official capacities and within the scope of their employment.
85. Defendants acted beyond the scope of their jurisdiction, without authority of law, and abused their-powers.
86. Defendants acted willfully, knowingly, and with the specific intent to deprive plaintiffs of their constitutional rights secured by 42 U.S.c. § 1983, and by the Fourteenth Amendment to the United States Constitution.
87. As a direct and proximate result of the misconduct and abuse of authority detailed above, each and every plaintiff and members of the plaintiff class suffered and continues to suffer the damages hereinbefore alleged.
RELIEF REQUESTED WHEREFORE, plaintiffs and members of the putative Class request the following relief: 1. A judgment declaring that defendants have committed the violations of law alleged in this action; 2. An order directing defendants Fischer, Annucci, Evans, Mantei and Tracy to disgorge any money collected from plaintiffs and members of the plaintiff class as a result of defendants' PRS policy. 3. Compensatory damages against all defendants in an amount to be proven at trial; 4. Punitive damages against all defendants in an amount to be proven at trial;
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5. An order awarding disbursements, costs, and attorneys' fees; and 6. Such other and further relief that may be just and proper.

Dated: October 20, 2011 New York, New York

EMERY CELLI BRINCKERHOFF & ABADYLLP
By: ;1iIJh----,-------:--/)~ Matthew D. Brinckerhoff Adam R. Pulver
75 Rockefeller Plaza, 20th Floor New York, NY 10019 (212) 763-5000

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BRIAN FISCHER
COMMISSIONER

STATE OF NEW YORK
DEPARTMENT OF CORRECTIONAL SERVICES
THE HARRJMAN STATE CAMPUS - BUILDlNG 2 1220 WASHlNGTON AVENUE ALBANY, N.Y. 12226-2050
(518) 457·4951
FAX (518) 457-7555· ·Not for service of papers.

ANTHONY J. ANNUCCI
DEPUTY COMMISSIONER and COUNSEL

July 2,2007

Dear Mr. Smith :
Commissioner Fischer has asked me to respond to your letter regarding post-release supervision. Post-release supervision is required for every determinate term imposed for a violent felony committed after August 31, 1998 and for a drug felony committed after January 12, 2005; see subdivision 6 of Penal Law section 70.00, subdivision 1 of section 70.45, subdivisions 2(a), 3(b) and 4(b) of section 70.70, and subdivisions 2(b), 3(b) and 4(b) of section 70.71. If your determinate term was imposed pursuant to a plea bargain and you were not advised that your sentence would include post-release supervision, such claim may be raised in an appeal of your conviction or in a motion to withdraw your guilty plea; see People v. Goss, 733 NYS2d 310 (3d Dept 2001) .
The Second Circuit for the US Court of Appeals ruled in Earley v. Murray, 451 F3d 71 (2006), rehearing denied 462 F3d 147 (2006), that a defendant cannot be subject to post-release supervision unless it is specifically imposed by the court at sentencing. Such ruling is contrary to state appellate case law which has held that the , New York State Department of Correctional Services must apply to the determinate term the period of post-release supervision required by subdivision 2 of section 70.45 when the court is silent regarding post-release supervision at sentencing; see Matter of Deal v. Goord, 778 NYS2d 319 (3d Dept 2004), appeal dismissed 786 NYS2d 814 (2004), reconsideration denied 795 NYS2d 169 (2005). Also see People v. Dale, 788 NYS2d 613 (2d Dept 2005), leave denied 798 NYS2d 730 (2005), People v. Munck, 771 NYS2d 733 (3d Dept 2004), leave denied 781 NYS2d 302 (2004) and

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Mr. Rodney Smith, 9000700393 July 2,2007 Page 2
People v. White, 744 NYS2d 924 (4th Dept 2002), leave denied 752 NYS2d 601 (2002). When state and federal courts reach different results regarding state law, the state case law takes precedence over federal case law in state court until the specific issue is addressed by the US Supreme Court; see People v. Kan, 571 NYS2d 436, 439 (1991).
Regardless of the case law governing this subject, this Department would be required to set aside your period of post-release supervision if specifically ordered to do so by a state or federal court; see Malter of Murray v. Goard, 1 NY3d 29 (2003). In the absence of such order, your determinate term is deemed to include a period of post-release supervision pursuant to the statutes and state case law set forth above. It is recommended that you review your concerns regarding this matter with your. legal representative.
Very truly yours,

AJA:19:tf

Antho J Annucci DepuVy mmissioner
and Counsel

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STATE OF NEW YORK ) ) SS.:
COUNTY OF NEW YORK )

ELON HARPAZ, ESQ., declares. upon infomlation and belief. pursuant to 28

U.S.c. ~ 1746. under penalty orpc~iury. that the fol\o\ving is true and correct:

1.

I am an attorney employed by The Lcgal Aid Society of New York City.

The Legal Aid Society. a private. non-profit legal services agency that provides

representation to persons unable to afford legal counsel. represents the majority of

individuals accused of crimes in New York City. The Society"s Criminal Appeals

Bureau is the primary appellate defender in New York City for indigent criminal

defendants. The Parole Revocation Defense Unit ("PRDU") is the primary defender or

individuals serving parole or post release supervision who are involved in revocation

proceedings on Rikcrs Island.

2.

PRDU has represented hundreds of individuals arrested by the Division of

Parole (..the Division") for violating a tcrm of post-release supervision ("PRS'")

administratively imposed by the New York State Department of Correctional Serviccs

(""DOCS). I have been the principal Legal Aid Society attorney representing such

individuals in habeas corpus proceedings. Many of these individuals were first-time

felony offenders who could have received a term or PRS less than the maximum imposed

by DOCS; a number of them \vere incarcerated for PRS violations beyond the minimum

term they could have received. and sometimes later did receive. in court. The Criminal

Appeals Bureau has represented over one thousand defendants in Correction Law §601-d

resentencing proceedings \vho were never previously sentenced to PRS in court.

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3. This declaration will provide a detailed look at the response of DOCS and the Division to the decision in Earle)" v. Murray. 451 F.3d 71 (2d Cir. June 9. 2006). In particular. it will demonstrate that the policy making administrators of these agencies engaged in a deliberate campaign of resistance to Earley in an attempt to justify their continued lawless enforcement of administratively imposed PRS. Having made a calculated gamble to flout the Earley decision. thcse agencies should not be entitled to qualified immunity for their actions. The State is Confronted With the Earley Decision
4. On June 9. 2006. the United States Court of Appeals for the Second Circuit decided Earley v. Murray. 451 F.3d 71 (2d Cir. 20(6). The Second Circuit held that the only sentence known to the 1m\' is the one pronounced by the judge and that any alteration to that sentence through the addition by DOCS of a term of post-release supervision is a nullity. The Second Circuit declared that PRS custodial supervision of individuals \\-'ho has been sentenced to PRS administratively rather than by a judge was "contrary to clearly eSlahlished l'cderal law as determined by the United States Supreme Court:' Earley \'. MUJ"N/)'. 451 F.3d 71. 76 Od Cir. June 9. 2006) (emphasis added). Indeed, the Earley court opined that DOCS and the Division should have known better than to unilaterally impose and administer PRS sentences because of Hill v. UnileJ SWle,\' ex reI. Wampler, 298 U.S. 460 (1936). which "undeniably stands for the proposition that the only valid terms of a defendant's sentence are the terms imposed by the judge." Earley v, Afurray. 462 F,3d 147.149 (2d Cir. 2(06) (denying rehearing with opinion).
5. The policy-making administrators of DOCS and the Division now' had a fateful choice to make: (i) implement the Second Circuit's ruling. which clearly
2

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established a principle of federal constitutional la,v and declared that its holding was

based on a precedent clearly established in 1936: or Oi) despite the correctness of the

holding in Earle)'. em bark on a campaign of massive resistance to and defiance of Earley,

asking New York's courts to reject it. The futility of the latter option was apparent, since

ultimately federal district courts would be implementing Earley in federal habeas corpus

proceedings once state remedies were exhausted: the latter option would not prevent

enforcement of Earley but w-ould merely delay it. illegally keeping many individuals in

prison for PRS technical violations. and many more under PRS supervision. for extended

periods of time. And although the former option -- immediate implementation of Karley

-- would have required the expenditure of resources and timc. the policy-making

administrators of DOCS and the Division of Parole knew that their agencies certainly had

the capacity to identify all the persons under PRS supervision who had been subjected to

administratively imposed PRS. end PRS supervision as to those persons, release the

individuals in custody for violations of administrative PRS, and ask the trial judge in each

case to recalendar the matter f()r consideration of resentencing.

6. DOCS and the Division chose 10 defy Earley_

Litigation In the Aftermath of Earley

7.

Over the course of nearly two years DOCS and the Division, represented

by the Attorney General"s Office ("AG"). opposed every single writ of habeas corpus and

Article 78 proceeding brought anywhere in the State of New York that raised an Earley

claim. At the same time. DOCS continued to impose PRS administratively as inmates

were released from prison. and the Division continued to enforce those tenns through

arrests and incarceration for technical violations (e.g .. failure to report on schedule or to

.,
--'

Case 1:11-cv-03200-SAS Document 5 Filed 10/20/11 Page 28 of 33
adhere to curfew restrictions), The policy making administrators of DOCS and the Division did order a review for their o'\/n records as to which prisoners might have been sentenced to PRS by the administrative tiat of DOCS rather than by the sentencing judge, but they did nothing with their findings other than to record them in their own fiJes.
8. The Legal Aid Society's Parole Revocation Defense Unit. recognizing Earley's implications for the client population that we served. assigned a team of lU\vyers to handle all PRS litigation in the atlennath of Earley. 11'. as Earley held. administratively imposed PRS vilas a nullity. then. u ,thrliori. any warrant issued for violating its terms would be equally null and void. and anyone incarcerated solely on such a warrant \vould be entitled to immediate releasc from cllstody. Accordingly. PRDLJ prepared its first Article 70 writ or habeas corpus raising an Eur/ey claim six days aftcr F;arley was handed down. During the next two years we liled over 100 slate habeas '\-Tits and won the overwhelming majority or thcm. Most of the writs were tiled in Bronx County Supreme Court, a~ our clients were in custody awaiting their tinal revocation hearings at Rikers Island. which is within the geographic confines of the Bronx. 8ecause sllch a large perc~ntage or revocation hearings stat~wide are conducted at Rikcrs Island and because our oflice had the resources to devote to this issue. Bronx County became ground zero in the battIe over judicial recognition of the Earle)' decision. at least at the trial level.
9. We also tiled habeas \\fits ill various counties throughout the state because we often did not receive the sentencing minutes and thus did not know we had a valid claim until our client had already been sent to state prison to serve a time assessment imposed at the conclusion of the final revocation hearing. See CPLR §7004(c)
4

Case 1:11-cv-03200-SAS Document 5 Filed 10/20/11 Page 29 of 33
(specifying that habeas writ filed on behalf of a state prisoner must be made returnable in the county of incarceration), As a result. our ot1ice received a full picture of the coordinated statewide attack on Earley,
10, The initial response from the AG on behalf of DOCS and the Division did not cite a single appellate precedent that purportedly disagreed \V-jth F.arley, Instead. the response merely stated that Earley was not binding on the New York courts. and did not even attempt to argue that Earley was wrong on the merits, DOCS and the Division of Parole did not claim that they were trapped between competing precedents and thereby believed in good faith that they were obligated to oppose F;arle.\', Rather. the policy making administrators of these agencies made a calculated decision -- one 110t based on the law -- to continue to impose and enforce administrativc PRS come \vhat may.
11. A!though the DOCS and PRS administrators succeeding in persuading some New York State lower court judges to deny habeas corpus relief on the ground that they were not hound by Earley. ultimately all four Appellate Divisions accepted Earley. People ex rei. Blirch t'. Go()rd. 48 A.D,3d 1306 (4th Dept. Feb. 20. 2008); Dreher \', (/oord. 46 A.D. 3d 1261 (3d Dept. Dec. 27. 20(7); People \', FiRlierou. 45 A.D.3d 297 ( 1st Dept. Nov, 8. 2007): People \', Smith. 37 A.DJd 499 (2d Dept. Feb. 6. 2007).
12. How did DOCS and the Division respond to the unanimous adoption of Earley by all departments of the Appellate Division'? They continued to oppose every habeas corpus petition in the State trial courts. They even argued that there was a line of Ne\v York cases rejecting Earle.v. a proposition that was completely unfounded, and that they were bound to follow those alleged precedents despite the host of Appellate Division decisions arrayed against that position. (Several months after Earley they had begun
5

Case 1:11-cv-03200-SAS Document 5 Filed 10/20/11 Page 30 of 33
presenting this line of argument in the state trial courts. but it had been rejected by many state trial judges and. as noted above. had ultimately been rejected by all four Appellate Divisions. )
13. The beauty of this argument. however specious. lay in the ability to continue to trot it out. no matter how many cOUl1s dismissed it. becausc there was only one court that could conclusively rejcct it once and for all and that was the New York State Court of Appeals. Thus. the argumcnt providcd legal cover for the policy making administrators of DOCS and the Division to continue their imposition and enforcement of administrativc PRS unabated.
14. The policy making administrators of DOCS and the Division chose to continue ignoring Earley -- to continue placing and keeping individuals on PRS status and sending thcm back to prison for technical violations -- and to hold out until thcrc was
or a determination the New York State Court of Appeals. which did not arrive until April
29. 2008. /vlafler (~{ Garner 1'. Xe11' }'ol'k .';/Ctfe Department o{ ('orrectiona/ Services, et 01.. 10 N.Y.3d 358. 889 N.E.2d 467. 859 N.Y.S.2d 590 (2008) (unanimously holding as a matter of state law that only a coul1. not an adm inistrativc agency. can impose sentence).
15. The undersigned argued Gamel'. and looked forward to DOCS and thc Division finally complying al'tcr their campaign of nearly two years. in more than a hundred cases. to delay implementation of Earley. But even after Garner resistance continued.
16. If further proof were required of the tierce detiance of Earley on the part of DOCS and the Division of Parole. it \\'as supplied in the days immediately following the decision in Garner. One \vould have thought that the highest priority, in compliance
6

Case 1:11-cv-03200-SAS Document 5 Filed 10/20/11 Page 31 of 33
with Garner, was for DOCS to release immediately all individuals in their clistody for violating administratively imposed PRS terms and for the Division of Parole to do the same 'Aiith respect to individuals being held in local custody on pe'nding violation charges. The agencies had in fact identified such individuals in the immediate aftermath of Earley.
17. But eliminating terms of PRS and releasing persons in compliance with Garner was not part of the plan. Instead. within three days of the Garner decision. the AU filed papers in Bronx County Supreme Court with respect to six individuals whose writs were pending therc. taking thc position that any decision should be stayed while these individuals were resentenced to post-release supervision. and that a resentencing to PRS nunc pro /lI17C would retroactively validate the PRS term and the parole violation warrant. thereby eliminating the need to release anyone.
18. The theory of retroactive validation or a violation of a DOCS-imposed period of PRS through nunc pro /line judicial resentencing was never adopted in a published decision by any Ne\v York court. and it was eventually put to rest by the Third Department in 5i/ale I'. Randy A1.. 57 AD.3d 1157 (3d Dept. 2008). Indeed. in the aftermath of' Garner the overwhelming majority of affected individuals were released from prison and from PRS custody hy sentencing judges. Many had already completed their sentences. or al least had been on PRS long enough to have served the minimum PRS term that the judge could have imposed at sentencing. (DOCS had imposed the maximum PRS term in every instance. even though the sentencing judges could and otten did impose shorter PRS terms.) But raising the argument gave DOCS and the Division the cover they 'Aere seeking to not release anyone in their custody. even when they \vere
7

Case 1:11-cv-03200-SAS Document 5 Filed 10/20/11 Page 32 of 33
in possession of the sentencing minutes and kne\v for a fact that PRS had never been imposed byajudge.
19. Of course, DOCS and the Division could have asked the sentencing judges immediately after Earley to modify the sentence to include PRS. hut that would have required accepting the validity of Earley and thereby interfered with their goal of delaying compliance with the decision as long as possible. The New York State Court of Appeals has held that where a sentencing court may have made a mistake, it is "within the trial court's inherent pO'A-cr to correct the error made at sentencing"' and the one-year limitation of Criminal Procedure Luw ~440.40 is not a "restriction on the court's inherent ability to correct its own errors:' People 1'. Wri~ht. 56 N.Y.2d 613. 614, 615,435 N.E.2d 1088.450 N.Y.S.2d 473 (1982). WriKht was recognized und applied in Earley itself on remand, 2007 WI, 1288031 (F..D.N.Y. 2007).
20. Only aftcr (forner did DOCS and the Division begin making inquiry of some sentencing.i udges. asking them to calendar the matter for resentencing to PRS nunc pro tunc. They clearly did not consider their requests to these judges time-harred (see People 1'. It'ri~hl. ahove), for they did not 'A-ait for additional legislation (suhsequently enacted two months after Garner. elTective June 30. 2008. Ne'A- York Correction Law ~60 I-d. L. 2008 c. 141 ~ 5) before making such requests. They knew that while state legislation would he helpful to smoother and more efficient resolution of the status of persons illegally in PRS custody. many of who were in State Prison for PRS technical violations, they could not keep people in PRS custody and in State Prison while hoping for the Legislature in the closing days of its session to address the matter.
8

Case 1:11-cv-03200-SAS Document 5 Filed 10/20/11 Page 33 of 33
21. Even after the legislation took effect, DOCS and the Division continued to resist the release of every individual incarcerated for violating a teml of DOCS-imposed PRS, arguing that a judicial resentencing Lo PRS nunc pro tunc wou'ld not only keep them on PRS, but obviate the need to release them from State Prison. However, by now even prosecutors in several counties had had enough of tbis kind of stonewalling, and many consented to release.
22. In the aftermath of Earley, the Department of Correctional Services and the Division of Parole made a calculated decision to continue to impose and enforce administrative terms of post-release supervision. They dug in tbeir heels, and fought tooth and nail over the course of nearly two years to oppose cvery single attempt by an individual incarcerated for violating a term of administratively imposed PRS to regain his or her freedom. And they did so not based on any good ['aith belief that they could ultimately prevent implementation of Earley. Their conduct is entirely unworthy of bestowing qualitied immlmity upon them in connection with civil damage claims brought by those whom they wrongfully imprisoned. Dated: New York, New York
October 1.L, 2011
9

 
 Case 1:11-cv-03200-SAS Document 32 Filed 02/10/12 Page 1 of 42

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

OPINION AND ORDER

-------------------------------------------------------------)( KEVIN MICHAEL BENTLEY, et at.
Plaintiffs, - againstROBERT J. DENNISON, et ale
Defendants. ------------------------------------------------------------ )( PAUL BETANCES, et al., individually and on behalf of all others similarly situated
Plaintiffs, - againstBRIAN FISCHER, et ale
Defendants.

11 Civ. 1056 (SAS) 11 Civ. 3200 (SAS)

SHIRA A. SCHEINDLIN, U.S.D.J.: I. INTRODUCTION
Beginning in 1998, Nw York mandated that certain violent felonies be punished by a determinate prison sentence followed by a mandatory term of

1

Case 1:11-cv-03200-SAS Document 32 Filed 02/10/12 Page 2 of 42
parole, known as post-release supervision (“PRS”).1 The governing statute did not require that the term of PRS be announced by the judge at sentencing. In thousands of cases where the judge did not impose a term of PRS at sentencing, the New York State Department of Correctional Services (“DOCS”) imposed PRS on convicted felons either before or as they were released from prison and the Department of Parole (“DOP”) then enforced its terms upon them.
On June 9, 2006, in Earley v. Murray, the United States Court of Appeals for the Second Circuit held that the administrative imposition of PRS by DOCS violates the federal constitutional right to Due Process.2 The court explained that “[o]nly the judgment of a court, as expressed through the sentence imposed by a judge, has the power to constrain a person’s liberty,” and that “[t]he additional provision for post-release supervision added by DOCS is a nullity.”3
Plaintiffs in these two related actions – the three Betances plaintiffs on behalf of themselves and a putative class and the twenty-one Bentley plaintiffs – bring their actions pursuant to section 1983 of Title 42 of the United States Code against current and former high-ranking officials at DOCS and DOP. Plaintiffs

1 N.Y. Penal Law § 70.45(1).

2 Earley v. Murray, 451 F.3d 71 (2d Cir. 2006).

3

Id. at 75-76.

2

Case 1:11-cv-03200-SAS Document 32 Filed 02/10/12 Page 3 of 42
claim that in the years following Earley, “[i]n flat defiance of clear constitutional commands,”4 state officials subjected them to unlawful custody by continuing to impose the terms of PRS that had been declared unlawful, arresting and reincarcerating them for technical violations of those terms of PRS, and in one case administratively imposing a new term of PRS.
Defendants now move to dismiss the complaints, principally on the grounds that because plaintiffs’ constitutional rights were not “clearly established” at the time that those rights were allegedly violated, state officials are entitled to qualified immunity for their actions. This argument rests principally on the claim that for at least two years following Earley, there was confusion in the state courts about whether the decision was binding on the State and what remedies it required.
On close analysis, however, this argument is not persuasive. Although some New York state courts were in disagreement over the reach of the Earley decision and although some state trial courts held that they were not bound by a decision of the Second Circuit, there was never any disagreement or confusion about the core constitutional holding announced by Earley (and reiterated by the court in a denial for rehearing): terms of PRS imposed by the executive branch were nullified and if the State wished to re-impose them, it could seek resentencing
4 Betances First Amended Complaint (“FAC”) ¶ 47. 3

Case 1:11-cv-03200-SAS Document 32 Filed 02/10/12 Page 4 of 42
before a judge. II. BACKGROUND
The following factual allegations are drawn from the plaintiffs’ complaints. They are not findings of fact, but are assumed to be true for the purpose of this motion to dismiss and are construed in the light most favorable to the plaintiffs.
A. The Betances Plaintiffs On July 20, 2004, Paul Betances was sentenced to five years
incarceration. He was not sentenced to PRS. On April 24, 2008, DOCS and DOP administratively-imposed a five-year term of PRS on him. On July 9, 2009 after Betances had completed his incarceration for robbery and his maximum judiciallyimposed sentence had expired, DOCS and DOP imprisoned him for violating his administratively-imposed PRS. He was released after a New York court granted his writ of habeas corpus on July 24, 2009.5
5 See Betances FAC ¶ 13; Decision and Order, Ex. C to Declaration of Christina Okereke (“Okereke Decl.”), Assistant Attorney General, in support of Defendants’ Memorandum of Law in Support of Their Motion to Dismiss the Amended Complaints in the Above Actions (“Def. Mem.”), at 2. The Court takes judicial notice of the administrative and state court documents submitted by defendants that relate to the plaintiffs’ custody. Judicial notice of public records is appropriate – and does not convert a motion to dismiss into a motion for summary judgment – because the facts noticed are not subject to reasonable dispute and are capable of being verified by sources whose accuracy cannot be reasonably questioned. See Federal Rule of Evidence 201(b); Ruffins v. Department of Corr.
4

Case 1:11-cv-03200-SAS Document 32 Filed 02/10/12 Page 5 of 42

On August 15, 2000, Lloyd Barnes was sentenced to six years of incarceration and no term of PRS. On October 19, 2005, DOCS and DOP administratively-imposed on him a five year term of PRS. In about June 2008, DOP sentenced Barnes to three months incarceration based on his violation of the terms of his PRS. Barnes was released around September or October of 2008.6
On February 20, 2001, Gabriel Velez was sentenced to five years incarceration. He was not sentenced to PRS. On July 2, 2004, he was released from prison and subjected to administratively-imposed PRS. In July 2008, he was arrested and charged with violating that PRS. He was incarcerated on that ground until October 6, 2008. He was released from the terms of the PRS on October 15, 2008 by writ of habeas corpus.7 Betances, Barnes, and Velez bring their claims on behalf of a putative class of others who were subjected to administratively-imposed PRS and/or incarcerated for violations of such PRS.8
B. The Bentley Plaintiffs There are twenty-one plaintiffs in Bentley and a recitation of the facts

Servs., 701 F. Supp. 2d 385, 390 n.2 (E.D.N.Y. 2010) (collecting cases in which courts have taken judicial notice of similar documents).

6 See Betances FAC ¶¶ 14, 69.

7 See id. ¶¶ 72-80.

8

See id. ¶ 29.

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Case 1:11-cv-03200-SAS Document 32 Filed 02/10/12 Page 6 of 42
common to all of them is sufficient: each Bentley plaintiff alleges that he was convicted of a crime, sentenced to a determinate term of incarceration, and not sentenced to any term of PRS.9 Each Bentley plaintiff was later subjected to administratively-imposed PRS. Then, after the Second Circuit issued its Earley decision, each Bentley plaintiff was incarcerated for technical violations of his PRS. With one exception, these incarcerations began on dates after Earley and before April 29, 200810 and continued until various dates between February 23, 2008 and November 24, 2008.11
In their complaint, the Bentley plaintiffs describe their experiences during their terms of unlawful custody – both under PRS and during incarceration. Many of these unlawful terms of PRS lasted for years, as did some of the periods
9 Bentley First Amended Complaint (“FAC”) ¶¶ 2, 8-28. 10 This is the date on which the New York State Court of Appeals issued two opinions invalidating the administrative imposition of PRS on state law grounds. See People v. Sparber, 10 N.Y.3d 457 (2008) and Matter of Garner v. New York State Dep’t of Corr. Servs., 10 N.Y.3d 358 (2008). Defendants argue that before these decisions, plaintiffs’ rights could not have been “clearly established.” 11 See Bentley FAC ¶¶ 2, 8-28. Plaintiff Hutchinson was incarcerated until January 21, 2009. See id ¶ 24. It is unclear when Hutchinson’s final term of incarceration for violation of his PRS began, although it would likely have been after the parole warrant was “lodged against him” on November 20, 2008. Def. Mem. at 9 n.7.
6

Case 1:11-cv-03200-SAS Document 32 Filed 02/10/12 Page 7 of 42
of unlawful incarceration.12 The plaintiffs’ alleged experiences include being attacked by corrections officers and placed in solitary confinement,13 missing the births of their children,14 and being denied medical care.15
C. The Defendants
The named defendants are current and former high ranking officials at DOP and DOCS. They are sued in their individual and official capacities.16
Plaintiffs allege that defendants were responsible for setting and enforcing the
policies at DOP and DOCS that directly caused the deprivation of plaintiffs’
constitutional rights. Plaintiffs allege that
in the immediate aftermath of the Second Circuit’s decision in Earley, defendants, including defendant [Anthony Annucci, Deputy Commissioner and Counsel for DOCS] undertook an analysis of DOCS records in order to identify all inmates, or former inmates, who were administratively sentenced to PRS by DOCS notwithstanding any indication that a court had actually sentenced that person to PRS, whether in their sentencing and commitment paperwork or the minutes of their sentencing. That analysis identified 8,100 inmates that could not be subjected to PRS under Earley, including 1,600 that had already been released and subjected to PRS. We know this happened because defendant
12 See, e.g., Bentley FAC ¶¶ 12, 16, 17. 13 See id. ¶¶ 8, 27. 14 See id. ¶¶ 10, 11. 15 See id. ¶¶ 9, 27. 16 See Betances FAC ¶¶ 16-28; Bentley FAC ¶¶ 29-32.
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Case 1:11-cv-03200-SAS Document 32 Filed 02/10/12 Page 8 of 42
Annucci swore to the truth of these facts under penalty of perjury. . . . Defendants, however, did nothing with the information that was gathered.17
Plaintiffs allege that despite knowing which inmates and parolees
were in custody due to administratively-imposed PRS that had been declared a
“nullity” by Earley, defendants continued to arrest people for alleged violations of
the terms of their parole (e.g., failure to report or to adhere to curfew restrictions),
re-incarcerate people after administrative hearings for those violations, impose
PRS on individuals who had not been sentenced to PRS, and fully enforce the terms of PRS.18
Plaintiffs incorporate into their Complaint a letter written by
17 Betances FAC ¶¶ 4-5. See also Affirmation of Anthony J. Annucci (“Annucci Aff.”), Ex. A to Declaration of Matthew D. Brinckerhoff, Betances counsel, in support of Plaintiffs’ Combined Memorandum of Law in Opposition to Defendants’ Motion to Dismiss (“Pl. Mem.”), ¶ 40. Although the Annucci Affirmation is not a part of the plaintiffs’ Complaints, it was referenced therein and thus may be considered by the Court. “In considering a motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6), a district court may consider the facts alleged in the complaint, documents attached to the complaint as exhibits, and documents incorporated by reference in the complaint. . . . Where a document is not incorporated by reference, the court may nevertheless consider it where the complaint relies heavily upon its terms and effect, thereby rendering the document integral to the complaint.” DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104, 111 (2d Cir. 2010) (quotation and citation omitted).
18 See Betances FAC ¶ 5; Bentley FAC ¶¶ 36-39. 8

Case 1:11-cv-03200-SAS Document 32 Filed 02/10/12 Page 9 of 42
defendant Annucci to an inmate who had invoked his rights under Earley.19 In the letter, Annucci wrote that the 2006 Earley decision “is contrary to state appellate case law” from 2002 through 2005 and that “[w]hen state and federal courts reach different results regarding state law, the state case law takes precedence over federal case law in state court until the specific issue is addressed by the US Supreme Court.”20 Annucci wrote that “this Department would be required to set aside your period of post-release supervision if specifically ordered to do so by a state or federal court . . . . In the absence of such order, your determinate term is deemed to include a period of post-release supervision pursuant to the statutes and state case law set forth above.”21
This letter, plaintiffs claim, supports their allegation that defendants “deliberately engaged in a planned campaign of massive resistence to and defiance of Earley.”22 Plaintiffs allege that the defendants
were especially aware of Earley because numerous persons incarcerated for technical violations of administratively-imposed PRS after Earley filed habeas corpus petitions in the state courts. Although defendants prevailed in some of these cases because some state trial judges accepted defendants’ assertions that they
19 Betances FAC ¶ 6. 20 7/2/07 Letter (“Annucci Letter”), Ex. A to Betances FAC, at 1-2. 21 Id. at 2. 22 Bentley FAC ¶ 36.
9

Case 1:11-cv-03200-SAS Document 32 Filed 02/10/12 Page 10 of 42
were not technically “bound” to follow Earley, defendants were obviously aware that even if the state courts defied Earley as nonbinding, the federal district courts – which were bound by Earley – would have to grant habeas corpus relief. Regardless of whether the lower state courts or the Appellate Divisions or even the New York State Court of Appeals ultimately disagreed with Earley, individuals who had been placed on PRS administratively and sent to prison for PRS violations administratively were entitled to relief in federal court under Earley. . . . 23
III. LEGAL STANDARD
A. Motion to Dismiss
In deciding a motion to dismiss pursuant to Federal Rule of Civil
Procedure 12(b)(6), the court may disregard “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements.”24 In contrast,
“[w]hen there are well-pleaded factual allegations, a court should assume their
veracity and then determine whether they plausibly give rise to an entitlement for relief.”25
To survive a Rule 12(b)(6) motion to dismiss, the allegations in the complaint must meet a standard of “plausibility.”26 A claim is facially plausible
23 Id. ¶ 40. 24 Ashcroft v. Iqbal, 556 U.S. 662, ___, 129 S.Ct. 1937, 1949 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). 25 Id. at 1950. Accord Den Hollander v. Copacabana Nightclub, 624 F.3d 30, 32 (2d Cir. 2010). 26 Twombly, 550 U.S. at 564.
10

Case 1:11-cv-03200-SAS Document 32 Filed 02/10/12 Page 11 of 42
“when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”27 Plausibility “is not akin to a probability requirement;” rather, plausibility requires “more than a sheer possibility that a defendant has acted unlawfully.”28 “[A] district court may consider the facts alleged in the complaint, documents attached to the complaint as exhibits, and documents incorporated by reference in the complaint.”29
B. Qualified Immunity Qualified immunity protects officials from liability if “their conduct
does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.”30 The Second Circuit has held that “[a] right is clearly established if (1) the law is defined with reasonable clarity, (2) the Supreme Court or Second Circuit has recognized the right, and (3) a reasonable defendant [would] have understood from the existing law that [his or her] conduct
27 Iqbal, 129 S. Ct. at 1949 (quotation marks omitted). 28 Id. (quotation marks omitted). 29 DiFolco, 622 F.3d at 111 (citing Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002)). 30 Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quotation omitted).
11

Case 1:11-cv-03200-SAS Document 32 Filed 02/10/12 Page 12 of 42
was unlawful.”31 IV. DISCUSSION
A. There Is No Qualified Immunity for the Affirmative Imposition and Enforcement of Unlawful PRS After Earley 1. Plaintiffs Allege a Violation of Their Constitutional Rights “It is now indeed clearly established that . . . an administrative
imposition of PRS is unconstitutional.”32 Each plaintiff alleges a constitutional deprivation because he claims that PRS was administratively-imposed on him and then enforced after the Earley decision. Most of the terms of PRS were initially imposed on plaintiffs prior to Earley, at a time when the unconstitutional nature of such action had not yet been clearly established.33 However, Betances’ PRS was allegedly imposed on him by defendants on April 24, 2008, nearly two years after Earley had declared such action unconstitutional.34 Furthermore, each of the plaintiffs was subjected to PRS after Earley and then incarcerated for technical violations of his PRS after Earley. There is little doubt that if these allegations are
31 Anderson v. Recore, 317 F.3d 194, 197 (2d Cir. 2003) (quotation omitted).
32 Scott v. Fischer, 616 F.3d 100, 102 (2d Cir. 2010). 33 See id. at 107 (“[W]e conclude that it was not clearly established for qualified immunity purposes prior to Earley that the administrative imposition of PRS violates the Due Process Clause.”). 34 See Betances FAC ¶ 55.
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Case 1:11-cv-03200-SAS Document 32 Filed 02/10/12 Page 13 of 42
true, defendants violated plaintiffs’ constitutional rights. The primary question presented by this motion is whether plaintiffs’ constitutional rights were clearly established at the time that they were allegedly violated, so that a reasonable senior official at DOCS or DOP would have understood that his or her conduct was unlawful.
2. Earley Clearly Established Plaintiffs’ Constitutional Rights Beginning in 1998, New York law mandated that PRS be included as part of violent offenders’ determinate sentences.35 During that time, New York courts “routinely upheld the administrative imposition of mandatory PRS,” even if the sentencing judge had not included it in a defendant’s sentence.36 On June 9, 2006, the Second Circuit issued its opinion in Earley. The court’s ruling was not ambiguous: Earley’s sentence was therefore never anything other than the six years of incarceration imposed on him by the judge at his sentencing hearing and recorded in his order of commitment. The additional provision for post-release supervision added by DOCS is a nullity. The imposition of a sentence is a judicial act; only a judge can do it. The penalty administratively added by the Department of Corrections was, quite simply, never a part of the sentence.37
35 See N.Y. Penal Law § 70.45. 36 Scott, 616 F.3d at 106. 37 Earley, 451 F.3d at 76.
13

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The Earley court also clearly explained the remedy for the legal
infirmity – the term of PRS should be vacated and the state given the opportunity
to seek appropriate resentencing:
Because we find that clearly established38 Supreme Court precedent renders the five-year PRS term added to Earley’s sentence by DOCS invalid, we vacate the district court’s judgment and remand the case for that court to determine whether Earley’s petition for a writ of habeas corpus was timely filed. Should the district court determine that the petition was timely, it is instructed to issue a writ of habeas corpus excising the term of post-release supervision from Earley’s sentence and relieving him of any subsequent penalty or other consequence of its imposition. Our ruling is not intended to preclude the state from moving in the New York courts to modify Earley’s sentence to include the mandatory PRS term.39
Defendants argue that “[e]ven after Earley was decided, it is clear that
the law was unclear as to an appropriate remedy. Even the Earley court did not
hold that release was a preferred remedy to a constitutional infirmity in sentencing.”40 Defendants’ second claim is correct – the Earley court did not hold
that Earley had to be immediately released. But defendants’ first statement is
38 The Earley court was using the term “clearly established” in the context of the Antiterrorism and Effective Death Penalty Act of 1996, where it has a different meaning than it does in the qualified immunity context. See Scott, 616 at F.3d 106.
39 Earley, 451 F.3d at 77 (emphasis added). 40 Def. Mem. at 14.
14

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incorrect – the Earley court made clear that the appropriate remedy was to remove the unlawful PRS and seek resentencing. Indeed, defendants at times acknowledge this. “The clearly established law when plaintiff’s PRS was revoked did not require expunging PRS from plaintiff’s sentence, or releasing him from prison or parole: the preferred remedy for such a problem is resentencing, as expressed by the Second Circuit in Earley . . .”41 In the absence of such resentencing, plaintiffs were not lawfully subject to the state’s custody because, as Earley held, “[t]he additional provision for post-release supervision added by DOCS is a nullity.”42
After the Second Circuit issued its ruling, the named DOCS superintendent sought rehearing, arguing that Earley could have a wide-ranging impact. The court reiterated its decision and made clear that its holding was not simply limited to Earley’s habeas petition, but was meant to impact all improperly imposed sentences:
Respondent-appellee indicates that New York courts regularly fail to inform defendants of mandatory PRS terms but consider them part of those defendants’ sentence nonetheless. As a result, our decision may call into question the validity of the PRS components of numerous sentences. We nonetheless adhere to our ruling.43
41 Id. at 20 (emphasis added). 42 Earley, 451 F.3d at 76. 43 Earley v. Murray, 462 F.3d 147, 150 (2d Cir. 2006).
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In Scott v. Fischer, the Second Circuit authoritatively established that government officials have qualified immunity for their imposition and enforcement of PRS prior to Earley, because until that time it was not clearly established, for qualified immunity purposes, that administratively-imposed PRS was unconstitutional.44 But the court explicitly refrained from determining when the right to be free from administratively-imposed PRS did become clearly established.45 Instead, it dismissed Scott’s section 1983 claims regarding her postEarley arrest, parole revocation, and incarceration on grounds that clearly distinguish the Scott complaint from these plaintiffs’ complaints.
First, the Second Circuit held that DOC officials could not be sued by Scott for the revocation of her PRS (which happened after Earley) because the parole violation hearing “was conducted entirely by and before the New York State Division of Parole” and there were no facts pled that “could establish that the DOC
44 See Scott, 616 F.3d at 107. Choice Scott, the plaintiff, had been arrested for violating her administratively-imposed PRS in October 2006 on a warrant that had been issued in March 2004. A parole revocation hearing was held on January 16, 2007 and Scott was sentenced to eighteen months of imprisonment for the violation. Her habeas corpus petition was granted by a state court on August 7, 2007. See id. at 103.
45 See id. at 108. 16

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defendants were aware of, let alone participated in, the hearing.”46 Unlike the plaintiff in Scott, the plaintiffs here have sued the DOP officials who set and supervised PRS revocation policy during the time that plaintiffs’ PRS was revoked.47
Second, the Second Circuit held that Scott’s complaint did not assert “that the DOC defendants themselves knew whether her PRS had been imposed administratively or judicially.”48 In contrast, the plaintiffs here have alleged (and submitted proof) that “Defendant Annucci has also stated under oath that early in 2007 DOCS began to identify the inmates in its custody to whom Earley was applicable, and by the spring of 2007 had in fact identified most of them.”49 Thus, in contrast to the plaintiff in Scott, the Betances and Bentley plaintiffs have clearly and plausibly alleged that DOC defendants knew that the plaintiffs’ terms of PRS had been imposed administratively when those plaintiffs were returned to DOC custody for unlawful incarceration, and that the DOC officials were deliberately indifferent to these known violations of the plaintiffs’ rights.

46 Id. at 110.

47 This difference also alleviates the standing concerns raised by the Second Circuit. See id. at 111.

48

Id.

49 Bentley FAC ¶ 53 (citing State v. Myers, No. 4934-08, Affirmation of June 4, 2008 (Sup. Ct. Albany Co.)). See also Annucci Aff. ¶ 40.

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Defendants argue that “no federal court, either at the trial or the appellate level, has found that [prior to the enactment of remedial legislation in July 2008] the State or any of its officials had an affirmative duty – either under the Constitution or under State procedural law – to remediate flawed PRS by taking action to verify the sentence calculations of inmates or parolees.”50 The Second Circuit accepted this argument in Scott.51 Therefore, if plaintiffs’ only complaint were that defendants had failed to evaluate the legitimacy of their terms of PRS or to seek resentencing, dismissal on the basis of qualified immunity might be appropriate. But plaintiffs allege that post-Earley, DOC voluntarily identified more than eight thousand defendants on whom a term of PRS had been improperly imposed. Despite that knowledge: DOP revoked each of plaintiffs’ PRS on the basis of technical violations; DOC incarcerated plaintiffs whom it knew had been given PRS by the executive branch, not a judge; and DOC even imposed a new term of PRS on plaintiff Betances in April, 2008, nearly two years after Earley.52 These claims allege that defendants affirmatively acted to violate plaintiffs’ rights, not merely that they failed to “remediate flawed PRS by taking action to verify the
50 Def. Mem. at 3 (emphasis added). 51 See Scott, 616 F.3d at 109. 52 See Betances FAC ¶ 55, Pl. Mem. at 24-25.
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sentence calculations of inmates and parolees.”53 Faced with a section 1983 claim from a plaintiff who had been
arrested and re-incarcerated after Earley for violating administratively-imposed PRS, Judge John Gleeson of the Eastern District of New York noted that “after Earley, the defendants could have reasonably believed that the remedy for the concededly unlawful administrative imposition of a supervision term was a resentencing procedure in which a judge imposed the correct sentence, effective as of the date of the original sentence.”54 I agree. If defendants wanted to continue imposing supervision on the plaintiffs, they could have sought resentencing by a judge and therefore satisfied the Due Process requirements laid out in Earley. But the Betances and Bentley plaintiffs allege that defendants did not seek such resentencing for nearly two years. Instead, on the basis of violations of a PRS that the Second Circuit had already declared null and void, DOP revoked plaintiffs’ supervision and DOCS re-incarcerated them. Judge Gleeson also held that “[n]othing in Earley or Sparber suggested that administratively-imposed terms of
53 Def. Mem. at 3. 54 Joyner-El-Quwi-Bey v. Russi, No. 09 Civ. 2047, 2010 WL 1222804, at *3 (E.D.N.Y. Mar. 23, 2010) (emphasis in the original), aff’d, 2010 WL 4091017 (2d Cir. Sept. 15, 2011).
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supervision should be administratively revoked or otherwise unenforced.”55 Here I am constrained to disagree. The Earley court clearly revoked all administrativelyimposed terms of PRS (“[t]he penalty administratively added by the Department of Corrections was, quite simply, never a part of the sentence”) but permitted the State to seek a reimposition of those terms by a judge.56 Earley cannot be read to permit defendants to arrest and re-incarcerate plaintiffs without seeking such a resentencing.
Plaintiffs allege that, well aware of Earley and the thousands of people covered by Earley’s holding, defendants continued to revoke PRS and reincarcerate people for violations of their PRS terms, without seeking resentencing by a judge. “‘[A] supervisory official may be liable under section 1983 not only because he or she created a policy or custom under which unconstitutional practices occurred, but also because he or she allowed such a policy or custom to continue.’”57 As a result, if the allegations regarding their actions after Earley are correct, defendants are not entitled to qualified immunity for re-incarcerating plaintiffs based on terms of PRS that had already been nullified or for the

55

Id.

56 Earley, 451 F.3d at 76.

57 Scott, 616 F.3d at 109 (quoting Williams v. Smith, 781 F.2d 319, 323 (2d Cir. 1986)) (emphasis added).

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administrative imposition of new PRS. 3. The Earley District Court’s Actions on Remand Did Not Create Any Confusion About the Appropriate Remedy By the time Earley was remanded from the Second Circuit and Judge
Edward Korman determined that Earley’s petition for habeas corpus had been timely filed, Earley was again incarcerated, this time for a violation of his PRS. Judge Korman granted Earley the writ but stayed his order for twenty-eight days “to permit the sentencing court to exercise its power to conform the sentence to the mandate of New York law.”58 Earley’s attorney filed a motion for reconsideration, arguing that “[s]ince petitioner’s PRS has been unequivocally invalidated, it does not exist, and in fact never existed. Petitioner remains incarcerated for violation of a term he did not receive.”59 The court rejected this argument, and granted a new stay of the writ pending appeal of the Second Circuit’s decision to the Supreme Court.60
Defendants point to Judge Korman’s actions for the proposition that
58 Earley v. Murray, No. 03 Civ. 3104, 2007 WL 1288031, at *3 (E.D.N.Y. May 1, 2007).
59 Memorandum of Law in Support of Petitioner’s Rule 59 Motion, Earley v. Murray, No. 03 Civ. 3104, at 9 [Docket No. 48].
60 See Memorandum and Order, Earley v. Murray, No. 03 Civ. 3104, at 4 (E.D.N.Y. May 16, 2007) [Docket No. 51].
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[e]ven after Earley was decided, it is clear that the law was unclear as to an appropriate remedy. Even the Earley court did not hold that release was a preferred remedy to a constitutional infirmity in sentencing. Judge Kormann [sic], in May 2007, stayed his grant of the federal writ of habeas corpus to afford the People the opportunity to resentence petitioner Earley, nunc pro tunc.61
This argument is a straw man. Plaintiffs are not claiming that
defendants were obligated immediately to release people from prison. But, barring
that remedy, they were obligated to seek resentencing. Judge Korman stayed his
writ for twenty-eight days so that the People could immediately move for
resentencing. But with respect to the Betances and Bentley plaintiffs, defendants
did not seek resentencing until twenty-three months after Earley.62 Instead, they
continued imposing PRS on plaintiffs, arrested them, and re-incarcerated them.
Judge Korman’s actions followed the Circuit’s directives and did not create
61 Def. Mem. at 13-14. 62 In May 2008, “the State of New York filed a declaratory judgment defense class action against individuals with flawed PRS in which they sought direction from the State courts as to the rights and duties of the parties, and specifically requested that the Supreme Court . . . order timely and efficient resentencings.” Id. at 8. This action satisfied Earley’s clear command to seek resentencing, but by then thousands of individuals had been under unlawful custody for nearly two years. Had the state court granted the mass resentencing request, defendants would have been free of any liability for custody occurring after the resentencing. But “the Albany Supreme Court declined to grant the relief sought.” Id. As a result, some plaintiffs remained under unlawful custody, never having been resentenced by a judge.
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confusion about the state of the clearly established law or the appropriate remedy.
It is important to emphasize why the remedy of resentencing was so
important to plaintiffs, and not merely an exercise in constitutional formalities that
would have had no real impact on them: according to an attorney who led the
Legal Aid Society’s post-Earley efforts, once affected individuals eventually were
resentenced by judges in 2008 and 2009
the overwhelming majority of [them] were released from prison and from PRS custody by sentencing judges. Many had already completed their sentences, or at least had been on PRS long enough to have served the minimum PRS term that the judge could have imposed at sentencing. (DOCS had imposed the maximum PRS term in every instance, even though the sentencing judges could and often did impose shorter PRS terms.)63
4. Subsequent State Court Decisions Could Not and Did Not Place Earley’s Holding in Doubt
Central to defendants’ argument that they did not violate “clearly
established” constitutional rights is their claim that in the two years after Earley,
there was confusion in the lower state courts and “the law in the federal and state courts continued to evolve.”64 The Second Circuit reiterated this argument in dicta
in Scott v. Fischer, noting that
63 Declaration of Alon Harpaz, lead attorney at the Legal Aid Society’s Parole Revocation Defense Unit, (“Harpaz Decl.”), Ex. B to Betances FAC, ¶ 10. This declaration was incorporated into the Betances Complaint.
64 Def. Mem. at 7. 23

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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 inasmuch as two Departments of the New York Appellate Division thereafter continued to find the practice constitutional, conclusions that appear to reflect oversight rather than defiance of Earley. See Garner v. N.Y. State Dep’t of Corr. Servs., 831 N.Y.S.2d 923 (3d Dep’t 2007); People v. Thomas, 826 N.Y.S.2d 36 (1st Dep’t 2006). It was not until 2008 that the New York Court of Appeals held that administrative imposition of PRS by DOC was contrary to law. See Garner v. N.Y. State Dep’t of Corr. Servs., 10 N.Y.3d 358 (2008); People v. Sparber, 10 N.Y.3d 457 (2008). In circumstances of such apparent judicial confusion as to the constitutional propriety of a statutory mandate, qualified immunity might well continue to shield state officials acting pursuant to that statute.65
This reading of the caselaw has been reiterated by many district courts
adjudicating section 1983 claims regarding unlawful arrests and re-incarcerations
between Earley and the April 29, 2008 New York Court of Appeals decisions in
Sparber and Garner.66 And as Judge Kenneth Karas has explained, “the
65 Scott, 616 F.3d at 107-08 (emphasis added).
66 See, e.g., Robinson v. Fischer, No. 09 Civ. 8882, 2010 WL 5376204, at *8 (S.D.N.Y. Dec. 29, 2010) (collecting the many cases in which qualified immunity has been granted and explaining that this was done in large part “in light of post-Earley New York Appellate Division decisions that continued to find the administrative imposition of PRS constitutional, see, e.g., Garner . . . [and] Thomas. . . .”). Accord Hardy v. Fischer, No. 08 Civ. 2460, 2010 WL 4359229, at *3 (S.D.N.Y. Nov. 3, 2010) (citing to Garner and Thomas for the proposition that “[t]wo of New York’s Appellate Divisions continued to uphold the lawfulness of administratively imposed PRS.”); Williams v. Fischer, No. 08 Civ. 4612, 2010 WL 3924688, at *5 (E.D.N.Y. Sept. 30, 2010) (“In light of the ‘judicial confusion’ to which the Second Circuit alluded in Scott, this court holds that during the period
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overwhelming consensus within the Second Circuit is that the protection of qualified immunity applied until April 2008, when the New York Court of Appeals resolved a split among the lower courts and invalidated the administrative imposition of PRS.”67 Defendants’ argument that there was confusion in the lower courts, and that therefore Earley’s holding was not clearly established, has been the linchpin of their continued success in obtaining qualified immunity. And indeed it is true that “[i]f judges . . . disagree on a constitutional question, it is unfair to subject [government officials] to money damages for picking the losing side of a controversy.”68 But it is incorrect to say that the Appellate Division found administrative PRS constitutional. Defendants point to no court that has ever questioned – let alone disagreed with – the holding in Earley. Indeed, the notion of confusion rests on a misreading of the relevant Appellate Division cases.
Defendants point to five Appellate Division cases from 2006 and 2007
between Earley and the Sparber/Garner decisions, it was not clearly established that administrative imposition of PRS is unconstitutional.”).
67 Locantore v. Hunt, 775 F. Supp. 2d 680, 687 (S.D.N.Y. 2011). Accord Baker v. City of New York, No. 09 Civ. 10604, 2010 WL 4273269, at *5 (S.D.N.Y. Oct. 29, 2010) (“at the time of Plaintiff Baker’s arrest in 2007, there was still no clearly established rule against the administrative imposition of PRS by DOCS”); Ruffins, 701 F. Supp. 2d at 408 (between Earley and Garner/Sparber “it was not clearly established that DOCS could not enforce the terms of Ruffins’s PRS”).
68 Wilson v. Layne, 526 U.S. 603, 618 (1999). 25

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to support the notion of confusion following Earley.69 But the first four of these –
Lingle, Sparber, Thomas, and Boyer – did not deal with administratively-imposed
PRS at all. Instead, the PRS imposed on the defendants in these cases had been written in the sentencing courts’ sentence and commitment orders.70 The appellate
courts in these cases determined that these impositions of PRS had complied with
Earley’s requirements because they had been imposed by the courts, not by DOCS,
even though they had not been verbalized by the sentencing judge. These four
cases, therefore, are evidence that the lower courts were still trying to determine
how far they should extend Earley’s logic. The cases do not show that the
appellate courts were in disagreement over whether Earley had invalidated PRS imposed by DOCS.71 The fifth case cited by defendants – Garner – was a two-
69 See People v. Lingle, 825 N.Y.S.2d 12 (1st Dep’t 2006); People v. Sparber, 823 N.Y.S.2d 405, 406 (1st Dep’t 2006); People v. Thomas, 826 N.Y.S.2d 36 (1st Dep’t 2006); People v. Boyer, 827 N.Y.S.2d 776 (3d Dep’t 2007); Garner v. Department of Corr. Servs., 831 N.Y.S.2d 923 (3d Dep’t 2007).
70 See Thomas, 826 N.Y.S.2d at 38. 71 This uncertainty regarding the reach of Earley’s dicta might well merit qualified immunity against claims brought by individuals whose sentencing and commitment sheets included a term of PRS but whose sentencing minutes did not. However, none of the Betances or Bentley plaintiffs fit into this category. Instead, all of their terms of PRS were imposed by DOCS. This distinction was not lost on DOCS. Beginning in early 2007, it specifically reviewed inmate files to determine whether their sentence and commitment orders had or had not imposed PRS. See Annucci Aff. ¶¶ 39-43.
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paragraph ruling that did not mention Earley or the constitutionality of administratively-imposed PRS at all but rather dismissed the request for relief on state procedural grounds.72 Therefore, neither of the two cases cited by the Second Circuit and many district courts (Garner and Thomas) actually stand for the proposition that “the New York Appellate Division thereafter continued to find the practice [of administratively imposing PRS] constitutional.”73
In a thorough opinion that helpfully lays out the procedural history following Earley, Judge Joseph Bianco of the Eastern District of New York points to “several New York state court opinions during this time period that demonstrate that the New York courts were in severe disagreement as to Earley’s application.”74 And indeed it is true that there was uncertainty regarding the outer reaches of Earley. But none of the cases cited by defendants show that there was confusion regarding the clear, core constitutional holding in Earley: that
72 See Garner, 831 N.Y.S.2d 923 (holding that the remedy of “prohibition” was unavailable under Article 78 because DOCS had not performed any judicial function by enforcing the terms of PRS and “prohibition” is unavailable except when administrative agencies are functioning in a judicial or quasi-judicial capacity), rev’d, 10 N.Y.3d 358 (2008).
73 Scott, 616 F.3d at 107. 74 Ruffins, 701 F. Supp. 2d at 405 (emphasis added). One point of uncertainty dealt with whether New York statutory law permitted resentencing years after a conviction. See, e.g., People v. Keile, No. 9917-98, 2006 WL 2569964, at *2 (Sup. Ct. N.Y. Co. Sept. 5, 2006).
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administratively-imposed PRS was unlawful and that if the state wished to enforce such PRS, resentencing by a judge was required.
It is true that some trial level state courts initially held that Earley was not binding on them and did not require that they invalidate administrative PRS.75 It is also noteworthy that immediately after Earley was issued, other state courts were already fully accepting its authority and referring defendants back to court for resentencing or removing terms of unlawfully-imposed PRS.76 Defendants do not cite to any post-Earley trial court opinions that in any way “unestablished” the clear constitutional holding in Earley. But their “confusion” argument rests on this logic. There are two problems with the position. First, it was DOCS and DOP that immediately began urging the lower courts not to follow Earley: As one trial court explained, “[t]he people . . . now oppose defendant’s application, contending that the Second Circuit case of Earley v Murray, cited by defendant, is not binding on
75 See, e.g., Quinones v. State of New York Department of Corr. Servs., 824 N.Y.S.2d 877, 881 (Sup. Ct. Albany Co. Nov. 16, 2006), rev’d, 848 N.Y.S.2d 757 (3d Dep’t 2007) (holding, on Earley’s authority, that only a judge can impose a sentence of any kind, including PRS).
76 See, e.g., People v. Cephus, No. 7337/01, 2006 WL 2714448, at *3 (Sup. Ct. Kings Co. June 28, 2006); People v. Ryan, 822 N.Y.S.2d 856 (Sup. Ct. Queens Co. July 28, 2006).
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this court.”77 This argument was repeated by defendant Annucci in his letter to an
inmate seeking to invoke his rights.78 Annucci wrote this letter because
“[Defendant] Commissioner Fischer has asked me to.”79 Second, even if the lower
state courts determined that they were not bound by Earley, it would not have
justified defiance of Earley by the defendants, who indisputably were bound by
it.80 The Supremacy Clause precludes state officials taking actions that violate the
federal Constitution, even if those actions are authorized or mandated by state law.
The Second Circuit recognized that its decision “may call into question the validity
77 Ryan, 822 N.Y.S.2d at 857. Describing the State’s response in more than one hundred habeas corpus actions filed by his office at the Legal Aid Society in the wake of Earley, Harpaz declares that: “The initial response from the AG on behalf of DOCS and the Division did not cite a single appellate precedent that purportedly disagreed with Earley. Instead, the response merely stated that Earley was not binding on the New York courts, and did not even attempt to argue that Earley was wrong on the merits. DOCS and the Division of Parole did not claim that they were trapped between competing precedents and thereby believed in good faith that they were obligated to oppose Earley. Rather, the policy making administrators of these agencies made a calculated decision – one not based on the law – to continue to impose and enforce administrative PRS come what may.” Harpaz Decl. ¶ 10.
78 See Annucci Letter at 2 (“When state and federal courts reach different results regarding state law, the state case law takes precedence over federal case law in state court until the specific issue is addressed by the US Supreme Court.”).
79 Id. at 1. 80 See Cooper v. Aaron, 358 U.S. 1 (1958).
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of the PRS components of numerous sentences.”81 Defendants Annucci and Terrence Tracy, chief counsel to DOP, are
experienced attorneys. The other defendants are (or were) high ranking officials with access to skilled legal counsel and the responsibility to ensure that their large agencies complied with all state and federal laws. None of the defendants were low ranking police officers making quick decisions on the street under high pressure. By contrast, these defendants had ample time to consider their response to Earley. Any reasonable high-ranking New York official would know that she is bound by decisions of the Second Circuit and that the United States Constitution trumps any conflicting state laws. In light of Earley’s holding, it was improper of DOCS and DOP to wait until they were “specifically ordered to [set aside each individual PRS] by a state or federal court.”82 Defendants had an obligation to treat Earley as binding on all terms of administratively-imposed PRS.
Any alleged confusion indisputably was resolved on April 29, 2008, when the New York Court of Appeals issued its decisions in Garner and Sparber. Sparber held that as a matter of state law, all sentences of PRS must be pronounced
81 Earley, 462 F.3d at 150. 82 Annucci Letter at 2.
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by the judge at sentencing.83 Garner reversed the lower court and held that
because the imposition of PRS is a judicial act, an Article 78 proceeding is an
appropriate procedural route by which to challenge a term of administrativelyimposed PRS.84 This was the only holding made by the Garner court. A number
of courts have either held or suggested that this date marks the point at which Earley’s constitutional holding became clearly established.85 However, in both
Sparber and Garner, the Court of Appeals explicitly refused to address any constitutional concerns or pass on the applicability or consequences of Earley.86 It
is therefore difficult to see how the New York Court of Appeals, as opposed to the
Second Circuit in Earley, could have clearly established plaintiffs’ federal
constitutional rights. Furthermore, as plaintiffs note, only the United States Courts
83 Sparber, 10 N.Y.3d at 470. 84 Garner, 10 N.Y.3d at 361. 85 See Williams, 2010 WL 3924688, at *6. See also Ruffins, 701 F. Supp. 2d at 408 (requesting further briefing in order to determine whether April 29, 2008 is the appropriate date). Defendants argue that qualified immunity should extend through June 2008, when remedial state legislation went into effect. See Def. Mem. at 13. But this argument suffers from the same fundamental flaws as the Sparber/Garner date. 86 “Having resolved this issue on statutory grounds, we need not reach petitioner’s constitutional arguments and decline to do so . . . Neither do we pass on the applicability of Earley v. Murray,” Garner, 10 N.Y.3d at 363; “Because defendants are entitled to relief under the [Criminal Procedure Law], we need not reach their constitutional claims, which rely primarily upon the Second Circuit’s decision in Earley.” Sparber, 10 N.Y.3d at 471 n.5.
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of Appeals and the United States Supreme Court can “clearly establish”
constitutional law for the purpose of qualified immunity. Because the Scott court
held that the constitutional law was “now indeed clearly established,” it seems unlikely that any case other than Earley could have done the establishing.87
In short, defendants have pointed to no state cases that questioned the
constitutional holding or clearly articulated remedies in Earley. Nor could they.
State courts do not have the power to invalidate the interpretations of the federal
Constitution handed down by a federal Court of Appeals. And Earley’s holding
was crystal clear: “The additional provision for post-release supervision added by DOCS is a nullity.”88 As plaintiffs correctly argue,
[e]ven if the state courts had disagreed as a matter of federal constitutional law (they did not), that would be of no moment. To allow the decisions of New York state courts to effectively nullify [an] individual’s clearly established federal constitutional rights as determined by the Second Circuit would violate the Supremacy
87 Scott, 616 F.3d at 102. The Scott court did not clearly establish the law, since the court refused to decide “precisely when it became clearly established.” Id. at 108 (emphasis added).
88 Earley, 451 F.3d at 76. It is on the basis of Earley’s clarity that I cannot join my colleagues in holding that “at the time of Plaintiff Baker’s arrest in 2007, there was still no clearly established rule against the administrative imposition of PRS by DOCS,” Baker, 2010 WL 4273269, at *5, or that between Earley and Garner/Sparber “it was not clearly established that DOCS could not enforce the terms of Ruffins’s PRS.” Ruffins, 701 F. Supp. 2d at 408.
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Clause and undermine our federalist system.89 I recognize that on this point, I am in disagreement with many of my colleagues. But this disagreement arises from a fundamental misunderstanding. The intermediate state courts’ approval of PRS imposed by judges via sentencing documents never placed in doubt Earley’s central holding that nullified the terms of PRS imposed by the executive branch. Defendants should not be permitted to sow greater confusion regarding the history of these post-Earley cases in order to obtain immunity for their allegedly unconstitutional acts. My conclusion is also different from that of my colleagues because the Bentley and Betances Complaints, unlike complaints in other cases, make the following plausible allegations, supported by documents that are incorporated in the Complaints or are found in the public record: (1) defendants knew who was under administratively-imposed PRS by early 2007; (2) defendants intentionally sought to evade Earley by urging state courts not to follow it; (3) defendants knew they would be bound by court orders to comply with Earley on a case-by-case basis, but refused to apply its holding broadly without such orders; and (4) defendants continued administratively imposing PRS through at least April 2008, revoking such PRS on the basis of violations through at least February 2009, and imprisoning people based on those
89 Pl. Mem. at 20. 33

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violations through at least July 2009. 5. Plaintiffs Allege that Beginning in July 2008, Defendants Failed to Comply with Their Affirmative Legal Duties The Second Circuit has explained that when the New York State
Legislature passed Correction Law § 601(d), it “imposed an affirmative duty on the part of [government officials]” to seek to resentence or otherwise handle the cases of inmates” such as plaintiffs, a duty that was effective June 30, 2008.90 Plaintiffs allege that “[d]espite this crystal clarity of the law, none of the Betances Plaintiffs here were ever resentenced, and were only released after months of incarceration post-June 2008 upon their own habeas petitions, or after completing their full sentences.”91 On November 15, 2008, DOP issued a parole violation warrant charging Betances with having violated his administratively-imposed PRS; on February 23, 2009, that PRS was revoked at a parole hearing; and for an uncertain number of days in July 2009, Betances was imprisoned solely for those technical violations.92 On July 8, 2008, DOP issued a warrant charging Velez with
90 Scott, 616 F.3d at 109. 91 Pl. Mem. at 26. 92 See id. at 10; Defendants’ Reply Memorandum of Law in Support of Their Motion to Dismiss the Amended Complaints at 6; Decision and Order, Ex. C to Okereke Decl. at 1.
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violations of his administratively-imposed PRS.93 He was arrested and incarcerated for approximately three months, when he was released as a result of a grant of habeas corpus.94 In June 2008, DOP sentenced Barnes to three months incarceration based on violations of the terms of his administratively-imposed PRS. Barnes was released in or around September or October of 2008.95
The Bentley plaintiffs were released from unlawful incarceration at various times between February 25, 200896 and January 21, 2009.97 Some of these plaintiffs were released after DOCS requested that a state judge resentence them in accordance with Section 601(d),98 some on their own petitions for habeas corpus,99 and some because they had served their entire sentences.100 Plaintiffs’ incarcerations continued for various lengths of time until thirteen months after the New York Legislature established a process for plaintiffs’ resentencing, sixteen
93 Decision and Order, Ex. F to Okereke Decl., at 2. 94 See Betances FAC ¶ 77-79. 95 See id. ¶ 14. 96 Bentley FAC ¶ 27(c). 97 Id. ¶ 24. 98 See, e.g., id. ¶ 13. 99 See, e.g., id. ¶ 14. 100 See, e.g., id. ¶ 17.
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months after the New York Court of Appeals ruled in Sparber and Garber, and more than three years after the Second Circuit had first declared plaintiffs’ terms of PRS “a nullity.” Whether or not defendants complied with their affirmative duties after June 2008 is a separate question of fact, but there is no dispute that they had clear affirmative duties during that time period. If a factfinder determines that they failed to comply with those obligations, they will not be protected by qualified immunity.
B. Defendants’ Other Arguments Do Not Merit Dismissal 1. Plaintiffs Have Made Plausible Factual Allegations that Defendants Were Individually Responsible for the Deprivation of Plaintiffs’ Constitutional Rights Defendants argue that plaintiffs have failed to plead defendants’
personal involvement. To state a constitutional tort claim, “a [p]laintiff must plead that each Government-official defendant, through the official’s own individual actions, has violated the Constitution.”101 Certainly, even after Iqbal, a supervisor may be liable for constitutional torts not only if she commits the tort herself, but if she “created a policy or custom under which unconstitutional practices occurred.”102 Indeed, in Scott, which was decided more than a year after Iqbal, the
101 Iqbal, 129 S. Ct. at 1948. 102 Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995) (citation omitted). Colon described five categories of actions that might expose a supervisor to
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Case 1:11-cv-03200-SAS Document 32 Filed 02/10/12 Page 37 of 42
Second Circuit explained that “a supervisory official may be liable under section
1983 not only because he or she created a policy or custom under which
unconstitutional practices occurred, but also because he or she allowed such a policy or custom to continue.’”103
Regardless of precisely how the Second Circuit decides to apply
Iqbal, plaintiffs have pled sufficiently detailed and plausible facts to support their
allegation that in the period after Earley, each of the defendants personally created
and/or implemented the policies and practices that led to the deprivations of plaintiffs’ constitutional rights.104 According to plaintiffs’ allegations, defendants
were the officials individually responsible for establishing and enforcing DOCS’s
and DOP’s policies with respect to PRS – policies that led directly to plaintiffs’
unlawful custody. These claims allege sufficient personal involvement to survive a
liability for constitutional torts. Plaintiffs’ claims fall under the third Colon category, which establishes liability for supervisors who “created a policy or custom under which unconstitutional practices occurred.” Id. Although the Second Circuit has not yet addressed the issue, district courts agree that category three has survived Iqbal. See Delgado v. Bezio, No. 09 Civ. 6899, 2011 WL 1842294, at *9 (S.D.N.Y. May 9, 2011); Qasem v. Toro, 737 F. Supp. 2d 147, 152 (S.D.N.Y 2010); Bellamy v. Mount Vernon Hosp., No. 07 Civ. 1801, 2009 WL 1835939, at *4 (S.D.N.Y. June 26, 2009). Dismissal for failure to plead personal involvement is thus inappropriate.
103 Scott, 616 F.3d at 100 (quoting Williams, 781 F.2d at 323) (emphasis added). Scott did not cite or discuss Iqbal.
104 See Betances FAC ¶¶ 16-26; Bentley FAC ¶¶ 29-32. 37

Case 1:11-cv-03200-SAS Document 32 Filed 02/10/12 Page 38 of 42
motion to dismiss. 2. Plaintiffs’ Claims Are Not Barred By the Eleventh Amendment Defendants argue that New York’s sovereign immunity, embodied in
the Eleventh Amendment, bars plaintiffs’ claims because “[t]he State of New York and its officials sued in their official capacity are immune from suits for money damages in federal court.”105 Defendants have been sued in both their individual and official capacities.106 Plaintiffs seek both money damages and declaratory relief.107 The Eleventh Amendment does not bar suits for money damages against state officials sued in their individual capacity, “even when the conduct complained of was carried out in accordance with state law.”108 Nor does it bar claims for equitable relief.109
3. Plaintiffs’ Claims Are Not Barred By the Statute of Limitations or for Late Service
Defendants argue that plaintiffs’ claims may be barred by the three
105 Def. Mem. at 27. 106 Betances FAC at 1; Bentley FAC at 1. 107 Betances FAC at 19; Bentley FAC at 29. 108 Ford v. Reynolds, 316 F.3d 351, 356 (2d Cir. 2003). 109 See Fulton v. Goord, 591 F.3d 37, 45 (2d Cir. 2009).
38

Case 1:11-cv-03200-SAS Document 32 Filed 02/10/12 Page 39 of 42
year statute of limitations for section 1983 actions in New York.110 However, “a § 1983 cause of action for damages attributable to an unconstitutional conviction or sentence does not accrue until the conviction or sentence has been invalidated.”111 Courts dealing with post-Earley section 1983 claims have all held that pursuant to Heck v. Humphrey, plaintiffs’ cause of action accrues only once the underlying sentence is invalidated or the writ of habeas corpus granted.112 All Betances plaintiffs were released from custody less than three years before their suit was filed on May 11, 2011. All Bentley plaintiffs were released from custody less than three years before their suit was filed on February 10, 2011.
Defendants also argue that the Betances Amended Complaint should be dismissed because it was served on October 24, 2011, more than 120 days after the original complaint was filed and four days after the extended deadline for filing set by the court at a status conference.113 The Amended Complaint was filed
110 See Def. Mem. at 22. 111 Heck v. Humphrey, 512 U.S. 477, 489-90 (1994). 112 See, e.g., Locantore, 775 F. Supp. 2d at 685. “[W]here the viability of the plaintiff’s claim depends on his conviction being invalidated, the statute of limitations begins to run upon the invalidation, not the time of the alleged government misconduct.” Amaker v. Weiner, 179 F.3d 48, 52 (2d Cir. 1999). 113 See Def. Mem. at 22-23.
39

Case 1:11-cv-03200-SAS Document 32 Filed 02/10/12 Page 40 of 42
timely on October 20, 2011 and a copy sent electronically to defense counsel.114 The four-day delay in effectuating hand service in Albany does not merit dismissal.
4. Plaintiffs State a Claim for Unlawful Imprisonment Defendants argue that plaintiffs fail to state a claim for unlawful imprisonment because their actions were privileged under New York State law.115 “The common law tort of false arrest is a species of false imprisonment” and “[t]he elements of a claim of false arrest under § 1983 are substantially the same as the elements of a false arrest claim under New York law.”116 Like the question of qualified immunity, the question of privilege turns on whether defendants’ actions were objectively reasonable.117 Because I have found that it was objectively unreasonable of defendants to continue enforcing administrative PRS without seeking resentencing for two years after Earley, defendants’ re-incarceration of plaintiffs was not privileged. 5. Abstention Is Inappropriate
114 See Betances Docket No. 5. 115 See Def. Mem. at 28-31. 116 Weyant v. Okst, 101 F.3d 845, 853 (2d Cir. 1996) (quotations and citations omitted). 117 See, e.g., Wu v. City of New York, 934 F. Supp. 581, 592 (S.D.N.Y. 1996); Picciano v. McLoughlin, 723 F. Supp. 2d 491, 502 (N.D.N.Y. 2010); Ahern v. City of Syracuse, 411 F. Supp. 2d 132, 146 (N.D.N.Y. 2006).
40

Case 1:11-cv-03200-SAS Document 32 Filed 02/10/12 Page 41 of 42
The Court declines defendants' invitation to abstain as it appears unlikely that this litigation will in any way interfere with ongoing state court litigation. 118 V. CONCLUSION
For the reasons stated above, defendants' motions to dismiss are
denied. The Clerk of the Court is ordered to close these motions [Betances Docket No. 17 and Bentley Docket No. 21]. A status conference is scheduled for February 21,2012 at 5:30 p.rn

Dated:

New York, New York February 10, 2012

liS See PI. Mem. at 32-34. 41

Case 1:11-cv-03200-SAS Document 32 Filed 02/10/12 Page 42 of 42

For Plaintiffs in Betances:

-Appearances-

Matthew D. Brinckerhoff, Esq. Adam R. Pulver, Esq. Emery, Celli, Brinckerhoff & Abady LLP 75 Rockefeller Plaza, 20th Floor New York, New York 10019 (212) 763-5000

For Plaintiffs in Bentley:

Joel Berger, Esq. 360 Lexington Avenue, 16th Floor New York, New York 10017 (212) 687-4911

For Defendants:

Michael J. Keane James B. Cooney Assistant Attorneys General State of New York 120 Broadway, 24th Floor New York, New York 10271

42

 
 12-0704-cv(L) Betances v. Fischer

MANDATE 1

UNITED STATES COURT OF APPEALS

2

FOR THE SECOND CIRCUIT

3

SUMMARY ORDER

4 RULINGS BY SUMMARY ORDER DO NOT HAVEPRECEDENTIAL EFFECT. CITATION TO 5 A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS 6 GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT'S 7 LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH 8 THIS COURT, A PARTY MUST CITE EI THER THE FEDERAL APPENDIX OR AN 9 ELECTRONIC DAT ABASE (WITH THE NOTATI ON "SUMMARY ORDER"). A PARTY 10 CITING A SUMMARY ORDER MUST SERVE A COPY O F I T O N ANY PARTY NOT 11 REPRESENTED BY COUNSEL.

1

At a stated Termof the United Sattes Court of Appeals for the Second Circuit, held at the Thurgood

2 Marshal United States Courthouse at Foley Square, in the City of New York, on the

3 4th day of June, two thousand thirteen.

4 Present: AMALYA L. KEARSE,

5

ROBERT A. KATZMANN,

6

CHRISTOPHER F. DRONEY,

7

Circuit Judges.

8 _____________________________________________________

9 PAUL BETANCES, LLOYD A. BARNES, GABRIEL VELEZ a/k/a Gabriel 10 Belize, individually and on behalf of all others similarly situated,

11

Plaintiffs-Appellees,

12

- v. -

No. 12-0704-cv(L)

13 BRIAN FISCHER, in his capacity as Com missioner of the New York State 14 Department of Correctional Services (DOCS), and in his individual capacity; 15 ANTHONY J. ANNUCCI, i n h is capacity as Deputy Com missioner and 16 Counsel for DOCS, and in his individual capacity; LUCIEN J. LECLAI RE, 17 JR., form er Acting Com missioner of DOCS, in his individua l c apacity; 18 GLENN S. GOORD, form er Com missioner of DOCS, in his individual 19 capacity; JOHN/JANE DOES 1-25 (DOCS Supervisory, Training, and Policy 20 Personnel); ANDREA W . EVANS, in her capacity as Chair an d Ch ief 21 Executive Officer of the New York StateDivision of Parole (DOP), and in her 22 individual capacity; MARK MANTEI, in his capacity as Executive Director

MANDATE ISSUED ON 07/08/2014

1 of DOP, and in his individual capacity; TERENCE TRACY, in his capacity as 2 Chief Counsel f or D OP, and in his individual capacity; R OBERT J. 3 DENNISON, former Chair of DOP, in his individual capacity; ANTHONY G. 4 ELLIS II, form er Execu tive Di rector of DOP, in his individual capacity; 5 GEORGE B. ALEXANDER, form er Chair and Chief Executive Officer of 6 DOP, in his individual capacity; a nd JOHN/JANE DOES 26-50 (DOP 7 Supervisory, Training, and Policy Personnel),

8

Defendants-Appellants.

9 _____________________________________________________

10 _____________________________________________________

11 KEVIN MICHAEL BENTLEY, FELI X T AVARES, JAMES JOHNSON, 12 JERRY PULLEY, EDWI N RIVERA, HECTOR CALDERON, KEENAN 13 JENKINS, JOSEPH SANTIAGO, LAWRENCE JACKSON, CHRISTOPHER 14 PURDIE, ROBERT GIL, GERALD EDMONDS, EDWARD MONTRANO, 15 DWAYNE DANTZLER, WALBERTO PEREZ, RUDOLPH NURSE, 16 ANTHONY HUTCHINS ON, TYRONNE JOHNSON, JOSEPH SHARP, 17 SIDNEY BURCH and KEVIN DARDEN,

18

Plaintiffs-Appellees,

19

- v. -

No. 12-0741-cv(C)

20 ROBERT J. DENNISON, as former Chair, New York State Division of Parole 21 (Division) & in his individual capacity; ANTHONY G. ELLIS II, as form er 22 Executive Director of the Division &in his individual capacity; GEORGE B. 23 ALEXANDER, as former Chair and Chief Executive Officer of the Division 24 & in his individual capacity; T ERRENCE TRACY, as Chief Counsel to the 25 Division & in his individual capacity; BRIAN FISCHER, as Commissioner of 26 the New York State Departm ent of Co rrectional Services (DOCS) & in his 27 individual capacity; ANTHONY J. ANNUCCI, as Deputy Commissioner and 28 Counsel for DOCS & in his individualcapacity; LUCIEN J. LECLAIRE, JR., 29 as form er Acting Com missioner of DOCS & in his individual capacity; 30 GLENN S. GOORD, as former Commissioner of DOCS & in his individual 31 capacity; and JOHN and JANE DOES 1-50, as Division and DOCS Legal, 32 Supervisory Training and Policy Personnel & in their individual capacities,

33

Defendants-Appellants.

34 _____________________________________________________

2

1 For Appellants: 2 3
4 For Appellees: 5 6

Steven C. W u, Assistant Solicito r General, N.Y., N.Y. (Eric T. Schneiderman, Attorney General of the State of Ne w York, Barbara D. Underwood, Solicitor General, Richard Dearing, Deputy Solicitor General, N.Y., N.Y., on the brief).
Matthew D. Brinckerhoff, N.Y., N.Y. (Adam R. Pulver, Emery Celli Brinckerhoff & Abady, N.Y., N.Y., Joel Berger, S onnenfeld & Richm an, N.Y., N.Y., on the brief).

7

Appeals from the United States District Court for the Southern District of New York.

8

These causes cam e on to be heard on the record from the United States District Court for the

9 Southern District of New York, Shira A. Scheindlin, Judge, and were argued by counsel.

10

ON CONSIDERATION WHEREOF, it is now here by ordered, adjudged, and decreed that the

11 order of said District Court be and it hereby is affirmed.

12

In these consolidated appeals, defendants Brian Fischer et a.l, employees or former employees of

13 the New York State Department of Correctional Services or the New York State Division of Parole, appeal

14 from an order of the United States District Cour t for the Southern Dist rict of New York, Shira A.

15 Scheindlin, Judge, denying their m otions to dism iss, on grounds of qualified im munity, these actions

16 brought by former New York State prisoners. Plaintiffs Paul Betances et a.lseek damages and declaratory

17 relief pursuant to 28 U.S.C. § 1983, alleging that de fendants violated t heir rights to due process by

18 administratively imposing and enforcing conditions of supervision on plaintiffs following their release

19 from prison, despite the absence of any order for suchsupervision by the courts that sentenced plaintiffs

20 for their crimes. Arguing that they were entitled toqualified immunity on the ground that the law was not

21 clearly established at the time of their challenged conduct, defendants moved to dismiss pursuant to Fed.

22 R. Civ. P. 12(b)(6). The district court denied the m otions, ruling that plaintiffs' rights became clearly

23 established when this Court decided Earley v. Murray, 451 F.3d 71 (2d Cir.), reh'g denied, 462 F.3d 147

24 (2d Cir. 2006), cert. denied, 551 U.S. 1159 (2007). Defendants challenge that ruling on this appeal.

25

In an opinion filed today in the consolidated appeals in Vincent v. Yelich, Nos. 11-3893, -3966,

26 and Earley v. Annucci, No. 12-0439 ("Vincen"t ), this Court ruled that Earley v. Murrayclearly established

27 that the adm inistrative im position of post-rele ase supervision term s not im posed by the court is

28 unconstitutional. In Vincent, we vacated orders of the respective district courts that had dism issed, on

29 qualified immunity grounds, claims against defendant Anthony J. Annucci that parallel the claims asserted

30 by plaintiffs Betances et a.l against the defendants in the present atcions. Defendants in the present actions

31 have not presented any basis in their brief on appeaflor distinguishing between the claims against Annucci

32 and the claims against the other defendants. Accordingyl, we affirmthe order ofthe district court, denying

33 defendants' Rule 12(b)(6) motions to dismiss on the ground of qualified immunity, substantially for the

34 reasons stated in our reversal of the grant of such immunity in Vincent.

3

1

We have considered all of defendants' contentions on these appeals and have found them to be

2 without merit. The order of the district court is affirmed.

3

FOR THE COURT:

4

CATHERINE O'HAGAN WOLFE, Clerk of Court

5

4

 
 USOCSDNY

..

UNITED STATES DISTRICT COURT

I
/!

DOC'UMENT
EI_~_~I't1CA!LY

'
FILED

I

SOUTHERN DISTRICT OF NEW YORK

I fn. ;, · #:

"

-------------------------------------------------------------------ctf'\~C"' .~~:h7=£{~~~

PAUL BETANCES, LLOYD A. BARNES, GABRIEL VELEZ a/k/a GABRIEL BELIZE, individually and on behalf of all others similarly situated,
Plaintiffs,

OPINION AND ORDER

- against -

11 Civ. 3200 (SAS)

BRIAN FISCHER, in his capacity as Commissioner of the New York State Department of Correctional Services (DOCS), and in his individual capacity; ANTHONY J. ANNUCCI, in his capacity as Deputy Commissioner and Counsel for DOCS, and in his individual capacity; LUCIEN J. LECLAIRE, JR., former Acting Commissioner of DOCS, in his individual capacity; GLENNS. GOORD, former Commissioner of DOCS, in his individual capacity; JOHN/JANE DOES 1-25 (DOCS Supervisory, Training, and Policy Personnel); ANDREA W. EVANS, in her capacity as Chair and Chief Executive Officer of the New York State Division of Parole (DOP), and in her individual capacity; MARK MANTEi, in his capacity as Executive Director of DOP, and in his individual capacity; ROBERT J. DENNISON, former Chair ofDOP, in his individual capacity; ANTHONY G. ELLIS II, former Executive Director of DOP, in his individual capacity; GEORGE B. ALEXANDER, former Chair and Chief Executive Officer of DOP, in his individual capacity; and JOHN/JANE DOES 26-50 (DOP Supervisory, Training, and Policy Personnel),

Defendants.
---------------------------------------------------------------------)(

1

SHIRA A. SCHEINDLIN, U.S.D.J.: I. INTRODUCTION
Beginning in 1998, New York mandated that certain violent felonies be punished by a determinate prison sentence followed by a mandatory term of parole, known as post-release supervision (“PRS”).1 The governing statute did not require that the term of PRS be announced by the judge at sentencing. In thousands of cases where the judge did not impose a term of PRS at sentencing, the New York State Department of Correctional Services (“DOCS”) imposed PRS on convicted felons either before or as they were released from prison and the Department of Parole (“DOP”) then enforced those terms.
On June 9, 2006, in Earley v. Murray,2 the United States Court of Appeals for the Second Circuit held that the administrative imposition of PRS by DOCS violates the federal constitutional right to Due Process. The court explained that “[o]nly the judgment of a court, as expressed through the sentence imposed by a judge, has the power to constrain a person’s liberty,” and that “[t]he additional provision for post-release supervision added by DOCS is a nullity.”3
1 See N.Y. Penal Law § 70.45(1). 2 451 F.3d 71 (2d Cir. 2006). 3 Id. at 75–76.
2

Plaintiffs in two related actions brought claims pursuant to section 1983 of Title 42 of the United States Code against current and former high-ranking officials at DOCS and DOP. Plaintiffs claim that in the years following Earley, state officials subjected them to various unlawful conditions and custody by continuing to impose the terms of PRS that had been declared unlawful.
Defendants moved to dismiss the complaint on the grounds that because plaintiffs’ constitutional rights were not “clearly established” at the time that those rights were allegedly violated, state officials were entitled to qualified immunity for their actions. On February 10, 2012, I held that though some New York state courts were in disagreement over the reach of the Earley decision, there was never any disagreement or confusion about the core constitutional holding announced by Earley: terms of PRS imposed by the executive branch were nullified and if the State wished to re-impose them, it could seek resentencing before a judge. Therefore the defendants were not entitled to qualified immunity. Defendants appealed this ruling, and the Second Circuit affirmed.4
Plaintiffs now move to certify a class pursuant to Federal Rule of Civil Procedure 23(b)(3) on behalf of individuals who were convicted of various crimes in New York State courts on or after September 1, 1998; were sentenced to
4 See Bentley v. Dennison, 852 F. Supp. 2d 379 (S.D.N.Y. 2012), aff’d sub nom. Betances v. Fischer, 519 Fed. App’x 39 (2d Cir. 2013).
3

terms of incarceration but not to terms of PRS; but were nonetheless subjected to enforcement by defendants of PRS terms after the maximum expiration dates of their determinate sentences after June 9, 2006. II. BACKGROUND
At the class certification stage, district courts must engage in a rigorous analysis of the underlying facts in order to determine whether the plaintiffs have satisfied the requirements of Rule 23. The following factual findings, based on a preponderance of the evidence, are made only for the purpose of adjudicating this motion and will not be binding on the jury at trial.5
A. Lead Plaintiffs 1. Paul Betances On July 20, 2004, Paul Betances pleaded guilty to robbery in the first
degree and a violation of probation, and was sentenced to a determinate term of five years for the robbery, and a concurrent term of one to three years for the
5 See In re Am. Intern. Grp., Inc. Sec. Litig., 689 F.3d 229, 238 (2d Cir. 2012) (quoting In re Initial Pub. Offerings Sec. Litig. (“In re IPO”), 471 F.3d 24, 41 (2d Cir. 2006)).
4

violation of probation.6 He was not sentenced to any term of PRS.7 He was
released from prison on April 24, 2008 after serving six-sevenths of his sentence, and a five-year term of PRS was administratively imposed.8 The maximum expiration date of his sentence was January 14, 2009.9 On November 8, 2008, he was arrested on a drug charge.10 On December 15, 2008, while awaiting trial on
this charge, he was charged with violating the terms of his PRS based on his alleged drug possession and violation of curfew.11 He pleaded guilty to a misdemeanor and was sentenced to a term that expired on July 9, 2009.12
Additionally, on February 23, 2009, DOP imposed a sentence of twelve months incarceration based on the violation of the terms of his PRS.13 On June 26, 2009,
he filed a Petition for a Writ of Habeas Corpus seeking to vacate the
6 See 12/9/14 Declaration of Anna M. Hehenberger, Counsel for Defendants, in Support of Opposition to Class Certification (“Hehenberger Decl.”) ¶ 2.
7 See id. 8 See id. ¶ 3. 9 See 10/31/14 Declaration of Matthew D. Brinckerhoff, Counsel for Plaintiffs, in Support of Motion for Class Certification (“Brinckerhoff Decl.”) ¶ 5. 10 See Hehenberger Decl. ¶ 4. 11 See id. ¶ 5. 12 See Brinckerhoff Decl. ¶ 8. 13 See Hehenberger Decl. ¶ 6.
5

administratively-imposed five-year term of PRS, as well as the twelve-month sentence of incarceration based on the violation of his PRS.14 While this Petition was pending, on July 6, 2009, counsel for DOP sent a notice to the sentencing court, seeking resentencing.15 However, on July 24, 2009, the habeas court granted relief and ordered him to be immediately released.16 He was released on July 29, 2009.17 Thus, Betances was incarcerated for twenty days solely for the violation of administratively-imposed PRS.
2. Lloyd Barnes On August 15, 2000, Lloyd Barnes pleaded guilty to attempted burglary and attempted assault and was sentenced to concurrent sentences of five years and six years incarceration.18 He was not sentenced to any term of PRS.19 He was released on October 19, 2005, at the maximum expiration date of his sentence, and a five-year term of PRS was administratively imposed.20 On
14 See Brinckerhoff Decl. ¶ 10. 15 See Hehenberger Decl. ¶ 7. 16 See id. 17 See id. 18 See id. ¶ 8. 19 See id. 20 See id. ¶ 9.
6

December 12, 2007, he was arrested on a drug charge and remanded to custody.21 He pleaded guilty on January 7, 2008 and was sentenced to thirty days in local custody, which would have resulted in his release on January 12, 2008.22 However, because he was also charged with violating his parole, he was not released until approximately February 19, 2008.23 He was then restored to PRS.24 On October 20, 2008, counsel for DOP sent a notice to the sentencing court requesting resentencing. The sentencing court resentenced Barnes on November 14, 2008 to the same determinate sentences imposed in 2000, and declined to impose any term of PRS.25 He was released from parole supervision shortly after November 20, 2008.26 Thus, Barnes was incarcerated for approximately thirtyeight days based solely on a violation of administratively-imposed PRS.
3. Gabriel Velez27
21 See id. ¶ 10. 22 See id.; Brinkerhoff Decl. ¶ 21. 23 See Brinckerhoff Decl. ¶ 21. 24 See id. 25 See Hehenberger Decl. ¶ 13. 26 See id. ¶ 14. 27 Velez was incorrectly referred to as “Belize” throughout the criminal proceedings.
7

Gabriel Velez pleaded guilty on February 20, 2001 to attempted robbery and was sentenced to a five-year determinate term of incarceration.28 He was not sentenced to any term of PRS.29 He was released from prison on July 2, 2004, after serving six-sevenths of his sentence, and subjected to an administratively-imposed PRS term of five years.30 On July 1, 2008 he was arrested and charged with drug possession (his fourth arrest since his release)31 and remanded to custody.32 On September 29, 2008, while he was still in custody based solely on his violation of PRS, he filed a Petition for a Writ of Habeas Corpus. On October 10, 2008, the court granted relief and directed that Velez be released. Although the DOP requested the court to transfer the matter to the sentencing court, the habeas court declined to do so.33
B. Defendants’ Policies of Imposition and Enforcement of PRS
28 See id. ¶ 15. 29 See id. 30 See id. 31 Velez was arrested twice for drug possession and once for resisting arrest, obstructing governmental administration, and disorderly conduct. However, Velez was not charged with violating the terms of his release based on these three arrests. 32 See id. ¶ 19. 33 See id. ¶ 21.
8

In 1998, the New York Legislature enacted Penal Law § 70.45, which mandated PRS terms for individuals convicted of violent felonies.34 However,
many judges did not include PRS as part of the sentence imposed. Between 1998
and 2008, if the commitment orders of an individual were “silent” regarding PRS, DOCS imposed the maximum period of PRS allowed by § 70.45.35
On June 9, 2006, the Second Circuit held in Earley that the Due
Process Clause prohibited administratively-imposed terms of PRS, because only a
judge may impose a sentence. The court stated that any administratively-imposed PRS was a “nullity” and never a part of the sentence.36 The court directed the
district court on remand to “excis[e] the term of post-release supervision . . . and
reliev[e] [the plaintiff] of any subsequent penalty or other consequence of its imposition.”37 The court added that the ruling did not preclude the state from moving to modify the plaintiff’s sentence to include the mandatory PRS term.38
34 See 12/9/14 Declaration of Michael J. Keane, counsel for defendants, in Support of Opposition to Class Certification (“Keane Decl.”) ¶¶ 3–4.
35 See 6/04/08 Affirmation of Anthony J. Annucci, Executive Deputy Commissioner of DOCS (“Annucci Aff.”), Ex. A to Keane Decl., ¶ 8; 9/15/14 Deposition of Diane Holford, Coordinator in the Office of Sentencing Review for DOCS, Ex. 22 to Brinckerhoff Decl., at 125–126.
36 Earley, 451 F.3d at 76. 37 Id. at 77. 38 See id.
9

Subsequent to this ruling, DOCS defendants analyzed records for approximately 40,000 inmates who had been sentenced to determinate terms of incarceration to identify those who had been subjected to a term of administratively-imposed PRS.39 This analysis revealed approximately 8,100 individuals whose sentence and commitment orders did not support the imposition of PRS, 1,800 of whom had been released from custody.40 Of the entire group of inmates with administratively-imposed PRS, 546 were identified as incarcerated solely on the basis of PRS violations.41
In July 2008, the New York State Legislature enacted Correction Law § 601-d, which provides in relevant part, “[w]henever it shall appear to the satisfaction of the department that an inmate in its custody or that a releasee under its supervision, is a [person without a judicially-imposed PRS sentence], the department shall make notification of that fact to the court that sentenced such person, and to the inmate or releasee.” DOCS and DOP also launched a
39 See Annucci Aff. ¶ 40. 40 See id. ¶ 43. These include individuals whose records do not include sentencing minutes, though the minutes are required to be included by law. In some cases where sentencing minutes are present in the record, the minutes reflect that the court did pronounce a term of PRS as part of the sentence, even though the commitment sheet is silent. See id. ¶ 12. 41 See id. ¶ 47.
10

“resentencing initiative” pursuant to a Memorandum of Understanding dated July 11, 2008 (the “MOU”).42 The MOU established a priority and schedule for referring individuals to be resentenced.43 III. APPLICABLE LAW
A. Federal Rule of Civil Procedure 23(a) Rule 23(a) permits individuals to sue as representatives of an
aggrieved class. To be certified, a putative class must first meet all four prerequisites set forth in Rule 23(a), generally referred to as numerosity, commonality, typicality, and adequacy.44 District courts have broad discretion in deciding whether to certify a proposed class under Rule 23.45

42 See 7/11/08 Memorandum of Understanding Between the NYS Office of Court Administration, the Department of Correctional Services, and the Division of Parole (“MOU”), Ex. F to Keane Decl.

43 See id.

44 See Teamsters Local 445 Freight Div. Pension Fund v. Bombardier Inc., 546 F.3d 196, 201–02 (2d Cir. 2008). In full, Rule 23(a) reads:

Prerequisites. One or more members of a class may sue or be sued as representative parties on behalf of all members only if: (1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class.

45
2003).

See Parker v. Time Warner Entm’t Co. L.P., 331 F.3d 13, 28 (2d Cir.

11

“Rule 23 does not set forth a mere pleading standard. A party seeking
class certification must affirmatively demonstrate [its] compliance with the Rule —
that is, [it] must be prepared to prove that there are in fact sufficiently numerous parties, common questions of law or fact, etc.”46 Plaintiffs seeking class
certification bear the burden of demonstrating by a preponderance of the evidence that the proposed class meets each of the requirements set forth in Rule 23(a).47
When assessing whether plaintiffs have met this burden, courts must take into account “all of the relevant evidence admitted at the class certification stage.”48 A
court may certify a class only after determining that “whatever underlying facts are relevant to a particular Rule 23 requirement have been established.”49 This
rigorous analysis requires examining the facts of the dispute, not merely the
pleadings, and it will frequently “entail some overlap with the merits of the plaintiff’s underlying claim.”50
46 Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2551 (2011) (emphasis in original).
47 See Teamsters, 546 F.3d at 202. 48 In re IPO, 471 F.3d at 42. 49 Id. at 41. 50 Wal-Mart, 131 S. Ct. at 2551. “Nor is there anything unusual about that consequence: The necessity of touching aspects of the merits in order to resolve preliminary matters, e.g., jurisdiction and venue, is a familiar feature of litigation.” Id. at 2552.
12

At the class certification stage, “a district judge should not assess any aspect of the merits unrelated to a Rule 23 requirement.”51 The court’s “determination as to a Rule 23 requirement is made only for purposes of class certification and is not binding on the trier of facts, even if that trier is the class certification judge.”52
1. Numerosity Rule 23(a)(1) requires that a class be “so numerous that joinder of all members is impracticable.” In the Second Circuit, sufficient numerosity can be presumed at a level of forty members or more.53 “The numerosity requirement in Rule 23(a)(1) does not mandate that joinder of all parties be impossible — only that the difficulty or inconvenience of joining all members of the class make use of the class action appropriate.”54 Courts do not require “evidence of exact class size
51 Shahriar v. Smith & Wollensky Rest. Grp., Inc., 659 F.3d 234, 251 (2d Cir. 2011) (quotation marks and citation omitted). Courts must ensure “that a class certification motion does not become a pretext for a partial trial of the merits.” IPO, 471 F.3d at 41.
52 In re IPO, 471 F.3d at 41. 53 See Consolidated Rail Corp. v. Town of Hyde Park, 47 F.3d 473, 483 (2d Cir. 1995) (holding that “numerosity is presumed at a level of 40 members”). 54 Central States Se. & Sw. Areas Health & Welfare Fund v. MerckMedco Managed Care, LLC, 504 F.3d 229, 244–45 (2d Cir. 2007).
13

or identity of class members to satisfy the numerosity requirement.”55 2. Commonality Rule 23(a)(2) requires that there be “questions of law or fact common
to the class.” Commonality thus requires plaintiffs “to demonstrate that the class members ‘have suffered the same injury.’”56 Commonality further requires that the claims asserted “must depend upon a common contention . . . of such a nature that it is capable of classwide resolution — which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.”57
3. Typicality “Typicality ‘requires that the claims of the class representatives be typical of those of the class, and is satisfied when each class member’s claim arises from the same course of events[] and each class member makes similar legal arguments to prove the defendant’s liability.’”58 The typicality requirement may be
55 Robidoux v. Celani, 987 F.2d 931, 935 (2d Cir. 1993). 56 Wal-Mart, 131 S. Ct. at 2551 (quoting General Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 157 (1982)). 57 Id. 58 Central States, 504 F.3d at 245 (quoting Robinson v. Metro-N. Commuter R.R. Co., 267 F.3d 147, 155 (2d Cir. 2001)).
14

satisfied where “injuries derive from a unitary course of conduct by a single system.”59
The purpose of typicality is to ensure that class representatives “have the incentive to prove all the elements of the cause of action which would be presented by the individual members of the class were they initiating individualized actions.”60 A lack of typicality may be found in cases where the named plaintiff “was not harmed by the [conduct] he alleges to have injured the class”61 or the named plaintiff’s claim is subject to “specific factual defenses” atypical of the class.62
4. Adequacy “Adequacy is twofold: the proposed class representative must have an interest in vigorously pursuing the claims of the class, and must have no interests antagonistic to the interests of other class members.”63 Thus, the question of adequacy “entails inquiry as to whether: 1) plaintiffs’ interests are antagonistic to

59 Marisol A. v. Giuliani, 126 F.3d 372, 377 (2d Cir. 1997).

60 In re NASDAQ Market-Makers Antitrust Litig., 169 F.R.D. 493, 510 (S.D.N.Y. 1996).

61
2006).
62

Newman v. RCN Telecom Servs., Inc., 238 F.R.D. 57, 64 (S.D.N.Y. Oshana v. Coca-Cola Co., 472 F.3d 506, 514 (7th Cir. 2006).

63 Denney v. Deutsche Bank AG, 443 F.3d 253, 268 (2d Cir. 2006).

15

the interest of other members of the class and 2) plaintiffs’ attorneys are qualified, experienced and able to conduct the litigation.”64 In order to defeat a motion for certification, any conflicts between the class representative and members of the putative class must be “fundamental.”65
5. Implied Requirement of Ascertainability Finally, some courts have added an “implied requirement of ascertainability” to the express requirements of Rule 23(a).66 “[T]he requirement that there be a class will not be deemed satisfied unless the class description is sufficiently definite so that it is administratively feasible for the court to determine whether a particular individual is a member.”67 “‘An identifiable class exists if its members can be ascertained by reference to objective criteria.’”68

64 Baffa v. Donaldson, Lufkin & Jenrette Sec. Corp., 222 F.3d 52, 60 (2d Cir. 2000).

65
2009).
66

In re Flag Telecom Holdings, Ltd. Sec. Litig., 574 F.3d 29, 35 (2d Cir. In re IPO, 471 F.3d at 30.

67 7A Charles Alan Wright, Arthur R. Miller, & Mary Kay Kane, Federal Practice and Procedure § 1764 (3d ed. 2008). Accord In re Fosamax Prods. Liab. Litig., 248 F.R.D. 389, 395 (S.D.N.Y. 2008) (quoting Rios v. Marshall, 100 F.R.D. 395, 403 (S.D.N.Y. 1983)).
68 In re Fosamax, 248 F.R.D. at 395 (quoting In re Methyl Tertiary Butyl Ether (“MTBE”) Prods. Liab. Litig., 209 F.R.D. 323, 337 (S.D.N.Y. 2002)). Accord id. at 396 (“The Court also must be able to determine the class’ membership “‘without having to answer numerous fact-intensive inquiries.’”

16

B. Federal Rule of Civil Procedure 23(b)(3)
If the requirements of Rule 23(a) are met, the court “must next
determine whether the class can be maintained under any one of the three
subdivisions of Rule 23(b).”69 Under Rule 23(b)(3), certification is appropriate
where “questions of law or fact common to the members of the class predominate
over any questions affecting only individual members,” and class litigation “is
superior to other available methods for the fair and efficient adjudication of the
controversy.”
The matters pertinent to these findings include the class members’ interests in individually controlling the prosecution or defense of separate actions; the extent and nature of any litigation concerning the controversy already begun by or against class members; the desirability or undesirability of concentrating the litigation of the claims in the particular forum; and the likely difficulties in managing a class action.70
The predominance inquiry focuses on whether “a proposed class is
‘sufficiently cohesive to warrant adjudication by representation.’”71 “It is a more

(quoting Daniels v. City of New York, 198 F.R.D. 409, 414 (S.D.N.Y. 2001))).

69
2008).
70

McLaughlin v. American Tobacco Co., 522 F.3d 215, 222 (2d Cir. Fed. R. Civ. P. 23(b)(3)(A)-(D).

71 Amgen Inc. v. Connecticut Ret. Plans & Trust Funds, 133 S. Ct. 1184, 1196 (2013) (quoting Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 623 (1997)).

17

demanding criterion than the commonality inquiry under Rule 23(a).”72 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 only to individualized proof.”73 The Second Circuit has emphasized that “Rule 23(b)(3) requires that common questions predominate, not that the action include only common questions.”74
“[F]ailure to certify an action under Rule 23(b)(3) on the sole ground that it would be unmanageable is disfavored and ‘should be the exception rather than the rule.’”75 Additionally, “[i]t is appropriate for the court to consider the ‘inability of the poor or uninformed to enforce their rights and the improbability that large numbers of class members would possess the initiative to litigate
72 In re Nassau County Strip Search Cases, 461 F.3d 219, 225 (2d Cir. 2006) (citing Amchem, 521 U.S. at 623-24).
73 In re U.S. Foodservice Inc. Pricing Litig., 729 F.3d 108, 118 (2d Cir. 2013) (quoting UFCW Local 1776 v. Eli Lilly & Co., 620 F.3d 121, 131 (2d Cir. 2010).
74 Brown v. Kelly, 609 F.3d 467, 484 (2d Cir. 2010). 75 In re Visa Check/MasterMoney Antitrust Litig., 280 F.3d 124, 140 (2d Cir. 2001) (quoting In re S. Cent. States Bakery Prods. Antitrust Litig., 86 F.R.D. 407, 423 (M.D. La. 1980)).
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individually.’”76 IV. DISCUSSION
A. Plaintiffs Satisfy Rule 23(a) Plaintiffs seek to certify a class of “all persons who were sentenced to
prison in New York State for a fixed term that did not include a term of PRS, but who were nevertheless subjected to PRS after the maximum expiration dates of their determinate sentences and after June 9, 2006.”77 As discussed below, I conclude that plaintiffs have satisfied the requirements of Rule 23(a).
1. Commonality78 Rule 23(a)(2) requires that there be “questions of law or fact common to the class.” This requires plaintiffs “to demonstrate that the class members ‘have suffered the same injury.’”79 Here, plaintiffs’ injuries stem from a single practice: the enforcement of administratively-imposed PRS after the Second Circuit clearly
76 D’Alauro v. GC Servs. L.P., 169 F.R.D. 451, 458 (E.D.N.Y. 1996) (quoting Haynes v. Logan Furniture Mart, Inc., 503 F.2d 1161, 1165 (7th Cir. 1974)).
77 Plaintiffs’ Memorandum of Law in Support of Motion for Class Certification (“Pl. Mem.”), at 7.
78 Defendants do not dispute that the putative class, which numbers in the thousands, meets the requirement that the proposed class is so large that joinder of all class members is impracticable. See Fed. R. Civ. P. 23(a)(1).
79 Wal-Mart, 131 S. Ct. at 2551 (quoting Falcon, 457 U.S. at 157). 19

established that the practice was unconstitutional.80 Based on the very definition of the class, all putative class members have suffered injuries from the same “general policy”81 of enforcement of administratively-imposed PRS.82
Defendants’ opposition rests on a reframing of plaintiffs’ theory of liability. Defendants allege that “the real issue in this litigation is defendants’ alleged failure to seek, or delay in seeking, resentencing.”83 Defendants then use this alternate theory of liability to argue that this question is not capable of a common answer, because the timing of resentencing individual inmates or parolees depended on that person’s individual circumstances. However, this Court has already considered and rejected defendants’ alternate theory.84 Earley clearly established both that the practice of administrative imposition of PRS was

80 See Scott v. Fischer, 616 F.3d 100, 102 (2d Cir. 2010). 81 Wal-Mart, 131 S. Ct. at 2553.

82 It is true that different class members suffered different injuries as a result of this policy, ranging from collection of fees and restrictions such as curfews and travel limitations to imprisonment. Nevertheless, these differences do not defeat commonality.
83 Defendants’ Memorandum in Opposition to Plaintiffs’ Motion for Class Certification (“Opp. Mem.”), at 9.

84
man.”).

See Bentley, 852 F. Supp. 2d at 390 (“This argument is a straw

20

unconstitutional,85 as well as the remedy for that unconstitutional practice — the term of PRS should be vacated and the state given the opportunity to seek appropriate resentencing.86 Defendants’ arguments that they lacked authority to seek resentencing of all parolees subjected to administratively-imposed PRS, and that there was a necessary disparity in the timing of resentencing due to individualized circumstances goes to the merits: whether defendants should be held liable for the class members’ due process violations. These arguments, however, merely highlight the fact that a single common question unites all purported class members: whether defendants’ practice of enforcing administratively-imposed PRS terms against all class members was constitutional.87 Whether these purported individual liability issues may predominate over the clear common question is an issue reserved for analysis under the predominance inquiry in Rule 23(b)(3), discussed below.
3. Typicality Defendants make similar arguments against the typicality of the lead

85 See Vincent v. Yelich, 718 F.3d 157, 168 (2d Cir. 2013).

86
77).

See Bentley, 852 F. Supp. 2d at 386–87 (quoting Earley, 451 F.3d at

87 Even though this question has been resolved, it “continue[s] to implicate the ‘common nucleus of operative facts and issues’” for the purposes of class certification. In re Nassau Cnty. Strip Search Cases, 461 F.3d at 228.

21

plaintiffs. They contend that “[p]laintiffs and the putative class were subject to PRS at various times and under various circumstances . . . .”88 Therefore, defendants argue that lead plaintiffs fail as class representatives because there is no typical plaintiff — the circumstances of each putative class member must be analyzed on an individual basis. These arguments fail for the same reason as stated above. Although the specific circumstances of the class members differ with regard to when PRS was imposed and the various terms of supervision, as discussed earlier, all terms were imposed after Earley, pursuant to defendants’ policy. The claims of the lead plaintiffs are therefore “typical” of those of all class members. Plaintiffs Betances, Barnes, and Velez all suffered injuries based on defendants’ policy of imposing and enforcing PRS on persons whose sentences did not include a term of PRS. Therefore, as the lead plaintiffs allege claims based on a “unitary course of conduct” by the defendants, typicality is satisfied.89
4. Adequacy Class representatives fairly and adequately protect the interests of the class for the same reasons they satisfy the typicality requirement — they have suffered injuries from the same course of conduct as all other class members.
88 Opp. Mem. at 12. 89 Marisol A., 126 F.3d at 377.
22

Defendants argue that the three named plaintiffs “cannot demonstrate that they have any claim, and therefore do not and cannot adequately represent this purported class.”90 Regarding Betances, defendants contend that he was arrested for drug charges, not a violation of PRS, and “because he was held in local custody on that misdemeanor, neither DOCS nor Parole had authority to seek his resentencing” until his return to state custody. Defendants further argue that Barnes’s sentence, which included administratively-imposed PRS terms, was “corrected nunc pro tunc by his resentencing.”91 Finally, defendants note that the court that granted Velez’s habeas petition refused to transfer the matter to the sentencing court for resentencing. Based on these facts, defendants argue that the three named plaintiffs have no claim and therefore cannot adequately represent the class.
These arguments miss the point. While it is true that Betances was arrested for drug charges, he was also held in custody solely for a violation of administratively-imposed PRS, after his sentence for drug possession was fully served.92 It is this injury, and only this injury, that includes him in the class and
90 Opp. Mem. at 13. 91 Id. at 14. 92 See Brinckerhoff Decl. ¶ 11.
23

makes him an adequate representative. Further, the court that “corrected” Barnes’s sentence did not impose any term of PRS. Thus it is impossible to conclude that this “correction,” which did nothing to remedy the administrative imposition and enforcement of PRS, somehow leaves Barnes without a claim. Similarly, the fact that the habeas court declined to transfer Velez to a sentencing court so that he could be resentenced does not erase his claim against defendants for the injuries he suffered as a result of the administratively-imposed PRS. Again, defendants may wish to present these facts to argue that they should not be held liable for plaintiffs’ injuries. But these arguments do not in any way show that the lead plaintiffs would not be adequate representatives for the class.
Lead plaintiffs have suffered injuries from the enforcement of administratively-imposed PRS, and have no conflict with other members of the class. Additionally, Emery Celli Brinckerhoff & Abady is a preeminent civil rights law firm that the defendants do not challenge. Therefore, the class representatives will fairly and adequately protect the interests of the class.
5. Ascertainability Defendants maintain within their computer systems information regarding all individuals who were subjected to administratively-imposed PRS, as
24

well as the specific conditions that were imposed as part of that individual’s PRS.93 Based on this information, the class is sufficiently ascertainable. Defendants argue that the class is not ascertainable, because, for many individuals, the records lack sentencing minutes, which in some cases would show that PRS was, in fact, judicially imposed, even where the commitment orders did not indicate that fact. However, this may be remedied by requesting sentencing minutes for any class member whose records are incomplete. If, in fact, the term of PRS was judicially imposed, that individual would no longer be part of the class. Thus, the class is sufficiently ascertainable and definite.
B. Federal Rule 23(b)(3) 1. The Common Question of Defendants’ Liability Predominates The crux of the parties’ disagreement centers on the predominance
inquiry. Plaintiffs contend that common issues of law and fact predominate, because common proof can be used to establish defendants’ liability for the alleged violations of plaintiffs’ constitutional rights. They acknowledge that there may be
93 Defendants dispute that there is a single database, as plaintiffs allege, that contains this information. However, based on the defendants’ own descriptions of the various databases and computer systems maintained by DOCS and Parole, it appears that the class is sufficiently ascertainable, even if this evidence is contained in multiple databases, as opposed to a single centralized database. See Opp. Mem. at 23 & n.13.
25

a “possibility of individualized damages determinations,” but assert that these do not preclude a finding of predominance.94 Defendants, on the other hand, argue vociferously that there is no theory of liability susceptible to generalized proof because the determinations depend on the individualized circumstances of each putative class member.95
I conclude that the common question of defendants’ liability for the enforcement of administratively-imposed PRS predominates over individual issues. Two central questions in this case have been previously asked and answered. First, the Second Circuit held in Earley that the practice of imposing PRS administratively where it was not part of a judicially-imposed sentence is unconstitutional.96 Second, I previously held, and the Second Circuit affirmed, that Earley clearly established plaintiffs’ constitutional rights, such that the defendants are not entitled to qualified immunity.97 The common question that remains, however, is whether the individual defendants should be held liable for these violations.
Defendants argue, based on their reframing of plaintiffs’ allegations,
94 Pl. Mem. at 16. 95 See Opp. Mem. at 16. 96 See Earley, 451 F.3d at 76. 97 See Bentley, 852 F. Supp. 2d at 386.
26

that the question of liability turns on each plaintiff’s individualized facts and circumstances. And based on defendants’ question — whether their alleged failure to seek, or delay in seeking, resentencing was constitutionally defective — defendants argue that liability will necessarily depend on individualized proof. However, this is not the appropriate question. Defendants attempt to revive previously rejected arguments that it was unclear whether Earley was controlling law and, if so, what was the appropriate remedy prior to 2008 when the New York State legislature enacted Correction Law § 601-d. These arguments were unavailing three years ago when defendants argued for qualified immunity, and they remain so today. Earley clearly established that administratively-imposed PRS terms were “a nullity,”98 and defendants knew of this in 2006. Correction Law § 601-d simply made clear the course of action that defendants already had the ability to take immediately after Earley was decided: when defendants learned that an individual in their custody was subject to an administratively-imposed term of PRS, defendants were required to notify the sentencing court.99 None of this changes the overriding question of liability common to all purported members of
98 Earley, 451 F.3d at 76. 99 See Annucci Aff. ¶¶ 48–58 (explaining the process of mailing letters to district attorneys, notifying them of cases potentially appropriate for resentencing, prior to the enactment of § 601-d).
27

the class, because defendants’ obligations were the same in 2006 as in 2008. Defendants further allege that the process laid out in the MOU for
determining priority for resentencing establishes that individual determinations are necessary “to determine whether and when that designated person was required to be resentenced.”100 This is yet another fundamental misunderstanding. Defendants cannot simply assert that the process they chose to follow was adequate, and therefore individual determinations are required to adjudicate when a person should have been resentenced under that process. The question that predominates here is exactly what defendants are assuming to be true — was the process they followed adequate? This question does not turn on any individual determinations.
Defendants argue that this case in analogous to Dunnigan, where I held that class certification was improper because individualized issues predominated. There, I concluded that because plaintiffs’ claims turned on the unreasonableness of the defendant’s delay in paying insurance claims, the Court would be required to hold “mini-trials” to determine membership in the class.101 Importantly, I concluded in that case that plaintiffs had not presented any evidence that would have rendered the defendant’s entire system unreasonable. By contrast,
100 Opp. Mem. at 18. 101 See Dunnigan v. Metropolitan Life Ins. Co., 214 F.R.D. 125, 140 (S.D.N.Y. 2003).
28

there is a single, uniform policy here that plaintiffs allege is unconstitutional.102
2. Damages May Be Calculated on a Class-Wide Basis
Plaintiffs seek damages for the various injuries suffered as a result of
the enforcement of administratively-imposed PRS terms, including the collection
of fees and liberty restrictions such as curfews, travel restrictions, and
imprisonment. The databases maintained by defendants contain the conditions
imposed on each class member, as well as any consequences each class member
suffered as a result of a violation of any of these conditions. Thus, plaintiffs assert
that the value for each imposed condition of PRS and for each consequence of a
violation of PRS can be established on a class-wide basis, and damages for each
individual plaintiff can be calculated using a “simple mathematical formula.”
Plaintiffs further argue that even though some class members will be entitled to
102 Defendants also argue that liability for false imprisonment will require individual determinations. I do not address this argument, as plaintiffs have alleged a due process violation under the Fourteenth Amendment, and not false imprisonment claims. Nevertheless, I note that the defendants’ arguments that the confinement was privileged have been foreclosed by my previous Opinion and Order in this case. See Bentley, 852 F. Supp. 2d at 398. Defendants further argue that individuals who were informed during their plea colloquies that PRS would be imposed as part of their sentence have therefore consented to PRS and cannot sustain a false imprisonment claim. These arguments are without merit. Without judicial imposition of PRS, defendants had no authority to impose it or enforce it by arresting and imprisoning individuals for PRS violations. Simply because some individuals may have been informed that PRS would be imposed does not translate into consent for arrest and imprisonment based on a violation of PRS that was never a part of their sentence.
29

individualized damages as well as general damages, this fact alone does not defeat class certification.
Defendants argue, relying on Comcast Corp. v. Behrend,103 that class certification is improper because there is no class-wide theory of damages. They note that plaintiffs have failed to provide the mathematical formula they intend to use to calculate damages on a class-wide basis, and therefore this formula cannot be subject to the “rigorous analysis post-Comcast class certification requires.”104 Defendants further contend that because each class member was subject to different conditions of PRS, and each class member has different individual circumstances, all damage calculations would “necessarily be highly individual.”105
In Comcast, class certification was inappropriate because “the [plaintiff’s] model failed to measure damages resulting from the particular . . . injury on which petitioners’ liability . . . [was] premised.”106 Instead, the proposed methodology assumed the validity of four theories of injury originally advanced by the plaintiff, even though only one theory was accepted by the trial court. Because
103 133 S. Ct. 1426 (2013). 104 Opp. Mem. at 24–25. 105 Id. at 25. 106 Comcast, 133 S. Ct. at 1433.
30

the methodology identified “damages that [were] not the result of the wrong,”107 the Court held that it could not be used to calculate class-wide damages.
Here, Comcast does not bar class certification. The damages that plaintiffs seek are tied to a single, uniform policy of the defendants. Thus, any damages awarded for the different injuries identified by plaintiffs are linked to the enforcement of administratively-imposed PRS by the defendants. Though the specific injuries suffered differ among the members of the class, all injuries were caused by the same policy. Therefore, whatever methodology plaintiffs use, the damages will be “the result of the wrong.”
Common questions may still predominate even though some damages will be individualized.108 This case involves both general damages, which may be calculated on a class-wide basis, as well as special damages, which require individual determinations. The Second Circuit has discussed in detail the types of damages that may be awarded for the loss of liberty in the context of false imprisonment.109 The court noted that “[t]he damages recoverable for the loss of
107 Id. at 1434. 108 See Enea v. Bloomberg, L.P., No. 12 Civ. 4656, 2014 WL 1044027, at *7 (S.D.N.Y. Mar. 17, 2014) (“Indeed, the Second Circuit has routinely found that individualized calculations of damages do not defeat the predominance requirement) (citing cases). 109 See Kerman v. City of N.Y., 374 F.3d 93, 125 (2d Cir. 2004).
31

liberty for the period spent in a wrongful confinement are separable from damages recoverable for such injuries as physical harm, embarrassment, or emotional suffering . . . .”110 General damages for the loss of liberty “‘need not be specifically proved—it may be inferred from the circumstances of the arrest or imprisonment’ and ‘would include at least the value of the time lost by the plaintiff during the period of detention.’”111 Thus, these damages do not turn on any individual characteristics of any class members.
This logic was extended to the harm suffered by a class of plaintiffs subjected to strip searches.112 There, the court concluded that “it [could] not be disputed that the violation at issue—the strip search—resulted in some injury to the class members.”113 The court therefore held that “[a]t the very least, class members are entitled to general damages.”114 Because the “class members were aggrieved by a single, admittedly unlawful policy and there is a strong commonality between the strip search violation and the harm[,] [t]here is no reason that a jury . . . could

110
111
376).

Id. Id. (quoting McCormick, Handbook on the Law of Damages, § 107, at

112 See In re Nassau Cnty. Strip Search Cases, No. 99-cv-3126, 2008 WL 850268, at *3–7 (E.D.N.Y. Mar. 27, 2008).

113 Id. at *5. 114 Id. at *6.

32

not determine an amount of general damages awardable to each member of the class.”115
Here, the injuries resulting from the defendants’ enforcement of administratively-imposed PRS are not uniform — there are several distinct categories, all of which involve a loss of liberty. For those plaintiffs who were incarcerated based solely on a violation of administratively-imposed PRS, a jury may find that general damages for the loss of liberty inherent in false imprisonment are warranted,116 and may be calculated on a class-wide basis.117 Presumed damages may also be calculated for less severe liberty restrictions such as curfews and travel restrictions, also on a class-wide basis.118 Defendants are in possession of databases that identify each restriction that was placed on each class member. The jury can determine the damages appropriate for each deprivation, based on the type of deprivation. For example, the jury could determine a particular amount of
115 Id. 116 See Kerman, 374 F.3d at 125–26. 117 See In re Nassau Cnty. Strip Search Cases, 2008 WL 850268, at *6–7. 118 See Memphis Comm. Sch. Dist. v. Stachura, 477 U.S. 299, 310–11 (1986) (“When a plaintiff seeks compensation for an injury that is likely to have occurred but difficult to establish, some form of presumed damages may possibly be appropriate. In those circumstances, presumed damages may roughly approximate the harm that the plaintiff suffered and thereby compensate for harms that may be impossible to measure.”) (internal citations omitted).
33

damages for each day of incarceration. This amount could then be multiplied by the number of days each class member was incarcerated.119
This is not to say that there are no individualized damages issues. However, the issue of general damages predominates over any individualized damages. At a future date, if necessary, “‘[t]here are a number of management tools available to a district court to address any individualized damages issues,’ such as bifurcation, the use of a magistrate or special master, alteration of the class definition, the creation of subclasses, or even decertification after a finding of liability.”120
3. The Class Action Is Superior to Other Available Methods In light of the foregoing discussion, a class action is superior to other methods of adjudication. The class includes thousands of plaintiffs, and class certification will allow for the resolution of all of these claims in a single forum. Moreover, as the class consists of individuals who have been imprisoned for felonies, it is unlikely that many if not most of these individuals would ever commence litigation on their own behalf to vindicate their rights. “It is appropriate
119 See, e.g., Barnes v. District of Columbia, 278 F.R.D. 14, 21 (D.D.C. 2011) (assigning damages using a matrix based on the length of overdetention).
120 In re Nassau Cnty. Strip Search Cases, 461 F.3d at 231 (quoting In re Visa Check/MasterMoney Antitrust Litig., 280 F.3d at 141).
34

for the court to consider the 'inability of the poor or uninformed to enforce their rights and the improbability that large numbers of class members would possess the initiative to litigate individually. ,,m Defendants note that approximately fifty section 1983 actions involving this PRS issue have been litigated and decided in the federal courts.122 Nevertheless, considering the number of individuals who have claims, and the length of time that has elapsed sinceEarley, I do not find this number compelling - it only highlights the number of class members that have not sought to enforce their rights. In light of this, as well as the reasons discussed above, I conclude that a class action is a superior method of adjudication. V. CONCLUSION
For the foregoing reasons, the plaintiffs' motion for class certification is GRANTED. The Clerk of the Court is directed to close this motion (Docket No. 58). A conference is scheduled for February 10, 2015 at 4:30 p.m.
121 D'Alauro, 168 F.R.D. at 458 (quotingHaynes, 503 F.2d at 1165). 122 See Keane Deel. ~ 16.
35

Dated:

New York, New York January 28, 2015

36

-AppearancesCounsel for Plaintiffs: Matthew D. Brinckerhoff, Esq. Hayley Horowitz, Esq. Emery Celli Brinckerhoff & Abady, LLP 600 Fifth Avenue, 10th Floor New York, NY 10020 (212) 763-5000 Counsel for Defendants: Michael J. Keane Anna Hehenberger Christina Chinwe Okereke James Brennan Cooney Assistant Attorneys General State of New York 120 Broadway New York, NY 10271 (212) 416-6075
37

 
 SHIRA A. SCHEINDLIN, U.S.D.J.: I. INTRODUCTION
Beginning in 1998, New York mandated that certain violent felonies be punished by a determinate prison sentence followed by a mandatory term of parole, known as post-release supervision (“PRS”).1 The governing statute did not require that the term of PRS be announced by the judge at sentencing. In thousands of cases where the judge did not impose a term of PRS at sentencing, the New York State Department of Correctional Services (“DOCS”) imposed PRS on convicted felons either before or as they were released from prison and the Department of Parole (“DOP”) then enforced those terms.
On June 9, 2006, in Earley v. Murray,2 the United States Court of Appeals for the Second Circuit held that the administrative imposition of PRS by DOCS violates the federal constitutional right to due process. Lead plaintiffs brought claims pursuant to section 1983 of Title 42 of the United States Code against current and former high-ranking officials at DOCS and DOP on behalf of all persons who were sentenced to prison in New York State for a fixed term that did not include a term of PRS, but who were nevertheless subjected to PRS after
1 See N.Y. Penal Law § 70.45(1). 2 451 F.3d 71 (2d Cir. 2006).
2

the maximum expiration dates of their determinate sentences and after June 9, 2006. Defendants moved to dismiss the Complaint on the grounds that because plaintiffs’ constitutional rights were not “clearly established” at the time that those rights were allegedly violated, state officials were entitled to qualified immunity for their actions. On February 10, 2012, I held that defendants were not entitled to qualified immunity. Defendants appealed this ruling, and the Second Circuit affirmed.3 Plaintiffs subsequently moved for, and this Court granted, class certification.4
Defendants now move for summary judgment, asserting (for the third time) that they are entitled to qualified immunity, as well as other arguments. Plaintiffs oppose the motion and move for partial summary judgment. For the following reasons, defendants’ motion is granted in part and denied in part, and plaintiffs’ motion is granted. II. BACKGROUND5
3 See Bentley v. Dennison, 852 F. Supp. 2d 379 (S.D.N.Y. 2012), aff’d sub nom. Betances v. Fischer, 519 Fed. App’x 39 (2d Cir. 2013).
4 See Betances v. Fischer, 304 F.R.D. 416 (S.D.N.Y. 2015). 5 The background and undisputed material facts are taken from the parties’ Local Civil Rule 56.1 Statements. Defendants repeatedly assert, in response to plaintiffs’ 56.1 statement, six blanket objections, including that the representation is not material, does not accurately reflect the record, and mischaracterizes deposition testimony. These objections are, in the main, utterly
3

A. Administrative Imposition of PRS In 1998, the New York Legislature enacted Penal Law § 70.45, also
known as Jenna’s Law, which mandated PRS terms for individuals convicted of violent felonies.6 However, judges did not always pronounce PRS terms when sentencing defendants covered by the statute or include PRS terms on their sentence and commitment orders.7 In these circumstances, DOCS calculated terms of PRS and included those terms on inmates’ records.8 These records were provided to the Department of Parole (“DOP”).9 DOP enforced the PRS terms as calculated by DOCS.10
On June 9, 2006, the Second Circuit held in Earley that the administrative imposition of PRS by DOCS violates the federal constitutional right
frivolous and border on bad faith. As such, for any facts relied on in this Opinion taken from plaintiffs’ 56.1 statement to which defendants objected, the objection is overruled.
6 See N.Y. Penal Law § 70.45. 7 See Plaintiffs’ Statement of Undisputed Material Facts Pursuant to Local Rule 56.1 (“Pl. 56.1”) ¶ 11. 8 See Defendants’ Statement of Undisputed Material Facts Pursuant to Rule 56.1 (“Def. 56.1”) ¶ 26. 9 See Def. 56.1 ¶ 28; Pl. 56.1 ¶ 14. 10 See Pl. 56.1 ¶ 15.
4

to due process.11 Earley held that a sentence is “never anything other than” the sentence imposed by the judge at the sentencing hearing and recorded in the order of commitment.12 “The additional provision for post-release supervision added by DOCS is a nullity. . . . The penalty administratively added by the Department of Corrections was, quite simply, never a part of the sentence.”13 Defendants in Earley had argued that section 70.45 mandated a period of PRS and therefore was necessarily a part of the sentence — that is, any sentence without a term of PRS was illegal.14 The Second Circuit disagreed that the term of PRS was automatic, and stated that, rather than administratively imposing PRS, New York law provided a remedy to correct any “illegal sentence[:] the state may move to have the offending sentence vacated and the defendant resentenced by a judge,” consistent with New York Criminal Procedure Law Section 440.40.15
B. Initial Response to Earley Anthony Annucci served as DOCS’s counsel until October 1, 2007,
when he became executive deputy commissioner and counsel. In December 2008,
11 Earley, 451 F.3d at 76 & n.1. 12 Id. at 76. 13 Id. 14 See id. (citing Bozza v. United States, 330 U.S. 160 (1947)). 15 Id.
5

he retired as counsel but remained executive deputy counsel of DOCS until April 2011, when he became executive deputy commissioner of the Department of Corrections and Community Supervision (“DOCCS”), a new entity formed by the merger of DOCS and DOP.16 As counsel for DOCS, one of Annucci’s duties was to implement judicial decisions with apparent impact on DOCS’s calculation of sentences.17
On July 20, 2009, Annucci sent an email to John Amodeo, counsel to the New York State Office of Court Administration (“OCA”).18 In that email, Annucci summarized the holding of Earley and anticipated that “numerous inmates [would] file court actions seeking to eradicate their terms of PRS.”19 He recommended that an instructional reminder be sent to all sitting criminal term judges, stating that “[r]ecent case law provides that [PRS] can only be imposed on the record by the sentencing judge at the time sentence is pronounced, and cannot subsequently be added by a clerical staff person employed either with the court
16 See Pl. 56.1 ¶¶ 1–2. 17 See id. ¶ 17. 18 See Email from Anthony Annucci to John Amodeo (“OCA Email”), Ex. A to Declaration of Anthony J. Annucci (“Annucci Decl.”). 19 Id.
6

system or the correctional system.”20 In August 2006, Annucci directed all DOCS Inmate Records Coordinators to inform inmates who questioned their PRS terms that DOCS officials would not follow Earley’s holding.21
Brian Fischer was the commissioner of DOCS, and then commissioner of DOCCS, from January 1, 2007 until April 2013.22 Fischer was aware of Earley, and, as commissioner of DOCS, had the authority to decide whether to change DOCS’s policy relating to the imposition of PRS.23 Fischer decided to maintain DOCS’s policy of administratively imposing PRS and await further guidance from the legislature and the courts.24
Terrence Tracy was the chief counsel for DOP from December 1996 through March 2011.25 Tracy was aware of Earley in 2006 and understood that it could have an impact on the population under DOP’s jurisdiction.26 Tracy was
20 Id. 21 See Annucci Decl. ¶ 13. 22 See Pl. 56.1 ¶ 1. 23 See id. ¶ 27. 24 See 3/6/15 Deposition of Brian Fischer (“Fischer Dep.”), Ex. 4 to Declaration of Matthew D. Brinckerhoff (“Brinckerhoff Decl.”), at 23, 40–41, 61. 25 See Pl. 56.1 ¶ 3. 26 See id. ¶ 29; 1/26/15 Deposition of Terrence Tracy (“Tracy Dep.”), Ex. 6 to Brinckerhoff Decl., at 41.
7

aware of DOCS’s practice of adding PRS to inmates’ sentence calculations where the sentence and commitment orders were silent, and knew that there were individuals under DOP supervision who had not been judicially sentenced to PRS.27 Tracy did not review any files after Earley to determine which parolees were under supervision but had not been judicially sentenced to PRS.28
C. Resentencing Efforts In early 2007, DOCS — at Annucci’s order as authorized by Fischer
— began to review inmate files to identify those whose sentence and commitment orders did not indicate PRS, but who nevertheless had PRS added to their sentences.29 Over four to six weeks, DOCS created a database to indicate whether PRS was indicated on the commitment order, and kept this database updated as new inmates entered DOCS’s custody.30 DOCS identified approximately 8,100 individuals whose sentence and commitment orders were silent regarding PRS but whose terms of PRS had been calculated and added by DOCS.31
In April 2008, the New York Court of Appeals decided Garner v. New
27 See Pl. 56.1 ¶¶ 31–32. 28 See Tracy Dep. at 17. 29 See Pl. 56.1 ¶¶ 64–66; Def. 56.1 ¶ 58. 30 See Pl. 56.1 ¶¶ 69–70; Def. 56.1 ¶¶ 60–62. 31 See Pl. 56.1 ¶ 68; Annucci Decl. ¶ 24.
8

York State Department of Correctional Services,32 and People v. Sparber,33 which held that New York’s procedural law required judicial pronouncement of PRS. DOCS, along with other agencies, including DOP, immediately launched the “Post-Release Supervision Resentencing Initiatives,” which sought to resentence individuals in DOCS custody who had not been judicially sentenced to PRS.34 From June 16 through June 20, 2008, DOP reviewed its records to determine which individuals in its custody were being supervised without PRS terms in their sentence and commitment orders.35 On June 30, 2008, the New York State Legislature passed legislation codifying the procedures proposed by DOCS and DOP to remedy PRS problems.36 III. LEGAL STANDARD
Summary judgment is appropriate “only where, construing all the evidence in the light most favorable to the non-movant and drawing all reasonable inferences in that party’s favor, there is ‘no genuine issue as to any material fact
32 See 10 N.Y.3d 358 (2008). 33 See 10 N.Y.3d 457 (2008). 34 See Def. 56.1 ¶¶ 74–75. 35 See id. ¶ 76; Pl. 56.1 ¶¶ 75, 77. 36 See Def. 56.1 ¶ 80.
9

and . . . the movant is entitled to judgment as a matter of law.’”37 “A fact is material if it might affect the outcome of the suit under the governing law, and an issue of fact is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.”38
“[T]he moving party has the burden of showing that no genuine issue of material fact exists and that the undisputed facts entitle [it] to judgment as a matter of law.”39 To defeat a motion for summary judgment, the non-moving party must “do more than simply show that there is some metaphysical doubt as to the material facts,”40 and “may not rely on conclusory allegations or unsubstantiated speculation.”41
In deciding a motion for summary judgment, “[t]he role of the court is not to resolve disputed issues of fact but to assess whether there are any factual
37 Rivera v. Rochester Genesee Reg’l Transp. Auth., 743 F.3d 11, 19 (2d Cir. 2014) (quoting Fed. R. Civ. P. 56(c)) (some quotation marks omitted).
38 Windsor v. United States, 699 F.3d 169, 192 (2d Cir. 2012), aff’d, 133 S. Ct. 2675 (2013) (quotations and alterations omitted).
39 Coollick v. Hughes, 699 F.3d 211, 219 (2d Cir. 2012) (citations omitted).
40 Brown v. Eli Lilly & Co., 654 F.3d 347, 358 (2d Cir. 2011) (quotation marks and citations omitted).
41 Id. (quotation marks and citations omitted). 10

issues to be tried.”42 “‘Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge.’”43 IV. APPLICABLE LAW
A. Section 1983 “To prevail on a claim under 42 U.S.C. § 1983, a plaintiff must allege
(1) ‘that some person has deprived him of a federal right,’ and (2) ‘that the person who has deprived him of that right acted under color of state . . . law.’”44 Section 1983 “does not create a federal right or benefit; it simply provides a mechanism for enforcing a right or benefit established elsewhere.”45 Imposition of liability under section 1983 requires a defendant’s direct involvement in the alleged constitutional violation: “Because vicarious liability is inapplicable to . . . [section] 1983 suits, a

42
2012).

Cuff ex rel. B.C. v. Valley Cent. Sch. Dist., 677 F.3d 109, 119 (2d Cir.

43 Barrows v. Seneca Foods Corp., 512 Fed. App’x 115, 117 (2d Cir. 2013) (quoting Redd v. New York Div. of Parole, 678 F.3d 166, 174 (2d Cir. 2012)).

44 Velez v. Levy, 401 F.3d 75, 84 (2d Cir. 2005) (quoting Gomez v. Toledo, 446 U.S. 635, 640 (1980)).
45 Morris-Hayes v. Board of Educ. of Chester Union Free Sch. Dist., 423 F.3d 153, 159 (2d Cir. 2005) (citing Oklahoma City v. Tuttle, 471 U.S. 808, 816 (1985)).

11

plaintiff must [prove] that each Government-official defendant, through the
official’s own individual actions, has violated the Constitution.”46 Thus, a
supervisory official cannot be held liable solely on account of the acts or omissions
of her subordinates.47 A supervisor has sufficient personal involvement when she
participates directly in the alleged constitutional violation, creates a policy or
custom under which unconstitutional practices occur, or allows such practices to
continue.48 Additionally, a constitutional due process claim cannot be based on
46 Ashcroft v. Iqbal, 556 U.S. 662, 676–77 (2009). 47 See Grullon v. City of New Haven, 720 F.3d 133, 138 (2d Cir. 2013) (“[I]n order to establish a defendant’s individual liability in a suit brought under § 1983, a plaintiff must show, inter alia, the defendant’s personal involvement in the alleged constitutional deprivation.”). 48 In 1995, the Second Circuit held that the following are sufficient to constitute personal involvement: (1) the defendant participated directly in the alleged constitutional violation, (2) the defendant, after being informed of the violation through a report or appeal, failed to remedy the wrong, (3) the defendant created a policy or custom under which unconstitutional practices occurred, or allowed the continuance of such a policy or custom, (4) the defendant was grossly negligent in supervising subordinates who committed the wrongful acts, or (5) the defendant exhibited deliberate indifference to the rights of inmates by failing to act on information indicating that unconstitutional acts were occurring. See Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995) (citations omitted). However, only the first and third factors have survived the Supreme Court’s decision in Iqbal. See Spear v. Hugles, No. 08 Civ. 4026, 2009 WL 2176725, at *2 (S.D.N.Y. July 20, 2009).
12

mere negligence, but rather must arise out of intentional conduct.49 B. Qualified Immunity “Qualified immunity shields government officials from civil damages
liability unless the official violated a statutory or constitutional right that was clearly established at the time of the challenged conduct.”50 The Second Circuit has held that “[a] right is clearly established if (1) the law is defined with reasonable clarity, (2) the Supreme Court or Second Circuit has recognized the right, and (3) a reasonable defendant [would] have understood from the existing law that [his or her] conduct was unlawful.”51 “[A] conclusion that the defendant official’s conduct was objectively reasonable as a matter of law may be appropriate where there is no dispute as to the material historical facts . . . .”52
C. Statute of Limitations
49 See Shannon v. Jacobowitz, 394 F.3d 90, 94 (2d Cir. 2005) (citing Daniels v. Williams, 474 U.S. 327, 328 (1986)).
50 Taylor v. Barkes, 135 S. Ct. 2042 (2015) (quotation omitted). 51 Anderson v. Recore, 317 F.3d 194, 197 (2d Cir. 2003) (quotation omitted). Accord Taravella v. Town of Wolcott, 599 F.3d 129, 134 (2d Cir. 2010) (“Even where the law is clearly established and the scope of an official’s permissible conduct is clearly defined, the qualified immunity defense also protects an official if it was objectively reasonable for him at the time of the challenged action to believe his acts were lawful.”) (internal quotations and citations omitted). 52 Taravella, 599 F.3d at 135.
13

“Federal constitutional claims, brought pursuant to 42 U.S.C. § 1983,
are governed by New York’s three-year statute of limitations for personal injury actions, as well as the state’s tolling rules.”53 However, federal law determines when a federal claim accrues.54 “Under federal law, a claim accrues when the plaintiff knows or has reason to know of the alleged[ ] injury-causing act.”55
Under the doctrine established by the Supreme Court in American Pipe & Construction Co. v. Utah56 and its progeny:
[T]he commencement of a class action suspends the applicable statute of limitations as to all asserted members of the class who would have been parties had the suit been permitted to continue as a class action. Once the statute of limitations has been tolled, it remains tolled for all members of the putative class until class certification is denied.57
In a series of cases, the Supreme Court held that the filing of a class action tolls the
statute of limitations for class members who seek to intervene after the class certification motion is denied,58 for class members who opt out after the
53 Connolly v. McCall, 254 F.3d 36, 40–41 (2d Cir. 2001). 54 See Morse v. University of Vermont, 973 F.2d 122, 125 (2d Cir. 1992). 55 Hunt v. Meharry Med. Coll., No. 98 Civ. 7193, 2000 WL 739551, at *3 (S.D.N.Y. June 8, 2000). 56 414 U.S. 538 (1974). 57 Crown, Cork & Seal Co. v. Parker, 462 U.S. 345, 353–54 (1983). 58 See American Pipe, 414 U.S. at 552–53.
14

certification motion is granted,59 and for class members who file individual actions after class certification is denied.60 However, “the tolling doctrine enunciated in American Pipe does not apply to permit a plaintiff to file a subsequent class action following a definitive determination of the inappropriateness of class certification.”61 V. DISCUSSION
Defendants move for summary judgment on two grounds. First, they once again assert they are entitled to qualified immunity. Second, they argue that plaintiffs have failed to demonstrate certain defendants’ personal involvement in any constitutional deprivation. Defendants also move to modify the class to exclude certain class members’ claims that defendants allege are barred by the statute of limitations, and to exclude class members whose claims defendants allege are collaterally estopped. Plaintiffs dispute defendants’ arguments, and move for partial summary judgment on the question of personal liability for Annucci, Fischer, and Tracy.62
59 See Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 176 n.13 (1974). 60 See Crown, Cork & Seal, 462 U.S. at 353–54. 61 Korwek v. Hunt, 827 F.2d 874, 879 (2d Cir. 1987). 62 Defendants also argue in their moving brief that plaintiffs’ claims are barred by the Eleventh Amendment, but appear to have abandoned this argument. In any event, the argument is without merit — the defendants are sued in their individual capacity for money damages, and plaintiffs’ have dropped any request
15

A. Qualified Immunity This Court has previously held that defendants are not entitled to
qualified immunity.63 Defendants had argued that plaintiffs’ constitutional rights were not “clearly established” at the time those rights were allegedly violated. Their argument rested “principally on the claim that for at least two years following Earley, there was confusion in the state courts about whether the decision was binding on the State and what remedies it required.”64 I concluded that their argument was unpersuasive, and that “there was never any disagreement or confusion about the core constitutional holding announced by Earley: terms of PRS imposed by the executive branch were nullified and if the State wished to reimpose them, it could seek resentencing before a judge.”65 Defendants appealed this ruling, and the Second Circuit affirmed it “substantially for the reasons stated in [its] reversal of the grant of . . . immunity in Vincent [v. Yelich],” a case that contained “parallel” claims.66
In Vincent, the Second Circuit held that Earley clearly established, for
for injunctive relief or judgment against defendants in their official capacities. 63 See Bentley, 852 F. Supp. 2d 379. 64 Id. at 382. 65 Id. 66 Betances, 519 Fed. App’x at 41. 16

the purposes of qualified immunity, that administrative imposition of PRS violated federal due process guarantees, and that the district court had erred in ruling that Annucci was entitled to qualified immunity as a matter of law.67 The Second Circuit discussed — and dismissed — all of defendants’ arguments: that subsequent New York State lower court decisions cast doubt on Earley’s holding, and that defendants were unclear that the administrative imposition of PRS was unlawful until the New York Court of Appeals decided Sparber and Garner.
With regard to defendants’ first argument, the court noted that federal constitutional standards rather than state law define the requirements of procedural due process. The fact that the State may have specified its own procedures that it may deem adequate for official action, does not settle what protection the federal due process clause requires. State court decisions that rejected Earley[]’s holding could not disestablish the federal right to due process for the purposes of qualified immunity analysis.68 The court also observed that “the very conduct” that was challenged in Vincent was “the conduct that was held unconstitutional in Earley[].”69 In response to defendants’ second argument, the court concluded that the two New York Court of Appeals cases in 2008 that declared the administrative imposition of PRS unlawful
67 See Vincent v. Yelich, 718 F.3d 157, 173–74 (2d Cir. 2013). 68 Id. at 169 (internal quotations, citations, and alterations omitted). 69 Id. at 170.
17

under State law “did not affect the invalidity of such impositions under federal law, which was announced in Earley[] in 2006. State and local officials are required to comply not just with state law but with federal law as well.”70
However, the court allowed that further discovery could reveal facts material to the qualified immunity inquiry. Specifically, the court stated that evidence might exist “that could establish that Annucci made reasonable efforts either to seek resentencing [of individuals with administratively-imposed PRS] or to end their unconstitutional imprisonment and excise PRS from their prison records.”71 Therefore the court remanded the case to the district court to develop the record “as to the objective reasonableness of Annucci’s efforts to relieve [the individuals] of the burdens of those unlawfully imposed terms after he knew it had been ruled that the imposition violated federal law.”72
Based on this precedent, the only area of inquiry for the purposes of this motion is whether defendants made objectively reasonable efforts to comply with Earley. Defendants, however, appear to be following a strategy governed by the adage “if at first you don’t succeed, try, try again.” Their brief, statement of
70 Id. 71 Id. at 174. 72 Id. at 177.
18

undisputed material facts, and declarations all rehash the same arguments already
rejected by the Second Circuit, and by this Court — twice. As such, this Court will
not address arguments that have previously been considered and dismissed three times.73
There is no dispute about the actions taken by defendants. Soon after
Earley was decided, Annucci sent an email to OCA summarizing Earley’s holding
and recommending that a notification be sent to judges so that, going forward, defendants would be properly sentenced to terms including PRS.74 Beyond this, no
defendant took any action to comply with Earley. To the contrary, the undisputed
facts indicate that defendants actively opposed compliance. After Earley had
declared the practice unconstitutional, DOCS continued to administratively impose PRS.75 Annucci instructed DOCS to inform inmates who, in light of Earley,
questioned their PRS terms, that DOCS officials would not follow Earley’s
73 Defendants raised the same arguments rejected by this Court and by the Second Circuit in their opposition to plaintiffs’ motion for class certification. See Betances, 304 F.R.D. at 429.
74 See Def. 56.1 ¶ 40. 75 See Pl. 56.1 ¶¶ 28, 45–48. Defendants dispute many of these assertions, but it appears that defendants object only to the use of the term “administratively impose” and insist that the practice was governed by state law, which mandated terms of PRS. Neither of these arguments has merit. Defendants do not dispute the material fact that DOCS continued to impose terms of PRS where the commitment papers were silent.
19

holding.76 Defendants acknowledge this, but insist that they did take reasonable actions to comply. They assert that they “attempted to refer PRS challenges to sentencing courts,” but this contention profoundly misrepresents defendants’ actions.77 In reality, when affected individuals sought relief from enforcement of administrative PRS, DOCS and DOP opposed the petitions and took the position that PRS was automatic.78 They also asserted — but only as an argument in the alternative — that if administrative PRS could not be enforced, the petitions should still be denied and the cases referred to the petitioners’ original sentencing courts so that PRS could be retroactively imposed.79 Thus defendants’ purported attempt to resentence affected individuals was only in response to those individuals seeking relief from administrative PRS, and only as a last resort — they made no affirmative efforts.
Finally, DOCS created a database to identify affected individuals, and kept that database updated, but did not take any steps to have any of those
76 See Annucci Decl. ¶ 13. 77 Defendants’ Memorandum of Law in Support of Their Motion for Summary Judgment or to Modify the Class Certified in this Action (“Def. Mem.”) at 2. 78 See Def. 56.1 ¶¶ 47–48. 79 See id.
20

individuals resentenced, or to expunge the administratively-imposed PRS terms from their sentences.80 DOP did not begin to identify affected individuals until almost two years after Earley was decided.81 DOCS and DOP did not take affirmative steps to resentence any individuals until May 2008.82
Based on this evidence, defendants have failed to show that they made reasonable efforts to comply with Earley.83 As such, they are not entitled to qualified immunity.
B. Liability of Annucci, Fischer, and Tracy Plaintiffs move for summary judgment holding Annucci, Fischer, and
Tracy personally liable for the violation of plaintiffs’ due process rights. There is no question that plaintiffs’ due process rights were violated.84 The only question is whether these defendants may be held personally liable for the violation. I conclude, based on the undisputed facts, that all three defendants may be held
80 See Def. 56.1 ¶¶ 58, 60–62; Annucci Decl. ¶ 24. 81 See Pl. 56.1 ¶¶ 75–76. 82 See id. ¶¶ 78–79. 83 See Vincent, 718 F.3d at 177. 84 See Earley v. Murray, 462 F.3d 147, 148 (2d Cir. 2006) (“[T]he inclusion of a . . . period of PRS in [a] sentence when that PRS was not included in the sentence imposed at [the individual’s] sentencing hearing violated his rights under the Due Process Clause of the United States Constitution.”).
21

personally liable as a matter of law. 1. Anthony Annucci As counsel to DOCS, one of Annucci’s responsibilities was to
implement judicial decisions with apparent impact on DOCS’s calculation of sentences.85 Annucci knew about the Earley decision and understood its holding.86 However, instead of complying with Earley’s holding or, at the very least, taking steps to determine what compliance was possible, the undisputed evidence shows that Annucci disagreed with Earley and determined that DOCS would not follow it. He directed DOCS to inform inmates who questioned their PRS terms that DOCS would not follow Earley.87 Though he sent an email to OCA requesting that judges orally pronounce PRS for all sentences in the future, he admits that he took no action to remove PRS from the records of individuals whose sentence and commitment orders indicated that PRS had not been judicially imposed.88
Annucci argues that “it was not until 2008 when remedial legislation was enacted by the State Legislature that DOCS and [DOP] were authorized to
85 See Pl. 56.1 ¶ 17. 86 See OCA Email. 87 See Annucci Decl. ¶ 13. 88 See Pl. 56.1 ¶ 49.
22

seek resentencing of individuals in their custody, or under their supervision, whose PRS terms were not pronounced by their sentencing courts.”89 The facts, however, belie this assertion. After the New York Court of Appeals held in Sparber and Garner that, as a matter of New York procedural law, PRS terms must be judicially pronounced, DOCS “was able to address PRS problems by giving notice to the courts and the State’s District Attorneys that resentencings of thousands of inmates may be required.”90 On May 14, 2008 — just two weeks after the Garner and Sparber decisions — OCA sent a memorandum to all administrative judges alerting them to the Garner and Sparber decisions.91 This memorandum informed judges that DOCS would be sending letters and proposed orders regarding individuals who lacked judicially-pronounced PRS terms and requesting that the sentencing judge “calendar the case and impose the PRS period nunc pro tunc, or . . . order DOCS to calculate the term of imprisonment without PSR [sic] and . . . release the inmate without any further supervision . . . .”92 There is nothing in the record to suggest that Annucci could not have recommended this course of action
89 Annucci Decl. ¶ 10 (citing Correction Law § 601-d). 90 Id. ¶ 28. 91 See 5/14/08 Post-Release Supervision Memorandum (“PRS Memo”), Ex. D to Annucci Decl. 92 Id.
23

nearly two years earlier, in the wake of Earley, rather than waiting for the New York Court of Appeals’ decisions.
It may be, as defendants suggest, that DOCS had no authority to compel courts to accept the defendants for resentencing. It may also be true — though it is by no means clear — that DOCS did not have the authority to simply remove PRS from the records of individuals whose sentence and commitment orders did not indicate a term of PRS.93 However, the Second Circuit made clear in Vincent that DOCS “had an obligation to at least attempt to cease its administrative and custodial operations that had been held to violate federal law.”94 The undisputed facts indicate that Annucci made no such attempt.
The record unequivocally establishes that Annucci could have taken action to attempt to comply with Earley, but did not. Six months after Earley, Annucci directed and oversaw the effort to review inmate files to determine which
93 Because Earley declared that any sentence beyond that imposed by the judge was a “nullity,” it seems plausible that striking the term from offenders’ records would not be correcting an illegal sentence (which DOCS does not have the authority to do), but rather ceasing to enforce a term that was never a part of the sentence at all. In other words, because the PRS terms were void, no authority was necessary to eliminate these terms from offenders’ records. However, I need not decide whether DOCS had the authority to remove terms of PRS because, as discussed below, DOCS made no attempt to comply with Earley in any respect.
94 Vincent, 718 F.3d at 172–73. 24

individuals might be affected.95 Beyond the identification of these individuals,
Annucci took no action to either “have them resentenced by the court for the
imposition of PRS terms in a constitutional manner or to excise the PRS conditions from their records and relieve them of those conditions.”96 Instead, Annucci
waited for more than a year until the New York Court of Appeals decided Garner
and Sparber. Annucci therefore “exhibited deliberate indifference to the rights of
inmates by failing to act on information indicating that unconstitutional acts were
occurring.” Moreover, because he took no actions to comply with Earley, and
instead asserted — and continues to assert — that Earley was not binding, Annucci
is liable as a matter of law. Plaintiffs’ motion for summary judgment as to
Annucci is therefore granted.
2. Brian Fischer
95 Defendants also argue that DOCS and DOP lacked the relevant documentation in many cases to determine whether PRS had been judically pronounced. In some cases, even though the sentence and commitment orders did not indicate a term of PRS, the sentencing minutes indicated that the judge had indeed pronounced a term of PRS. However, DOCS and DOP did not have the sentencing minutes for many inmates, even though these minutes are required to be sent to DOCS. Nevertheless, the lack of these minutes does not relieve defendants of liability. After Garner and Sparber, but before Correction Law § 601-d, DOCS sent letters to judges requesting the sentencing minutes for inmates whose files lacked them. See PRS Memo. There is no reason that DOCS could not have done the same after Earley.
96 Vincent, 718 F.3d at 172. 25

For the same reasons as detailed above, I conclude that Fischer is liable for the violation of plaintiffs’ due process rights as a matter of law. As commissioner, Fischer had the authority to decide whether to change DOCS’s policy related to PRS.97 Instead, Fischer decided to maintain DOCS’s policy of administratively imposing PRS and await further guidance from the legislature and the courts.98 Fischer was involved in the decision to make a database identifying individuals whose sentences were potentially affected by Earley.99 He and Annucci, together, decided how to respond to Earley.100 Thus Fischer exhibited deliberate indifference by failing to act on information indicating that DOCS was following a policy that violated the due process rights of individuals in its custody, and instead knowingly allowed that policy to continue.101 Plaintiffs’ motion for summary judgment with regard to Fischer is therefore granted.
3. Terrence Tracy
97 See Pl. 56.1 ¶ 27. 98 See Fischer Dep. at 23, 40–41, 61. 99 See id. at 69. 100 See id. at 251–252 (“We talked about what PRS law said. We talked about the federal court decision. . . . So I would say it was a mutual agreement or discussion on what was presented to us factually and we together made the decision to do what we did.”). 101 See Colon, 58 F.3d at 873.
26

As chief counsel for DOP, Tracy was aware of Earley in 2006, understood its holding, and understood that it had an impact on the population under DOP’s jurisdiction.102 Tracy knew of DOCS’s policy of administratively imposing PRS, and knew that there were individuals under DOP supervision who had not been judicially sentenced to PRS.103 Nevertheless, Tracy did not direct DOP to review any records to determine which parolees with administrativelyimposed PRS were being supervised until June of 2008.104 Moreover, Tracy considered ceasing to supervise these individuals, but decided against it.105 Thus, at a minimum, Tracy was aware that DOP was supervising individuals whose terms of PRS had not been judicially pronounced, which the Second Circuit had concluded was a violation of those individuals’ due process rights, and took no action to address those violations. In other words, Tracy was deliberately indifferent to the continuing violations caused by DOP’s enforcement of
102 See Pl. 56.1 ¶¶ 3, 29; Tracy Dep. at 41–42. 103 See Pl. 56.1 ¶¶ 31–32. 104 See Tracy Dep. at 17; Def. 56.1 ¶ 76. 105 See Tracy Decl. ¶ 19 (“The immediate release of potentially affected individuals from Parole supervision of DOCS’ custody could have potentially subjected the public to serious and imminent dangers to their safety and security, which I and others at the Division, as well as DOCS, determined to be an unacceptable risk.”).
27

administratively-imposed PRS. Defendants argue that Tracy — and all DOP defendants — are not
liable as a matter of law because they did not calculate terms of PRS and had no authority to alter the calculations DOP received from DOCS. But the undisputed facts indicate that DOP did, in fact, take action after Garner and Sparber. In June 2008, DOP reviewed its records to determine which individuals in its custody were being supervised without PRS terms in their sentence and commitment orders.106 Also in June, at Tracy’s initiative, DOP launched the Post-Release Supervision Resentencing Initiative to request sentencing minutes where they were lacking, and to request resentencing for affected individuals.107 As discussed above, there is no reason that Tracy could not have taken these actions nearly two years earlier. Therefore, plaintiffs’ motion for summary judgment as to Tracy is granted, and defendants’ motion for summary judgment as to Tracy is denied.
C. Liability of Remaining Defendants Defendants move for summary judgment for all remaining defendants,
arguing that plaintiffs have failed to establish their personal involvement in any constitutional violation. Plaintiffs oppose summary judgment, contending that
106 See Def. 56.1 ¶ 76. 107 See 6/4/08 Email from Timothy O’Brien, Ex. A to Tracy Decl.
28

there is a genuine question concerning each of these defendants’ levels of personal involvement.
1. Glenn Goord and Lucien LeClaire Goord was commissioner of DOCS when Earley was decided, and remained commissioner until August 2006.108 LeClaire then became acting commissioner until January 2007.109 As commissioners, they had the ultimate authority over DOCS’s policies.110 Annucci testified that he could not remember if he had discussions with Goord about Earley and PRS.111 Annucci also testified generally that the PRS issue “was an issue that required effort at the highest level” and that “it probably was discussed [at the weekly executive team meetings] but not every single week.”112 Beyond this testimony, plaintiffs offer no evidence establishing Goord’s and LeClaire’s personal involvement in the constitutional violations. Indeed, no evidence exists to establish that they were even aware of Earley. At best, based on this evidence, a reasonable jury could find that Goord and LeClaire were negligent in failing to take action to prevent a constitutional
108 See Pl. 56.1 ¶ 4. 109 See id. ¶ 5. 110 See id. ¶ 27. 111 See Annucci Dep. at 193–194. 112 Id. at 194–195.
29

injury. Negligence, however, is not sufficient to support section 1983 liability for a due process violation.113 Defendants’ motion for summary judgment is therefore granted as to Goord and LeClaire.
2. Remaining DOP Defendants For the same reasons, summary judgment is granted as to the remaining DOP defendants: Andrea Evans, Mark Mantei, Robert Dennison, Anthony Ellis, and George Alexander. Plaintiffs argue that “[t]he DOP defendants could have altered DOP policy so that personnel no longer enforced illegal DOCS calculations.” But they offer no evidence of any personal involvement beyond the job titles of each of the defendants. With regard to Alexander, plaintiffs point to a single fact — that he personally approved of the directive for DOP personnel to review their files in June 2008.114 This one fact says little about what Alexander may have known or done in the preceding two years. Again, reading the facts in the light most favorable to plaintiffs, a reasonable jury could find that these defendants were negligent, which cannot support liability for a due process violation. As such, defendants’ motion for summary judgment is granted as to
113 See Shannon, 394 F.3d at 94 (citing Daniels, 474 U.S. at 328). 114 See Pl. 56.1 ¶ 75.
30

these defendants.115
D. Statute of Limitations
Defendants contend that certain class members’ claims are barred by
the statute of limitations, and request that the class definition be modified to
exclude such claims. The statute of limitations for section 1983 claims in New
York is three years.116 Accordingly, defendants contend that any claim that
accrued prior to May 11, 2008 — three years before the date the Complaint was
filed — should be excluded from the class. Plaintiffs respond that, under the
American Pipe tolling doctrine,117 the statute of limitations was tolled during the
pendency of the three prior putative class actions filed after Earley: Sinclair v.
Goord, Gabriel/Hardy v. Fischer, and Smith v. Patterson.118 Therefore, they argue
115 Defendants also move for summary judgment on the grounds that defendants’ enforcement of administratively-imposed PRS terms was privileged, and therefore plaintiffs’ section 1983 false imprisonment and due process violations fail. This argument has twice been addressed and dismissed by this Court. See Betances, 304 F.R.D. at 430 n.102; Bentley, 852 F. Supp. 2d at 398. Defendants further move for summary judgment on plaintiffs’ conspiracy claim. It appears that plaintiffs have abandoned that claim, and summary judgment is therefore granted.
116 See Connolly v. McCall, 254 F.3d 36, 40–41 (2d Cir. 2001). 117 See Crown, Cork & Seal, 462 U.S. at 353–54. 118 See Memorandum of Law in Opposition to Defendants’ Motion for Summary Judgment and in Support of Plaintiffs’ Cross-Motion for Partial Summary Judgment at 20–21 (explaining the procedural history of Sinclair v.
31

that no claim is time-barred because, at most, only 25 months of non-tolled time elapsed between June 9, 2006 — the earliest date a claim could have accrued — and May 11, 2011 — the date this Complaint was filed.
Defendants respond by pointing to Korwek v. Hunt, where the Second Circuit held that “the tolling doctrine enunciated in American Pipe does not apply to permit a plaintiff to file a subsequent class action following a definitive determination of the inappropriateness of class certification.”119 Defendants seem to contend that Korwek stands for the proposition that American Pipe tolling ends after a putative class action has been dismissed for any reason. This argument reads Korwek too broadly. As this Court has previously recognized, “Korwek’s holding is limited to cases in which class certification is denied and plaintiffs file a subsequent lawsuit in order to relitigate class certification.”120 That has not happened here.
The history of the previous putative class actions is as follows. The Sinclair action was dismissed on qualified immunity grounds, and no motion for
Goord, No. 07 Civ. 1317 (N.D.N.Y.), filed December 18, 2007; Gabriel/Hardy v. Fischer, No. 08 Civ. 2460 (S.D.N.Y.), filed March 11, 2008; and Smith v. Patterson, No. 08 Civ. 3313 (S.D.N.Y.), filed April 2, 2008).
119 827 F.2d at 879 (emphasis added). 120 In re Initial Public Offering Sec. Litig., 214 F.R.D. 117, 123 n.9 (S.D.N.Y. 2002).
32

class certification was ever made.121 In the Gabriel/Hardy action, the court granted defendants’ motion to dismiss on qualified immunity grounds. On the same day, the court denied plaintiffs’ motion for a preliminary injunction because they had not shown a likelihood of success on the merits. This denial also “moot[ed] the motion for certification of an injunctive class.”122 The court did not address the merits of the class certification motion. Finally, the Smith action was dismissed based on qualified immunity and the injunctive relief bar the court had earlier applied in the Gabriel/Hardy action.
Thus, no court “definitively denied” class certification.123 In two of these actions, no motion for class certification was ever made. In the third, plaintiffs moved for class certification, but the motion was denied as moot and the court never addressed the merits of class certification.
Defendants’ reliance on Giovanniello v. ALM Media, LLC is misplaced.124 There, in applying Korwek, the Second Circuit held that “the tolling rule announced in American Pipe [] extends only through the denial of class status
121 Pl. 56.1 ¶¶ 92–94. 122 Hardy v. Fischer, 701 F. Supp. 2d 614, 616 n.3 (S.D.N.Y. 2010). 123 See In re Initial Public Offering Securities Litig., No. 01 Civ. 9741, 2004 WL 3015304, at *3 (S.D.N.Y. Dec. 27, 2004). 124 726 F.3d 106 (2d Cir. 2013).
33

in the first instance by the district court.”125 Although defendants correctly note that the district court had dismissed the putative class action for lack of subject matter jurisdiction, defendants fail to note the underlying reason for the lack of jurisdiction. The district court determined that New York law did not permit a class action under those circumstances, and because the plaintiff could not maintain a class action, the maximum damages he could receive fell short of the amount required for diversity jurisdiction.126
Because the appropriateness of a class action had not been addressed in any of the previously-filed putative class actions, American Pipe tolling applies, and the statute of limitations was tolled during the pendency of the three previous actions. Therefore, defendants’ motion to exclude claims that are time barred is denied.
E. Collateral Estoppel Defendants move to modify the class to exclude members whose
claims, they allege, are barred by collateral estoppel. In brief, defendants contend that class members who filed — and lost — claims for false imprisonment in the
125 Id. at 107–08 (emphasis added). 126 See id. at 108.
34

New York Court of Claims are estopped from relitigating the same issue here.127 This argument is without merit. Collateral estoppel requires, inter alia, that “the issue in question was actually and necessarily decided in a prior proceeding.”128 The burden of proving whether an issue is identical to one before the court “rests squarely on the party moving for preclusion.”129 Defendants have failed to meet that burden. The previous cases found that state claims for false imprisonment based on administrative PRS failed because plaintiffs were arrested pursuant to valid warrants, and that negligence claims against the state failed because DOCS’s actions in recording PRS terms was discretionary, and the state was immune from liability for the discretionary acts of its officials.130 Neither of these conclusions “actually and necessarily” decided any issue with regard to defendants’ liability for violating plaintiffs’ due process rights. The mere fact that plaintiffs seek damages related to the loss of liberty caused by the violation of their due process rights does not transform their claims into claims for false imprisonment. Defendants’ motion
127 See Def. Mem. at 22–25. 128 Vargas v. City of New York, 377 F.3d 200, 205–06 (2d Cir. 2004). 129 LaFleur v. Whitman, 300 F.3d 256, 272 (2d Cir. 2002). 130 See Donald v. State of New York, 17 N.Y.3d 389, 395 (2011).
35

-AppearancesCounsel for Plaintiffs: Matthew D. Brinckerhoff, Esq. Hayley Horowitz, Esq. Emery Celli Brinckerhoff & Abady, LLP 600 Fifth Avenue, 10th Floor New York, NY 10020 (212) 763-5000 Counsel for Defendants: Michael J. Keane Anna Hehenberger Christina Chinwe Okereke James Brennan Cooney Assistant Attorneys General State of New York 120 Broadway New York, NY 10271 (212) 416-6075
37

 
 CasCea1s:e111-5c-v2-083260, 0D-oRcWumLenDto1c1u2m, 0e9n/t1163/2401F6i,le1d80694/31569/1, 6PagPea1geof12o9f 29

15‐2836‐cv Betances v. Fischer

N.Y.S.D. Case # 11-cv-3200(SAS)

1

2

In the

3

United States Court of Appeals

4

For the Second Circuit

5

________

USDC SDNY

6

DOCUMENT

7

AUGUST TERM, 2015

ELECTRONICALLY FILED

8

DOC #: _________________

9

ARGUED: MARCH 28, 2016 DATE FILED:S_e_p_t_._1_6_,_2_0_1_6___

10

DECIDED: SEPTEMBER 16, 2016

11

12

No. 15‐2836‐cv

13

14

PAUL BETANCES, individually and on behalf of others similarly

15

situated, LLOYD A. BARNES, and GABRIEL VELEZ, a/k/a GABRIEL

16

BELIZE, individually and on behalf of others similarly situated,

17

Plaintiffs‐Appellees,

18

19

v.

20

21 BRIAN FISCHER, individually and in his capacity as Commissioner of

22 the New York State Department of Correctional Services (DOCS),

23 ANTHONY J. ANNUCCI, individually and in his capacity as Deputy

24 Commissioner and Counsel for the New York State Department of

25 Corrections and Community Supervision, and TERENCE TRACY, in

26 his individual capacity and in his capacity as Chief Counsel for the

27

Division of Parole,

28

Defendants‐Appellants.

29

________

30

31

Appeal from the United States District Court

32

for the Southern District of New York.

33

No. 11 Civ. 03200 – Shira A. Scheindlin, Judge.

34

CERTIFIED COPY ISSUED ON 09/16/2016

CasCea1s:e111-5c-v2-083260, 0D-oRcWumLenDto1c1u2m, 0e9n/t1163/2401F6i,le1d80694/31569/1, 6PagPea2geof22o9f 29

2

No. 15‐2836‐cv

1

________

2

3 Before: WALKER, RAGGI, and DRONEY, Circuit Judges.

4

________

5

6

In Earley v. Murray, 451 F.3d 71 (2d Cir. 2006) (“Earley I”), we

7 held that the New York State Department of Correctional Services’s

8 (“DOCS”) practice of administratively adding a term of post‐release

9 supervision (“PRS”) to sentences in which PRS had not been

10 imposed by the sentencing judge and the New York State Division

11 of Parole’s (“DOP”) practice of enforcing the administratively added

12 PRS terms violated the Constitution. Notwithstanding their

13 awareness of our holding, defendants DOCS officials Anthony J.

14 Annucci and Brian Fischer and DOP official Terence Tracy decided

15 not to follow it and only did so after the New York Court of Appeals

16 invalidated the administrative practice more than 22 months later.

17 The plaintiffs, offenders who had been subject to PRS in violation of

18 Earley I, sued the defendants for the actions they took in violation of

19 Earley I and moved for summary judgment. The district court

20 (Scheindlin, J.) granted the motion. The defendants appeal the grant

21 of summary judgment and also argue that the district court erred in

22 granting plaintiffs’ motion to deem the appeal frivolous so that the

23 district court could retain jurisdiction and proceed with a trial on

24 damages. We AFFIRM.

25

CasCea1s:e111-5c-v2-083260, 0D-oRcWumLenDto1c1u2m, 0e9n/t1163/2401F6i,le1d80694/31569/1, 6PagPea3geof32o9f 29

3

No. 15‐2836‐cv

1

________

2

3

HAYLEY HOROWITZ (Matthew D. Brinckerhoff,

4

Alanna Small, on the brief), Emery Celli

5

Brinckerhoff & Abady LLP, New York, NY, for

6

Plaintiffs‐Appellees.

7

STEVEN C. WU, Deputy Solicitor General (Barbara

8

D. Underwood, Solicitor General; Claude S.

9

Platton, Senior Assistant Solicitor General, on the

10

brief), for Eric T. Schneiderman, Attorney General

11

of the State of New York, for Defendants‐

12

Appellants.

13

________

14
15 JOHN M. WALKER, JR., Circuit Judge:

16

In Earley v. Murray, 451 F.3d 71 (2d Cir. 2006) (“Earley I”), we

17 held that the New York State Department of Correctional Services’s

18 (“DOCS”) practice of administratively adding a term of post‐release

19 supervision (“PRS”) to sentences in which PRS had not been

20 imposed by the sentencing judge and the New York State Division

21 of Parole’s (“DOP”) practice of enforcing the administratively added

22 PRS terms violated the Constitution. Notwithstanding their

23 awareness of our holding, defendants DOCS officials Anthony J.

24 Annucci and Brian Fischer and DOP official Terence Tracy decided

25 not to follow it and only did so after the New York Court of Appeals

26 invalidated the administrative practice more than 22 months later.

27 The plaintiffs, offenders who had been subject to PRS in violation of

CasCea1s:e111-5c-v2-083260, 0D-oRcWumLenDto1c1u2m, 0e9n/t1163/2401F6i,le1d80694/31569/1, 6PagPea4geof42o9f 29

4

No. 15‐2836‐cv

1 Earley I, sued the defendants for the actions they took in violation of 2 Earley I and moved for summary judgment. The district court 3 (Scheindlin, J.) granted the motion. The defendants appeal the grant 4 of summary judgment and also argue that the district court erred in 5 granting plaintiffs’ motion to deem the appeal frivolous so that the 6 district court could retain jurisdiction and proceed with a trial on 7 damages. We AFFIRM.

8

BACKGROUND

9

I. Determinate Sentencing and Post‐Release Supervision

10

in New York

11

In 1998, the New York State Legislature amended the

12 sentencing scheme for violent felons to require that every

13 determinate sentence of imprisonment for a violent felony be

14 followed by a PRS term. N.Y. Penal Law § 70.45(1). The statute fixes

15 the length of PRS terms for certain crimes and provides a range of

16 permissible lengths for others, leaving the ultimate determination to

17 the sentencing judge. Id. § 70.45(2), (2‐a). During the time period

18 relevant to this case, the Division of Parole (“DOP”) and Board of

19 Parole (“BOP”) established and enforced the conditions of PRS

20 terms and the Department of Correctional Services (“DOCS”)

21 reincarcerated felons who violated these conditions. Id. § 70.45(3).1

1 In 2011, after the events giving rise to this lawsuit, DOCS and DOP merged to create the Department of Corrections and Community

CasCea1s:e111-5c-v2-083260, 0D-oRcWumLenDto1c1u2m, 0e9n/t1163/2401F6i,le1d80694/31569/1, 6PagPea5geof52o9f 29

5

No. 15‐2836‐cv

1

Although § 70.45(1) requires sentencing courts to “state not

2 only the term of imprisonment, but also an additional period of

3 post‐release supervision,” some judges did not pronounce PRS

4 terms during sentencing proceedings. As a result, certain inmates

5 entered DOCS custody with sentence and commitment orders that

6 informed DOCS employees of the term and conditions of the

7 inmate’s sentence, but failed to include PRS terms required by

8 § 70.45. Instead of bringing the failure to the attention of the

9 sentencing court, DOCS simply added the PRS term

10 administratively.

11

When DOCS first took custody of an inmate, it received the

12 inmate’s sentence and commitment order. DOCS employees

13 routinely entered information about the inmate’s sentence from this

14 document into the DOCS computer system. If a sentence and

15 commitment order did not include the PRS term that § 70.45

16 required, DOCS employees, following guidelines issued by DOCS,

17 entered for the inmate the shortest PRS term permitted by § 70.45.

18

Upon their release from prison, the inmates began to serve

19 their PRS terms under DOP supervision. Approximately 45 days

20 before an inmate left prison, DOCS employees calculated the specific

Supervision (“DOCCS”). Under the current version of § 70.45, DOCCS has the role formerly assigned to DOCS and DOP, and the Board of Parole (“BOP”) remains an independent body that sets PRS conditions.

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6

No. 15‐2836‐cv

1 dates on which that inmate’s PRS would begin and end and

2 furnished these dates to DOP employees. Before beginning

3 supervision of an inmate, a DOP parole officer would meet with the

4 inmate to discuss the inmate’s plans for his release and the

5 conditions of his PRS. At the same time DOP provided the inmate

6 with a document containing information about the inmate’s crime

7 and sentence, including his release date and the date on which any

8 PRS would expire. DOCS and DOP were authorized to reincarcerate

9 an offender who, after a hearing, was found to have violated the

10 conditions of his release.

11

II. Our Decision in Earley v. Murray

12

On June 9, 2006, we decided Earley v. Murray, 451 F.3d 71

13 (2d Cir.) (“Earley I”), reh’g denied, 462 F.3d 147 (2d Cir. 2006) (“Earley

14 II”), in which we addressed for the first time the constitutionality of

15 DOCS’s practice of adding a PRS term to a sentence in cases where

16 § 70.45 required it but the sentencing judge had not imposed it.

17 Earley pleaded guilty to attempted burglary and was sentenced to

18 six years in prison. Earley I, 451 F.3d at 73. The sentencing judge

19 failed to include PRS in the sentence he pronounced in court and

20 neither the written judgment nor the written order of commitment

21 indicated that PRS was to be a part of Earley’s sentence,

22 notwithstanding the requirement under § 70.45 that he serve a term

23 of PRS upon the conclusion of his term of imprisonment. Id. While

CasCea1s:e111-5c-v2-083260, 0D-oRcWumLenDto1c1u2m, 0e9n/t1163/2401F6i,le1d80694/31569/1, 6PagPea7geof72o9f 29

7

No. 15‐2836‐cv

1 he was incarcerated, Earley became aware that DOCS had

2 administratively added a five‐year PRS term to his sentence. Id.

3 After exhausting his state court remedies, Earley filed a habeas

4 petition in federal court arguing that DOCS’s administrative

5 imposition of PRS violated his due process rights. Id.

6

We agreed with Earley that the Constitution forbids DOCS

7 from modifying a sentence imposed by a judge, even though § 70.45

8 required that PRS be a part of his sentence. Id. at 74‐76. Because

9 Earley’s PRS term had not been imposed by the judge, PRS was

10 never part of his sentence and the PRS term was a “nullity.” Id. at

11 76. We remanded the case to the district court for a determination of

12 whether Earley had timely filed his habeas petition; if so, the district

13 court was “to issue a writ of habeas corpus excising the term of post‐

14 release supervision from Earley’s sentence and relieving him of any

15 subsequent penalty or other consequence of its imposition.” Id. at

16 76‐77. We also noted that “[o]ur ruling is not intended to preclude

17 the state from moving in the New York courts to modify Earley’s

18 sentence to include the mandatory PRS term,” although we left it to

19 the state courts to determine if such a motion would be timely. Id. at

20 77 & n.2. On August 31, 2006, we denied the defendants’ motion for

21 rehearing in Earley II.

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8

No. 15‐2836‐cv

1

III. The General Response to Earley I

2

The holding in Earley I was met with resistance at the state

3 level. Certain district attorneys expressed their disagreement with

4 our holding. Officials in the Office of Court Administration

5 (“OCA”), the administrative division of the New York state court

6 system, took the position that the opinion in Earley I was not binding

7 on state courts and issued a memorandum to judges expressing this

8 view. OCA nevertheless urged courts to pronounce PRS terms

9 going forward until the New York Court of Appeals had the

10 opportunity to weigh in.

11

New York courts were inconsistent in adhering to Earley I’s

12 holding. The Second and Fourth Departments applied Earley I from

13 the outset. See People v. Smith, 37 A.D.3d 499, 499, 829 N.Y.S.2d 226

14 (2d App. Div. 2007); People ex rel. Burch v. Goord, 48 A.D.3d 1306,

15 1307, 853 N.Y.S.2d 756 (4th App. Div. 2008). The First and Third

16 Departments did not apply Earley I’s holding when it was first

17 decided but later did. Compare People v. Thomas, 35 A.D.3d 192, 826

18 N.Y.S.2d 36 (1st App. Div. 2006) (analyzing unpronounced PRS with

19 reference to Earley I but without applying its holding), affʹd as

20 modified and remanded sub nom. People v. Sparber, 10 N.Y.3d 457, 889

21 N.E.2d 459 (2008), and Garner v. N.Y.S. Depʹt of Corr. Servs., 39 A.D.3d

22 1019, 831 N.Y.S.2d 923 (3d App. Div. 2007) (analyzing

23 unpronounced PRS without reference to Earley I), revʹd, 10 N.Y.3d

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9

No. 15‐2836‐cv

1 358, 889 N.E.2d 467 (2008), abrogated by Dreher v. Goord, 46 A.D.3d

2 1261, 848 N.Y.S.2d 758 (2007), with People v. Figueroa, 45 A.D.3d 297,

3 298, 846 N.Y.S.2d 87 (1st App. Div. 2007) (applying Earley I’s

4 holding, though without reference to Earley I), and Dreher v. Goord, 46

5 A.D.3d 1261, 1262, 848 N.Y.S.2d 758 (3d App. Div. 2007) (applying

6 Earley I). See also Scott v. Fischer, 616 F.3d 100, 107 (2d Cir. 2010)

7 (describing how the First and Third Departments’ initial failure to

8 apply Earley I “reflect[ed] oversight rather than defiance”).

9

On April 29, 2008, the New York Court of Appeals weighed in

10 on the question whether it was permissible for DOCS to add PRS to

11 sentences after the sentencing judge had failed to pronounce a PRS

12 term in People v. Sparber, 10 N.Y.3d 457, 889 N.E.2d 459 (2008), and

13 Garner v. New York State Department of Corrections Services, 10 N.Y.3d

14 358, 889 N.E.2d 467 (2008). The Court held that New York state law

15 required the judge to pronounce the term of PRS orally at sentencing

16 if it was to be included in an inmate’s sentence, but it did not

17 address whether the Constitution required sentencing judges to

18 pronounce PRS terms, as we had held in Earley I. Sparber, 889

19 N.E.2d at 469‐70; Garner, 889 N.E.2d at 362‐63.

20

IV. The Actions of the Defendants after Earley I

21

The three defendants in this case were officials with DOCS

22 (Annucci and Fischer) and DOP (Tracy) who were responsible for

23 designing and implementing their departments’ response to Earley I.

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10

No. 15‐2836‐cv

1

A. Anthony J. Annucci

2

Anthony J. Annucci was DOCS’s counsel from September

3 1989 until October 2007, when he became executive deputy

4 commissioner and counsel, a position he filled until December 2008.

5

Annucci immediately understood Earley I’s holding but

6 deliberately refused to change DOCS procedures to bring them into

7 compliance. In July 2006, soon after Earley I was decided, Annucci

8 emailed OCA’s counsel to inform him of Earley I’s holding and to

9 urge that the New York courts follow Earley I prospectively. He also

10 cautioned OCA that inmates would probably file individual suits to

11 relieve them from their administratively imposed PRS terms.

12

In August 2006, Annucci emailed DOCS personnel to inform

13 them that Earley I conflicted with New York state law and that

14 DOCS would not follow its holding. Annucci confirmed his

15 decision not to follow Earley I at his deposition:

16

Q: You’ve read [Earley I], you made decisions

17

about policy for DOCS based on that opinion, right?

18

A: I didn’t make any decisions to change policy.

19

Q: Right, you made a decision to either take

20

action or not take action after Earley, right?

21

A: Correct.

22

Q: You made the decision to take action in

23

notifying the courts to deal with the problem

24

prospectively?

25

A: Correct.

26

Q: You made the decision not to take any action

27

retroactively until further notice, right?

28

A: Correct.

CasCea1s:e111-5c-v2-083260, 0D-oRcWumLenDto1c1u2m, 0e9n/t1163/2401F6i,le1d80694/31569/1, 6PagPea1g1eo1f12o9f 29

11

No. 15‐2836‐cv

1

Q: And you made the decision to take no action

2

prospectively . . . to conform DOCS policy and conduct

3

to the holding of Earley as well, right?

4

. . .

5

A: Correct.

6 Annucci Dep. 87:11‐88:7; J.A. 197.

7

B. Brian Fischer

8

Brian Fischer was the commissioner of DOCS from January

9 2007 to April 2011 (when DOCS merged with DOP to form DOCCS).

10 He understood Earley I’s holding and agreed with Annucci’s

11 decision not to follow its holding:

12

Q: But the decision to continue basically

13

enforcing that policy [of administratively adding PRS to

14

inmates’ sentences] notwithstanding Earley, is it fair to

15

characterize that as an operational decision?

16

A: Yes.

17

Q: And that was a decision you took early on in

18

your tenure as commissioner, right, to continue that

19

policy?

20

A: That’s correct.

21

Q: And when you made that decision I assume

22

you understood that what that meant was that inmates

23

would continue to get post‐release supervision, be

24

subjected to it upon release, be reincarcerated for

25

violating post‐release supervision going forward,

26

notwithstanding the fact that the Second Circuit Court

27

of Appeals had made it clear that that violated the

28

federal constitutional right to due process?

29

. . .

30

A: That was our position.

31

Q: That was your position?

32

A: We continued, correct.

CasCea1s:e111-5c-v2-083260, 0D-oRcWumLenDto1c1u2m, 0e9n/t1163/2401F6i,le1d80694/31569/1, 6PagPea1g2eo1f22o9f 29

12

No. 15‐2836‐cv

1

Q: And that was a decision that you felt

2

comfortable making, right?

3

A: Yes.

4 Fischer Dep. 40:12‐41:14; J.A. 224.

5

C. Terence Tracy

6

Terence Tracy was the chief counsel of DOP from December

7 1996 until March 2011. Like the other defendants, Tracy testified

8 that he understood what Earley meant for DOCS and DOP and

9 decided not to follow its holding. Tracy testified that he did not

10 review any DOP files to determine whether DOP was supervising

11 any inmates whose PRS terms had been administratively added by

12 DOCS because he believed that reviewing the files was the

13 responsibility of DOCS. Tracy Dep. 17:5‐19:11; J.A. 249‐50. But he

14 never conveyed this belief to anyone at DOCS or had any

15 conversations with anyone at DOCS about Earley I. Tracy Dep.

16 19:12‐23; 24:2‐10; J.A. 250‐51. Even without reviewing DOP files or

17 discussing Earley I with DOCS employees, Tracy testified that he

18 knew that DOCS was adding PRS terms to sentences, that this had

19 implications for DOP, and that after weighing the alternatives he

20 affirmatively decided to continue DOP’s former approach in

21 contravention of Earley I:

22

Q: . . . [W]hen you first read the Earley versus

23

Murray decision from the Second Circuit Court of

24

Appeals, I take it from your testimony you were aware

25

of the way DOCS was entering post‐release supervision

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13

No. 15‐2836‐cv

1

terms into their system as you’ve testified to earlier

2

today; right?

3

A: Correct.

4

Q: And as I understand your testimony, you

5

recognize when you read Earley that there was a need to

6

go back and look at these sentence and commitment

7

orders to determine who amongst the inmate

8

population and the people under Department of Parole

9

had had post‐release supervision entered into the

10

system even though it did not appear on their sentence

11

and commitment orders; right?

12

. . .

13

A: All I know from reading that decision is that

14

this decision could have an impact upon our

15

population. Because I did know at the time that there

16

were individuals coming into state custody and then

17

coming under our jurisdiction for supervision purposes

18

who had no period of post‐release supervision stated on

19

their sentence and commitment order.

20 Tracy Dep. 40:25‐42:2; J.A. 253‐54.

21

Q: But I am correct, am I not, that in weighing

22

these two competing interests concern for people who

23

you would be continuing to incarcerate or supervise

24

without authority and/or freeing or lifting the

25

supervision of individuals who may turn out to actually

26

have a constitutionally imposed sentence of post‐

27

release[] supervision, your determination was to err on

28

the side of continuing supervision and continuing

29

incarceration until you could get those people back

30

before courts; right?

31

. . .

32

A: Yes. That’s the decision that the agency arrived

33

at, yes.

34

Q: Okay. And was that consistent with your own

35

view as well?

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14

No. 15‐2836‐cv

1

A: Yes, that was consistent with my own view as

2

well.

3 Tracy Dep. 69:9‐70:2; J.A. 258‐59.

4

In short, the three defendants decided not to comply with

5 Earley I although they understood the meaning of its holding and

6 that its holding applied to their departments. As a result, after our

7 decision in Earley I, DOCS continued to violate its holding

8 prospectively, by entering statutorily‐required PRS terms when

9 sentence and commitment orders were silent, and both DOCS and

10 DOP continued to violate it retrospectively, by taking no steps to

11 cease enforcing PRS terms that had been added to sentences by

12 DOCS employees.

13

V. The Defendants’ Actions after New York State Court

14

Decisions on Administratively Adding PRS Terms

15

The defendants’ later responses to the subsequent state court

16 decisions holding that a judge must pronounce PRS for it to be a part

17 of an inmate’s sentence contrasted starkly with their inaction

18 following Earley I.

19

In either February or March 2007, shortly after the Second

20 Department decided Smith, 37 A.D.3d 499, 829 N.Y.S.2d 226, the first

21 Appellate Division case applying the holding of Earley I, DOCS

22 began to review its files to identify inmates whose sentences

23 included PRS terms added by DOCS employees. The reviewers

24 began by examining the sentence and commitment orders that are

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15

No. 15‐2836‐cv

1 included in every inmate’s file. These documents allowed the

2 reviewers to infer whether a judge had pronounced a PRS term at

3 sentencing. If the sentence and commitment order did not mention

4 PRS, the reviewers would attempt to examine sentencing transcripts,

5 which were missing from the majority of inmate files. The reviewers

6 created a new “PRS” data field in the DOCS computer system. This

7 field indicated whether or not the inmate’s sentence and

8 commitment order contained PRS as part of the sentence. For

9 inmates who had already been released from custody, the “PRS”

10 field indicated that the inmate’s file was no longer in DOCS’s

11 possession.

12

In April 2007, DOCS employees completed their initial review,

13 which included over 40,000 inmate files; however, they did nothing

14 with this information. At the same time, DOCS continued to

15 administratively update the “PRS” data field for new inmates

16 entering the system. As of January 2008, DOCS employees had

17 made 49,300 entries in the “PRS” data field. Of these, 41,000

18 reflected sentence and commitment orders that included PRS terms

19 as part of the sentence, while 8,100 indicated that the sentence and

20 commitment order was silent as to PRS, leading to the conclusion

21 that DOCS had added the terms to these inmates’ sentences. Of the

22 8,100, 6,300 were in DOCS custody and 1,800 had been released to

23 the supervision of DOP.

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16

No. 15‐2836‐cv

1

The New York Court of Appeals decisions in Garner and

2 Sparber on April 29, 2008—more than 22 full months after Earley I

3 and 19 months after we denied reconsideration in Earley II—

4 prompted DOP to take its first steps and DOCS to take its first

5 significant steps toward compliance with Earley I.

6

DOP promptly reviewed its records to determine which

7 inmates under its supervision were subject to DOCS‐imposed PRS

8 terms, a process that took less than a week.

9

By the middle of May 2008, DOCS launched a “Post‐Release

10 Supervision Resentencing Initiative” to obtain resentencing of

11 individuals in its custody whose sentencing judges had not

12 pronounced PRS terms required by § 70.45. In this undertaking,

13 DOCS relied on the data collected during its earlier review of inmate

14 files that identified inmates whose sentence and commitment orders

15 were silent about PRS. The initiative required an additional

16 investigative step—DOCS had to obtain the sentencing minutes for

17 all 8,100 inmates with silent sentence and commitment orders, the

18 majority of whose files lacked minutes. Thereafter, as DOCS

19 identified specific inmates who needed to be resentenced or whose

20 sentencing minutes were missing, DOCS employees emailed the

21 information to district attorneys and sent formal notifications,

22 including the sentence and commitment orders and available

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17

No. 15‐2836‐cv

1 sentencing minutes, to both the relevant sentencing courts and

2 district attorneys.

3

Finally, on June 4, 2008, DOCS and DOP filed a declaratory

4 judgment action in state court seeking judicial approval of a plan

5 that would permit state agencies, district attorneys, and state courts

6 to systematically identify and refer improperly sentenced inmates

7 back to the sentencing courts to be resentenced. The state court,

8 however, did not grant the injunctive relief sought by DOCS and

9 DOP.

10

The defendants all testified that immediately after Earley I and

11 II were decided in 2006 they could have undertaken the remedial

12 measures that they later took when prompted by Smith, Garner and

13 Sparber in the spring of 2008. Annucci Dep. 81:10‐82:9; Fischer Dep.

14 60:23‐61:21; Tracy Dep. 85:12‐20; J.A. 195, 226, 260.

15

VI. The Legislative Response to Earley I

16

In June 2008, the New York legislature passed New York

17 Correction Law § 601‐d, which codified a process for resentencing

18 individuals with unpronounced PRS terms. Section 601‐d required

19 DOCS and DOP to notify courts if they had custody of or

20 supervision over a defendant with an administratively imposed PRS

21 term and permitted the sentencing court either to resentence the

22 defendant to a sentence that included a PRS term or, with the district

23 attorney’s consent, to decline to resentence, resulting in no PRS

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18

No. 15‐2836‐cv

1 term. The latter course would not upset guilty pleas that were not

2 premised on the inclusion of a PRS term in the sentence.

3

VII. Procedural History

4

The plaintiffs are offenders who were subject to mandatory

5 PRS terms and who allege that DOCS, rather than their sentencing

6 judge, imposed these terms. Their action seeks compensatory

7 damages based upon administratively imposed PRS terms that

8 continued or were imposed after June 9, 2006, the date Earley I was

9 decided.

10

The defendants filed a Rule 12(b)(6) motion to dismiss on the

11 basis of qualified immunity. We affirmed the district court’s denial

12 of the motion in Betances v. Fischer, 519 F. App’x 39, 41 (2d Cir. 2013)

13 (summary order) (“Betances I”). Betances I was decided on the same

14 day as Vincent v. Yelich, 718 F.3d 157, 168 (2d Cir. 2013), in which we

15 held that “Earley I itself clearly established that where the court has

16 not included PRS in a defendant’s sentence, DOCS may not add that

17 term without violating federal law.” In Betances I, our remand

18 directed the district court to develop the record “as to the objective

19 reasonableness of [defendants’] efforts to relieve [plaintiffs] of the

20 burdens of those unlawfully imposed [PRS] after [defendants] knew

21 it had been ruled that the imposition violated federal law.” Vincent,

22 718 F.3d at 177.

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19

No. 15‐2836‐cv

1

On remand, the district court granted plaintiffs’ motion to

2 certify the case as a class action and, after the parties had cross‐

3 moved for summary judgment, denied defendants’ cross‐motion for

4 summary judgment on the basis of qualified immunity and granted

5 plaintiffs’ cross‐motion for summary judgment holding defendants

6 personally liable.

7

After defendants noticed their appeal but before their brief

8 was filed, the district court granted plaintiffs’ motion to deem the

9 appeal frivolous, which would have enabled the district court to

10 retain jurisdiction and proceed with a trial on damages

11 notwithstanding the appeal. Upon defendants’ motion, we stayed

12 the proceedings in the district court pending appeal.

13

DISCUSSION

14

I. Qualified Immunity

15

The defendants first challenge the district court’s denial of

16 their motion for summary judgment and grant of the plaintiffs’

17 motion for summary judgment on the questions of whether the

18 defendants were entitled to qualified immunity and thus whether

19 they can be held personally liable for the injuries inflicted on

20 plaintiffs by their decision not to comply with Earley I.

21

We review a “grant of summary judgment de novo,

22 construing all evidence in the light most favorable to the non‐

23 moving party, and affirming only where there is no genuine issue as

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20

No. 15‐2836‐cv

1 to any material fact and the movant is entitled to judgment as a

2 matter of law.” Hubbs v. Suffolk Cty. Sheriff’s Dep’t, 788 F.3d 54, 59

3 (2d Cir. 2015) (internal citation and quotation marks omitted).

4

We deny qualified immunity to government officials on

5 summary judgment if (1) “the facts . . . taken in the light most

6 favorable to the” officials establish “a violation of a constitutional

7 right”; and (2) “the officials’ actions violated clearly established

8 statutory or constitutional rights of which a reasonable person

9 would have known.” See Jones v. Parmley, 465 F.3d 46, 55 (2d Cir.

10 2006) (internal quotation marks omitted).

11

A. The Questions on Appeal

12

The questions we must resolve in this appeal are narrow. Our

13 court has already concluded “that Earley I itself clearly established

14 that where the [sentencing] court has not included PRS in a

15 defendant’s sentence, DOCS may not add that term without

16 violating federal law.” Vincent, 718 F.3d at 168. The court also

17 deemed “clear” DOCS’s constitutional “obligation to at least attempt

18 to cease its administrative and custodial” enforcement of PRS terms

19 that had been held unlawful under Earley I. Id. at 172‐73.

20 Accordingly, Vincent remanded for development of the record “as to

21 the objective reasonableness of [defendants’] efforts to relieve

22 [plaintiffs] of the burdens of those unlawfully imposed terms after

23 [defendants] knew it had been ruled that the imposition violated

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21

No. 15‐2836‐cv

1 federal law.” Id. at 177. This panel is bound by Vincent’s rulings as

2 to what was clearly established by Earley I. Therefore, the only

3 questions for us to resolve are (1) at what point in time would the

4 defendants have reasonably known that DOCS’s and DOP’s actions

5 violated federal law and (2) whether, after the defendants

6 reasonably would have known that their conduct violated federal

7 law, they made an objectively reasonable effort to comply with the

8 holding of Earley I.

9

B. When Defendants Realized Their Conduct Violated

10

Federal Law

11

The three defendants became aware of the implications of

12 Earley I’s holding at different times. Annucci understood the

13 implications of Earley I at least by June 20, 2006, when he emailed

14 OCA’s counsel and explained Earley I’s holding to him. Tracy

15 testified that he became aware of and understood Earley I in late

16 2006 but he could not recall the precise date. Fischer also was

17 unable to give a precise date upon which he became aware of and

18 understood Earley I, but this probably took place no later than

19 January 2007, soon after he became commissioner of DOCS.

20

Considering the dates in the light most favorable to the

21 defendants, we assume that Tracy understood the holding of Earley I

22 by December 31, 2006, and Fischer by January 31, 2007. As for

23 Annucci, although he indisputably understood Earley I as of June 20,

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22

No. 15‐2836‐cv

1 2006, we conclude that he could reasonably have waited to take

2 action until after August 31, 2006, the date on which we issued

3 Earley II, denying the motion for rehearing. We note that the district

4 court must engage in factfinding on remand to determine with more

5 specificity the dates that Tracy and Fischer understood the holding

6 of Earley I, but should the district court determine that either

7 defendant became aware of Earley I before August 31, 2006, liability

8 may not be imposed for the failure to take action before that date.

9

C. Defendants’ Efforts to Comply with Earley I

10

The defendants did not take objectively reasonable steps to

11 comply with Earley I because, even viewing the evidence in the light

12 most favorable to them, it took Annucci 19 months, Tracy 15

13 months, and Fischer 14 months to take the first meaningful steps to

14 bring their departments into compliance with Earley I.

15

All three confirmed that their noncompliance was not the

16 result of oversight or confusion; they understood that Earley I

17 required them to change their practices but affirmatively decided

18 not to do so.

19

It was only after the Second Department decided Smith, 37

20 A.D.3d 499, 829 N.Y.S.2d 226, the first Appellate Division case

21 applying Earley I, on February 6, 2007, that Annucci and Fischer took

22 any action at all. In six weeks, DOCS employees reviewed inmate

23 files to determine who had PRS terms that had been added by DOCS

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23

No. 15‐2836‐cv

1 employees rather than imposed by a judge. But while this review

2 would be essential to any remediation of retrospective violations of

3 Earley I, the step was insufficient on its own. DOCS employees

4 simply sat on the information they had collected. Moreover, they

5 continued to violate Earley I prospectively, by persisting in

6 administratively adding PRS terms to the sentences of inmates

7 whose sentence and commitment orders did not include them.

8

Throughout this period, Tracy took no steps to bring DOP into

9 compliance. He did not discuss Earley I with anyone at DOCS,

10 although he knew that DOCS was disregarding its holding and

11 continuing to administratively impose PRS terms.

12

Finally, prompted by the New York Court of Appeals’

13 decisions in Garner and Sparber, the defendants in late April and

14 early May 2008 took their first meaningful steps to remediate

15 DOCS’s and DOP’s PRS practices. It was at this point that (1) DOCS

16 launched a “Post‐Release Resentencing Initiative,” which notified

17 courts and district attorneys of inmates who might need to be

18 resentenced; (2) DOP reviewed its files to determine who under their

19 supervision had PRS terms added by DOCS; and (3) DOCS and DOP

20 together filed a declaratory judgment action seeking judicial

21 approval of a mass‐resentencing plan. These actions were

22 reasonable steps towards bringing DOCS and DOP into compliance

23 with Earley I, but they had been unreasonably delayed. Between 14

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24

No. 15‐2836‐cv

1 and 19 months had elapsed from when the defendants understood

2 that Earley I required them to act. And all three defendants have

3 admitted that nothing prevented them from taking these same

4 actions when they first understood the requirements of Earley I.

5 That the defendants eventually took reasonable steps to comply with

6 Earley I cannot excuse their unreasonable delay in doing so.

7

The defendants’ refusal to bring DOCS and DOP into

8 conformity with Earley I until the New York state court rulings

9 causes us to question whether, absent these later rulings, any

10 compliance would have been forthcoming. DOCS only began its

11 initial review of its files directly after the Appellate Division first

12 applied Earley I, and the defendants conceded that Sparber and

13 Garner, not Earley I, prompted the efforts they undertook in the

14 spring of 2008. While defendants appear to have chosen to ignore

15 our ruling until New York state courts directed them to change their

16 conduct, this fact does not affect our analysis. Even assuming that

17 their actions in the spring of 2008 were motivated by a belated desire

18 to comply with Earley I, the unexcused delay of 14 to 19 months

19 between Earley II and their first significant remedial efforts was

20 objectively unreasonable.

21

D. Defendants’ Counterarguments

22

The arguments advanced by the defendants are unpersuasive.

23 Their principal arguments are that (1) their only responsibility was

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25

No. 15‐2836‐cv

1 to prepare for individual resentencings; (2) resentencing the affected

2 offenders presented significant practical difficulties; and (3) New

3 York state judges and district attorneys were resistant to Earley I and

4 this prevented the prompt implementation of its holding. We

5 address each in turn.

6

1. The Scope of Defendants’ Responsibilities

7

The defendants seek to diminish the scope of their obligations

8 under Earley I by arguing that they reasonably believed that their

9 only responsibility was to prepare for individual resentencings

10 when requested by the defendants.

11

This argument makes no sense when applied to the subset of

12 offenders who suffered prospective PRS violations—that is, those

13 whom DOCS took into custody after we denied rehearing of Earley I.

14 The appropriate remedy for these offenders was not to

15 administratively add the PRS term and then prepare for

16 resentencing if and when requested. DOCS’s duty was to enter the

17 sentence imposed by the judge, and that sentence only, without the

18 PRS term required by § 70.45, and then to ensure that, by the time

19 the inmate left the custody of DOCS to begin serving any PRS term,

20 the term had been pronounced by a judge.

21

The argument is more plausible, but still unsuccessful, when

22 applied to the offenders who suffered retrospective PRS violations:

23 those in the custody of DOCS when Earley II was decided who had

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26

No. 15‐2836‐cv

1 yet to start serving their unpronounced PRS terms; those serving

2 unpronounced PRS terms when Earley II was decided; and those

3 reincarcerated for violations of such terms after Earley II. It is true

4 that when Earley I was decided there was no formal remedy for

5 addressing the problem of unpronounced PRS terms. However,

6 defendants’ launching of the resentencing initiative in 2008 coupled

7 with their filing of the declaratory judgment action undercuts their

8 claim that their only role was to passively wait for inmates to file

9 their individual lawsuits. When they saw fit to remediate the

10 situation they showed that they could take prompt and reasonable

11 steps to do so.

12

2. The Practical Difficulties of Resentencing

13

To be sure, resentencing all the violent felons with

14 unpronounced PRS terms presented practical difficulties and

15 required DOCS and DOP to devote significant resources to the

16 undertaking. There are two reasons, however, why these difficulties

17 do not persuade us that the defendants made objectively reasonable

18 efforts to comply with Earley I.

19

First, the defendants overstate what compliance with Earley I

20 would have required. Earley I did not require them to “conven[e]

21 resentencing hearings for thousands of violent‐felony offenders . . .

22 on [their] own,” Appellant’s Br. 51, nor would it have required them

23 to “notify[] state courts or prosecutors of each of the eight thousand

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27

No. 15‐2836‐cv

1 individuals they had identified as potentially requiring

2 resentencing,” id. at 55, all at once, thereby overwhelming the court

3 system. Instead, they simply had to undertake “objective[ly]

4 reasonable[]” efforts to comply with Earley I, which we have

5 previously characterized as “at least attempt[ing] to cease [their]

6 administrative and custodial operations that had been held to

7 violate federal law.” Vincent, 718 F.3d at 172‐73, 177. Contrary to

8 what the defendants assert, therefore, making “objective[ly]

9 reasonable[]” efforts to comply with Earley I was well within their

10 power and did not require them to do the impossible or even the

11 unreasonable.

12

The second answer to defendants’ argument based on the

13 logistical difficulties of resentencing is that the same supposed

14 difficulties did not prevent them from taking appropriate actions

15 after they decided to do so 14 to 19 months after we decided Earley

16 II. Each defendant testified that nothing prevented him from taking

17 these steps back in 2006, and the logistical difficulties did not

18 decrease in the interim.

19

3. The Resistance of Other Parties to Earley I

20

We accept the defendants’ claim that other state actors with

21 responsibility for resentencing, such as judges and district attorneys,

22 were resistant to Earley I’s holding, although we note that the Second

23 and Fourth Departments of the Appellate Division applied Earley I

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28

No. 15‐2836‐cv

1 prospectively without resistance. See Smith, 37 A.D.3d 499, 499, 829

2 N.Y.S.2d 226; Goord, 48 A.D.3d 1306, 1307, 853 N.Y.S.2d 756.

3 However, even if all other actors in the state sentencing system were

4 entirely resistant to Earley I, we must still answer the question

5 whether defendants themselves undertook “objective[ly]

6 reasonable[] . . . efforts to relieve [plaintiffs] of the burdens of those

7 unlawfully imposed terms after [defendants] knew it had been ruled

8 that the imposition violated federal law.” Vincent, 718 F.3d at 177.

9 The efforts made, or not made, by other parties are beside the point

10 for the purposes of determining qualified immunity.2

11

As the steps taken by defendants in the wake of Garner and

12 Sparber demonstrate, they could act in compliance with Earley I

13 without the cooperation of state judges and district attorneys. The

14 filing of a declaratory judgment action seeking approval of a

15 resentencing plan did not require the approval or cooperation of

16 other state officials. Similarly, the decision to review their records

17 and notify state judges and district attorneys about defendants who

18 needed to be resentenced required no cooperation from others. If

19 the district attorneys and judges ultimately rejected compliance, the

20 resentencings would not have taken place, but the defendants would

2 We have no occasion on this appeal to consider how, if at all, the actions of others might inform any assessment of causation for specific injuries claimed by plaintiffs against these defendants. Such matters can be pursued as warranted on remand.

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29

No. 15‐2836‐cv

1 have satisfied their obligation, which was to make an “objective[ly]

2 reasonable[]” effort, Vincent, 718 F.3d at 177, to comply with Earley I.

3

In sum, we agree with the district court that the defendants

4 did not make an objectively reasonably effort “to relieve [plaintiffs]

5 of the burdens of those unlawfully imposed terms after [they] knew

6 it had been ruled that the imposition violated federal law.” Id.

7

II. Motion to Deem the Appeal Frivolous

8

The defendants attack the district court’s decision to grant

9 plaintiffs’ motion to deem the appeal frivolous so that the district

10 court could retain jurisdiction and proceed with a trial on damages

11 while the appeal was pending. This issue is moot because the

12 defendants obtained a stay of further proceedings in the district

13 court and thus there is no need to consider it.

14

We have considered the parties’ remaining arguments and

15 find them without merit.

16

CONCLUSION

17

For the reasons stated above, we AFFIRM the judgment of the

18 district court and REMAND for further proceedings consistent with

19 this opinion.

 
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 ECF,MAGCONSENT,MEMBER,RELATED
U.S. District Court Southern District of New York (Foley Square) CIVIL DOCKET FOR CASE #: 1:11-cv-03200-RWL

Betances v. Fischer et al Assigned to: Magistrate Judge Robert W. Lehrburger Lead case: 1:11-cv-01056-RWL Member case: (View Member Case) Related Case: 1:11-cv-01056-RWL
Case in other court: US Court of Appeals, Second Circuit, 12-00704-cv
U.S. Court of Appeals, Second Circuit, 15-02836 Cause: 42:1983 Civil Rights Act

Date Filed: 05/11/2011 Jury Demand: Both Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Plaintiff
Paul Betances Individually and on behalf of all others similarly situated

represented by Matthew D. Brinckerhoff Emery Celli Brinckerhoff Abady Ward & Maazel LLP 600 Fifth Avenue New York, NY 10020 212-763-5000 Fax: 212-763-5001 Email: mbrinckerhoff@ecbawm.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Nicholas Bourland Emery Celli Brinckerhoff Abady Ward & Maazel LLP 600 Fifth Avenue 10th Floor 10020 New York, NY 10028 212-763-5000 Fax: 212-763-5001 Email: nbourland@ecbawm.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Adam R Pulver

Public Citizen Litigation Group 1600 20th Street, N.W. Washington, DC 20009 202-588-7790 Fax: 202-588-7795 Email: apulver@citizen.org TERMINATED: 12/06/2013
Alanna Gayle Kaufman Kaufman Lieb Lebowitz & Frick LLP 10 E. 40th Street Suite 3307 New York, NY 10016 212-660-2332 Email: akaufman@ecbalaw.com TERMINATED: 03/20/2020 ATTORNEY TO BE NOTICED
David A Lebowitz Kaufman Lieb Lebowitz & Frick LLP 10 East 40th Street Suite 3307 New York, NY 10016 212-660-2332 Email: dlebowitz@kllflaw.com ATTORNEY TO BE NOTICED
Emma Lerner Freeman Emery Celli Brinckerhoff Abady Ward & Maazel LLP 600 Fifth Avenue 10th Floor New York, NY 10020 212-763-5000 Fax: 212-763-5001 Email: efreeman@ecbalaw.com ATTORNEY TO BE NOTICED
Hayley Horowitz Emery Celli Brinckerhoff & Abady LLP 75 Rockefeller Plaza New York, NY 10019 (212)-763-5000

Plaintiff Lloyd A. Barnes
Plaintiff Gabriel Velez Individually and on behalf of others similarly situated.

Fax: (212)-763-5001 Email: hhorowitz@ecbalaw.com TERMINATED: 08/17/2017
represented by Matthew D. Brinckerhoff (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Adam R Pulver (See above for address) TERMINATED: 12/06/2013
Alanna Gayle Kaufman (See above for address) TERMINATED: 03/20/2020 ATTORNEY TO BE NOTICED
David A Lebowitz (See above for address) ATTORNEY TO BE NOTICED
Emma Lerner Freeman (See above for address) ATTORNEY TO BE NOTICED
Hayley Horowitz Emery Celli Brinckerhoff & Abady, LLP 600 Fifth Avenue 10th Floor New York, NY 10020 (212)-763-5000 Fax: (212)-763-5001 Email: hhorowitz@ecbalaw.com TERMINATED: 08/17/2017
Nicholas Bourland (See above for address) ATTORNEY TO BE NOTICED
represented by Matthew D. Brinckerhoff (See above for address) LEAD ATTORNEY

also known as Gabriel Belize
V. Defendant Brian Fischer Individually

ATTORNEY TO BE NOTICED
Adam R Pulver (See above for address) TERMINATED: 12/06/2013
Alanna Gayle Kaufman (See above for address) TERMINATED: 03/20/2020 ATTORNEY TO BE NOTICED
David A Lebowitz (See above for address) ATTORNEY TO BE NOTICED
Emma Lerner Freeman (See above for address) ATTORNEY TO BE NOTICED
Hayley Horowitz (See above for address) TERMINATED: 08/17/2017 ATTORNEY TO BE NOTICED
Nicholas Bourland (See above for address) ATTORNEY TO BE NOTICED
represented by Michael J. Keane Office of The Attorney General(NYS) 28 Liberty Street, 21st Floor New York, NY 10005 (212) 416-8550 Fax: 212-416-6009 Email: michael.keane@ag.ny.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Anna Hehenberger New York State Office of the Attorney General

120 Broadway New York, NY 10271 416-8599 Fax: 416-6009 Email: anna.hehenberger@ag.ny.gov ATTORNEY TO BE NOTICED
Barbara Kathryn Hathaway New York State Office of the Attorney General (28 Liberty) 28 Liberty Street, 15th Floor New York, NY 10005 (212)-416-8560 Fax: (212)-416-6009 Email: Barbara.Hathaway@ag.ny.gov TERMINATED: 05/18/2020
Christina Chinwe Okereke D.C. Office of the Attorney General 400 6th Street NW Washington, DC 20001 202-727-5173 Fax: 202-715-7767 Email: christina.okereke@dc.gov TERMINATED: 01/19/2017
Daniel A. Schulze New York State Office of the Attorney General (28 Liberty) 28 Liberty Street, 15th Floor New York, NY 10005 (212)-416-6557 Fax: (212)-416-6009 Email: daniel.schulze@ag.ny.gov ATTORNEY TO BE NOTICED
James Brennan Cooney NYS Office of The Attorney General 28 Liberty Street New York, NY 10005 212-416-6082 Fax: 212-416-6009 Email: james.cooney@ag.ny.gov

Defendant Brian Fischer in his capacity as Commissioner of the New York State Department of Correctional Services (DOCS)
Defendant Anthony J. Annucci Individually

TERMINATED: 02/06/2020
Rebecca Lynn Johannesen Colorado Department of Law 1300 Broadway, 10th Floor 80203 Denver, CO 80203 720-508-6582 Email: rebecca.johannesen@ag.ny.gov TERMINATED: 10/02/2020
represented by Michael J. Keane (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Anna Hehenberger (See above for address) ATTORNEY TO BE NOTICED
Christina Chinwe Okereke (See above for address) TERMINATED: 01/19/2017
Daniel A. Schulze (See above for address) ATTORNEY TO BE NOTICED
James Brennan Cooney (See above for address) TERMINATED: 02/06/2020
Rebecca Lynn Johannesen (See above for address) TERMINATED: 10/02/2020
represented by Michael J. Keane (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Anna Hehenberger

Defendant
Anthony J. Annucci in his capacity as Deputy Commissioner and Counsel for DOCS

(See above for address) ATTORNEY TO BE NOTICED
Barbara Kathryn Hathaway (See above for address) TERMINATED: 05/18/2020
Christina Chinwe Okereke (See above for address) TERMINATED: 01/19/2017
Daniel A. Schulze (See above for address) ATTORNEY TO BE NOTICED
James Brennan Cooney (See above for address) TERMINATED: 02/06/2020
Rebecca Lynn Johannesen (See above for address) TERMINATED: 10/02/2020
represented by Michael J. Keane (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Anna Hehenberger (See above for address) ATTORNEY TO BE NOTICED
Christina Chinwe Okereke (See above for address) TERMINATED: 01/19/2017
Daniel A. Schulze (See above for address) ATTORNEY TO BE NOTICED
James Brennan Cooney (See above for address) TERMINATED: 02/06/2020
Rebecca Lynn Johannesen

Defendant Lucien J. LeClaire, Jr. Individually TERMINATED: 08/06/2015
Defendant Lucien J. LeClaire, Jr. former Acting Commissioner of DOCS TERMINATED: 08/06/2015
Defendant Glenn S. Goord Individually TERMINATED: 08/06/2015

(See above for address) TERMINATED: 10/02/2020
represented by Michael J. Keane (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Anna Hehenberger (See above for address) ATTORNEY TO BE NOTICED
Christina Chinwe Okereke (See above for address) TERMINATED: 01/19/2017
James Brennan Cooney (See above for address) TERMINATED: 02/06/2020
represented by Michael J. Keane (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Anna Hehenberger (See above for address) ATTORNEY TO BE NOTICED
Christina Chinwe Okereke (See above for address) TERMINATED: 01/19/2017
James Brennan Cooney (See above for address) TERMINATED: 02/06/2020
represented by Michael J. Keane (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant Glenn S. Goord former Commissioner of DOCS TERMINATED: 08/06/2015
Defendant John Does 1-25 (DOCS Supervisory, Training, and Police Personnel)
Defendant Jane Does 1-25 (DOCS Supervisory, Training, and Policy Personnel)

Anna Hehenberger (See above for address) ATTORNEY TO BE NOTICED
Christina Chinwe Okereke (See above for address) TERMINATED: 01/19/2017
James Brennan Cooney (See above for address) TERMINATED: 02/06/2020
represented by Michael J. Keane (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Anna Hehenberger (See above for address) ATTORNEY TO BE NOTICED
Christina Chinwe Okereke (See above for address) TERMINATED: 01/19/2017
James Brennan Cooney (See above for address) TERMINATED: 02/06/2020
represented by John Does 1-25 PRO SE
James Brennan Cooney (See above for address) TERMINATED: 02/06/2020
represented by Jane Does 1-25 PRO SE
James Brennan Cooney (See above for address) TERMINATED: 02/06/2020

Defendant Andrea W. Evans in her individual capacity TERMINATED: 08/06/2015
Defendant Andrea W. Evans in her capacity as Chair and Chief Executive Officer of the New York State Division of Parole (DOP) TERMINATED: 08/06/2015
Defendant Mark Mantei in his individual capacity TERMINATED: 08/06/2015

represented by Michael J. Keane (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Anna Hehenberger (See above for address) ATTORNEY TO BE NOTICED
Christina Chinwe Okereke (See above for address) TERMINATED: 01/19/2017
James Brennan Cooney (See above for address) TERMINATED: 02/06/2020
represented by Michael J. Keane (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Anna Hehenberger (See above for address) ATTORNEY TO BE NOTICED
Christina Chinwe Okereke (See above for address) TERMINATED: 01/19/2017
James Brennan Cooney (See above for address) TERMINATED: 02/06/2020
represented by Michael J. Keane (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Anna Hehenberger (See above for address) ATTORNEY TO BE NOTICED

Defendant Mark Mantei in his capacity as Executive Director of DOP TERMINATED: 08/06/2015
Defendant Terence Tracy in his individual capacity

Christina Chinwe Okereke (See above for address) TERMINATED: 01/19/2017
James Brennan Cooney (See above for address) TERMINATED: 02/06/2020
represented by Michael J. Keane (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Anna Hehenberger (See above for address) ATTORNEY TO BE NOTICED
Christina Chinwe Okereke (See above for address) TERMINATED: 01/19/2017
James Brennan Cooney (See above for address) TERMINATED: 02/06/2020
represented by Michael J. Keane (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Anna Hehenberger (See above for address) ATTORNEY TO BE NOTICED
Barbara Kathryn Hathaway (See above for address) TERMINATED: 05/18/2020
Christina Chinwe Okereke (See above for address) TERMINATED: 01/19/2017

Defendant Terence Tracy in his capacity as Chief Counsel for DOP
Defendant Robert J. Dennison in his individual capacity TERMINATED: 08/06/2015

Daniel A. Schulze (See above for address) ATTORNEY TO BE NOTICED
James Brennan Cooney (See above for address) TERMINATED: 02/06/2020
Rebecca Lynn Johannesen (See above for address) TERMINATED: 10/02/2020
represented by Michael J. Keane (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Anna Hehenberger (See above for address) ATTORNEY TO BE NOTICED
Christina Chinwe Okereke (See above for address) TERMINATED: 01/19/2017
Daniel A. Schulze (See above for address) ATTORNEY TO BE NOTICED
James Brennan Cooney (See above for address) TERMINATED: 02/06/2020
Rebecca Lynn Johannesen (See above for address) TERMINATED: 10/02/2020
represented by Michael J. Keane (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Anna Hehenberger

Defendant Robert J. Dennison former Chair of DOP TERMINATED: 08/06/2015
Defendant Anthony G. Ellis, II in his individual capacity TERMINATED: 08/06/2015

(See above for address) ATTORNEY TO BE NOTICED
Christina Chinwe Okereke (See above for address) TERMINATED: 01/19/2017
James Brennan Cooney (See above for address) TERMINATED: 02/06/2020
represented by Michael J. Keane (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Anna Hehenberger (See above for address) ATTORNEY TO BE NOTICED
Christina Chinwe Okereke (See above for address) TERMINATED: 01/19/2017
James Brennan Cooney (See above for address) TERMINATED: 02/06/2020
represented by Michael J. Keane (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Anna Hehenberger (See above for address) ATTORNEY TO BE NOTICED
Christina Chinwe Okereke (See above for address) TERMINATED: 01/19/2017
James Brennan Cooney

Defendant Anthony G. Ellis, II former Executive Director of DOP TERMINATED: 08/06/2015
Defendant George B. Alexander in his individual capacity TERMINATED: 08/06/2015
Defendant George B. Alexander former Chair and Chief Executive Officer of DOP TERMINATED: 08/06/2015

(See above for address) TERMINATED: 02/06/2020
represented by Michael J. Keane (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Anna Hehenberger (See above for address) ATTORNEY TO BE NOTICED
Christina Chinwe Okereke (See above for address) TERMINATED: 01/19/2017
James Brennan Cooney (See above for address) TERMINATED: 02/06/2020
represented by Michael J. Keane (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Anna Hehenberger (See above for address) ATTORNEY TO BE NOTICED
Christina Chinwe Okereke (See above for address) TERMINATED: 01/19/2017
James Brennan Cooney (See above for address) TERMINATED: 02/06/2020
represented by Michael J. Keane (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant John Does 26-50 (DOP Supervisory, Training, and Policy Personnel)
Defendant Jane Does 26-50 (DOP Supervisory, Training, and Policy Personnel)
Defendant John/Jane Does 26-50 (DOC Supervisory, Training, and Policy Personel)

Anna Hehenberger (See above for address) ATTORNEY TO BE NOTICED
Christina Chinwe Okereke (See above for address) TERMINATED: 01/19/2017
James Brennan Cooney (See above for address) TERMINATED: 02/06/2020
represented by John Does 26-50 PRO SE
James Brennan Cooney (See above for address) TERMINATED: 02/06/2020
represented by Jane Does 26-50 PRO SE
James Brennan Cooney (See above for address) TERMINATED: 02/06/2020
represented by John/Jane Does 26-50 PRO SE
James Brennan Cooney (See above for address) TERMINATED: 02/06/2020

Date Filed 05/11/2011

# Docket Text
1 COMPLAINT against George B. Alexander(in his individual capacity), George B. Alexander(former Chair and Chief Executive Officer of DOP), Anthony J. Annucci(in his capacity as Deputy Commissioner and Counsel for DOCS), Anthony J. Annucci(Individually), Robert J. Dennison(former Chair of DOP), Robert J. Dennison(in his individual

05/11/2011
05/11/2011 05/11/2011 05/23/2011

capacity), Anthony G. Ellis, II(in his individual capacity), Anthony G. Ellis, II(former Executive Director of DOP), Andrea W. Evans(in her individual capacity), Andrea W. Evans(in her capacity as Chair and Chief Executive Officer of the New York State Division of Parole (DOP)), Brian Fischer(Individually), Brian Fischer(in his capacity as Commissioner of the New York State Department of Correctional Services (DOCS)), Glenn S. Goord, Glenn S. Goord, Jane Does 1-25, Jane Does 26-50, John Does 1-25, John Does 26-50, Lucien J. LeClaire, Jr(Individually), Lucien J. LeClaire, Jr(former Acting Commissioner of DOCS), Mark Mantei(in his capacity as Executive Director of DOP), Mark Mantei(in his individual capacity), Terence Tracy(in his individual capacity), Terence Tracy(in his capacity as Chief Counsel for DOP). (Filing Fee $ 350.00, Receipt Number 1006477)Document filed by Paul Betances. (Attachments: # 1 Related Case Statement)(ama) (Entered: 05/16/2011)
SUMMONS ISSUED as to George B. Alexander(in his individual capacity), George B. Alexander(former Chair and Chief Executive Officer of DOP), Anthony J. Annucci(in his capacity as Deputy Commissioner and Counsel for DOCS), Anthony J. Annucci(Individually), Robert J. Dennison(former Chair of DOP), Robert J. Dennison(in his individual capacity), Anthony G. Ellis, II(in his individual capacity), Anthony G. Ellis, II(former Executive Director of DOP), Andrea W. Evans(in her individual capacity), Andrea W. Evans(in her capacity as Chair and Chief Executive Officer of the New York State Division of Parole (DOP)), Brian Fischer(Individually), Brian Fischer(in his capacity as Commissioner of the New York State Department of Correctional Services (DOCS)), Glenn S. Goord, Glenn S. Goord, Jane Does 1-25, Jane Does 26-50, John Does 1-25, John Does 26-50, Lucien J. LeClaire, Jr(Individually), Lucien J. LeClaire, Jr(former Acting Commissioner of DOCS), Mark Mantei(in his capacity as Executive Director of DOP), Mark Mantei(in his individual capacity), Terence Tracy(in his individual capacity), Terence Tracy(in his capacity as Chief Counsel for DOP). (ama) (Entered: 05/16/2011)
CASE REFERRED TO Judge Shira A. Scheindlin as possibly related to 1:11-cv-1056. (ama) (Entered: 05/16/2011)
Case Designated ECF. (ama) (Entered: 05/16/2011)
CASE ACCEPTED AS RELATED. Create association to 2:11-cv01056-SAS. Notice of Assignment to follow. (sjo) (Entered: 05/24/2011)

05/23/2011 05/23/2011 10/14/2011 10/17/2011 10/20/2011
10/21/2011

2 NOTICE OF CASE ASSIGNMENT to Judge Shira A. Scheindlin. Judge Unassigned is no longer assigned to the case. (sjo) (Entered: 05/24/2011)
Magistrate Judge James C. Francis IV is so designated. (sjo) (Entered: 05/24/2011)
3 ENDORSED LETTER addressed to Judge Shira A. Scheindlin from Adam R. Pulver dated 10/14/2011 re: Counsel for the Plaintiffs writes to request an extension of time until 10/20/2011 to file and serve their amended complaints. ENDORSEMENT: Request to extend Plaintiffs' time to file and serve amended complaints until 10/20/2011 is granted. (Amended Pleadings due by 10/20/2011.) (Signed by Judge Shira A. Scheindlin on 10/14/2011) (ab) (Entered: 10/14/2011)
4 NOTICE OF APPEARANCE by Adam R Pulver on behalf of Paul Betances (Pulver, Adam) (Entered: 10/17/2011)
5 AMENDED COMPLAINT against George B. Alexander(in his individual capacity), George B. Alexander(former Chair and Chief Executive Officer of DOP), Anthony J. Annucci(in his capacity as Deputy Commissioner and Counsel for DOCS), Anthony J. Annucci(Individually), Robert J. Dennison(former Chair of DOP), Robert J. Dennison(in his individual capacity), Anthony G. Ellis, II(in his individual capacity), Anthony G. Ellis, II(former Executive Director of DOP), Andrea W. Evans(in her individual capacity), Andrea W. Evans(in her capacity as Chair and Chief Executive Officer of the New York State Division of Parole (DOP)), Brian Fischer(Individually), Brian Fischer(in his capacity as Commissioner of the New York State Department of Correctional Services (DOCS)), Glenn S. Goord, Glenn S. Goord, Jane Does 1-25, Jane Does 26-50, John Does 1-25, John Does 26-50, John/Jane Does 26-50, Lucien J. LeClaire, Jr(Individually), Lucien J. LeClaire, Jr(former Acting Commissioner of DOCS), Mark Mantei(in his capacity as Executive Director of DOP), Mark Mantei(in his individual capacity), Terence Tracy(in his individual capacity), Terence Tracy(in his capacity as Chief Counsel for DOP) with JURY DEMAND. Document filed by Paul Betances, Lloyd A. Barnes, Gabriel Velez.(ft) (ama). (Entered: 10/21/2011)
6 ENDORSED LETTER addressed to Judge Shira A. Scheindlin from Adam R. Pulver dated 10/20/2011 re: Counsel for the plaintiffs write to request that the Court formally add the Betances matter to the conference scheduled for 4:30 p.m. on October 24, 2011, in the related case Bentley v. Dennison. ENDORSEMENT: Request granted. The conference scheduled for October 24, 2011 in Bentley V. Dennison, 11 Civ. 1056, will also include Bentances v. Fischer, 11 Civ. 3200. So

10/26/2011 10/26/2011 10/26/2011 10/26/2011 10/26/2011 10/26/2011 10/26/2011

ordered. (Signed by Judge Shira A. Scheindlin on 10/21/2011) (ft) (Entered: 10/21/2011)
7 AFFIDAVIT OF SERVICE of Summons and Amended Complaint,,,,, Complaint,,,,,. Brian Fischer(Individually) served on 10/24/2011, answer due 11/14/2011. Service was accepted by Jason D. Effman Assistant Counsel. Document filed by Paul Betances; Lloyd A. Barnes; Gabriel Velez. (Brinckerhoff, Matthew) (Entered: 10/26/2011)
8 AFFIDAVIT OF SERVICE of Summons and Amended Complaint,,,,, Complaint,,,,,. Anthony J. Annucci(in his capacity as Deputy Commissioner and Counsel for DOCS) served on 10/24/2011, answer due 11/14/2011. Service was accepted by Jason D. Effman - Assistant Counsel. Document filed by Paul Betances; Lloyd A. Barnes; Gabriel Velez. (Brinckerhoff, Matthew) (Entered: 10/26/2011)
9 AFFIDAVIT OF SERVICE of Summons and Amended Complaint,,,,, Complaint,,,,,. Lucien J. LeClaire, Jr(Individually) served on 10/24/2011, answer due 11/14/2011. Service was accepted by Jason D. Effman - Assistant Counsel. Document filed by Paul Betances; Lloyd A. Barnes; Gabriel Velez. (Brinckerhoff, Matthew) (Entered: 10/26/2011)
10 AFFIDAVIT OF SERVICE of Summons and Amended Complaint,,,,, Complaint,,,,,. Glenn S. Goord served on 10/24/2011, answer due 11/14/2011. Service was accepted by Jason D. Effman - Assistant Counsel. Document filed by Paul Betances; Lloyd A. Barnes; Gabriel Velez. (Brinckerhoff, Matthew) (Entered: 10/26/2011)
11 AFFIDAVIT OF SERVICE of Summons and Amended Complaint,,,,, Complaint,,,,,. Andrea W. Evans(in her individual capacity) served on 10/24/2011, answer due 11/14/2011. Service was accepted by Craig R. Mausler - Assistant Counsel. Document filed by Paul Betances; Lloyd A. Barnes; Gabriel Velez. (Brinckerhoff, Matthew) (Entered: 10/26/2011)
12 AFFIDAVIT OF SERVICE of Summons and Amended Complaint,,,,, Complaint,,,,,. Mark Mantei(in his capacity as Executive Director of DOP) served on 10/24/2011, answer due 11/14/2011. Service was accepted by Craig R. Mausler - Assistant Counsel. Document filed by Paul Betances; Lloyd A. Barnes; Gabriel Velez. (Brinckerhoff, Matthew) (Entered: 10/26/2011)
13 AFFIDAVIT OF SERVICE of Summons and Amended Complaint,,,,, Complaint,,,,,. Terence Tracy(in his individual capacity) served on 10/24/2011, answer due 11/14/2011. Service was accepted by Craig R. Mausler - Assistant Counsel. Document filed by Paul Betances; Lloyd

10/26/2011 10/26/2011 10/26/2011 11/15/2011

A. Barnes; Gabriel Velez. (Brinckerhoff, Matthew) (Entered: 10/26/2011)
14 AFFIDAVIT OF SERVICE of Summons and Amended Complaint,,,,, Complaint,,,,,. George B. Alexander(in his individual capacity) served on 10/24/2011, answer due 11/14/2011. Service was accepted by Craig R. Mausler - Assistant Counsel. Document filed by Paul Betances; Lloyd A. Barnes; Gabriel Velez. (Brinckerhoff, Matthew) (Entered: 10/26/2011)
15 AFFIDAVIT OF SERVICE of Summons and Amended Complaint,,,,, Complaint,,,,,. Robert J. Dennison(former Chair of DOP) served on 10/24/2011, answer due 11/14/2011. Service was accepted by Craig R. Mausler - Assistant Counsel. Document filed by Paul Betances; Lloyd A. Barnes; Gabriel Velez. (Brinckerhoff, Matthew) (Entered: 10/26/2011)
16 AFFIDAVIT OF SERVICE of Summons and Amended Complaint,,,,, Complaint,,,,,. Anthony G. Ellis, II(in his individual capacity) served on 10/24/2011, answer due 11/14/2011. Service was accepted by Jill Bertrand - Secretary to Counsel. Document filed by Paul Betances; Lloyd A. Barnes; Gabriel Velez. (Brinckerhoff, Matthew) (Entered: 10/26/2011)
17 MOTION to Dismiss the Amended Complaints. Document filed by George B. Alexander(in his individual capacity), George B. Alexander(former Chair and Chief Executive Officer of DOP), Anthony J. Annucci(in his capacity as Deputy Commissioner and Counsel for DOCS), Anthony J. Annucci(Individually), Robert J. Dennison(former Chair of DOP), Robert J. Dennison(in his individual capacity), Anthony G. Ellis, II(in his individual capacity), Anthony G. Ellis, II(former Executive Director of DOP), Andrea W. Evans(in her individual capacity), Andrea W. Evans(in her capacity as Chair and Chief Executive Officer of the New York State Division of Parole (DOP)), Brian Fischer(Individually), Brian Fischer(in his capacity as Commissioner of the New York State Department of Correctional Services (DOCS)), Glenn S. Goord, Glenn S. Goord, Jane Does 1-25, Jane Does 26-50, John Does 1-25, John Does 26-50, John/Jane Does 26-50, Lucien J. LeClaire, Jr(Individually), Lucien J. LeClaire, Jr(former Acting Commissioner of DOCS), Mark Mantei(in his capacity as Executive Director of DOP), Mark Mantei(in his individual capacity), Terence Tracy(in his individual capacity), Terence Tracy(in his capacity as Chief Counsel for DOP). Responses due by 12/12/2011(Cooney, James) (Entered: 11/15/2011)

11/15/2011
11/17/2011 11/23/2011 12/12/2011

18 MEMORANDUM OF LAW in Support re: 17 MOTION to Dismiss the Amended Complaints.. Document filed by George B. Alexander(in his individual capacity), George B. Alexander(former Chair and Chief Executive Officer of DOP), Anthony J. Annucci(in his capacity as Deputy Commissioner and Counsel for DOCS), Anthony J. Annucci(Individually), Robert J. Dennison(former Chair of DOP), Robert J. Dennison(in his individual capacity), Anthony G. Ellis, II(in his individual capacity), Anthony G. Ellis, II(former Executive Director of DOP), Andrea W. Evans(in her individual capacity), Andrea W. Evans(in her capacity as Chair and Chief Executive Officer of the New York State Division of Parole (DOP)), Brian Fischer(Individually), Brian Fischer(in his capacity as Commissioner of the New York State Department of Correctional Services (DOCS)), Glenn S. Goord, Glenn S. Goord, Jane Does 1-25, Jane Does 26-50, John Does 1-25, John Does 26-50, John/Jane Does 26-50, Lucien J. LeClaire, Jr(Individually), Lucien J. LeClaire, Jr(former Acting Commissioner of DOCS), Mark Mantei(in his capacity as Executive Director of DOP), Mark Mantei(in his individual capacity), Terence Tracy(in his individual capacity), Terence Tracy(in his capacity as Chief Counsel for DOP). (Cooney, James) (Entered: 11/15/2011)
19 ENDORSED LETTER addressed to Judge Shira A. Scheindlin from Michael J. Keane dated 11/16/2011 re: counsel for defendants respectfully request that the Court accept the filings --by ECF after midnight on November 10,2011 (4:30 -5:00 a.m. on November 11) -and grant defendants leave to file a 30 page memorandum as briefing for both actions. ENDORSEMENT: Request granted. The Court accepts defendants filing and grants leave to file a 30-page memorandum. Defendants have leave to file a corrected memorandum of law fixing formatting irregularities. (Signed by Judge Shira A. Scheindlin on 11/17/2011) (pl) Modified on 11/18/2011 (pl). (Entered: 11/18/2011)
20 SCHEDULING ORDER: Motions to dismiss due by 11/11/2011. Responses due by 12/12/2011. Replies due by 12/19/2011. Deposition due by 6/15/2012. Expert Discovery due by 7/27/2012. Discovery due by 6/22/2012. Final Pretrial Conference set for 6/28/2012 at 04:30 PM before Judge Shira A. Scheindlin. Pretrial Order due by 8/13/2012. Anticipated length of trial and whether to court or jury cannot be determined at this time, and as further set forth. (Signed by Judge Shira A. Scheindlin on 11/22/2011) (rjm) (Entered: 11/23/2011)
21 MEMORANDUM OF LAW in Opposition re: 17 MOTION to Dismiss the Amended Complaints.. Document filed by Lloyd A. Barnes, Paul Betances, Gabriel Velez. (Pulver, Adam) (Entered: 12/12/2011)

12/12/2011 12/14/2011 12/16/2011
12/19/2011

22 DECLARATION of Matthew D. Brinckerhoff, Esq. in Opposition re: 17 MOTION to Dismiss the Amended Complaints.. Document filed by Lloyd A. Barnes, Paul Betances, Gabriel Velez. (Attachments: # 1 Exhibit Exhibit A)(Pulver, Adam) (Entered: 12/12/2011)
23 ENDORSED LETTER addressed to Judge Shira A. Scheindlin from Adain R. Pulver dated 12/13/2011 re: Counsel for the Plaintiff writes to request leave to file a 34-page combined memorandum in opposition to Defendant's motion to dismiss. ENDORSEMENT: Request granted. Plaintiffs may file one combined opposition memorandum, not to exceed thirty-four pages. Plaintiffs may efile the memorandum in Bentley today. (Signed by Judge Shira A. Scheindlin on 12/13/2011) (ab) (Entered: 12/14/2011)
24 AMENDED MEMORANDUM OF LAW in Support re: 17 MOTION to Dismiss the Amended Complaints.. Document filed by George B. Alexander(in his individual capacity), George B. Alexander(former Chair and Chief Executive Officer of DOP), Anthony J. Annucci(in his capacity as Deputy Commissioner and Counsel for DOCS), Anthony J. Annucci(Individually), Robert J. Dennison(former Chair of DOP), Robert J. Dennison(in his individual capacity), Anthony G. Ellis, II(in his individual capacity), Anthony G. Ellis, II(former Executive Director of DOP), Andrea W. Evans(in her individual capacity), Andrea W. Evans(in her capacity as Chair and Chief Executive Officer of the New York State Division of Parole (DOP)), Brian Fischer(Individually), Brian Fischer(in his capacity as Commissioner of the New York State Department of Correctional Services (DOCS)), Glenn S. Goord, Glenn S. Goord, Jane Does 1-25, Jane Does 26-50, John Does 1-25, John Does 26-50, John/Jane Does 26-50, Lucien J. LeClaire, Jr(Individually), Lucien J. LeClaire, Jr(former Acting Commissioner of DOCS), Mark Mantei(in his capacity as Executive Director of DOP), Mark Mantei(in his individual capacity), Terence Tracy(in his individual capacity), Terence Tracy(in his capacity as Chief Counsel for DOP). (Cooney, James) (Entered: 12/16/2011)
25 NOTICE OF APPEARANCE by Christina Chinwe Okereke on behalf of George B. Alexander(in his individual capacity), George B. Alexander(former Chair and Chief Executive Officer of DOP), Anthony J. Annucci(in his capacity as Deputy Commissioner and Counsel for DOCS), Anthony J. Annucci(Individually), Robert J. Dennison(former Chair of DOP), Robert J. Dennison(in his individual capacity), Anthony G. Ellis, II(in his individual capacity), Anthony G. Ellis, II(former Executive Director of DOP), Andrea W. Evans(in her individual capacity), Andrea W. Evans(in her capacity as Chair and Chief Executive Officer of the New York State Division of Parole (DOP)), Brian Fischer(Individually), Brian Fischer(in his capacity as

12/19/2011 12/19/2011

Commissioner of the New York State Department of Correctional Services (DOCS)), Glenn S. Goord, Glenn S. Goord, Lucien J. LeClaire, Jr(Individually), Lucien J. LeClaire, Jr(former Acting Commissioner of DOCS), Mark Mantei(in his capacity as Executive Director of DOP), Mark Mantei(in his individual capacity), Terence Tracy(in his individual capacity), Terence Tracy(in his capacity as Chief Counsel for DOP) (Okereke, Christina) (Entered: 12/19/2011)
26 REPLY MEMORANDUM OF LAW in Support re: 17 MOTION to Dismiss the Amended Complaints.. Document filed by George B. Alexander(in his individual capacity), George B. Alexander(former Chair and Chief Executive Officer of DOP), Anthony J. Annucci(in his capacity as Deputy Commissioner and Counsel for DOCS), Anthony J. Annucci(Individually), Robert J. Dennison(former Chair of DOP), Robert J. Dennison(in his individual capacity), Anthony G. Ellis, II(in his individual capacity), Anthony G. Ellis, II(former Executive Director of DOP), Andrea W. Evans(in her individual capacity), Andrea W. Evans(in her capacity as Chair and Chief Executive Officer of the New York State Division of Parole (DOP)), Brian Fischer(Individually), Brian Fischer(in his capacity as Commissioner of the New York State Department of Correctional Services (DOCS)), Glenn S. Goord, Glenn S. Goord, Lucien J. LeClaire, Jr(Individually), Lucien J. LeClaire, Jr(former Acting Commissioner of DOCS), Mark Mantei(in his capacity as Executive Director of DOP), Mark Mantei(in his individual capacity), Terence Tracy(in his individual capacity), Terence Tracy(in his capacity as Chief Counsel for DOP). (Keane, Michael) (Entered: 12/19/2011)
27 AFFIRMATION of James B. Cooney in Support re: 17 MOTION to Dismiss the Amended Complaints.. Document filed by George B. Alexander(in his individual capacity), George B. Alexander(former Chair and Chief Executive Officer of DOP), Anthony J. Annucci(in his capacity as Deputy Commissioner and Counsel for DOCS), Anthony J. Annucci(Individually), Robert J. Dennison(former Chair of DOP), Robert J. Dennison(in his individual capacity), Anthony G. Ellis, II(in his individual capacity), Anthony G. Ellis, II(former Executive Director of DOP), Andrea W. Evans(in her individual capacity), Andrea W. Evans(in her capacity as Chair and Chief Executive Officer of the New York State Division of Parole (DOP)), Brian Fischer(Individually), Brian Fischer(in his capacity as Commissioner of the New York State Department of Correctional Services (DOCS)), Glenn S. Goord, Glenn S. Goord, Lucien J. LeClaire, Jr(Individually), Lucien J. LeClaire, Jr(former Acting Commissioner of DOCS), Mark Mantei(in his capacity as Executive Director of DOP), Mark Mantei(in his individual capacity), Terence Tracy(in his individual capacity), Terence Tracy(in his capacity as Chief Counsel for DOP). (Attachments: # 1 Exhibit,

12/19/2011 12/19/2011

# 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit, # 8 Exhibit, # 9 Exhibit, # 10 Exhibit, # 11 Exhibit, # 12 Exhibit, # 13 Exhibit, # 14 Exhibit, # 15 Exhibit, # 16 Exhibit, # 17 Exhibit, # 18 Exhibit, # 19 Exhibit, # 20 Exhibit, # 21 Exhibit)(Keane, Michael) (Entered: 12/19/2011)
28 DECLARATION of Michael J. Keane in Support re: 17 MOTION to Dismiss the Amended Complaints.. Document filed by George B. Alexander(in his individual capacity), George B. Alexander(former Chair and Chief Executive Officer of DOP), Anthony J. Annucci(in his capacity as Deputy Commissioner and Counsel for DOCS), Anthony J. Annucci(Individually), Robert J. Dennison(former Chair of DOP), Robert J. Dennison(in his individual capacity), Anthony G. Ellis, II(in his individual capacity), Anthony G. Ellis, II(former Executive Director of DOP), Andrea W. Evans(in her individual capacity), Andrea W. Evans(in her capacity as Chair and Chief Executive Officer of the New York State Division of Parole (DOP)), Brian Fischer(Individually), Brian Fischer(in his capacity as Commissioner of the New York State Department of Correctional Services (DOCS)), Glenn S. Goord, Glenn S. Goord, Lucien J. LeClaire, Jr(Individually), Lucien J. LeClaire, Jr(former Acting Commissioner of DOCS), Mark Mantei(in his capacity as Executive Director of DOP), Mark Mantei(in his individual capacity), Terence Tracy(in his individual capacity), Terence Tracy(in his capacity as Chief Counsel for DOP). (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit)(Keane, Michael) (Entered: 12/19/2011)
29 DECLARATION of Christina Okereke in Support re: 17 MOTION to Dismiss the Amended Complaints.. Document filed by George B. Alexander(in his individual capacity), George B. Alexander(former Chair and Chief Executive Officer of DOP), Anthony J. Annucci(in his capacity as Deputy Commissioner and Counsel for DOCS), Anthony J. Annucci(Individually), Robert J. Dennison(former Chair of DOP), Robert J. Dennison(in his individual capacity), Anthony G. Ellis, II(in his individual capacity), Anthony G. Ellis, II(former Executive Director of DOP), Andrea W. Evans(in her individual capacity), Andrea W. Evans(in her capacity as Chair and Chief Executive Officer of the New York State Division of Parole (DOP)), Brian Fischer(Individually), Brian Fischer(in his capacity as Commissioner of the New York State Department of Correctional Services (DOCS)), Glenn S. Goord, Glenn S. Goord, Lucien J. LeClaire, Jr(Individually), Lucien J. LeClaire, Jr(former Acting Commissioner of DOCS), Terence Tracy(in his individual capacity), Terence Tracy(in his capacity as Chief Counsel for DOP). (Attachments: # 1 Exhibit)(Keane, Michael) (Entered: 12/19/2011)

12/20/2011 12/20/2011 02/10/2012

30 DECLARATION of Supplemental Cooney in Support re: 17 MOTION to Dismiss the Amended Complaints.. Document filed by George B. Alexander(in his individual capacity), George B. Alexander(former Chair and Chief Executive Officer of DOP), Anthony J. Annucci(in his capacity as Deputy Commissioner and Counsel for DOCS), Anthony J. Annucci(Individually), Robert J. Dennison(former Chair of DOP), Robert J. Dennison(in his individual capacity), Anthony G. Ellis, II(in his individual capacity), Anthony G. Ellis, II(former Executive Director of DOP), Andrea W. Evans(in her individual capacity), Andrea W. Evans(in her capacity as Chair and Chief Executive Officer of the New York State Division of Parole (DOP)), Brian Fischer(Individually), Brian Fischer(in his capacity as Commissioner of the New York State Department of Correctional Services (DOCS)), Glenn S. Goord, Glenn S. Goord, Lucien J. LeClaire, Jr(Individually), Lucien J. LeClaire, Jr(former Acting Commissioner of DOCS), Mark Mantei(in his capacity as Executive Director of DOP), Mark Mantei(in his individual capacity), Terence Tracy(in his individual capacity), Terence Tracy(in his capacity as Chief Counsel for DOP). (Attachments: # 1 Exhibit, # 2 Exhibit)(Keane, Michael) (Entered: 12/20/2011)
31 NOTICE OF APPEARANCE by Michael J. Keane on behalf of George B. Alexander(in his individual capacity), George B. Alexander(former Chair and Chief Executive Officer of DOP), Anthony J. Annucci(in his capacity as Deputy Commissioner and Counsel for DOCS), Anthony J. Annucci(Individually), Robert J. Dennison(former Chair of DOP), Robert J. Dennison(in his individual capacity), Anthony G. Ellis, II(in his individual capacity), Anthony G. Ellis, II(former Executive Director of DOP), Andrea W. Evans(in her individual capacity), Andrea W. Evans(in her capacity as Chair and Chief Executive Officer of the New York State Division of Parole (DOP)), Brian Fischer(Individually), Brian Fischer(in his capacity as Commissioner of the New York State Department of Correctional Services (DOCS)), Glenn S. Goord, Glenn S. Goord, Lucien J. LeClaire, Jr(Individually), Lucien J. LeClaire, Jr(former Acting Commissioner of DOCS), Mark Mantei(in his capacity as Executive Director of DOP), Mark Mantei(in his individual capacity), Terence Tracy(in his individual capacity), Terence Tracy(in his capacity as Chief Counsel for DOP) (Keane, Michael) (Entered: 12/20/2011)
32 OPINION AND ORDER re: (17 in 1:11-cv-03200-SAS) MOTION to Dismiss the Amended Complaints filed by Anthony J. Annucci, Mark Mantei, Lucien J. LeClaire, Jr., Jane Does 26-50, John Does 1-25, John Does 26-50, Glenn S. Goord, Andrea W. Evans, Jane Does 1-25, Terence Tracy, George B. Alexander, Anthony G. Ellis, II, John/Jane Does 26-50, Brian Fischer, Robert J. Dennison, (21 in 1:11-cv-01056SAS) MOTION to Dismiss the Amended Complaints filed by Anthony

02/16/2012
02/16/2012 02/16/2012 02/16/2012

J. Annucci, Lucien J. LeClaire, Jr., Glenn S. Goord, Jane Does 1-50, George B. Alexander, Terrence Tracy, Anthony G. Ellis, II, Luciente J. LeClaire, Jr., John Does 1-50, Brian Fischer, Robert J. Dennison. For the reasons stated above, defendants' motions to dismiss are denied. The Clerk of the Court is ordered to close these motions [Betances Docket No. 17 and Bentley Docket No. 21]. A status conference is scheduled for February 21, 2012 at 5:30 p.m. ( Status Conference set for 2/21/2012 at 05:30 PM before Judge Shira A. Scheindlin.) (Signed by Judge Shira A. Scheindlin on 2/10/2012) (mro) (Entered: 02/10/2012)
33 NOTICE OF INTERLOCUTORY APPEAL from 32 Memorandum & Opinion, Set Hearings,,,,,,,,. Form C and Form D are due within 14 days to the Court of Appeals, Second Circuit. Document filed by George B. Alexander(in his individual capacity), George B. Alexander(former Chair and Chief Executive Officer of DOP), Anthony J. Annucci(in his capacity as Deputy Commissioner and Counsel for DOCS), Anthony J. Annucci(Individually), Robert J. Dennison(former Chair of DOP), Robert J. Dennison(in his individual capacity), Anthony G. Ellis, II(in his individual capacity), Anthony G. Ellis, II(former Executive Director of DOP), Andrea W. Evans(in her individual capacity), Andrea W. Evans(in her capacity as Chair and Chief Executive Officer of the New York State Division of Parole (DOP)), Brian Fischer(Individually), Brian Fischer(in his capacity as Commissioner of the New York State Department of Correctional Services (DOCS)), Glenn S. Goord, Glenn S. Goord, Lucien J. LeClaire, Jr(Individually), Lucien J. LeClaire, Jr(former Acting Commissioner of DOCS), Mark Mantei(in his capacity as Executive Director of DOP), Mark Mantei(in his individual capacity), Terence Tracy(in his individual capacity), Terence Tracy(in his capacity as Chief Counsel for DOP). (Okereke, Christina) (Entered: 02/16/2012)
Appeal Fee Due: for 33 Notice of Interlocutory Appeal,,,,,. $455.00 Appeal fee due by 3/1/2012. (nd) (Entered: 02/16/2012)
Transmission of Notice of Appeal and Certified Copy of Docket Sheet to US Court of Appeals re: 33 Notice of Interlocutory Appeal,,,,,. (nd) (Entered: 02/16/2012)
Appeal Record Sent to USCA (Electronic File). Certified Indexed record on Appeal Electronic Files for 23 Endorsed Letter, 7 Affidavit of Service Complaints, filed by Gabriel Velez, Lloyd A. Barnes, Paul Betances, 21 Memorandum of Law in Opposition to Motion filed by Gabriel Velez, Lloyd A. Barnes, Paul Betances, 9 Affidavit of Service Complaints, filed by Gabriel Velez, Lloyd A. Barnes, Paul Betances, 17 MOTION to Dismiss the Amended Complaints. filed by

Anthony J. Annucci, Mark Mantei, Lucien J. LeClaire, Jr., Jane Does 26-50, John Does 1-25, John Does 26-50, Glenn S. Goord, Andrea W. Evans, Jane Does 1-25, Terence Tracy, George B. Alexander, Anthony G. Ellis, II, John/Jane Does 26-50, Brian Fischer, Robert J. Dennison, 13 Affidavit of Service Complaints, filed by Lloyd A. Barnes, Paul Betances, Gabriel Velez, 3 Endorsed Letter, Set Deadlines,, 33 Notice of Interlocutory Appeal,,,,, filed by Anthony J. Annucci, Mark Mantei, Lucien J. LeClaire, Jr., Glenn S. Goord, Andrea W. Evans, Terence Tracy, George B. Alexander, Anthony G. Ellis, II, Brian Fischer, Robert J. Dennison, 12 Affidavit of Service Complaints, filed by Lloyd A. Barnes, Paul Betances, Gabriel Velez, 18 Memorandum of Law in Support of Motion,,,,, filed by Anthony J. Annucci, Mark Mantei, Lucien J. LeClaire, Jr., Jane Does 26-50, John Does 1-25, John Does 26-50, Glenn S. Goord, Andrea W. Evans, Jane Does 1-25, Terence Tracy, George B. Alexander, Anthony G. Ellis, II, John/Jane Does 26-50, Brian Fischer, Robert J. Dennison, 20 Scheduling Order,, 6 Endorsed Letter,, 25 Notice of Appearance,,,, filed by Anthony J. Annucci, Mark Mantei, Lucien J. LeClaire, Jr., Glenn S. Goord, Andrea W. Evans, Terence Tracy, George B. Alexander, Anthony G. Ellis, II, Brian Fischer, Robert J. Dennison, 32 Memorandum & Opinion, Set Hearings,,,,,,,, 29 Declaration in Support of Motion,,,, filed by Anthony J. Annucci, Lucien J. LeClaire, Jr., Glenn S. Goord, Andrea W. Evans, Terence Tracy, George B. Alexander, Anthony G. Ellis, II, Brian Fischer, Robert J. Dennison, 10 Affidavit of Service Complaints, filed by Lloyd A. Barnes, Paul Betances, Gabriel Velez, 16 Affidavit of Service Complaints, filed by Lloyd A. Barnes, Paul Betances, Gabriel Velez, 24 Memorandum of Law in Support of Motion,,,,, filed by Anthony J. Annucci, Mark Mantei, Lucien J. LeClaire, Jr., Jane Does 26-50, John Does 1-25, John Does 26-50, Glenn S. Goord, Andrea W. Evans, Jane Does 1-25, Terence Tracy, George B. Alexander, Anthony G. Ellis, II, John/Jane Does 26-50, Brian Fischer, Robert J. Dennison, 28 Declaration in Support of Motion,,,,, filed by Anthony J. Annucci, Mark Mantei, Lucien J. LeClaire, Jr., Glenn S. Goord, Andrea W. Evans, Terence Tracy, George B. Alexander, Anthony G. Ellis, II, Brian Fischer, Robert J. Dennison, 22 Declaration in Opposition to Motion filed by Lloyd A. Barnes, Paul Betances, Gabriel Velez, 27 Affirmation in Support of Motion,,,,,, filed by Anthony J. Annucci, Mark Mantei, Lucien J. LeClaire, Jr., Glenn S. Goord, Andrea W. Evans, Terence Tracy, George B. Alexander, Anthony G. Ellis, II, Brian Fischer, Robert J. Dennison, 19 Endorsed Letter,, 11 Affidavit of Service Complaints, filed by Lloyd A. Barnes, Paul Betances, Gabriel Velez, 31 Notice of Appearance,,,, filed by Anthony J. Annucci, Mark Mantei, Lucien J. LeClaire, Jr., Glenn S. Goord, Andrea W. Evans, Terence Tracy, George B. Alexander, Anthony G. Ellis, II, Brian Fischer, Robert J. Dennison, 15 Affidavit of Service Complaints, filed

02/16/2012
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03/23/2012 04/09/2012

by Lloyd A. Barnes, Paul Betances, Gabriel Velez, 14 Affidavit of Service Complaints, filed by Lloyd A. Barnes, Paul Betances, Gabriel Velez, 26 Reply Memorandum of Law in Support of Motion,,,, filed by Anthony J. Annucci, Mark Mantei, Lucien J. LeClaire, Jr., Glenn S. Goord, Andrea W. Evans, Terence Tracy, George B. Alexander, Anthony G. Ellis, II, Brian Fischer, Robert J. Dennison, 4 Notice of Appearance filed by Paul Betances, 1 Complaint,,,,, filed by Paul Betances, 8 Affidavit of Service Complaints, filed by Lloyd A. Barnes, Paul Betances, Gabriel Velez, 2 Notice of Case Assignment/Reassignment, 30 Declaration in Support of Motion,,,, filed by Anthony J. Annucci, Mark Mantei, Lucien J. LeClaire, Jr., Glenn S. Goord, Andrea W. Evans, Terence Tracy, George B. Alexander, Anthony G. Ellis, II, Brian Fischer, Robert J. Dennison were transmitted to the U.S. Court of Appeals. (nd) (Entered: 02/16/2012)
USCA Appeal Fees received $ 455.00 receipt number 465401030098 on 2/16/2012 re: 33 Notice of Interlocutory Appeal, filed by Anthony J. Annucci, Mark Mantei, Lucien J. LeClaire, Jr., Glenn S. Goord, Andrea W. Evans, Terence Tracy, George B. Alexander, Anthony G. Ellis, II, Brian Fischer, Robert J. Dennison. (nd) (Entered: 03/13/2012)
Minute Entry for proceedings held before Judge Shira A. Scheindlin: Status Conference held on 2/21/2012. (lmb) (Entered: 03/06/2012)
USCA Case Number 12-0704-cv from the US Court of Appeals, Second Circuit assigned to 33 Notice of Interlocutory Appeal,,,,, filed by Anthony J. Annucci, Mark Mantei, Lucien J. LeClaire, Jr., Glenn S. Goord, Andrea W. Evans, Terence Tracy, George B. Alexander, Anthony G. Ellis, II, Brian Fischer, Robert J. Dennison. (nd) (Entered: 03/13/2012)
Minute Entry for proceedings held before Judge Shira A. Scheindlin: Status Conference held on 3/23/2012. (lmb) (Entered: 04/12/2012)
34 ORDER: Plaintiffs wish to proceed with discovery, at least with respect to Paul Betances, arguing that "his claims for damages will unquestionably survive any conceivable ruling from the Court of Appeals for the Second Circuit.") PRS was imposed on Betances on April 24, 2008 and he was re-imprisoned for violation of that PRS on July 9, 2009. Defendants apparently intend to argue to the Second Circuit that they are entitled to qualified immunity for both of these actions. If the Second Circuit agrees with them, Betances' claims will not survive the appeal. There are twenty-four named plaintiffs in these actions, and the Betances plaintiffs seek to represent a putative class. Even if plaintiffs are correct regarding Betances' case, it would not be

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08/08/2013 08/14/2013

an efficient use of the Court's or the parties' resources to attempt to proceed with discovery related only to Betances while awaiting a decision from the Second Circuit. Discovery is therefore stayed pending the appeal. (Signed by Judge Shira A. Scheindlin on 4/9/2012) (jfe) (Entered: 04/09/2012)
***NOTE TO ATTORNEY TO E-MAIL PDF. Note to Attorney Matthew D. Brinckerhoff for noncompliance with Section 14.3 of the S.D.N.Y. Electronic Case Filing Rules & Instructions. E-MAIL the PDF for Document 5 Amended Complaint to: caseopenings@nysd.uscourts.gov. (jw) (Entered: 04/17/2012)
35 MOTION for Adam R. Pulver to Withdraw as Attorney. Document filed by Lloyd A. Barnes, Paul Betances, Gabriel Velez.(Pulver, Adam) (Entered: 06/28/2013)
36 AFFIRMATION of Adam R. Pulver in Support re: 35 MOTION for Adam R. Pulver to Withdraw as Attorney.. Document filed by Lloyd A. Barnes, Paul Betances, Gabriel Velez. (Pulver, Adam) (Entered: 06/28/2013)
37 ORDER: A conference is scheduled for August 8, 2013 at 5:00 p.m in Courtroom l5C of the United States Courthouse, 500 Pearl Street, New York, New York. The conference will cover the current status of the case. (Status Conference set for 8/8/2013 at 05:00 PM in Courtroom 15C, 500 Pearl Street, New York, NY 10007 before Judge Shira A. Scheindlin.) (Signed by Judge Shira A. Scheindlin on 7/26/2013) (ja) (Entered: 07/29/2013)
Minute Entry for proceedings held before Judge Shira A. Scheindlin: Status Conference held on 8/8/2013. (Reily, James) (Entered: 08/19/2013)
38 SCHEDULING ORDER: The date of the conference and the appearances for the parties; August 8, 2013. Depositions to commence no later than March 9, 2012, and conclude by June 15, 2012. Requests for the production of documents to be served by January 13, 2012, with responses due September 20, 2013. Dates by which (i) each expert's reports will be supplied to the adverse side and (ii) each expert's deposition will be completed; If there are experts, by June 29, 2012 and July 20, 2012, respectively. Time when discovery is to be completed; If there are no experts, by February 7, 2014, otherwise by March 14, 2014. The date by which plaintiff will supply its pre-trial order matters to defendant; If there are no experts, by March 7, 2014, otherwise by April 14, 2014. The date by which the parties will submit a pre-trial order...; If there are no experts, by March 21, 2014; otherwise by April 28, 2014. Final pre-trial conference pursuant to Fed. R. Civ. P. 16(d),

09/10/2013 12/06/2013 01/06/2014 07/02/2014 07/08/2014
07/15/2014 07/16/2014

February 25, 2014, at 4:30 p.m. Anticipated length of trial and whether to court or jury; Cannot be determined at this time. Discovery due by 3/14/2014. Final Pretrial Conference set for 2/25/2014 at 04:30 PM before Judge Shira A. Scheindlin. Pretrial Order due by 4/28/2014. (Signed by Judge Shira A. Scheindlin on 8/13/2013) (ja) (Entered: 08/14/2013)
Minute Entry for proceedings held before Judge Shira A. Scheindlin: Status Conference held on 9/10/2013. (Reily, James) (Entered: 09/24/2013)
39 MEMO ENDORSED granting 35 Motion to Withdraw as Attorney. ENDORSEMENT: Adam R. Pulver's request to withdraw his appearance on behalf of Plaintiffs is hereby granted. The Clerk of the Court is directed to close this motion (docket #35). Attorney Adam R Pulver terminated (Signed by Judge Shira A. Scheindlin on 12/6/2013) (cd) (Entered: 12/06/2013)
40 ORDER: 2/25/2014 Pre-Motion Conference reset for 3/5/2014 at 04:30 PM in Courtroom 15C, 500 Pearl Street, New York, NY 10007 before Judge Shira A. Scheindlin. (Signed by Judge Shira A. Scheindlin on 1/6/2014) (cd) (Entered: 01/07/2014)
41 NOTICE OF APPEARANCE by Hayley Horowitz on behalf of Lloyd A. Barnes, Paul Betances, Gabriel Velez. (Horowitz, Hayley) (Entered: 07/02/2014)
42 MANDATE of USCA (Certified Copy) as to 33 Notice of Interlocutory Appeal,,,,, filed by Anthony J. Annucci, Mark Mantei, Lucien J. LeClaire, Jr., Glenn S. Goord, Andrea W. Evans, Terence Tracy, George B. Alexander, Anthony G. Ellis, II, Brian Fischer, Robert J. Dennison USCA Case Number 12-0704-cv(L). Ordered, Adjudged and Decreed that the judgment of the District Court is AFFIRMED. Catherine O'Hagan Wolfe, Clerk USCA for the Second Circuit. Issued As Mandate: 07/08/2014. (nd) (Entered: 07/08/2014)
Minute Entry for proceedings held before Judge Shira A. Scheindlin: Status Conference held on 7/15/2014. Premotion conference on class certification scheduled for September 22, 2013 at 4:30pm. Final pretrial conference scheduled for February 10, 2015 at 4:30pm.(Bloomfield, Clifford) (Entered: 07/15/2014)
43 ORDER REFERRING CASE TO MAGISTRATE JUDGE. Order that case be referred to the Clerk of Court for assignment to a Magistrate Judge for Settlement. Referred to Magistrate Judge James C. Francis. December would be best. Bring in together with Bentley v Dennison

07/16/2014
07/23/2014 08/05/2014 08/07/2014 08/15/2014

11civ1056. (Signed by Judge Shira A. Scheindlin on 7/15/2014) (lmb) (Entered: 07/16/2014)
44 SCHEDULING ORDER: Anticipated length of trial and whether to court or jury: Jury, 3 weeks. Motions due by 10/10/2014. Responses due by 11/7/2014. Replies due by 11/21/2014. Deposition due by 12/15/2014. Discovery due by 1/30/2015. Final Pretrial Conference set for 2/10/2015 at 04:30 PM before Judge Shira A. Scheindlin. (Signed by Judge Shira A. Scheindlin on 7/15/2014) (lmb) (Entered: 07/16/2014)
45 NOTICE OF CHANGE OF ADDRESS by Matthew D. Brinckerhoff on behalf of All Plaintiffs. New Address: Emery Celli Brinckerhoff & Abady LLP, 600 Fifth Avenue, 10th Floor, New York, New York, U.S.A. 10020, 212-763-5000. (Brinckerhoff, Matthew) (Entered: 07/23/2014)
46 NOTICE OF CHANGE OF ADDRESS by Hayley Horowitz on behalf of All Plaintiffs. New Address: Emery Celli Brinckerhoff & Abady LLP, 600 Fifth Avenue, 10th Floor, New York, NY, USA 10020, 212763-5000. (Horowitz, Hayley) (Entered: 08/05/2014)
Minute Entry for proceedings held before Magistrate Judge James C. Francis: Telephone Conference held on 8/7/2014. (Bacchus, Michael) (Entered: 08/07/2014)
47 LETTER MOTION for Extension of Time addressed to Judge Shira A. Scheindlin from Michael J. Keane dated August 15, 2014. Document filed by George B. Alexander(in his individual capacity), George B. Alexander(former Chair and Chief Executive Officer of DOP), Anthony J. Annucci(in his capacity as Deputy Commissioner and Counsel for DOCS), Anthony J. Annucci(Individually), Robert J. Dennison(former Chair of DOP), Robert J. Dennison(in his individual capacity), Anthony G. Ellis, II(in his individual capacity), Anthony G. Ellis, II(former Executive Director of DOP), Andrea W. Evans(in her individual capacity), Andrea W. Evans(in her capacity as Chair and Chief Executive Officer of the New York State Division of Parole (DOP)), Brian Fischer(Individually), Brian Fischer(in his capacity as Commissioner of the New York State Department of Correctional Services (DOCS)), Glenn S. Goord, Glenn S. Goord, Lucien J. LeClaire, Jr(Individually), Lucien J. LeClaire, Jr(former Acting Commissioner of DOCS), Mark Mantei(in his capacity as Executive Director of DOP), Mark Mantei(in his individual capacity), Terence Tracy(in his individual capacity), Terence Tracy(in his capacity as Chief Counsel for DOP).(Keane, Michael) (Entered: 08/15/2014)

08/15/2014 08/15/2014 08/22/2014
09/17/2014 09/17/2014

***DELETED DOCUMENT. Deleted document number 48 Endorsed Letter. The document was incorrectly filed in this case. (lmb) (Entered: 08/15/2014)
48 ORDER granting 47 Letter Motion for Extension of Time. Request granted. Responses to document requests and answers are due August 22, 2014. (Signed by Judge Shira A. Scheindlin on 8/15/2014) (lmb) (Entered: 08/15/2014)
49 ANSWER to 5 Amended Complaint,,,,, with JURY DEMAND. Document filed by George B. Alexander(in his individual capacity), George B. Alexander(former Chair and Chief Executive Officer of DOP), Anthony J. Annucci(in his capacity as Deputy Commissioner and Counsel for DOCS), Anthony J. Annucci(Individually), Robert J. Dennison(former Chair of DOP), Robert J. Dennison(in his individual capacity), Anthony G. Ellis, II(in his individual capacity), Anthony G. Ellis, II(former Executive Director of DOP), Andrea W. Evans(in her individual capacity), Andrea W. Evans(in her capacity as Chair and Chief Executive Officer of the New York State Division of Parole (DOP)), Brian Fischer(Individually), Brian Fischer(in his capacity as Commissioner of the New York State Department of Correctional Services (DOCS)), Glenn S. Goord, Glenn S. Goord, Lucien J. LeClaire, Jr(Individually), Lucien J. LeClaire, Jr(former Acting Commissioner of DOCS), Mark Mantei(in his capacity as Executive Director of DOP), Mark Mantei(in his individual capacity), Terence Tracy(in his individual capacity), Terence Tracy(in his capacity as Chief Counsel for DOP). (Attachments: # 1 Exhibit Ex A, # 2 Exhibit Ex B)(Okereke, Christina) (Entered: 08/22/2014)
50 LETTER MOTION to Adjourn Conference scheduled for 9/22/14 addressed to Judge Shira A. Scheindlin from Matthew D. Brinckerhofr dated 9/17/2014. Document filed by Lloyd A. Barnes, Paul Betances, Gabriel Velez.(Brinckerhoff, Matthew) (Entered: 09/17/2014)
51 NOTICE OF APPEARANCE by Anna Hehenberger on behalf of George B. Alexander(in his individual capacity), George B. Alexander(former Chair and Chief Executive Officer of DOP), Anthony J. Annucci(in his capacity as Deputy Commissioner and Counsel for DOCS), Anthony J. Annucci(Individually), Robert J. Dennison(former Chair of DOP), Robert J. Dennison(in his individual capacity), Anthony G. Ellis, II(in his individual capacity), Anthony G. Ellis, II(former Executive Director of DOP), Andrea W. Evans(in her individual capacity), Andrea W. Evans(in her capacity as Chair and Chief Executive Officer of the New York State Division of Parole (DOP)), Brian Fischer(Individually), Brian Fischer(in his capacity as

09/18/2014 09/26/2014 10/01/2014
10/06/2014

Commissioner of the New York State Department of Correctional Services (DOCS)), Glenn S. Goord, Glenn S. Goord, Lucien J. LeClaire, Jr(Individually), Lucien J. LeClaire, Jr(former Acting Commissioner of DOCS), Mark Mantei(in his capacity as Executive Director of DOP), Mark Mantei(in his individual capacity), Terence Tracy(in his individual capacity), Terence Tracy(in his capacity as Chief Counsel for DOP). (Hehenberger, Anna) (Entered: 09/17/2014)
52 ORDER granting 50 Letter Motion to Adjourn Conference. Plaintiffs' request is hereby granted. The pre-motion conference scheduled for September 22, 2014 is adjourned and rescheduled for October 7, 2014 at 3:00 p.m. in Courtroom 15C. Pre-Motion Conference set for 10/7/2014 at 03:00 PM in Courtroom 15C, 500 Pearl Street, New York, NY 10007 before Judge Shira A. Scheindlin. (Signed by Judge Shira A. Scheindlin on 9/17/2014) (ja) Modified on 9/18/2014 (ja). (Entered: 09/18/2014)
53 LETTER addressed to Judge Shira A. Scheindlin from Matthew D. Brinckerhoff dated Sept. 26, 2014 re: Class Certification Pre-Motion Letter. Document filed by Lloyd A. Barnes, Paul Betances, Gabriel Velez.(Brinckerhoff, Matthew) (Entered: 09/26/2014)
54 LETTER addressed to Judge Shira A. Scheindlin from AAGs Michael J. Keane, Christina Okereke, and Anna Hehenberger dated October 1, 2014 re: Defendants' response to plaintiffs' Sept. 26, 2014 pre-motion letter (Docket #53). Document filed by George B. Alexander(in his individual capacity), George B. Alexander(former Chair and Chief Executive Officer of DOP), Anthony J. Annucci(in his capacity as Deputy Commissioner and Counsel for DOCS), Anthony J. Annucci(Individually), Robert J. Dennison(former Chair of DOP), Robert J. Dennison(in his individual capacity), Anthony G. Ellis, II(in his individual capacity), Anthony G. Ellis, II(former Executive Director of DOP), Andrea W. Evans(in her individual capacity), Andrea W. Evans(in her capacity as Chair and Chief Executive Officer of the New York State Division of Parole (DOP)), Brian Fischer(Individually), Brian Fischer(in his capacity as Commissioner of the New York State Department of Correctional Services (DOCS)), Glenn S. Goord, Glenn S. Goord, Lucien J. LeClaire, Jr(Individually), Lucien J. LeClaire, Jr(former Acting Commissioner of DOCS), Mark Mantei(in his capacity as Executive Director of DOP), Mark Mantei(in his individual capacity), Terence Tracy(in his individual capacity), Terence Tracy(in his capacity as Chief Counsel for DOP).(Okereke, Christina) (Entered: 10/01/2014)
55 STATUS REPORT. re: cert petition Document filed by George B. Alexander(in his individual capacity), George B. Alexander(former

10/07/2014 10/24/2014
10/24/2014 10/29/2014 10/31/2014

Chair and Chief Executive Officer of DOP), Anthony J. Annucci(in his capacity as Deputy Commissioner and Counsel for DOCS), Anthony J. Annucci(Individually), Robert J. Dennison(former Chair of DOP), Robert J. Dennison(in his individual capacity), Anthony G. Ellis, II(in his individual capacity), Anthony G. Ellis, II(former Executive Director of DOP), Andrea W. Evans(in her individual capacity), Andrea W. Evans(in her capacity as Chair and Chief Executive Officer of the New York State Division of Parole (DOP)), Brian Fischer(Individually), Brian Fischer(in his capacity as Commissioner of the New York State Department of Correctional Services (DOCS)), Glenn S. Goord, Glenn S. Goord, Lucien J. LeClaire, Jr(Individually), Lucien J. LeClaire, Jr(former Acting Commissioner of DOCS), Mark Mantei(in his capacity as Executive Director of DOP), Mark Mantei(in his individual capacity), Terence Tracy(in his individual capacity), Terence Tracy(in his capacity as Chief Counsel for DOP). (Attachments: # 1 Exhibit)(Keane, Michael) (Entered: 10/06/2014)
Minute Entry for proceedings held before Judge Shira A. Scheindlin: Status Conference held on 10/7/2014. (Bloomfield, Clifford) (Entered: 10/07/2014)
56 FILING ERROR - WRONG EVENT TYPE SELECTED FROM MENU - MOTION for Discovery . Document filed by George B. Alexander(in his individual capacity), Anthony J. Annucci(in his capacity as Deputy Commissioner and Counsel for DOCS), Robert J. Dennison(former Chair of DOP), Anthony G. Ellis, II(in his individual capacity), Andrea W. Evans(in her individual capacity), Brian Fischer(Individually), Glenn S. Goord, Lucien J. LeClaire, Jr(Individually), Mark Mantei(in his capacity as Executive Director of DOP), Terence Tracy(in his individual capacity).(Keane, Michael) Modified on 10/24/2014 (db). (Entered: 10/24/2014)
***NOTE TO ATTORNEY TO RE-FILE DOCUMENT - EVENT TYPE ERROR. Note to Attorney Michael J. Keane to RE-FILE Document 56 MOTION for Discovery . Use the event type Letter found under the event list Other Documents. (db) (Entered: 10/24/2014)
57 LETTER addressed to Judge Shira A. Scheindlin from Matthew D. Brinckerhoff dated 10/29/2014 re: Response to Defendants' 10/24/2014 Letter. Document filed by Lloyd A. Barnes, Paul Betances, Gabriel Velez.(Brinckerhoff, Matthew) (Entered: 10/29/2014)
58 MOTION to Certify Class . Document filed by Lloyd A. Barnes, Paul Betances, Gabriel Velez.(Brinckerhoff, Matthew) (Entered: 10/31/2014)

10/31/2014 10/31/2014 11/03/2014
11/10/2014 11/10/2014

59 MEMORANDUM OF LAW in Support re: 58 MOTION to Certify Class . . Document filed by Lloyd A. Barnes, Paul Betances, Gabriel Velez. (Brinckerhoff, Matthew) (Entered: 10/31/2014)
60 DECLARATION of Matthew Brinckerhoff in Support re: 58 MOTION to Certify Class .. Document filed by Lloyd A. Barnes, Paul Betances, Gabriel Velez. (Attachments: # 1 Exhibit 1-1, # 2 Exhibit 1-2, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5, # 7 Exhibit 6, # 8 Exhibit 7, # 9 Exhibit 7-1, # 10 Exhibit 8, # 11 Exhibit 9, # 12 Exhibit 10, # 13 Exhibit 11, # 14 Exhibit 12, # 15 Exhibit 13, # 16 Exhibit 14, # 17 Exhibit 15, # 18 Exhibit 16, # 19 Exhibit 17, # 20 Exhibit 18, # 21 Exhibit 19, # 22 Exhibit 20, # 23 Exhibit 21, # 24 Exhibit 22, # 25 Exhibit 23)(Brinckerhoff, Matthew) (Entered: 10/31/2014)
61 LETTER addressed to Judge Shira A. Scheindlin from Michael J. Keane dated November 3, 2014 re: Leave to Take Depositions. Document filed by George B. Alexander(in his individual capacity), Anthony J. Annucci(in his capacity as Deputy Commissioner and Counsel for DOCS), Robert J. Dennison(former Chair of DOP), Anthony G. Ellis, II(in his individual capacity), Andrea W. Evans(in her capacity as Chair and Chief Executive Officer of the New York State Division of Parole (DOP)), Brian Fischer(in his capacity as Commissioner of the New York State Department of Correctional Services (DOCS)), Glenn S. Goord, Lucien J. LeClaire, Jr(Individually), Mark Mantei(in his capacity as Executive Director of DOP), Terence Tracy(in his individual capacity).(Keane, Michael) (Entered: 11/03/2014)
62 LETTER addressed to Judge Shira A. Scheindlin from Michael J. Keane dated November 10, 2014 re: Extension to Oppose Class Cert. Document filed by George B. Alexander(in his individual capacity), Anthony J. Annucci(in his capacity as Deputy Commissioner and Counsel for DOCS), Robert J. Dennison(former Chair of DOP), Anthony G. Ellis, II(in his individual capacity), Andrea W. Evans(in her individual capacity), Brian Fischer(Individually), Glenn S. Goord, Lucien J. LeClaire, Jr(former Acting Commissioner of DOCS), Mark Mantei(in his individual capacity), Terence Tracy(in his capacity as Chief Counsel for DOP).(Keane, Michael) (Entered: 11/10/2014)
63 LETTER addressed to Judge Shira A. Scheindlin from Matthew D. Brinckerhoff dated Nov. 10, 2014 re: Defendants' Letter seeking a seven week extension to oppose class certification. Document filed by Lloyd A. Barnes, Paul Betances, Gabriel Velez.(Brinckerhoff, Matthew) (Entered: 11/10/2014)

11/13/2014 11/19/2014
11/20/2014 12/01/2014

Minute Entry for proceedings held before Judge Shira A. Scheindlin: Status Conference held on 11/13/2014. (Bloomfield, Clifford) (Entered: 11/13/2014)
64 LETTER addressed to Judge Shira A. Scheindlin from Christina Okereke and Anna Hehenberger dated November 19, 2014 re: Request for extension of time until December 9 to oppose class certification. Document filed by George B. Alexander(in his individual capacity), George B. Alexander(former Chair and Chief Executive Officer of DOP), Anthony J. Annucci(in his capacity as Deputy Commissioner and Counsel for DOCS), Anthony J. Annucci(Individually), Robert J. Dennison(former Chair of DOP), Robert J. Dennison(in his individual capacity), Anthony G. Ellis, II(in his individual capacity), Anthony G. Ellis, II(former Executive Director of DOP), Andrea W. Evans(in her individual capacity), Andrea W. Evans(in her capacity as Chair and Chief Executive Officer of the New York State Division of Parole (DOP)), Brian Fischer(Individually), Brian Fischer(in his capacity as Commissioner of the New York State Department of Correctional Services (DOCS)), Glenn S. Goord, Glenn S. Goord, Lucien J. LeClaire, Jr(Individually), Lucien J. LeClaire, Jr(former Acting Commissioner of DOCS), Mark Mantei(in his capacity as Executive Director of DOP), Mark Mantei(in his individual capacity), Terence Tracy(in his individual capacity), Terence Tracy(in his capacity as Chief Counsel for DOP).(Okereke, Christina) (Entered: 11/19/2014)
65 ORDER re: 64 Letter filed by Anthony J. Annucci, Mark Mantei, Lucien J. LeClaire, Jr., Glenn S. Goord, Andrea W. Evans, Terence Tracy, George B. Alexander, Anthony G. Ellis, II, Brian Fischer, Robert J. Dennison. Defendants' request is hereby GRANTED. Defendants shall serve and file their opposition to the motion by December 9, 2014, and ; Plaintiffs shall serve and file their reply by December 23, 2014. SO ORDERED. ( Responses due by 12/9/2014, Replies due by 12/23/2014.) (Signed by Judge Shira A. Scheindlin on 11/19/2014) (ama) (Entered: 11/20/2014)
66 STATUS REPORT. to Magistrate Judge Francis re: discovery and settlement Document filed by George B. Alexander(in his individual capacity), George B. Alexander(former Chair and Chief Executive Officer of DOP), Anthony J. Annucci(in his capacity as Deputy Commissioner and Counsel for DOCS), Anthony J. Annucci(Individually), Lloyd A. Barnes, Paul Betances, Robert J. Dennison(former Chair of DOP), Robert J. Dennison(in his individual capacity), Anthony G. Ellis, II(in his individual capacity), Anthony G. Ellis, II(former Executive Director of DOP), Andrea W. Evans(in her individual capacity), Andrea W. Evans(in her capacity as Chair and Chief Executive Officer of the New York State Division of Parole

12/08/2014
12/09/2014 12/09/2014

(DOP)), Brian Fischer(Individually), Brian Fischer(in his capacity as Commissioner of the New York State Department of Correctional Services (DOCS)), Glenn S. Goord, Glenn S. Goord, Lucien J. LeClaire, Jr(Individually), Lucien J. LeClaire, Jr(former Acting Commissioner of DOCS), Mark Mantei(in his capacity as Executive Director of DOP), Mark Mantei(in his individual capacity), Terence Tracy(in his individual capacity), Terence Tracy(in his capacity as Chief Counsel for DOP), Gabriel Velez.(Okereke, Christina) (Entered: 12/01/2014)
67 LETTER MOTION for Leave to File Excess Pages addressed to Judge Shira A. Scheindlin from Michael J. Keane dated December 8, 2014. Document filed by George B. Alexander(in his individual capacity), George B. Alexander(former Chair and Chief Executive Officer of DOP), Anthony J. Annucci(in his capacity as Deputy Commissioner and Counsel for DOCS), Anthony J. Annucci(Individually), Robert J. Dennison(former Chair of DOP), Robert J. Dennison(in his individual capacity), Anthony G. Ellis, II(in his individual capacity), Anthony G. Ellis, II(former Executive Director of DOP), Andrea W. Evans(in her individual capacity), Andrea W. Evans(in her capacity as Chair and Chief Executive Officer of the New York State Division of Parole (DOP)), Brian Fischer(Individually), Brian Fischer(in his capacity as Commissioner of the New York State Department of Correctional Services (DOCS)), Glenn S. Goord, Glenn S. Goord, Lucien J. LeClaire, Jr(Individually), Lucien J. LeClaire, Jr(former Acting Commissioner of DOCS), Mark Mantei(in his capacity as Executive Director of DOP), Mark Mantei(in his individual capacity), Terence Tracy(in his individual capacity), Terence Tracy(in his capacity as Chief Counsel for DOP).(Keane, Michael) (Entered: 12/08/2014)
68 ORDER: granting 67 Letter Motion for Leave to File Excess Pages. Request granted. Opposition brief 30 pages, Reply brief 15 pages. (Signed by Judge Shira A. Scheindlin on 12/8/2014) (djc) (Entered: 12/09/2014)
69 DECLARATION of Anna M. Hehenberger in Opposition re: 58 MOTION to Certify Class .. Document filed by George B. Alexander(in his individual capacity), George B. Alexander(former Chair and Chief Executive Officer of DOP), Anthony J. Annucci(in his capacity as Deputy Commissioner and Counsel for DOCS), Anthony J. Annucci(Individually), Robert J. Dennison(former Chair of DOP), Robert J. Dennison(in his individual capacity), Anthony G. Ellis, II(in his individual capacity), Anthony G. Ellis, II(former Executive Director of DOP), Andrea W. Evans(in her individual capacity), Andrea W. Evans(in her capacity as Chair and Chief Executive Officer of the New York State Division of Parole (DOP)), Brian Fischer(Individually),

12/09/2014 12/09/2014

Brian Fischer(in his capacity as Commissioner of the New York State Department of Correctional Services (DOCS)), Glenn S. Goord, Glenn S. Goord, Lucien J. LeClaire, Jr(Individually), Lucien J. LeClaire, Jr(former Acting Commissioner of DOCS), Mark Mantei(in his capacity as Executive Director of DOP), Mark Mantei(in his individual capacity), Terence Tracy(in his individual capacity), Terence Tracy(in his capacity as Chief Counsel for DOP). (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M, # 14 Exhibit N, # 15 Exhibit O, # 16 Exhibit P, # 17 Exhibit Q, # 18 Exhibit R, # 19 Exhibit S, # 20 Exhibit T, # 21 Exhibit U, # 22 Exhibit V, # 23 Exhibit W, # 24 Exhibit X, # 25 Exhibit Y, # 26 Exhibit Z, # 27 Exhibit AA, # 28 Exhibit BB, # 29 Exhibit CC, # 30 Exhibit DD, # 31 Exhibit EE, # 32 Exhibit FF, # 33 Exhibit GG, # 34 Exhibit HH, # 35 Exhibit II, # 36 Exhibit JJ, # 37 Exhibit KK, # 38 Exhibit LL, # 39 Exhibit MM, # 40 Exhibit NN, # 41 Exhibit OO, # 42 Exhibit PP, # 43 Exhibit QQ, # 44 Exhibit RR)(Hehenberger, Anna) (Entered: 12/09/2014)
70 DECLARATION of Steven H. Philbrick in Opposition re: 58 MOTION to Certify Class .. Document filed by George B. Alexander(in his individual capacity), George B. Alexander(former Chair and Chief Executive Officer of DOP), Anthony J. Annucci(in his capacity as Deputy Commissioner and Counsel for DOCS), Anthony J. Annucci(Individually), Robert J. Dennison(former Chair of DOP), Robert J. Dennison(in his individual capacity), Anthony G. Ellis, II(in his individual capacity), Anthony G. Ellis, II(former Executive Director of DOP), Andrea W. Evans(in her individual capacity), Andrea W. Evans(in her capacity as Chair and Chief Executive Officer of the New York State Division of Parole (DOP)), Brian Fischer(Individually), Brian Fischer(in his capacity as Commissioner of the New York State Department of Correctional Services (DOCS)), Glenn S. Goord, Glenn S. Goord, Lucien J. LeClaire, Jr(Individually), Lucien J. LeClaire, Jr(former Acting Commissioner of DOCS), Mark Mantei(in his capacity as Executive Director of DOP), Mark Mantei(in his individual capacity), Terence Tracy(in his individual capacity), Terence Tracy(in his capacity as Chief Counsel for DOP). (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Hehenberger, Anna) (Entered: 12/09/2014)
71 DECLARATION of Michael J. Keane in Opposition re: 58 MOTION to Certify Class .. Document filed by George B. Alexander(in his individual capacity), George B. Alexander(former Chair and Chief Executive Officer of DOP), Anthony J. Annucci(in his capacity as Deputy Commissioner and Counsel for DOCS), Anthony J. Annucci(Individually), Robert J. Dennison(former Chair of DOP),

12/09/2014
12/19/2014 12/23/2014 12/23/2014

Robert J. Dennison(in his individual capacity), Anthony G. Ellis, II(in his individual capacity), Anthony G. Ellis, II(former Executive Director of DOP), Andrea W. Evans(in her individual capacity), Andrea W. Evans(in her capacity as Chair and Chief Executive Officer of the New York State Division of Parole (DOP)), Brian Fischer(Individually), Brian Fischer(in his capacity as Commissioner of the New York State Department of Correctional Services (DOCS)), Glenn S. Goord, Glenn S. Goord, Lucien J. LeClaire, Jr(Individually), Lucien J. LeClaire, Jr(former Acting Commissioner of DOCS), Mark Mantei(in his capacity as Executive Director of DOP), Mark Mantei(in his individual capacity), Terence Tracy(in his individual capacity), Terence Tracy(in his capacity as Chief Counsel for DOP). (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H)(Keane, Michael) (Entered: 12/09/2014)
72 MEMORANDUM OF LAW in Opposition re: 58 MOTION to Certify Class . . Document filed by George B. Alexander(in his individual capacity), George B. Alexander(former Chair and Chief Executive Officer of DOP), Anthony J. Annucci(in his capacity as Deputy Commissioner and Counsel for DOCS), Anthony J. Annucci(Individually), Robert J. Dennison(former Chair of DOP), Robert J. Dennison(in his individual capacity), Anthony G. Ellis, II(in his individual capacity), Anthony G. Ellis, II(former Executive Director of DOP), Andrea W. Evans(in her individual capacity), Andrea W. Evans(in her capacity as Chair and Chief Executive Officer of the New York State Division of Parole (DOP)), Brian Fischer(Individually), Brian Fischer(in his capacity as Commissioner of the New York State Department of Correctional Services (DOCS)), Glenn S. Goord, Glenn S. Goord, Lucien J. LeClaire, Jr(Individually), Lucien J. LeClaire, Jr(former Acting Commissioner of DOCS), Mark Mantei(in his capacity as Executive Director of DOP), Mark Mantei(in his individual capacity), Terence Tracy(in his individual capacity), Terence Tracy(in his capacity as Chief Counsel for DOP). (Okereke, Christina) (Entered: 12/09/2014)
73 LETTER addressed to Judge Shira A. Scheindlin from Hayley Horowitz dated 12/19/2014 re: Extension of Discovery Schedule. Document filed by Lloyd A. Barnes, Paul Betances, Gabriel Velez.(Horowitz, Hayley) (Entered: 12/19/2014)
74 REPLY MEMORANDUM OF LAW in Support re: 58 MOTION to Certify Class . . Document filed by Lloyd A. Barnes, Paul Betances, Gabriel Velez. (Brinckerhoff, Matthew) (Entered: 12/23/2014)
75 MEMO ENDORSEMENT on re: (73 in 1:11-cv-03200-SAS) Letter filed by Gabriel Velez, Lloyd A. Barnes, Paul Betances.

01/23/2015 01/28/2015
01/28/2015 03/09/2015
03/10/2015

ENDORSEMENT: Request Granted in part Deposition to be complete by January 30, 2015; Discovery to close March 6, 2015; Pre-Trial Conference rescheduled to March 17, 2015 at 4:30 p.m. SO ORDERED. ( Deposition due by 1/30/2015., Discovery due by 3/6/2015., Pretrial Conference set for 3/17/2015 at 04:30 PM before Judge Shira A. Scheindlin.) (Signed by Judge Shira A. Scheindlin on 12/23/2014) (ama) (Entered: 12/24/2014)
76 JOINT LETTER MOTION for Extension of Time to complete remaining depositions without altering discovery completion deadline addressed to Judge Shira A. Scheindlin from Matthew D. Brinckerhoff dated Jan. 23, 2015. Document filed by Lloyd A. Barnes, Paul Betances, Gabriel Velez.(Brinckerhoff, Matthew) (Entered: 01/23/2015)
77 OPINION AND ORDER #105177 re: 58 MOTION to Certify Class filed by Gabriel Velez, Lloyd A. Barnes, Paul Betances. For the foregoing reasons, the plaintiffs' motion for class certification is GRANTED. The Clerk of the Court is directed to close this motion (Docket No. 58). A conference is scheduled for February 10, 2015 at 4:30 p.m. SO ORDERED. ( Status Conference set for 2/10/2015 at 04:30 PM before Judge Shira A. Scheindlin.) (Signed by Judge Shira A. Scheindlin on 1/28/2015) (ama) Modified on 2/2/2015 (ca). (Entered: 01/28/2015)
78 ORDER granting 76 Letter Motion for Extension of Time. Request Granted. SO ORDERED.(Signed by Judge Shira A. Scheindlin on 1/28/2015) (ama) (Entered: 01/28/2015)
79 STATUS REPORT. in reponse to Judge Francis Document filed by George B. Alexander(former Chair and Chief Executive Officer of DOP), Anthony J. Annucci(in his capacity as Deputy Commissioner and Counsel for DOCS), Robert J. Dennison(former Chair of DOP), Anthony G. Ellis, II(in his individual capacity), Andrea W. Evans(in her individual capacity), Brian Fischer(Individually), Glenn S. Goord, Lucien J. LeClaire, Jr(Individually), Mark Mantei(in his individual capacity), Terence Tracy(in his individual capacity).(Keane, Michael) (Entered: 03/09/2015)
80 LETTER addressed to Judge Shira A. Scheindlin from Michael J. Keane dated March 9, 2015 re: Summary Judgment Pre-Motion Conference. Document filed by George B. Alexander(in his individual capacity), George B. Alexander(former Chair and Chief Executive Officer of DOP), Anthony J. Annucci(in his capacity as Deputy Commissioner and Counsel for DOCS), Anthony J. Annucci(Individually), Robert J. Dennison(former Chair of DOP),

03/13/2015 03/17/2015 03/23/2015 03/25/2015
03/26/2015 03/30/2015

Robert J. Dennison(in his individual capacity), Anthony G. Ellis, II(in his individual capacity), Anthony G. Ellis, II(former Executive Director of DOP), Andrea W. Evans(in her individual capacity), Andrea W. Evans(in her capacity as Chair and Chief Executive Officer of the New York State Division of Parole (DOP)), Brian Fischer(Individually), Brian Fischer(in his capacity as Commissioner of the New York State Department of Correctional Services (DOCS)), Glenn S. Goord, Glenn S. Goord, Lucien J. LeClaire, Jr(Individually), Lucien J. LeClaire, Jr(former Acting Commissioner of DOCS), Mark Mantei(in his capacity as Executive Director of DOP), Mark Mantei(in his individual capacity), Terence Tracy(in his individual capacity), Terence Tracy(in his capacity as Chief Counsel for DOP).(Hehenberger, Anna) (Entered: 03/10/2015)
81 LETTER addressed to Judge Shira A. Scheindlin from Hayley Horowitz dated 3/13/2015 re: Response to Defendants' Pre-Motion Letter and Cross-Motion for Summary Judgment. Document filed by Lloyd A. Barnes, Paul Betances, Gabriel Velez.(Horowitz, Hayley) (Entered: 03/13/2015)
Minute Entry for proceedings held before Judge Shira A. Scheindlin: Status Conference held on 3/17/2015. (Entered: 03/17/2015)
82 LETTER addressed to Judge Shira A. Scheindlin from Matthew D. Brinckerhoff & Hayley Horowitz dated 3/23/2015 re: Pre-Motion Letter. Document filed by Lloyd A. Barnes, Paul Betances, Gabriel Velez.(Horowitz, Hayley) (Entered: 03/23/2015)
83 LETTER addressed to Judge Shira A. Scheindlin from Michael J. Keane dated March 25, 2015 re: motion practice. Document filed by George B. Alexander(in his individual capacity), Anthony J. Annucci(in his capacity as Deputy Commissioner and Counsel for DOCS), Robert J. Dennison(former Chair of DOP), Anthony G. Ellis, II(former Executive Director of DOP), Andrea W. Evans(in her individual capacity), Brian Fischer(in his capacity as Commissioner of the New York State Department of Correctional Services (DOCS)), Glenn S. Goord, Lucien J. LeClaire, Jr(Individually), Mark Mantei(in his capacity as Executive Director of DOP), Terence Tracy(in his individual capacity).(Keane, Michael) (Entered: 03/25/2015)
Minute Entry for proceedings held before Judge Shira A. Scheindlin: Status Conference held on 3/26/2015. (Entered: 03/26/2015)
84 TRANSCRIPT of Proceedings re: CONFERENCE held on 3/17/2015 before Judge Shira A. Scheindlin. Court Reporter/Transcriber: Sabrina D'Emidio, (212) 805-0300. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber

03/30/2015 04/14/2015 04/14/2015 04/23/2015 04/24/2015

before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 4/23/2015. Redacted Transcript Deadline set for 5/4/2015. Release of Transcript Restriction set for 7/2/2015.(McGuirk, Kelly) (Entered: 03/30/2015)
85 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a CONFERENCE proceeding held on 3/17/2015 has been filed by the court reporter/transcriber in the abovecaptioned matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days...(McGuirk, Kelly) (Entered: 03/30/2015)
86 TRANSCRIPT of Proceedings re: CONFERENCE held on 3/26/2015 before Judge Shira A. Scheindlin. Court Reporter/Transcriber: Steven Greenblum, (212) 805-0300. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 5/8/2015. Redacted Transcript Deadline set for 5/18/2015. Release of Transcript Restriction set for 7/16/2015.(McGuirk, Kelly) (Entered: 04/14/2015)
87 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a CONFERENCE proceeding held on 3/26/2015 has been filed by the court reporter/transcriber in the abovecaptioned matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days...(McGuirk, Kelly) (Entered: 04/14/2015)
88 LETTER MOTION for Leave to File Excess Pages to Rule 56.1Statement addressed to Judge Shira A. Scheindlin from Michael J. Keane dated April 23, 2015. Document filed by George B. Alexander(in his individual capacity), Anthony J. Annucci(Individually), Robert J. Dennison(former Chair of DOP), Anthony G. Ellis, II(in his individual capacity), Andrea W. Evans(in her individual capacity), Brian Fischer(Individually), Glenn S. Goord, Lucien J. LeClaire, Jr(Individually), Mark Mantei(in his capacity as Executive Director of DOP), Terence Tracy(in his individual capacity).(Keane, Michael) (Entered: 04/23/2015)
89 ORDER denying 88 Letter Motion for Leave to File Excess Pages. Requests denied. The 56.1 Statement is limited to 25 pages and only five declarations are permitted. So Ordered. The Clerk of Court is

05/08/2015 05/08/2015 05/08/2015

directed to close this motion (Docket # 88). (Signed by Judge Shira A. Scheindlin on 4/24/2015) (ajs) (Entered: 04/24/2015)
90 MOTION for Summary Judgment . Document filed by George B. Alexander(in his individual capacity), George B. Alexander(former Chair and Chief Executive Officer of DOP), Anthony J. Annucci(in his capacity as Deputy Commissioner and Counsel for DOCS), Anthony J. Annucci(Individually), Robert J. Dennison(former Chair of DOP), Robert J. Dennison(in his individual capacity), Anthony G. Ellis, II(in his individual capacity), Anthony G. Ellis, II(former Executive Director of DOP), Andrea W. Evans(in her individual capacity), Andrea W. Evans(in her capacity as Chair and Chief Executive Officer of the New York State Division of Parole (DOP)), Brian Fischer(Individually), Brian Fischer(in his capacity as Commissioner of the New York State Department of Correctional Services (DOCS)), Glenn S. Goord, Glenn S. Goord, Lucien J. LeClaire, Jr(Individually), Lucien J. LeClaire, Jr(former Acting Commissioner of DOCS), Mark Mantei(in his capacity as Executive Director of DOP), Mark Mantei(in his individual capacity), Terence Tracy(in his individual capacity), Terence Tracy(in his capacity as Chief Counsel for DOP).(Okereke, Christina) (Entered: 05/08/2015)
91 DECLARATION of Anthony J. Annucci in Support re: 90 MOTION for Summary Judgment .. Document filed by George B. Alexander(in his individual capacity), George B. Alexander(former Chair and Chief Executive Officer of DOP), Anthony J. Annucci(in his capacity as Deputy Commissioner and Counsel for DOCS), Anthony J. Annucci(Individually), Robert J. Dennison(former Chair of DOP), Robert J. Dennison(in his individual capacity), Anthony G. Ellis, II(in his individual capacity), Anthony G. Ellis, II(former Executive Director of DOP), Andrea W. Evans(in her individual capacity), Andrea W. Evans(in her capacity as Chair and Chief Executive Officer of the New York State Division of Parole (DOP)), Brian Fischer(Individually), Brian Fischer(in his capacity as Commissioner of the New York State Department of Correctional Services (DOCS)), Glenn S. Goord, Glenn S. Goord, Lucien J. LeClaire, Jr(Individually), Lucien J. LeClaire, Jr(former Acting Commissioner of DOCS), Mark Mantei(in his capacity as Executive Director of DOP), Mark Mantei(in his individual capacity), Terence Tracy(in his individual capacity), Terence Tracy(in his capacity as Chief Counsel for DOP). (Attachments: # 1 Exhibit Exhibit A, # 2 Exhibit Exhibit B, # 3 Exhibit Exhibit C, # 4 Exhibit Exhibit D, # 5 Exhibit Exhibit E)(Okereke, Christina) (Entered: 05/08/2015)
92 DECLARATION of Richard de Simone in Support re: 90 MOTION for Summary Judgment .. Document filed by George B. Alexander(in his

05/08/2015 05/08/2015

individual capacity), George B. Alexander(former Chair and Chief Executive Officer of DOP), Anthony J. Annucci(in his capacity as Deputy Commissioner and Counsel for DOCS), Anthony J. Annucci(Individually), Robert J. Dennison(former Chair of DOP), Robert J. Dennison(in his individual capacity), Anthony G. Ellis, II(in his individual capacity), Anthony G. Ellis, II(former Executive Director of DOP), Andrea W. Evans(in her individual capacity), Andrea W. Evans(in her capacity as Chair and Chief Executive Officer of the New York State Division of Parole (DOP)), Brian Fischer(Individually), Brian Fischer(in his capacity as Commissioner of the New York State Department of Correctional Services (DOCS)), Glenn S. Goord, Glenn S. Goord, Lucien J. LeClaire, Jr(Individually), Lucien J. LeClaire, Jr(former Acting Commissioner of DOCS), Mark Mantei(in his capacity as Executive Director of DOP), Mark Mantei(in his individual capacity), Terence Tracy(in his individual capacity), Terence Tracy(in his capacity as Chief Counsel for DOP). (Attachments: # 1 Exhibit Exhibit A)(Okereke, Christina) (Entered: 05/08/2015)
93 DECLARATION of Steven H. Philbrick in Support re: 90 MOTION for Summary Judgment .. Document filed by George B. Alexander(in his individual capacity), George B. Alexander(former Chair and Chief Executive Officer of DOP), Anthony J. Annucci(in his capacity as Deputy Commissioner and Counsel for DOCS), Anthony J. Annucci(Individually), Robert J. Dennison(former Chair of DOP), Robert J. Dennison(in his individual capacity), Anthony G. Ellis, II(in his individual capacity), Anthony G. Ellis, II(former Executive Director of DOP), Andrea W. Evans(in her individual capacity), Andrea W. Evans(in her capacity as Chair and Chief Executive Officer of the New York State Division of Parole (DOP)), Brian Fischer(Individually), Brian Fischer(in his capacity as Commissioner of the New York State Department of Correctional Services (DOCS)), Glenn S. Goord, Glenn S. Goord, Lucien J. LeClaire, Jr(Individually), Lucien J. LeClaire, Jr(former Acting Commissioner of DOCS), Mark Mantei(in his capacity as Executive Director of DOP), Mark Mantei(in his individual capacity), Terence Tracy(in his individual capacity), Terence Tracy(in his capacity as Chief Counsel for DOP). (Attachments: # 1 Exhibit Exhibit A, # 2 Exhibit Exhibit B)(Okereke, Christina) (Entered: 05/08/2015)
94 DECLARATION of Terrence X. Tracy in Support re: 90 MOTION for Summary Judgment .. Document filed by George B. Alexander(in his individual capacity), George B. Alexander(former Chair and Chief Executive Officer of DOP), Anthony J. Annucci(in his capacity as Deputy Commissioner and Counsel for DOCS), Anthony J. Annucci(Individually), Robert J. Dennison(former Chair of DOP), Robert J. Dennison(in his individual capacity), Anthony G. Ellis, II(in

05/08/2015 05/08/2015

his individual capacity), Anthony G. Ellis, II(former Executive Director of DOP), Andrea W. Evans(in her individual capacity), Andrea W. Evans(in her capacity as Chair and Chief Executive Officer of the New York State Division of Parole (DOP)), Brian Fischer(Individually), Brian Fischer(in his capacity as Commissioner of the New York State Department of Correctional Services (DOCS)), Glenn S. Goord, Glenn S. Goord, Lucien J. LeClaire, Jr(Individually), Lucien J. LeClaire, Jr(former Acting Commissioner of DOCS), Mark Mantei(in his capacity as Executive Director of DOP), Mark Mantei(in his individual capacity), Terence Tracy(in his individual capacity), Terence Tracy(in his capacity as Chief Counsel for DOP). (Attachments: # 1 Exhibit Exhibit A)(Okereke, Christina) (Entered: 05/08/2015)
95 DECLARATION of Michael J. Keane in Support re: 90 MOTION for Summary Judgment .. Document filed by George B. Alexander(in his individual capacity), George B. Alexander(former Chair and Chief Executive Officer of DOP), Anthony J. Annucci(in his capacity as Deputy Commissioner and Counsel for DOCS), Anthony J. Annucci(Individually), Robert J. Dennison(former Chair of DOP), Robert J. Dennison(in his individual capacity), Anthony G. Ellis, II(in his individual capacity), Anthony G. Ellis, II(former Executive Director of DOP), Andrea W. Evans(in her individual capacity), Andrea W. Evans(in her capacity as Chair and Chief Executive Officer of the New York State Division of Parole (DOP)), Brian Fischer(Individually), Brian Fischer(in his capacity as Commissioner of the New York State Department of Correctional Services (DOCS)), Glenn S. Goord, Glenn S. Goord, Lucien J. LeClaire, Jr(Individually), Lucien J. LeClaire, Jr(former Acting Commissioner of DOCS), Mark Mantei(in his capacity as Executive Director of DOP), Mark Mantei(in his individual capacity), Terence Tracy(in his individual capacity), Terence Tracy(in his capacity as Chief Counsel for DOP). (Attachments: # 1 Exhibit Exhibit A, # 2 Exhibit Exhibit B)(Okereke, Christina) (Entered: 05/08/2015)
96 RULE 56.1 STATEMENT. Document filed by George B. Alexander(in his individual capacity), George B. Alexander(former Chair and Chief Executive Officer of DOP), Anthony J. Annucci(in his capacity as Deputy Commissioner and Counsel for DOCS), Anthony J. Annucci(Individually), Robert J. Dennison(former Chair of DOP), Robert J. Dennison(in his individual capacity), Anthony G. Ellis, II(in his individual capacity), Anthony G. Ellis, II(former Executive Director of DOP), Andrea W. Evans(in her individual capacity), Andrea W. Evans(in her capacity as Chair and Chief Executive Officer of the New York State Division of Parole (DOP)), Brian Fischer(Individually), Brian Fischer(in his capacity as Commissioner of the New York State Department of Correctional Services (DOCS)), Glenn S. Goord, Glenn

S. Goord, Lucien J. LeClaire, Jr(Individually), Lucien J. LeClaire, Jr(former Acting Commissioner of DOCS), Mark Mantei(in his capacity as Executive Director of DOP), Mark Mantei(in his individual capacity), Terence Tracy(in his individual capacity), Terence Tracy(in his capacity as Chief Counsel for DOP). (Okereke, Christina) (Entered: 05/08/2015)

05/08/2015

97 MEMORANDUM OF LAW in Support re: 90 MOTION for Summary Judgment . . Document filed by George B. Alexander(in his individual capacity), George B. Alexander(former Chair and Chief Executive Officer of DOP), Anthony J. Annucci(in his capacity as Deputy Commissioner and Counsel for DOCS), Anthony J. Annucci(Individually), Robert J. Dennison(former Chair of DOP), Robert J. Dennison(in his individual capacity), Anthony G. Ellis, II(in his individual capacity), Anthony G. Ellis, II(former Executive Director of DOP), Andrea W. Evans(in her individual capacity), Andrea W. Evans(in her capacity as Chair and Chief Executive Officer of the New York State Division of Parole (DOP)), Brian Fischer(Individually), Brian Fischer(in his capacity as Commissioner of the New York State Department of Correctional Services (DOCS)), Glenn S. Goord, Glenn S. Goord, Lucien J. LeClaire, Jr(Individually), Lucien J. LeClaire, Jr(former Acting Commissioner of DOCS), Mark Mantei(in his capacity as Executive Director of DOP), Mark Mantei(in his individual capacity), Terence Tracy(in his individual capacity), Terence Tracy(in his capacity as Chief Counsel for DOP). (Okereke, Christina) (Entered: 05/08/2015)

06/08/2015

98 LETTER addressed to Judge Shira A. Scheindlin from Hayley Horowitz dated June 8, 2015 re: Extension of Time to File Summary Judgment Motion. Document filed by Lloyd A. Barnes, Paul Betances, Gabriel Velez.(Horowitz, Hayley) (Entered: 06/08/2015)

06/09/2015

99 MEMO ENDORSEMENT on re: 98 Letter filed by Gabriel Velez, Lloyd A. Barnes, Paul Betances, re: Extension of Time to File Summary Judgment Motion. ENDORSEMENT: Request granted. So Ordered. (Signed by Judge Shira A. Scheindlin on 6/9/2015) (ajs) (Entered: 06/09/2015)

06/09/2015

Set/Reset Deadlines: Responses due by 6/22/2015 Replies due by 6/29/2015. (ajs) (Entered: 06/09/2015)

06/09/2015

100 MOTION for Partial Summary Judgment on liability against Defendants Fischer, Annucci and Tracy. Document filed by Lloyd A. Barnes, Paul Betances, Gabriel Velez. Responses due by 6/22/2015(Brinckerhoff, Matthew) (Entered: 06/09/2015)

06/10/2015

101 RESPONSE in Opposition to Motion re: 90 MOTION for Summary Judgment . Local Rule 56.1 Response. Document filed by Lloyd A. Barnes, Paul Betances, Gabriel Velez. (Brinckerhoff, Matthew) (Entered: 06/10/2015)

06/10/2015

102 DECLARATION of Matthew D. Brinckerhoff in Support re: 100 MOTION for Partial Summary Judgment on liability against Defendants Fischer, Annucci and Tracy.. Document filed by Lloyd A. Barnes, Paul Betances, Gabriel Velez. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13)(Brinckerhoff, Matthew) (Entered: 06/10/2015)

06/10/2015

103 MEMORANDUM OF LAW in Opposition re: 90 MOTION for Summary Judgment . and In Support of Plaintiff's Cross-Motion for Partial Summary Judgment. Document filed by Lloyd A. Barnes, Paul Betances, Gabriel Velez. (Brinckerhoff, Matthew) (Entered: 06/10/2015)

06/10/2015

104 MEMORANDUM OF LAW in Support re: 100 MOTION for Partial Summary Judgment on liability against Defendants Fischer, Annucci and Tracy. and In Opposition to Defendants' Motion for Summary Judgment. Document filed by Lloyd A. Barnes, Paul Betances, Gabriel Velez. (Brinckerhoff, Matthew) (Entered: 06/10/2015)

06/10/2015

105 RULE 56.1 STATEMENT. Document filed by Lloyd A. Barnes, Paul Betances, Gabriel Velez. (Brinckerhoff, Matthew) (Entered: 06/10/2015)

06/23/2015

106 MEMORANDUM OF LAW in Opposition re: 100 MOTION for Partial Summary Judgment on liability against Defendants Fischer, Annucci and Tracy., 90 MOTION for Summary Judgment . and in further support of defendants' motion for summary judgment. Document filed by George B. Alexander(in his individual capacity), Anthony J. Annucci(in his capacity as Deputy Commissioner and Counsel for DOCS), Robert J. Dennison(former Chair of DOP), Anthony G. Ellis, II(in his individual capacity), Andrea W. Evans(in her capacity as Chair and Chief Executive Officer of the New York State Division of Parole (DOP)), Brian Fischer(Individually), Glenn S. Goord, Lucien J. LeClaire, Jr(Individually), Mark Mantei(in his capacity as Executive Director of DOP), Terence Tracy(in his individual capacity). (Keane, Michael) (Entered: 06/23/2015)

06/23/2015

107 RULE 56.1 STATEMENT. Document filed by George B. Alexander(in his individual capacity), Anthony J. Annucci(Individually), Robert J. Dennison(former Chair of DOP), Anthony G. Ellis, II(in his individual

capacity), Andrea W. Evans(in her individual capacity), Brian Fischer(Individually), Glenn S. Goord, Lucien J. LeClaire, Jr(Individually), Mark Mantei(in his capacity as Executive Director of DOP), Terence Tracy(in his individual capacity). (Keane, Michael) (Entered: 06/23/2015)

06/29/2015

108 REPLY MEMORANDUM OF LAW in Support re: 100 MOTION for Partial Summary Judgment on liability against Defendants Fischer, Annucci and Tracy. . Document filed by Lloyd A. Barnes, Paul Betances, Gabriel Velez. (Horowitz, Hayley) (Entered: 06/29/2015)

06/29/2015

109 FILING ERROR - WRONG EVENT TYPE SELECTED FROM MENU - RESPONSE in Support of Motion re: 100 MOTION for Partial Summary Judgment on liability against Defendants Fischer, Annucci and Tracy. Response to Defendants' 56.1 Counter-Statement. Document filed by Lloyd A. Barnes, Paul Betances, Gabriel Velez. (Horowitz, Hayley) Modified on 6/30/2015 (db). (Entered: 06/29/2015)

06/29/2015

***NOTICE TO ATTORNEY TO RE-FILE DOCUMENT EVENT TYPE ERROR. Notice to Attorney Hayley Horowitz to RE-FILE Document 109 Response in Support of Motion. Use the event type Response (non-motion) found under the event list Other Answers. (db) (Entered: 06/30/2015)

06/30/2015

110 RESPONSE re: 100 MOTION for Partial Summary Judgment on liability against Defendants Fischer, Annucci and Tracy. Plaintiffs' Response to Defendants' 56.1 Counter-Statement. Document filed by Lloyd A. Barnes, Paul Betances, Gabriel Velez. (Horowitz, Hayley) (Entered: 06/30/2015)

07/14/2015

111 LETTER from Albert Esposito, DIN#09A5466, dated 6/24/15 re: Nonparty Albert Esposito requests that, because of improper addition to his sentence which caused him to serve numerous incarcerations etc., the Court add him as a plaintiff in this case, or to please inform him as to how to proceed to become added as a plaintiff. (sc) (Entered: 07/14/2015)

08/06/2015

112 OPINION AND ORDER #105772 re: 100 MOTION for Partial Summary Judgment on liability against Defendants Fischer, Annucci and Tracy. filed by Gabriel Velez, Lloyd A. Barnes, Paul Betances, 90 MOTION for Summary Judgment . filed by Anthony J. Annucci, Mark Mantei, Lucien J. LeClaire, Jr., Glenn S. Goord, Andrea W. Evans, Terence Tracy, George B. Alexander, Anthony G. Ellis, II, Brian Fischer, Robert J. Dennison. For the foregoing reasons, plaintiffs' motion for summary judgment is GRANTED, and defendants' motion for summary judgment is GRANTED as to defendants Goord, LeClaire, Dennison, Alexander, Evans, Ellis, and Mantei, and DENIED as to the

remaining defendants and as to qualified immunity. Defendants' motion to modify the class is also DENIED. The Clerk of the Court is directed to close this motion (Dkt. No. 58). A conference is scheduled for September 2, 2015 at 4:30 p.m. SO ORDERED. (As further set forth within this Order.) (Status Conference set for 9/2/2015 at 04:30 PM before Judge Shira A. Scheindlin.), Robert J. Dennison (in his individual capacity), Robert J. Dennison (former Chair of DOP), Anthony G. Ellis, II (in his individual capacity), Anthony G. Ellis, II (former Executive Director of DOP), Andrea W. Evans (in her individual capacity), Andrea W. Evans (in her capacity as Chair and Chief Executive Officer of the New York State Division of Parole (DOP)), Glenn S. Goord (Individually), Glenn S. Goord (former Commissioner of DOCS), Lucien J. LeClaire, Jr (former Acting Commissioner of DOCS), Lucien J. LeClaire, Jr (Individually), Mark Mantei (in his capacity as Executive Director of DOP), Mark Mantei (in his individual capacity), George B. Alexander (in his individual capacity) and George B. Alexander (former Chair and Chief Executive Officer of DOP) terminated. (Signed by Judge Shira A. Scheindlin on 8/6/2015) (ajs) Modified on 8/13/2015 (ajs). Modified on 8/18/2015 (soh). (Entered: 08/06/2015)

09/02/2015

Minute Entry for proceedings held before Judge Shira A. Scheindlin: Status Conference held on 9/2/2015. (Entered: 09/18/2015)

09/08/2015

113 NOTICE OF INTERLOCUTORY APPEAL from 112 Memorandum & Opinion, Set Hearings, Add and Terminate Parties,,,,,,,,,,,,,,,,,,,,,. Document filed by Anthony J. Annucci(in his capacity as Deputy Commissioner and Counsel for DOCS), Anthony J. Annucci(Individually), Brian Fischer(Individually), Brian Fischer(in his capacity as Commissioner of the New York State Department of Correctional Services (DOCS)), Terence Tracy(in his individual capacity), Terence Tracy(in his capacity as Chief Counsel for DOP). Form C and Form D are due within 14 days to the Court of Appeals, Second Circuit. (Keane, Michael) (Entered: 09/08/2015)

09/08/2015

Appeal Fee Due: for 113 Notice of Interlocutory Appeal,,. $505.00 Appeal fee due by 9/22/2015. (nd) (Entered: 09/08/2015)

09/08/2015

Transmission of Notice of Appeal and Certified Copy of Docket Sheet to US Court of Appeals re: 113 Notice of Interlocutory Appeal,,. (nd) (Entered: 09/08/2015)

09/08/2015

Appeal Record Sent to USCA (Electronic File). Certified Indexed record on Appeal Electronic Files for 113 Notice of Interlocutory Appeal,, filed by Anthony J. Annucci, Terence Tracy, Brian Fischer

were transmitted to the U.S. Court of Appeals. (nd) (Entered: 09/08/2015)

09/09/2015

USCA Case Number 15-2836 from the U.S. Court of Appeals, Second Circuit assigned to 113 Notice of Interlocutory Appeal,, filed by Anthony J. Annucci, Terence Tracy, Brian Fischer. (nd) (Entered: 09/09/2015)

09/09/2015

USCA Appeal Fees received $ 505.00 receipt number 465401134027 on 09/09/2015 re: 113 Notice of Interlocutory Appeal,, filed by Anthony J. Annucci, Terence Tracy, Brian Fischer. [USCA Case No. 15-2836]. (nd) (Entered: 09/09/2015)

09/25/2015

114 LETTER addressed to Judge Shira A. Scheindlin from Matthew D. Brinckerhoff dated 09/25/2015 re: Request for Pre-Motion Conference. Document filed by Lloyd A. Barnes, Paul Betances, Gabriel Velez.(Brinckerhoff, Matthew) (Entered: 09/25/2015)

09/30/2015

115 LETTER addressed to Judge Shira A. Scheindlin from Michael J. Keane dated September 30, 2015 re: pre-motion letter response. Document filed by Anthony J. Annucci(in his capacity as Deputy Commissioner and Counsel for DOCS), Anthony J. Annucci(Individually), Brian Fischer(Individually), Brian Fischer(in his capacity as Commissioner of the New York State Department of Correctional Services (DOCS)), Terence Tracy(in his individual capacity), Terence Tracy(in his capacity as Chief Counsel for DOP).(Keane, Michael) (Entered: 09/30/2015)

10/05/2015

116 LETTER addressed to Judge Shira A. Scheindlin from Matthew D. Brinckerhoff dated 10/5/2015 re: Response to Defendants' Letter dated Sept. 30, 2015. Document filed by Lloyd A. Barnes, Paul Betances, Gabriel Velez.(Brinckerhoff, Matthew) (Entered: 10/05/2015)

10/08/2015

117 TRANSCRIPT of Proceedings re: Conference held on 9/2/2015 before Judge Shira A. Scheindlin. Court Reporter/Transcriber: Alena Lynch, (212) 805-0300. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 11/2/2015. Redacted Transcript Deadline set for 11/12/2015. Release of Transcript Restriction set for 1/9/2016.(Siwik, Christine) (Entered: 10/08/2015)

10/08/2015

118 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a Conference proceeding held on 9/2/15 has been filed by the court reporter/transcriber in the abovecaptioned matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no

such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days...(Siwik, Christine) (Entered: 10/08/2015)

10/08/2015

Minute Entry for proceedings held before Judge Shira A. Scheindlin: Status Conference held on 10/8/2015. (Entered: 10/08/2015)

10/13/2015

119 LETTER addressed to Judge Shira A. Scheindlin from Michael J. Keane dated October 13, 2015 re: supplement to oral argument of October 8, 2015. Document filed by Anthony J. Annucci(in his capacity as Deputy Commissioner and Counsel for DOCS), Anthony J. Annucci(Individually), Brian Fischer(Individually), Brian Fischer(in his capacity as Commissioner of the New York State Department of Correctional Services (DOCS)), Terence Tracy(in his individual capacity), Terence Tracy(in his capacity as Chief Counsel for DOP).(Keane, Michael) (Entered: 10/13/2015)

10/13/2015

120 LETTER addressed to Judge Shira A. Scheindlin from Matthew D. Brinckerhoff dated 10/13/2015 re: Post-Motion Argument Sumission in Further Support of Motion to Certify Defendants' Interlocutory Qualified Immunity Appeal as Frivolous. Document filed by Lloyd A. Barnes, Paul Betances, Gabriel Velez.(Brinckerhoff, Matthew) (Entered: 10/13/2015)

10/14/2015

121 OPINION AND ORDER #105957: For the foregoing reasons, plaintiffs' motion for an Order certifying defendants' interlocutory appeal as frivolous and retaining this Court's jurisdiction pending the appeal is GRANTED. SO ORDERED. (As further set forth within this Opinion.) (Signed by Judge Shira A. Scheindlin on 10/14/2015) (ajs) Modified on 10/19/2015 (ca). (Entered: 10/14/2015)

10/19/2015

122 TRANSCRIPT of Proceedings re: CONFERENCE held on 10/8/2015 before Judge Shira A. Scheindlin. Court Reporter/Transcriber: Lisa Picciano Fellis, (212) 805-0300. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 11/12/2015. Redacted Transcript Deadline set for 11/23/2015. Release of Transcript Restriction set for 1/20/2016.(McGuirk, Kelly) (Entered: 10/19/2015)

10/19/2015

123 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a CONFERENCE proceeding held on 10/8/15 has been filed by the court reporter/transcriber in the abovecaptioned matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically

available to the public without redaction after 90 calendar days...(McGuirk, Kelly) (Entered: 10/19/2015)

10/23/2015

Minute Entry for proceedings held before Judge Shira A. Scheindlin: Status Conference held on 10/23/2015. (Entered: 10/26/2015)

10/26/2015

124 ORDER: On October 23, 2015, the Court granted an adjournment of the scheduled trial of portions of these actions to February 8, 2016. The Court also set the following pre-trial schedule: (1) expert discovery must be complete by January 8, 2016; (2) any motions in limine must be fully briefed by January 8, 2016; and (3) the Joint Pretrial Order is due January 22, 2016. No further extension of this trial date will be granted. (Expert Discovery due by 1/8/2016., Motions due by 1/8/2016., Pretrial Order due by 1/22/2016.) (Signed by Judge Shira A. Scheindlin on 10/26/2015) (kl) (Entered: 10/26/2015)

10/30/2015 125 NOTICE OF APPEARANCE by Alanna Gayle Kaufman Small on behalf of Lloyd A. Barnes, Paul Betances, Gabriel Velez. (Small, Alanna) (Entered: 10/30/2015)

11/03/2015

126 TRANSCRIPT of Proceedings re: CONFERENCE held on 10/23/2015 before Judge Shira A. Scheindlin. Court Reporter/Transcriber: Andrew Walker, (212) 805-0300. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 11/27/2015. Redacted Transcript Deadline set for 12/7/2015. Release of Transcript Restriction set for 2/4/2016.(McGuirk, Kelly) (Entered: 11/03/2015)

11/03/2015

127 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a CONFERENCE proceeding held on 10/23/15 has been filed by the court reporter/transcriber in the abovecaptioned matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days...(McGuirk, Kelly) (Entered: 11/03/2015)

11/05/2015

128 TRANSCRIPT of Proceedings re: Conference held on 11/13/2014 before Judge Shira A. Scheindlin. Court Reporter/Transcriber: Jeffrey Benz, (212) 805-0300. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 11/30/2015. Redacted Transcript Deadline set for 12/10/2015. Release of Transcript Restriction set for 2/6/2016.(Siwik, Christine) (Entered: 11/05/2015)

11/05/2015

129 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a Conference proceeding held on 11/13/14 has been filed by the court reporter/transcriber in the abovecaptioned matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days...(Siwik, Christine) (Entered: 11/05/2015)

12/10/2015

130 ORDER of USCA (Certified Copy) as to 113 Notice of Interlocutory Appeal,, filed by Anthony J. Annucci, Terence Tracy, Brian Fischer. USCA Case Number 15-2836. Appellants move for an order overturning the district court's determination that this appeal is frivolous and confirming that further proceedings in the trial court are stayed pending this appeal. It is hereby ORDERED that the motion is DENIED in part, insofar as we refer the arguable questions of frivolousness, appellate jurisdiction or the merits to the merits panel, and GRANTED in part, insofar as we hereby ORDER a stay of further District Court proceedings until further order of this Court. The Clerk is directed to EXPEDITE consideration of this matter by a merits panel. Catherine O'Hagan Wolfe, Clerk USCA for the Second Circuit. Certified: 12/10/2015. (nd) (Entered: 12/11/2015)

12/11/2015

131 ORDER of USCA (Certified Copy) as to 113 Notice of Interlocutory Appeal,, filed by Anthony J. Annucci, Terence Tracy, Brian Fischer. USCA Case Number 15-2836. The Court's December 10, 2015 order issued as the result of an administrative error. IT IS HEREBY ORDERED that the order is vacated. Catherine O'Hagan Wolfe, Clerk USCA for the Second Circuit. Certified: 12/11/2015. (nd) (Entered: 12/11/2015)

12/16/2015

132 ORDER of USCA (Certified Copy) as to 113 Notice of Interlocutory Appeal,, filed by Anthony J. Annucci, Terence Tracy, Brian Fischer. USCA Case Number 15-2836-cv. On November 10, 2015, defendantsappellants Brian Fischer, Anthony J. Annucci, and Terence Tracy (jointly, "defendants") moved to stay all proceedings in the District Court during the pendency of their interlocutory appeal. Plaintiffsappellees opposed their motion. The motion is GRANTED. Further proceedings in the District Court are STAYED pending disposition of defendants interlocutory appeal, which appeal will be EXPEDITED. This order is without prejudice to consideration by a merits panel of the various issues identified by the parties in their moving papers, including the question of the district courts' institutional competence to determine whether this Court should not hear an interlocutory appeal on the ground that it is frivolous. Catherine O'Hagan Wolfe, Clerk USCA for the Second Circuit. Certified: 12/16/2015. (nd) (Entered: 12/16/2015)

03/09/2016

133 NOTICE OF CHANGE OF ADDRESS by Alanna Gayle Kaufman Small on behalf of Lloyd A. Barnes, Paul Betances. New Address: Emery Celli Brinckerhoff & Abady LLP, 600 Fifth Avenue, 10th Floor, New York, NY, USA 10020, 212-763-5000. (Small, Alanna) (Entered: 03/09/2016)

03/31/2016

NOTICE OF CASE REASSIGNMENT to Judge Deborah A. Batts. Judge Shira A. Scheindlin is no longer assigned to the case. (wb) (Entered: 03/31/2016)

09/16/2016

134 OPINION of USCA as to 113 Notice of Interlocutory Appeal,, filed by Anthony J. Annucci, Terence Tracy, Brian Fischer. USCA Case Number 15-2836-cv. In Earley v. Murray, 451 F.3d 71 (2d Cir. 2006) ("Earley I"), we held that the New York State Department of Correctional Services's ("DOCS") practice of administratively adding a term of postrelease supervision ("PRS") to sentences in which PRS had not been imposed by the sentencing judge and the New York State Division of Parole's ("DOP") practice of enforcing the administratively added PRS terms violated the Constitution. Notwithstanding their awareness of our holding, defendants DOCS officials Anthony J. Annucci and Brian Fischer and DOP official Terence Tracy decided not to follow it and only did so after the New York Court of Appeals invalidated the administrative practice more than 22 months later. The plaintiffs, offenders who had been subject to PRS in violation of Earley I, sued the defendants for the actions they took in violation of Earley I and moved for summary judgment. The district court (Scheindlin, J.) granted the motion. The defendants appeal the grant of summary judgment and also argue that the district court erred in granting plaintiffs' motion to deem the appeal frivolous so that the district court could retain jurisdiction and proceed with a trial on damages. We AFFIRM. Catherine O'Hagan Wolfe, Clerk USCA for the Second Circuit. Certified: 09/16/2016. (nd) (Entered: 09/16/2016)

10/11/2016

135 MANDATE of USCA (Certified Copy) as to 113 Notice of Interlocutory Appeal,, filed by Anthony J. Annucci, Terence Tracy, Brian Fischer. USCA Case Number 15-2836. IT IS HEREBY ORDERED, ADJUDGED and DECREED that the order is AFFIRMED and the case is REMANDED for further proceedings consistent with this Courts opinion. Catherine O'Hagan Wolfe, Clerk USCA for the Second Circuit. Issued As Mandate: 10/11/2016. (nd) (Entered: 10/11/2016)

10/14/2016

136 LETTER addressed to Judge Deborah A. Batts from Hayley Horowitz dated October 14, 2016 re: Referral to Magistrate for Settlement. Document filed by Lloyd A. Barnes, Paul Betances, Gabriel Velez.(Horowitz, Hayley) (Entered: 10/14/2016)

10/19/2016

137 LETTER addressed to Judge Deborah A. Batts from Michael J. Keane dated October 19, 2016 re: Status of Case and Response to Plaintiffs' Letter of October 14, 2016. Document filed by Anthony J. Annucci(in his capacity as Deputy Commissioner and Counsel for DOCS), Anthony J. Annucci(Individually), Brian Fischer(Individually), Brian Fischer(in his capacity as Commissioner of the New York State Department of Correctional Services (DOCS)), Terence Tracy(in his individual capacity), Terence Tracy(in his capacity as Chief Counsel for DOP).(Keane, Michael) (Entered: 10/19/2016)

10/20/2016

138 NOTICE OF APPEARANCE by Barbara Kathryn Hathaway on behalf of Anthony J. Annucci(Individually), Brian Fischer(Individually), Terence Tracy(in his individual capacity). (Hathaway, Barbara) (Entered: 10/20/2016)

10/20/2016

139 LETTER addressed to Judge Deborah A. Batts from Hayley Horowitz dated October 20, 2016 re: Reply to Defendants' Letter [dkt 137]. Document filed by Lloyd A. Barnes, Paul Betances, Gabriel Velez.(Horowitz, Hayley) (Entered: 10/20/2016)

10/20/2016

140 LETTER addressed to Judge Deborah A. Batts from Michael J. Keane dated October 20, 2016 re: Reply to Plaintiffs' Letter of October 19, 2016. Document filed by Anthony J. Annucci(in his capacity as Deputy Commissioner and Counsel for DOCS), Brian Fischer(Individually), Terence Tracy(in his capacity as Chief Counsel for DOP).(Keane, Michael) (Entered: 10/20/2016)

10/20/2016

141 ORDER: The Court reopens the discovery period and refers these cases to Magistrate Judge Francis for supervision of discovery and for settlement purposes. Discovery is extended until January 31, 2017, subject to further extension by Judge Francis in his discretion. Discovery due by 1/31/2017. (Signed by Judge Deborah A. Batts on 10/20/2016) (kgo) (Entered: 10/21/2016)

10/20/2016

142 AMENDED ORDER REFERRING CASE TO MAGISTRATE JUDGE. Order that case be referred to the Clerk of Court for assignment to a Magistrate Judge for Settlement and Discovery Supervision. Referred to Magistrate Judge James C. Francis. (Signed by Judge Deborah A. Batts on 10/20/2016) (kgo) (Entered: 10/21/2016)

11/28/2016

143 LETTER addressed to Magistrate Judge James C. Francis IV from Matthew D. Brinckerhoff dated November 28, 2016 re: Request for an Adjourment. Document filed by Lloyd A. Barnes, Paul Betances, Gabriel Velez.(Brinckerhoff, Matthew) (Entered: 11/28/2016)

12/07/2016 144 ORDER: A settlement conference will be held in these cases on January 9, 2017, at 1:30 p.m. in Courtroom 18-D at the United States

Courthouse, 500 Pearl Street, New York, NY. ( Settlement Conference set for 1/9/2017 at 01:30 PM in Courtroom 18D, 500 Pearl Street, New York, NY 10007 before Magistrate Judge James C. Francis.) (Signed by Magistrate Judge James C. Francis on 12/7/2016) (mro) (Entered: 12/07/2016)

01/05/2017

145 ENDORSED LETTER addressed to Magistrate Judge James C. Francis IV from Joel Berger dated 1/5/2017 re: Request to consolidate cases. ENDORSEMENT: granted. (Signed by Judge Deborah A. Batts on 1/5/2017) (kgo) (Entered: 01/06/2017)

01/05/2017

CONSOLIDATED MEMBER CASE: Create association to 1:11-cv01056-DAB. (kgo) (Entered: 01/06/2017)

01/05/2017

146 LETTER from Barry Inman(DIN#14B2988 dated 12/29/16 re: Nonparty Barry Inman requests that the Court inform him as to what the initials (SAS) stand for(Scheindlin). (sc) (Entered: 01/09/2017)

01/09/2017

Minute Entry for proceedings held before Magistrate Judge James C. Francis: Settlement Conference held on 1/9/2017. Associated Cases: 1:11-cv-01056-DAB, 1:11-cv-03200-DAB(Bacchus, Michael) (Entered: 01/09/2017)

01/19/2017

147 NOTICE OF WITHDRAWAL AND APPEARANCE AND ORDER: PLEASE TAKE NOTICE that the undersigned, Assistant Attorney General Christina Okereke, will no longer be employed by the New York State Office of the Attorney General and, accordingly, hereby withdraws as counsel of record for the defendants in the abovecaptioned action and requests that her appearance be terminated. Attorney Christina Chinwe Okereke terminated. (Signed by Judge Deborah A. Batts on 1/19/2017) (kgo) (Entered: 01/19/2017)

01/20/2017

148 ORDER: A pretrial conference having been held on January 20, 2017, it is hereby ORDERED as follows: 1. By February 28, 2017, plaintiffs shall conduct a Rule 30(b) (6) deposition relating to the Department of Corrections and Division of Parole databases containing information about post-release supervision. 2. Within one week of completion of the deposition referred to in paragraph 1 above, counsel shall schedule a telephone conference with the Court. 3. The deadline for completing remaining discovery is extended to April 28, 2017., ( Deposition due by 2/28/2017., Discovery due by 4/28/2017.) (Signed by Magistrate Judge James C. Francis on 1/20/2017) (lmb) (Entered: 01/20/2017)

02/24/2017

149 LETTER MOTION for Extension of Time to Complete Discovery addressed to Magistrate Judge James C. Francis IV from Michael J. Keane dated February 24, 2017. Document filed by Anthony J. Annucci(in his capacity as Deputy Commissioner and Counsel for

DOCS), Brian Fischer(in his capacity as Commissioner of the New York State Department of Correctional Services (DOCS)), Terence Tracy(in his capacity as Chief Counsel for DOP).(Keane, Michael) (Entered: 02/24/2017)

02/27/2017

150 ORDER granting 149 Letter Motion for Extension of Time to Complete Discovery. The deadline for completing the 30(b)(6) deposition referred to in my January 20, 2017 order is extended to March 30, 2017. (HEREBY ORDERED by Magistrate Judge James C. Francis)(Text Only Order) (Francis, James) (Entered: 02/27/2017)

03/30/2017

151 LETTER MOTION for Extension of Time to Complete Discovery addressed to Magistrate Judge James C. Francis IV from Matthew D. Brinckerhoff dated March 30, 2017., LETTER MOTION for Conference re: 148 Order, Set Deadlines,,,, addressed to Magistrate Judge James C. Francis IV from Matthew D. Brinckerhoff dated March 30, 2017. Document filed by Lloyd A. Barnes, Paul Betances, Gabriel Velez.(Brinckerhoff, Matthew) (Entered: 03/30/2017)

03/31/2017

152 ORDER granting 151 Letter Motion for Extension of Time to Complete Discovery; granting 151 Letter Motion for Conference. The time to complete the 30(b)(6) deposition concerning the DOCCS database is extended to April 28, 2017. Counsel shall contact chambers to schedule a conference to discuss the completion of the remaining discovery. (HEREBY ORDERED by Magistrate Judge James C. Francis)(Text Only Order) (Francis, James) (Entered: 03/31/2017)

04/12/2017

153 LETTER addressed to Judge Deborah A. Batts from Shawn Nelson dated 4/6/2017 re: I am also a class member in (Betances v. Fischer) case against the Dept. of Corrections and Supervision. Document filed by Shawn Nelson.(sac) (Entered: 04/13/2017)

04/14/2017

154 LETTER addressed to Judge Deborah A. Batts from Hayley Horowitz dated April 14, 2017 re: Correspondence from S. Nelson, dkt. no. 153 . Document filed by Lloyd A. Barnes, Paul Betances, Gabriel Velez.(Horowitz, Hayley) (Entered: 04/14/2017)

04/19/2017

Minute Entry for proceedings held before Magistrate Judge James C. Francis: Telephone Conference held on 4/19/2017. (Bacchus, Michael) (Entered: 04/19/2017)

04/19/2017

155 LETTER MOTION for Extension of Time to Complete Discovery addressed to Magistrate Judge James C. Francis IV from Matthew D. Brinckerhoff dated April 19, 2017. Document filed by Lloyd A. Barnes, Paul Betances, Gabriel Velez.(Brinckerhoff, Matthew) (Entered: 04/19/2017)

04/20/2017

156 ORDER granting 155 Letter Motion for Extension of Time to Complete Discovery. The discovery deadline is extended to May 31, 2017. This order also applies to Bentley v. Dennison, 11 Civ. 1056 (DAB). (HEREBY ORDERED by Magistrate Judge James C. Francis)(Text Only Order) (Francis, James) (Entered: 04/20/2017)

05/26/2017

157 LETTER MOTION for Extension of Time to Complete Discovery addressed to Magistrate Judge James C. Francis IV from Hayley Horowitz dated May 26, 2017. Document filed by Lloyd A. Barnes, Paul Betances.(Horowitz, Hayley) (Entered: 05/26/2017)

05/30/2017

158 ORDER granting 157 Letter Motion for Extension of Time to Complete Discovery. Application granted. This order applies to 11 civ. 1056 as well. So Ordered. (Discovery due by 6/30/2017.) (Signed by Magistrate Judge James C. Francis on 5/30/17) (yv) (Entered: 05/30/2017)

06/19/2017

Minute Entry for proceedings held before Magistrate Judge James C. Francis: Telephone Conference held on 6/19/2017. (Bacchus, Michael) (Entered: 06/19/2017)

06/28/2017

159 LETTER MOTION for Extension of Time to Complete Discovery from June 30, 2017 to August 15, 2017 addressed to Magistrate Judge James C. Francis IV from Hayley Horowitz dated June 28, 2017. Document filed by Lloyd A. Barnes, Paul Betances, Gabriel Velez.(Horowitz, Hayley) (Entered: 06/28/2017)

06/30/2017

160 ORDER granting 159 Letter Motion for Extension of Time to Complete Discovery. (11-civ-3200 and 11-civ-1056 file in both) Application granted. SO ORDERED. (Discovery due by 8/15/2017.) (Signed by Magistrate Judge James C. Francis on 6/30/2017) (anc) (Entered: 06/30/2017)

07/13/2017

161 LETTER MOTION to Adjourn Conference addressed to Magistrate Judge James C. Francis IV from Alanna Kaufman dated July 13, 2017. Document filed by Lloyd A. Barnes, Paul Betances, Gabriel Velez.(Kaufman, Alanna) (Entered: 07/13/2017)

07/13/2017

162 ORDER granting 161 Letter Motion to Adjourn Conference. The telephone conference is rescheduled for July 21, 2017 at 2:00 p.m. (HEREBY ORDERED by Magistrate Judge James C. Francis)(Text Only Order) (Francis, James) (Entered: 07/13/2017)

07/21/2017

Minute Entry for proceedings held before Magistrate Judge James C. Francis: Telephone Conference held on 7/21/2017. Associated Cases: 1:11-cv-01056-DAB, 1:11-cv-03200-DAB(Bacchus, Michael) (Entered: 07/25/2017)

08/14/2017

163 LETTER MOTION for Extension of Time to Complete Discovery from August 15, 2017 to September 29, 2017 addressed to Magistrate Judge James C. Francis IV from Alanna Kaufman dated August 14, 2017. Document filed by Lloyd A. Barnes, Paul Betances, Gabriel Velez.(Kaufman, Alanna) (Entered: 08/14/2017)

08/16/2017 164 MOTION for Hayley Horowitz to Withdraw as Attorney . Document filed by Lloyd A. Barnes, Paul Betances, Gabriel Velez.(Horowitz, Hayley) (Entered: 08/16/2017)

08/16/2017

165 AFFIRMATION of Hayley Horowitz in Support re: 164 MOTION for Hayley Horowitz to Withdraw as Attorney .. Document filed by Lloyd A. Barnes, Paul Betances, Gabriel Velez. (Horowitz, Hayley) (Entered: 08/16/2017)

08/17/2017

166 ORDER granting 164 Motion to Withdraw as Attorney. Attorney Hayley Horowitz terminated. (HEREBY ORDERED by Magistrate Judge James C. Francis)(Text Only Order) (Francis, James) (Entered: 08/17/2017)

08/17/2017

167 ORDER granting 163 Letter Motion for Extension of Time to Complete Discovery. Discovery shall be completed by September 29, 2017. (HEREBY ORDERED by Magistrate Judge James C. Francis)(Text Only Order) (Francis, James) (Entered: 08/17/2017)

08/23/2017

Minute Entry for proceedings held before Magistrate Judge James C. Francis: Telephone Conference held on 8/23/2017. Associated Cases: 1:11-cv-01056-DAB, 1:11-cv-03200-DAB(Bacchus, Michael) (Entered: 08/23/2017)

09/12/2017

Minute Entry for proceedings held before Magistrate Judge James C. Francis: Telephone Conference held on 9/12/2017. Associated Cases: 1:11-cv-01056-DAB, 1:11-cv-03200-DAB(Bacchus, Michael) (Entered: 09/12/2017)

09/27/2017

168 LETTER MOTION for Extension of Time to Complete Discovery from September 29, 2017 to October 31, 2017 and Two Week Adjournment of the Teleconference Scheduled for Tomorrow, September 28, 2017 to October 12, 2017 addressed to Magistrate Judge James C. Francis IV from Alanna Kaufman dated September 27, 2017. Document filed by Lloyd A. Barnes, Paul Betances, Gabriel Velez.(Kaufman, Alanna) (Entered: 09/27/2017)

09/28/2017 169 ORDER granting 168 Letter Motion for Extension of Time to Complete Discovery. All discovery shall be completed by October 31, 2017; the telephone conference is rescheduled to October 12, 2017, at 9:00 a.m.

(HEREBY ORDERED by Magistrate Judge James C. Francis)(Text Only Order) (Francis, James) (Entered: 09/28/2017)

10/11/2017

170 LETTER MOTION to Adjourn Conference addressed to Magistrate Judge James C. Francis IV from Matthew D. Brinckerhoff dated Oct. 11, 2017. Document filed by Lloyd A. Barnes, Paul Betances, Gabriel Velez.(Brinckerhoff, Matthew) (Entered: 10/11/2017)

10/11/2017

171 ORDER granting 170 Letter Motion to Adjourn Conference. The telephone conference is adjourned to October 24, 2017, at 9:00 a.m. (HEREBY ORDERED by Magistrate Judge James C. Francis)(Text Only Order) (Francis, James) (Entered: 10/11/2017)

10/23/2017

172 LETTER MOTION to Adjourn Conference addressed to Magistrate Judge James C. Francis IV from Alanna Kaufman dated October 23, 2017. Document filed by Lloyd A. Barnes, Paul Betances, Gabriel Velez.(Kaufman, Alanna) (Entered: 10/23/2017)

10/24/2017

173 ORDER granting 172 Letter Motion to Adjourn Conference. The telephone conference scheduled for today, October 24, 2017, is cancelled. Counsel shall contact my successor, the Honorable Robert Lehrburger, next week to reschedule. (HEREBY ORDERED by Magistrate Judge James C. Francis)(Text Only Order) (Francis, James) (Entered: 10/24/2017)

10/24/2017

174 LETTER MOTION for Extension of Time to Complete Discovery from October 31, 2017 to November 30, 2017 addressed to Magistrate Judge James C. Francis IV from Alanna Kaufman dated October 24, 2017. Document filed by Lloyd A. Barnes, Paul Betances, Gabriel Velez.(Kaufman, Alanna) (Entered: 10/24/2017)

10/25/2017

175 ORDER granting 174 Letter Motion for Extension of Time to Complete Discovery. The discovery deadline in this case and in Bentley, 11 Civ. 1056 (DAB), is extended to November 30, 2017. (HEREBY ORDERED by Magistrate Judge James C. Francis)(Text Only Order) (Francis, James) (Entered: 10/25/2017)

11/09/2017

NOTICE OF REDESIGNATION TO ANOTHER MAGISTRATE JUDGE. The above entitled action has been redesignated to Magistrate Judge Robert W. Lehrburger. Please note that this is a reassignment of the designation only. (jc) (Entered: 11/09/2017)

11/09/2017

NOTICE OF REASSIGNMENT OF A REFERRAL TO ANOTHER MAGISTRATE JUDGE. The referral in the above entitled action has been reassigned to Magistrate Judge Robert W. Lehrburger, for Settlement. Magistrate Judge James C. Francis no longer referred to the case. (jc) (Entered: 11/09/2017)

11/13/2017

NOTICE of Hearing: Telephone Conference set for 11/22/2017 at 10:00 AM before Magistrate Judge Robert W. Lehrburger. Counsel shall jointly call the chambers conference line at (212) 805-0113.(rsh) (Entered: 11/13/2017)

11/13/2017

DUE TO A SCHEDULING CONFLICT, THE 11/22/17, 10:00 A.M. TELEPHONE CONFERENCE HAS BEEN CHANGED TO 11/22/2017 at 11:00 AM before Magistrate Judge Robert W. Lehrburger. Counsel shall jointly call the chambers conference line at (212) 805-0113. (rsh) (Entered: 11/13/2017)

11/22/2017

Minute entry for proceedings held before Magistrate Judge Robert W. Lehrburger: Telephone Conference held on 11/22/2017 at 11:00 a.m. (rsh) (Entered: 11/22/2017)

11/22/2017

NOTICE and ORDER of Hearing: Settlement Conference set for 1/25/2018 at 10:00 AM in Courtroom 18D, 500 Pearl Street, New York, NY 10007 before Magistrate Judge Robert W. Lehrburger. Parties are instructed to review and adhere to Judge Lehrburger's individual Settlement Conference Procedures. The parties are further instructed to submit their pre-conference submissions, along with their Attendance Acknowledgment Form (available in pdf fillable format as attachment to the Settlement Conference Procedures) no later than January 18, 2018, by 5:00 p.m.(rsh) (Entered: 11/22/2017)

11/27/2017

176 LETTER MOTION for Extension of Time to Complete Discovery addressed to Magistrate Judge Robert W. Lehrburger from Matthew D. Brinckerhoff dated 11/27/2017. Document filed by Lloyd A. Barnes, Paul Betances, Gabriel Velez.(Brinckerhoff, Matthew) (Entered: 11/27/2017)

11/27/2017

177 ORDER granting 176 Letter Motion for Extension of Time to Complete Discovery. Discovery due by 1/16/2018. (HEREBY ORDERED by Magistrate Judge Robert W. Lehrburger)(Text Only Order) (Lehrburger, Robert) (Entered: 11/27/2017)

01/12/2018

178 LETTER MOTION for Extension of Time to Complete Discovery addressed to Magistrate Judge Robert W. Lehrburger from Alanna Kaufman dated January 12, 2018. Document filed by Lloyd A. Barnes, Paul Betances, Gabriel Velez.(Kaufman, Alanna) (Entered: 01/12/2018)

01/16/2018

179 ORDER granting 178 Letter Motion for Extension of Time to Complete Discovery Discovery due by 3/16/2018. The request for an extension of time to March 16, 2018 to complete discovery is GRANTED. The parties should be mindful of the age of this case and the numerous extensions previously granted, and make every effort to avoid further

extensions. (HEREBY ORDERED by Magistrate Judge Robert W. Lehrburger)(Text Only Order) (Lehrburger, Robert) (Entered: 01/16/2018)

01/22/2018

180 STATUS REPORT. re Second Circuit decision Document filed by Anthony J. Annucci(in his capacity as Deputy Commissioner and Counsel for DOCS), Brian Fischer(in his capacity as Commissioner of the New York State Department of Correctional Services (DOCS)), Terence Tracy(in his capacity as Chief Counsel for DOP). (Attachments: # 1 Exhibit A)(Keane, Michael) (Entered: 01/22/2018)

01/25/2018

Minute entry for proceedings held before Magistrate Judge Robert W. Lehrburger: Case Management Conference held on 1/25/2018 at 10:00 a.m. (rsh) (Entered: 02/15/2018)

01/30/2018

NOTICE of Hearing: Telephone Conference set for 2/1/2018 at 4:00 PM before Magistrate Judge Robert W. Lehrburger. Parties shall jointly call the chambers conference line at (212) 805-0113.(rsh) (Entered: 01/30/2018)

02/01/2018

Minute entry for proceedings held before Magistrate Judge Robert W. Lehrburger: Telephone Conference held on 2/1/2018 at 4:00 p.m. (rsh) (Entered: 02/01/2018)

03/15/2018

181 LETTER addressed to Robert W. Lehrburger from Matthew D. Brinckerhoff dated March 15, 2018 re: Request for Extension of the Discovery Deadline. Document filed by Lloyd A. Barnes, Paul Betances, Gabriel Velez.(Brinckerhoff, Matthew) (Entered: 03/15/2018)

03/15/2018

182 ORDER. The motion to extend the deadline for discovery (Dkt. 181) from March 16, 2018 to April 15, 2018, is granted. SO ORDERED. (Signed by Magistrate Judge Robert W. Lehrburger on 3/15/2018) (Lehrburger, Robert) (Entered: 03/15/2018)

04/12/2018

183 LETTER MOTION for Extension of Time to Complete Discovery addressed to Magistrate Judge Robert W. Lehrburger from Matthew D. Brinckerhoff dated April 12, 2018. Document filed by Lloyd A. Barnes, Paul Betances, Gabriel Velez.(Brinckerhoff, Matthew) (Entered: 04/12/2018)

04/13/2018

184 ORDER granting 183 Letter Motion for Extension of Time to Complete Discovery.The deadline to complete Discovery is extended to May 31, 2018. No conference shall be held at this time. Should the parties require the Court's assistance with discovery issues or interim deadlines, they shall meet and confer and file a letter. Discovery due by 5/31/2018. (HEREBY ORDERED by Magistrate Judge Robert W.

Lehrburger)(Text Only Order) (Lehrburger, Robert) (Entered: 04/13/2018)

05/03/2018

185 NOTICE OF CHANGE OF ADDRESS by Barbara Kathryn Hathaway on behalf of Anthony J. Annucci(Individually), Brian Fischer(Individually), Terence Tracy(in his individual capacity). New Address: Office of the New York State Attorney General, 28 Liberty Street, New York, New York, USA 10005, (212) 416-8560. (Hathaway, Barbara) (Entered: 05/03/2018)

05/10/2018

186 NOTICE OF CHANGE OF ADDRESS by Michael J. Keane on behalf of Anthony J. Annucci(Individually), Brian Fischer(Individually), Terence Tracy(in his individual capacity). New Address: Office of the Attorney General of the State of New York, 28 Liberty, New York, New York, United States 10005, 212-416-8550. (Keane, Michael) (Entered: 05/10/2018)

05/30/2018

187 CONSENT TO JURISDICTION BY A US MAGISTRATE JUDGE by Anthony J. Annucci(in his capacity as Deputy Commissioner and Counsel for DOCS), Anthony J. Annucci(Individually), Lloyd A. Barnes, Paul Betances, Brian Fischer(Individually), Brian Fischer(in his capacity as Commissioner of the New York State Department of Correctional Services (DOCS)), Terence Tracy(in his individual capacity), Terence Tracy(in his capacity as Chief Counsel for DOP), Gabriel Velez. (Case No Longer Referred to Magistrate Judge) CASE ASSIGNED to Magistrate Judge Robert W. Lehrburger. (Signed by Judge Deborah A. Batts on 5/30/2018) (kgo) (Entered: 05/30/2018)

05/30/2018

188 LETTER MOTION for Extension of Time to Complete Discovery addressed to Magistrate Judge Robert W. Lehrburger from Matthew D. Brinckerhoff dated May 30, 2018. Document filed by Lloyd A. Barnes, Paul Betances, Gabriel Velez.(Brinckerhoff, Matthew) (Entered: 05/30/2018)

05/30/2018

189 ORDER granting 188 Letter Motion for Extension of Time to Complete Discovery. The discovery deadline is extended to July 31, 2018. My courtroom deputy will reach out to the parties to schedule a conference call. (HEREBY ORDERED by Magistrate Judge Robert W. Lehrburger)(Text Only Order) (Lehrburger, Robert) (Entered: 05/30/2018)

05/31/2018

190 SCHEDULING ORDER: Telephone Conference set for 6/21/2018 at 4:00 PM before Magistrate Judge Robert W. Lehrburger. Parties shall jointly call the chambers conference line at (212) 805-0113. (Signed by Magistrate Judge Robert W. Lehrburger on 5/31/2018) (rsh) (Entered: 05/31/2018)

06/21/2018

191 ORDER: No later than June 29, 2018, Defendants shall file a letter setting forth the issues on which it proposes to move for summary judgment. Plaintiffs shall respond by July 6, 2018. The parties shall meet and confer as to framing of the issues. The parties also shall meet and confer as to a proposed briefing schedule and report the proposed schedule to the Court by July 6, 2018. If the parties cannot agree on a briefing schedule, they shall submit their competing proposals to the Court in a single letter. By June 29, 2018, Plaintiffs shall identify to Defendants the fields from the "DOCS Database" screenshots that Plaintiffs believe are necessary to this litigation. By July 13, 2018, Defendants shall determine and report to the Court whether the data for the fields identified by Plaintiffs can be produced in native format (i.e., electronic data that can be fed into an electronic database) to Plaintiffs within a reasonable time period of not more than 2 months. If Defendants determine that this can be done, they shall produce the data to Plaintiff no later than September 13, 2018. Depending on the expense incurred in producing the data in native form, the Court may require Plaintiffs to pay some or all of that cost. If production in native format is not feasible or cannot be completed within a two-month period, then Defendants shall produce to Plaintiffs all screenshots of information for the population of potential class members by September 13, 2018. There will be no extensions on this date absent truly compelling circumstances. Depending on the costs of processing the information into a database or other useful format, the Court may require Defendants to pay some or all of that cost. Failure to meet the above deadlines may result in sanctions. (Signed by Magistrate Judge Robert W. Lehrburger on 6/21/2018) Copies transmitted to all counsel of record. (mro) (Entered: 06/22/2018)

06/21/2018

Minute entry for proceedings held before Magistrate Judge Robert W. Lehrburger: Telephone Conference held on 6/21/2018 at 4:00 p.m. (rsh) (Entered: 06/25/2018)

06/29/2018

192 FILING ERROR - WRONG EVENT TYPE SELECTED FROM MENU - LETTER MOTION for Conference to schedule motion addressed to Magistrate Judge Robert W. Lehrburger from Michael J. Keane dated June 29, 2018. Document filed by Anthony J. Annucci(in his capacity as Deputy Commissioner and Counsel for DOCS), Brian Fischer(in his capacity as Commissioner of the New York State Department of Correctional Services (DOCS)), Terence Tracy(in his capacity as Chief Counsel for DOP).(Keane, Michael) Modified on 7/2/2018 (db). (Entered: 06/29/2018)

07/02/2018

***NOTICE TO ATTORNEY TO RE-FILE DOCUMENT EVENT TYPE ERROR. Notice to Attorney Michael J. Keane to RE-FILE Document (83 in 1:11-cv-01056-RWL) LETTER

MOTION for Conference to schedule motion addressed to Magistrate Judge Robert W. Lehrburger from Michael J. Keane dated June 29, 2018. (192 in 1:11-cv-03200-RWL) LETTER MOTION for Conference to schedule motion addressed to Magistrate Judge Robert W. Lehrburger from Michael J. Keane dated June 29, 2018. Use the event type Letter found under the event list Other Documents. Filed In Associated Cases: 1:11-cv01056-RWL, 1:11-cv-03200-RWL(db) (Entered: 07/02/2018)

07/06/2018

193 LETTER addressed to Robert W. Lehrburger from Matthew D. Brinckerhoff dated July 6, 2018 re: Plaintiffs' Letter in response to Defendants' letter dated June 29, 2018. Document filed by Lloyd A. Barnes, Paul Betances, Gabriel Velez.(Brinckerhoff, Matthew) (Entered: 07/06/2018)

07/10/2018

194 ORDER: The parties having agreed upon a briefing schedule, the following briefing schedule shall apply to Defendants' motion for a ruling as a matter of law on the issues outlined in Defendants' June 29, 2018 letter (Dkt. 192). a. Aug. 10, 2018: Defendants' Opening Brief. b. Sept. 7, 2018: Plaintiffs' Responsive Brief. c. Sept. 21, 2018: Defendants' Reply Brief. With respect to the issues outlined in Defendants' June 29, 2018 letter, the Court suggests a potential way to organize the issues would be as set forth herein. ( Motions due by 8/10/2018., Responses due by 9/7/2018, Replies due by 9/21/2018.) (Signed by Magistrate Judge Robert W. Lehrburger on 7/10/2018) Copies transmitted to all counsel of record. (mro) (Entered: 07/10/2018)

07/13/2018

195 STATUS REPORT. regarding database production in native format Document filed by Anthony J. Annucci(Individually), Brian Fischer(Individually), Terence Tracy(in his individual capacity).(Keane, Michael) (Entered: 07/13/2018)

07/16/2018

196 ORDER: The Court is in receipt of Defendants' letter submitted pursuant to the Court's June 21, 2018 Order. Defendants assert that production of database information in electronic/native form is not feasible. Therefore, in accordance with Paragraph 3 of the June 21, 2018 Order, Defendants must produce all screenshots of information for the population of potential class members by September 13, 2018. The parties are free to discuss and agree upon alternative means of production for the information sought, but as per the June 21, 2018 Order, the deadline for production of the information will not be extended absent truly compelling circumstances. SO ORDERED. (Signed by Magistrate Judge Robert W. Lehrburger on 07/16/18) (Lehrburger, Robert) (Entered: 07/16/2018)

08/08/2018

197 LETTER MOTION for Leave to File Excess Pages addressed to Magistrate Judge Robert W. Lehrburger dated August 8, 2018. Document filed by Anthony J. Annucci(Individually), Brian Fischer(in his capacity as Commissioner of the New York State Department of Correctional Services (DOCS)), Terence Tracy(in his capacity as Chief Counsel for DOP).(Keane, Michael) (Entered: 08/08/2018)

08/09/2018

198 ORDER granting 197 Letter Motion for Leave to File Excess Pages. (HEREBY ORDERED by Magistrate Judge Robert W. Lehrburger)(Text Only Order) (Lehrburger, Robert) (Entered: 08/09/2018)

08/10/2018

199 MOTION for Summary Judgment and to Modify or Decertify the Class. Document filed by Anthony J. Annucci(in his capacity as Deputy Commissioner and Counsel for DOCS), Anthony J. Annucci(Individually), Brian Fischer(Individually), Brian Fischer(in his capacity as Commissioner of the New York State Department of Correctional Services (DOCS)), Terence Tracy(in his individual capacity), Terence Tracy(in his capacity as Chief Counsel for DOP).(Keane, Michael) (Entered: 08/10/2018)

08/10/2018

200 RULE 56.1 STATEMENT. Document filed by Anthony J. Annucci(in his capacity as Deputy Commissioner and Counsel for DOCS), Anthony J. Annucci(Individually), Brian Fischer(Individually), Brian Fischer(in his capacity as Commissioner of the New York State Department of Correctional Services (DOCS)), Terence Tracy(in his individual capacity), Terence Tracy(in his capacity as Chief Counsel for DOP). (Keane, Michael) (Entered: 08/10/2018)

08/11/2018

201 MEMORANDUM OF LAW in Support re: 199 MOTION for Summary Judgment and to Modify or Decertify the Class. . Document filed by Anthony J. Annucci(in his capacity as Deputy Commissioner and Counsel for DOCS), Anthony J. Annucci(Individually), Brian Fischer(Individually), Brian Fischer(in his capacity as Commissioner of the New York State Department of Correctional Services (DOCS)), Terence Tracy(in his individual capacity), Terence Tracy(in his capacity as Chief Counsel for DOP). (Keane, Michael) (Entered: 08/11/2018)

08/11/2018

202 DECLARATION of Michael J. Keane in Support re: 199 MOTION for Summary Judgment and to Modify or Decertify the Class.. Document filed by Anthony J. Annucci(in his capacity as Deputy Commissioner and Counsel for DOCS), Anthony J. Annucci(Individually), Brian Fischer(Individually), Brian Fischer(in his capacity as Commissioner of the New York State Department of Correctional Services (DOCS)), Terence Tracy(in his individual capacity), Terence Tracy(in his

capacity as Chief Counsel for DOP). (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit E, # 5 Exhibit E-A, # 6 Exhibit E-B, # 7 Exhibit E-C, # 8 Exhibit E-D, # 9 Exhibit E-E, # 10 Exhibit F, # 11 Exhibit F-A, # 12 Exhibit G, # 13 Exhibit G-A, # 14 Exhibit G-B, # 15 Exhibit H, # 16 Exhibit H-A, # 17 Exhibit H-B, # 18 Exhibit I, # 19 Exhibit I-A, # 20 Exhibit I-B, # 21 Exhibit J, # 22 Exhibit K, # 23 Exhibit L)(Keane, Michael) (Entered: 08/11/2018)

08/16/2018

203 DECLARATION of Michael J. Keane in Support re: 199 MOTION for Summary Judgment and to Modify or Decertify the Class.. Document filed by Anthony J. Annucci(in his capacity as Deputy Commissioner and Counsel for DOCS), Brian Fischer(Individually), Terence Tracy(in his individual capacity). (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit E-A, # 7 Exhibit E-B, # 8 Exhibit E-C, # 9 Exhibit E-D, # 10 Exhibit E-E, # 11 Exhibit F, # 12 Exhibit F-A, # 13 Exhibit G, # 14 Exhibit G-A, # 15 Exhibit G-B, # 16 Exhibit H, # 17 Exhibit H-A, # 18 Exhibit H-B, # 19 Exhibit I, # 20 Exhibit I-A, # 21 Exhibit I-B, # 22 Exhibit J, # 23 Exhibit K, # 24 Exhibit L)(Keane, Michael) (Entered: 08/16/2018)

08/16/2018

204 LETTER addressed to Robert W. Lehrburger from Michael J. Keane dated August 16, 2018 re: Corrected Filing Docket #202. Document filed by Anthony J. Annucci(in his capacity as Deputy Commissioner and Counsel for DOCS), Brian Fischer(in his capacity as Commissioner of the New York State Department of Correctional Services (DOCS)), Terence Tracy(in his capacity as Chief Counsel for DOP).(Keane, Michael) (Entered: 08/16/2018)

08/27/2018

205 LETTER MOTION for Leave to File Excess Pages addressed to Magistrate Judge Robert W. Lehrburger from Matthew D. Brinckerhoff dated August 27, 2018. Document filed by Lloyd A. Barnes, Paul Betances, Gabriel Velez.(Brinckerhoff, Matthew) (Entered: 08/27/2018)

08/27/2018 206 ORDER re 205 Letter Motion for Leave to File Excess Pages. Granted. So ordered. (Signed by Magistrate Judge Robert W. Lehrburger)(Text Only Order) (Lehrburger, Robert) (Entered: 08/27/2018)

09/07/2018

207 LETTER MOTION for Extension of Time to File Response/Reply by five days addressed to Magistrate Judge Robert W. Lehrburger from Matthew D. Brinckerhoff dated 9/7/2018. Document filed by Gabriel Velez.(Brinckerhoff, Matthew) (Entered: 09/07/2018)

09/07/2018

208 ORDER granting 207 Letter Motion for Extension of Time to File Response/Reply. (HEREBY ORDERED by Magistrate Judge Robert W. Lehrburger)(Text Only Order) (Lehrburger, Robert) (Entered: 09/07/2018)

09/12/2018 209 COUNTER STATEMENT TO 200 Rule 56.1 Statement,. Document filed by Lloyd A. Barnes, Paul Betances, Gabriel Velez. (Brinckerhoff, Matthew) (Entered: 09/12/2018)

09/12/2018

210 MEMORANDUM OF LAW in Opposition re: 199 MOTION for Summary Judgment and to Modify or Decertify the Class. . Document filed by Lloyd A. Barnes, Paul Betances, Gabriel Velez. (Brinckerhoff, Matthew) (Entered: 09/12/2018)

09/24/2018

211 LETTER MOTION for Extension of Time addressed to Magistrate Judge Robert W. Lehrburger from Michael J. Keane dated September 24 2018., LETTER MOTION for Extension of Time to File Response/Reply addressed to Magistrate Judge Robert W. Lehrburger from Michael J. Keane dated September 24 2018. Document filed by Anthony J. Annucci(Individually), Brian Fischer(in his capacity as Commissioner of the New York State Department of Correctional Services (DOCS)), Terence Tracy(in his capacity as Chief Counsel for DOP).(Keane, Michael) (Entered: 09/24/2018)

09/25/2018

212 ORDER granting 211 Letter Motion for Extension of Time: Defendants' request, on consent, for an extension of time until October 1, 2018, to file a reply is granted. (HEREBY ORDERED by Magistrate Judge Robert W. Lehrburger)(Text Only Order) (Lehrburger, Robert) (Entered: 09/25/2018)

10/01/2018

213 REPLY MEMORANDUM OF LAW in Support re: 199 MOTION for Summary Judgment and to Modify or Decertify the Class. . Document filed by Anthony J. Annucci(Individually), Brian Fischer(Individually), Terence Tracy(in his individual capacity). (Keane, Michael) (Entered: 10/01/2018)

10/02/2018

214 LETTER MOTION for Oral Argument addressed to Magistrate Judge Robert W. Lehrburger from Matthew D. Brinckerhoff dated 10/2/2018. Document filed by Lloyd A. Barnes, Paul Betances, Gabriel Velez.(Brinckerhoff, Matthew) (Entered: 10/02/2018)

10/02/2018

215 ORDER granting 214 Letter Motion for Oral Argument: The Court will hear oral argument on the pending motion for summary judgment and class decertification. The date will be determined at a later time and notice given by separate order. (HEREBY ORDERED by Magistrate Judge Robert W. Lehrburger)(Text Only Order) (Lehrburger, Robert) (Entered: 10/02/2018)

01/17/2019

216 SCHEDULING ORDER: Oral Argument set for 2/5/2019 at 2:15 PM in Courtroom 18D, 500 Pearl Street, New York, NY 10007 before Magistrate Judge Robert W. Lehrburger. Parties are instructed to review and adhere to Judge Lehrburger's individual rules and practices.

(Signed by Magistrate Judge Robert W. Lehrburger on 1/17/2019) (rsh) (Entered: 01/17/2019)

01/29/2019

217 LETTER addressed to Magistrate Judge Robert W. Lehrburger from Matthew D. Brinckerhoff dated 1/29/2019 re: Relevant Court Decision. Document filed by Lloyd A. Barnes, Paul Betances, Gabriel Velez.(Brinckerhoff, Matthew) (Entered: 01/29/2019)

02/01/2019

218 LETTER addressed to Magistrate Judge Robert W. Lehrburger from Michael J. Keane dated February 1, 2019 re: response to Plaintiff's January 29, 2019 letter. Document filed by Anthony J. Annucci(in his capacity as Deputy Commissioner and Counsel for DOCS), Anthony J. Annucci(Individually), Brian Fischer(Individually), Brian Fischer(in his capacity as Commissioner of the New York State Department of Correctional Services (DOCS)), Terence Tracy(in his individual capacity), Terence Tracy(in his capacity as Chief Counsel for DOP).(Keane, Michael) (Entered: 02/01/2019)

02/04/2019

219 LETTER addressed to Magistrate Judge Robert W. Lehrburger from Joel Berger dated 02/04/2019 re: Response to Defendants' Letter of February 1, 2019, re. Issues to be Discussed at Tomorrow's 2:15 P.M. Oral Argument.. Document filed by Kevin Michael Bentley.Filed In Associated Cases: 1:11-cv-01056-RWL, 1:11-cv-03200-RWL(Berger, Joel) (Entered: 02/04/2019)

02/05/2019

Minute Entry for proceedings held before Magistrate Judge Robert W. Lehrburger: Oral Argument held on 2/5/2019 at 2:15 p.m. (Court Reporter Pamela Utter present) (rsh) (Entered: 02/05/2019)

02/11/2019

220 LETTER addressed to Magistrate Judge Robert W. Lehrburger from Michael J. Keane dated February 11, 2019 re: response to Bentley counsel letter of February 4, 2019. Document filed by Anthony J. Annucci(in his capacity as Deputy Commissioner and Counsel for DOCS), Anthony J. Annucci(Individually), Brian Fischer(Individually), Brian Fischer(in his capacity as Commissioner of the New York State Department of Correctional Services (DOCS)), Terence Tracy(in his individual capacity), Terence Tracy(in his capacity as Chief Counsel for DOP).(Keane, Michael) (Entered: 02/11/2019)

02/12/2019

221 LETTER addressed to Magistrate Judge Robert W. Lehrburger from Joel Berger, Esq. dated 02/12/2019 re: Letter Responding to Defendants' Letter of 02/11/19. Document filed by Kevin Michael Bentley.Filed In Associated Cases: 1:11-cv-01056-RWL, 1:11-cv03200-RWL(Berger, Joel) (Entered: 02/12/2019)

02/21/2019 222 DECISION AND ORDER granting in part and denying in part 199 Motion for Summary Judgment. For the foregoing reasons,

Defendants' Motion for Summary Judgment is GRANTED IN PART and DENIED IN PART. Defendants are granted summary judgment limiting the Nunc Pro Tunc Plaintiffs to nominal damages. Defendants' motion is denied in all other respects. All other arguments asserted by Defendants but not expressly discussed herein have been considered by the Court and determined to be without merit. (Signed by Magistrate Judge Robert W. Lehrburger on 2/21/2019) Copies Sent By Chambers. (mml) (Entered: 02/21/2019)

02/27/2019

223 ORDER: The Court having issued its decision on Plaintiffs' summary judgment motion on February 21, 2019, the parties are directed to meet and confer and, by March 13, 2019, file with the Court a proposed schedule for the remainder of the case. (Signed by Magistrate Judge Robert W. Lehrburger on 02/27/2019) (Lehrburger, Robert) (Entered: 02/27/2019)

03/13/2019

224 JOINT LETTER addressed to Magistrate Judge Robert W. Lehrburger from Matthew D. Brinckerhoff dated March 13, 2019 re: Propose Schedule for Simultaneously Pursuing Settlement & Preparing for a Class-Wide Damages Trial. Document filed by Lloyd A. Barnes, Paul Betances, Gabriel Velez.(Brinckerhoff, Matthew) (Entered: 03/13/2019)

03/14/2019

225 MEMO ENDORSEMENT on re: 224 Letter, filed by Gabriel Velez, Lloyd A. Barnes, Paul Betances. ENDORSEMENT: SO ORDERED. (Expert Deposition due by 8/30/2019., Motions due by 9/27/2019., Joint Pretrial Order due by 9/27/2019.) (Signed by Magistrate Judge Robert W. Lehrburger on 3/14/2019) (mml) (Entered: 03/14/2019)

04/08/2019 226 NOTICE OF APPEARANCE by David A Lebowitz on behalf of Lloyd A. Barnes, Paul Betances, Gabriel Velez. (Lebowitz, David) (Entered: 04/08/2019)

06/07/2019

227 JOINT LETTER MOTION for Extension of Time addressed to Magistrate Judge Robert W. Lehrburger from Matthew D. Brinckerhoff dated 6/7/2019. Document filed by Lloyd A. Barnes, Paul Betances, Gabriel Velez.(Brinckerhoff, Matthew) (Entered: 06/07/2019)

06/10/2019

228 ORDER denying 227 Letter Motion for Extension of Time. The Court will not approve a suspension of deadlines. However, the parties may submit no later than June 19, 2019, a proposed revised schedule for the Courts consideration. The Court also urges the parties to make finalizing these tasks a priority, particularly given the age of the case. (HEREBY ORDERED by Magistrate Judge Robert W. Lehrburger)(Text Only Order) (rsh) (Entered: 06/10/2019)

06/19/2019

229 LETTER MOTION for Extension of Time addressed to Magistrate Judge Robert W. Lehrburger from Matthew D. Brinckerhoff dated 06/19/2019. Document filed by Gabriel Velez.(Brinckerhoff, Matthew) (Entered: 06/19/2019)

06/20/2019

230 ORDER granting 229 Letter Motion for Extension of Time. Granted. SO ORDERED. Expert Deposition due by 11/8/2019. Pretrial Order due by 11/15/2019. (Signed by Magistrate Judge Robert W. Lehrburger on 6/20/2019) (mml) (Entered: 06/20/2019)

09/26/2019

231 JOINT LETTER MOTION for Extension of Time and Settlement Status Report addressed to Magistrate Judge Robert W. Lehrburger from Matthew D. Brinckerhoff dated 9/26/2019. Document filed by Lloyd A. Barnes, Paul Betances, Gabriel Velez.(Brinckerhoff, Matthew) (Entered: 09/26/2019)

09/26/2019

232 ORDER granting 231 Letter Motion for Extension of Time. Revised dates approved. SO ORDERED. Expert Deposition due by 1/6/2020. Pretrial Order due by 1/15/2020. (Signed by Magistrate Judge Robert W. Lehrburger on 9/26/2019) (mml) (Entered: 09/26/2019)

10/16/2019

234 LETTER addressed to Magistrate Judge Robert W. Lehrburger from Shawn Nelson, dated 10/11/19 re: Non-party Shawn Nelson informs the Court that the D.O.C.C.S. is using the New York State Office of Rehabiltation Office's Counsel, as part of the N.Y.S. Attorney General's Office, by manipulating individuals like himself to unknowingly opt out of this class action. (sc) (Entered: 10/25/2019)

10/22/2019

239 LETTER addressed to Magistrate Judge Robert W. Lehrburger from Shawn Nelson dated 10/16/2019 re: Sir good day to you, I am having to write to your chamber today October 16th 2019 In regards to a case being litigated in your court room "Betances v. Fischer 11cv3200 (S.D.N.Y. 2011) a case were I am a potential Class Memeber. (vn) (Additional attachment(s) added on 11/4/2019: # 1 5d) (vn). (Entered: 11/04/2019)

10/25/2019

235 Federal Rules of Civil Procedures - Rule 5d Memo: The following document(s): Letter cannot be immediately filed because: Mr. Shawn Nelson does not appear to be a plaintiff. Document(s) forwarded to Magistrate Judge Robert W. Lehrburger for approval on 10/25/2019. (vn) (Main Document 235 replaced on 10/25/2019) (vn). (Entered: 10/25/2019)

10/28/2019

237 ORDER: The Court has received two separate letters from an inmate concerning his status as a potential member of the classs. These letter have been or shortly will be entered on the docket. By November 7, 2019, Plaintiffs' counsel shall file a letter with the Court confirming that

they have reviewed the correspondence and will take whatever action they deem appropriate in representing the class. (Signed by Magistrate Judge Robert W. Lehrburger on 10/28/2019) (Lehrburger, Robert) (Entered: 10/28/2019)

11/01/2019

238 STATUS REPORT. Joint Status Report Document filed by Anthony J. Annucci(in his capacity as Deputy Commissioner and Counsel for DOCS), Anthony J. Annucci(Individually), Brian Fischer(Individually), Brian Fischer(in his capacity as Commissioner of the New York State Department of Correctional Services (DOCS)), Terence Tracy(in his individual capacity), Terence Tracy(in his capacity as Chief Counsel for DOP).(Keane, Michael) (Entered: 11/01/2019)

11/07/2019

240 RESPONSE re: 237 Order, . Document filed by Lloyd A. Barnes, Paul Betances, Gabriel Velez. (Brinckerhoff, Matthew) (Entered: 11/07/2019)

12/11/2019

241 LETTER MOTION for Extension of Time to Complete Discovery addressed to Magistrate Judge Robert W. Lehrburger from Michael J. Keane dated December 11 2019. Document filed by Anthony J. Annucci(in his capacity as Deputy Commissioner and Counsel for DOCS), Anthony J. Annucci(Individually), Brian Fischer(Individually), Brian Fischer(in his capacity as Commissioner of the New York State Department of Correctional Services (DOCS)), Terence Tracy(in his individual capacity), Terence Tracy(in his capacity as Chief Counsel for DOP).(Keane, Michael) (Entered: 12/11/2019)

12/12/2019

242 ORDER: The Court is in receipt of Defendants' request to defer expert discovery. The parties shall coordinate with each other and my Courtroom Deputy to schedule a conference for the new year; expert discovery is temporarily STAYED until that conference. (HEREBY ORDERED by Magistrate Judge Robert W. Lehrburger)(Text Only Order) (Lehrburger, Robert) (Entered: 12/12/2019)

12/12/2019

243 SCHEDULING ORDER: Status Conference set for 1/14/2020 at 10:00 AM in Courtroom 18D, 500 Pearl Street, New York, NY 10007 before Magistrate Judge Robert W. Lehrburger. Parties are instructed to review and adhere to Judge Lehrburger's individual rules and practices. (Signed by Magistrate Judge Robert W. Lehrburger on 12/12/2019) (rsh) (Entered: 12/12/2019)

01/08/2020

244 LETTER RESPONSE in Opposition to Motion addressed to Magistrate Judge Robert W. Lehrburger from Alanna Kaufman dated January 8, 2020 re: 241 LETTER MOTION for Extension of Time to Complete Discovery addressed to Magistrate Judge Robert W. Lehrburger from Michael J. Keane dated December 11 2019. . Document filed by Lloyd

A. Barnes, Paul Betances, Gabriel Velez. (Kaufman, Alanna) (Entered: 01/08/2020)

01/13/2020

245 LETTER addressed to Magistrate Judge Robert W. Lehrburger from Michael J. Keane dated January 13, 2020 Document filed by Anthony J. Annucci(in his capacity as Deputy Commissioner and Counsel for DOCS), Anthony J. Annucci(Individually), Brian Fischer(Individually), Brian Fischer(in his capacity as Commissioner of the New York State Department of Correctional Services (DOCS)), Terence Tracy(in his individual capacity), Terence Tracy(in his capacity as Chief Counsel for DOP).(Keane, Michael) (Entered: 01/13/2020)

01/14/2020

Minute Entry for proceedings held before Magistrate Judge Robert W. Lehrburger: Status Conference held on 1/14/2020 at 10:00 a.m. (rsh) (Entered: 01/14/2020)

01/14/2020

246 ORDER: For the reasons stated during the conference held on January 14, 2020: 1. Expert discovery in this action will not be stayed pending the Second Circuit's adjudication of Earley v. Annucci, No. 18-3739. 2. By April 14, 2020, Defendants shall complete all data analysis required to determine class membership, and for each member, their time of reincarceration, supervised release, and other data points relevant to the parties' damages assessment. The Court will not grant any extensions to this deadline. If there is any doubt as to the relevant data points, the parties shall meet and confer to make sure they have an agreement as to what they are by January 28, 2020. 3. The parties shall meet and confer regarding proposed deadlines for expert discovery, motions and pretrial filings. By January 28, 2020, the parties shall submit the proposed schedule to the Court or inform the Court as to why parties are unable to agree. (Signed by Magistrate Judge Robert W. Lehrburger on 1/14/2020) Copies transmitted to all counsel of record. (mml) (Entered: 01/14/2020)

01/24/2020

247 TRANSCRIPT of Proceedings re: status conference held on 1/14/2020 before Magistrate Judge Robert W. Lehrburger. Court Reporter/Transcriber: Mary Greco, (518) 581-8973. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 2/14/2020. Redacted Transcript Deadline set for 2/24/2020. Release of Transcript Restriction set for 4/23/2020.(rro) (Entered: 01/24/2020)

01/24/2020

248 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a status conference proceeding held on 1/14/2020 has been filed by the court reporter/transcriber in the

above-captioned matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days.(rro) (Entered: 01/24/2020)

01/28/2020

249 STATUS REPORT. Document filed by Anthony J. Annucci(in his capacity as Deputy Commissioner and Counsel for DOCS), Anthony J. Annucci(Individually), Brian Fischer(Individually), Brian Fischer(in his capacity as Commissioner of the New York State Department of Correctional Services (DOCS)), Terence Tracy(in his individual capacity), Terence Tracy(in his capacity as Chief Counsel for DOP).(Keane, Michael) (Entered: 01/28/2020)

01/29/2020

250 ORDER: Having considered the parties' views with regard to the remaining schedule (Dkt. 249): 1. Affirmative expert reports shall be served by May 15, 2020. 2. Rebuttal expert reports shall be served by July 1, 2020. 3. Expert depositions and all expert discovery shall be completed by August 31, 2020. 4. Pre-trial submissions shall be filed by September 30, 2020. 5. A pre-trial conference shall be held on October 21, 2020 at 2:30 pm. 6. Trial shall begin on November 2, 2020. SO ORDERED. Expert Deposition due by 8/31/2020. Expert Discovery due by 8/31/2020. Pretrial Conference set for 10/21/2020 at 02:30 PM before Magistrate Judge Robert W. Lehrburger. (Signed by Magistrate Judge Robert W. Lehrburger on 1/29/2020) Copies transmitted to all counsel of record. (mml) (Entered: 01/29/2020)

02/06/2020

251 PROPOSED ORDER FOR WITHDRAWAL OF ATTORNEY. Document filed by Anthony J. Annucci(in his capacity as Deputy Commissioner and Counsel for DOCS), Anthony J. Annucci(Individually), Brian Fischer(Individually), Brian Fischer(in his capacity as Commissioner of the New York State Department of Correctional Services (DOCS)), Terence Tracy(in his individual capacity), Terence Tracy(in his capacity as Chief Counsel for DOP). (Cooney, James) (Entered: 02/06/2020)

02/06/2020

252 MEMO ENDORSEMENT on re: 251 Proposed Order for Withdrawal of Attorney, filed by Anthony J. Annucci, Terence Tracy, Brian Fischer. ENDORSEMENT: SO ORDERED. (Attorney James Brennan Cooney terminated.) (Signed by Magistrate Judge Robert W. Lehrburger on 2/6/2020) (jwh) (Entered: 02/06/2020)

03/19/2020

253 FILING ERROR - DEFICIENT DOCKET ENTRY - MOTION for Alanna Kaufman to Withdraw as Attorney . Document filed by Lloyd A. Barnes, Paul Betances, Gabriel Velez..(Kaufman, Alanna) Modified on 4/14/2020 (db). (Entered: 03/19/2020)

03/20/2020

254 ORDER granting 253 Motion to Withdraw as Attorney. Attorney Alanna Gayle Kaufman terminated. (HEREBY ORDERED by Magistrate Judge Robert W. Lehrburger) (Text Only Order) (Entered: 03/20/2020)

04/08/2020 255 NOTICE OF APPEARANCE by Emma Lerner Freeman on behalf of Lloyd A. Barnes, Paul Betances, Gabriel Velez..(Freeman, Emma) (Entered: 04/08/2020)

05/12/2020

256 CONSENT LETTER MOTION for Extension of Time to Complete Discovery addressed to Magistrate Judge Robert W. Lehrburger from Michael J. Keane dated May 12 2020. Document filed by Anthony J. Annucci(in his capacity as Deputy Commissioner and Counsel for DOCS), Anthony J. Annucci(Individually), Brian Fischer(Individually), Brian Fischer(in his capacity as Commissioner of the New York State Department of Correctional Services (DOCS)), Terence Tracy(in his individual capacity), Terence Tracy(in his capacity as Chief Counsel for DOP)..(Keane, Michael) (Entered: 05/12/2020)

05/12/2020

257 ORDER granting 256 Letter Motion for Extension of Time to Complete Discovery. The parties' extension requests and request for a conference are hereby GRANTED. The parties are directed to coordinate with the Deputy Clerk to schedule a conference in June 2020. SO ORDERED. (Signed by Magistrate Judge Robert W. Lehrburger on 5/12/2020) (mml) (Entered: 05/13/2020)

05/12/2020

Set/Reset Deadlines: Expert Deposition due by 9/15/2020. (mml) (Entered: 05/13/2020)

05/18/2020

258 PROPOSED ORDER FOR WITHDRAWAL OF ATTORNEY. Document filed by Anthony J. Annucci(in his capacity as Deputy Commissioner and Counsel for DOCS), Brian Fischer(Individually), Terence Tracy(in his individual capacity)..(Hathaway, Barbara) (Entered: 05/18/2020)

05/18/2020

259 NOTICE OF WITHDRAWAL AS COUNSEL: PLEASE TAKE NOTICE that, pursuant to Rule 1.4 of the Local Rules for the United States District Courts for the Southern and Eastern Districts of New York, I, Barbara K. Hathaway, an Assistant Attorney General at the Office of Letitia James, Attorney General of the State of New York, attorney for defendants Fischer, Annucci and Tracy in the aboveentitled action, hereby withdraws as an attorney of record for Defendants Fischer, Annucci and Tracy, as I am leaving the Office of the Attorney General and am no longer assigned to the defense of this case on the Attorney Generals behalf. The Office of the Attorney General will continue to serve as counsel of record to Defendants in the above-referenced matter, and this matter will continue to be handled by

Assistant Attorney General Michael Keane. Therefore, I hereby request that the Court grant my withdrawal and that my appearance be removed from the docket. IT IS SO ORDERED. Attorney Barbara Kathryn Hathaway terminated. (Signed by Magistrate Judge Robert W. Lehrburger on 5/18/2020) (mml) (Entered: 05/19/2020)

06/15/2020

260 LETTER MOTION for Conference to discuss status addressed to Magistrate Judge Robert W. Lehrburger from Michael J. Keane dated June 15 2020. Document filed by Anthony J. Annucci(in his capacity as Deputy Commissioner and Counsel for DOCS), Brian Fischer(Individually), Terence Tracy(in his individual capacity)..(Keane, Michael) (Entered: 06/15/2020)

06/16/2020

261 ORDER granting 260 Letter Motion for Conference. The request for a conference is granted. The parties shall coordinate with this Court's Deputy Clerk to schedule a telephone conference. The parties shall meet and confer regarding next steps, and at least three days before the conference shall submit a joint proposal and/or list of agenda items. SO ORDERED. (Signed by Magistrate Judge Robert W. Lehrburger on 6/16/2020) (mml) (Entered: 06/16/2020)

06/17/2020

262 ORDER: A telephonic conference in this matter is hereby set for June 25, 2020 at 11:30 a.m. The parties are directed to call (888) 398-2342 and enter access code 9543348 at that time. The parties are further directed to review and adhere to Judge Lehrburger's individual rules and practices. SO ORDERED. (Telephone Conference set for 6/25/2020 at 11:30 AM before Magistrate Judge Robert W. Lehrburger). (Signed by Magistrate Judge Robert W. Lehrburger on 6/17/2020) Copies transmitted to all counsel of record. (rjm) (Entered: 06/17/2020)

06/22/2020

263 JOINT LETTER addressed to Magistrate Judge Robert W. Lehrburger from Michael J. Keane dated June 22 2020 re: Joint Letter re Defendants' Proposed Agenda. Document filed by Anthony J. Annucci(in his capacity as Deputy Commissioner and Counsel for DOCS), Robert J. Dennison(former Chair of DOP), Terence Tracy(in his individual capacity)..(Keane, Michael) (Entered: 06/22/2020)

06/24/2020

264 NOTICE OF APPEARANCE by Rebecca Lynn Johannesen on behalf of Anthony J. Annucci(in his capacity as Deputy Commissioner and Counsel for DOCS), Anthony J. Annucci(Individually), Brian Fischer(Individually), Brian Fischer(in his capacity as Commissioner of the New York State Department of Correctional Services (DOCS)), Terence Tracy(in his individual capacity), Terence Tracy(in his capacity as Chief Counsel for DOP)..(Johannesen, Rebecca) (Entered: 06/24/2020)

06/25/2020

265 NOTICE OF APPEARANCE by Daniel A. Schulze on behalf of Anthony J. Annucci(in his capacity as Deputy Commissioner and Counsel for DOCS), Anthony J. Annucci(Individually), Brian Fischer(Individually), Brian Fischer(in his capacity as Commissioner of the New York State Department of Correctional Services (DOCS)), Terence Tracy(in his individual capacity), Terence Tracy(in his capacity as Chief Counsel for DOP)..(Schulze, Daniel) (Entered: 06/25/2020)

06/25/2020

266 ORDER: For the reasons stated during the conference held on June 25, 2020: by July 9, 2020, Defendants shall provide to Plaintiffs a list of proposed "subgroups" of class members, which shall include for each at least the following: (1) a description of the "subgroup"; (2) the reasons for forming that subgroup; and (3) the role that subgroup would play in advancing settlement or at trial. By July 16, 2020, the parties shall meet and confer on Defendants' proposed subgroups. The parties shall contact the Deputy Clerk to schedule a status conference with this Court to take place in early to mid-August. At least three days prior to the conference, the parties shall file a joint letter describing the issues to be discussed at the conference. SO ORDERED. (Signed by Magistrate Judge Robert W. Lehrburger on 6/25/2020) Copies transmitted to all counsel of record. (mml) (Entered: 06/25/2020)

06/25/2020

Minute Entry for proceedings held before Magistrate Judge Robert W. Lehrburger: Telephonic Case Management Conference held on 6/25/2020 at 11:30 a.m. (rsh) (Entered: 06/29/2020)

07/30/2020

267 LETTER MOTION for Extension of Time to serve expert rebuttal addressed to Magistrate Judge Robert W. Lehrburger from Michael J. Keane dated July 29 2020. Document filed by Anthony J. Annucci(in his capacity as Deputy Commissioner and Counsel for DOCS), Brian Fischer(Individually), Terence Tracy(in his individual capacity)..(Keane, Michael) (Entered: 07/30/2020)

07/31/2020

268 NOTICE of Hearing: Telephonic Status Conference set for 8/19/2020 at 2:30 PM before Magistrate Judge Robert W. Lehrburger. Parties shall call the teleconference number at (888)-398-2342, and enter access code 9543348.(rsh) (Entered: 07/31/2020)

08/03/2020 269 ORDER granting 267 Letter Motion for Extension of Time. SO ORDERED. (Signed by Magistrate Judge Robert W. Lehrburger on 8/03/2020) (ama) (Entered: 08/04/2020)

08/18/2020

270 JOINT LETTER addressed to Magistrate Judge Robert W. Lehrburger from Michael J. Keane dated August 18, 2020 re: Agenda for Conference. Document filed by Anthony J. Annucci(in his capacity as Deputy Commissioner and Counsel for DOCS), Anthony J.

Annucci(Individually), Brian Fischer(Individually), Brian Fischer(in his capacity as Commissioner of the New York State Department of Correctional Services (DOCS)), Terence Tracy(in his individual capacity), Terence Tracy(in his capacity as Chief Counsel for DOP)..(Keane, Michael) (Entered: 08/18/2020)

09/11/2020

271 JOINT LETTER addressed to Magistrate Judge Robert W. Lehrburger from Matthew D. Brinckerhoff dated 9/11/2020 re: Trial Schedule. Document filed by Lloyd A. Barnes, Paul Betances, Gabriel Velez..(Brinckerhoff, Matthew) (Entered: 09/11/2020)

09/14/2020

272 ORDER: This Order responds to the parties' joint letter dated September 11, 2020 (Dkt. 271), inquiring about the likelihood of the jury trial in this case going forward as currently scheduled in early November. This case is one of several that are designated as potentially being trial ready at that time. Given the priority given to criminal trials, and the backlog in jury trials as a result of the pandemic, there is hardly a guarantee of trial taking place as scheduled. At the same time, other variables - settlement of other cases, adjournments in other cases, etc. could operate in favor of trial in early November. The bottom line is that I cannot offer a firm prediction either way as to what will happen. In light of that uncertainty and the parties concerns about completing requisite remaining tasks on schedule, the Court will entertain a proposal for a revised schedule. Should the parties wish to make a proposal, they shall do so by September 23, 2020. (Signed by Magistrate Judge Robert W. Lehrburger on 9/14/2020) Copies transmitted to all counsel of record. (mml) (Entered: 09/14/2020)

09/23/2020

273 JOINT LETTER MOTION for Extension of Time addressed to Magistrate Judge Robert W. Lehrburger from Michael J. Keane dated September 23, 2020., JOINT LETTER MOTION for Extension of Time to Complete Discovery and submit motions in limine addressed to Magistrate Judge Robert W. Lehrburger from Michael J. Keane dated September 23, 2020. Document filed by Anthony J. Annucci(in his capacity as Deputy Commissioner and Counsel for DOCS), Anthony J. Annucci(Individually), Brian Fischer(Individually), Brian Fischer(in his capacity as Commissioner of the New York State Department of Correctional Services (DOCS)), Terence Tracy(in his individual capacity), Terence Tracy(in his capacity as Chief Counsel for DOP)..(Keane, Michael) (Entered: 09/23/2020)

09/23/2020

274 ORDER granting 273 Letter Motion for Extension of Time; granting 273 Letter Motion for Extension of Time to Complete Discovery. SO ORDERED. (Expert Deposition due by 10/30/2020. Motions due by 11/16/2020.) (Signed by Magistrate Judge Robert W. Lehrburger on 9/23/2020) (mml) (Entered: 09/23/2020)

10/01/2020

275 MOTION for Rebecca L. Johannesen to Withdraw as Attorney . Document filed by Anthony J. Annucci(in his capacity as Deputy Commissioner and Counsel for DOCS), Anthony J. Annucci(Individually), Brian Fischer(Individually), Brian Fischer(in his capacity as Commissioner of the New York State Department of Correctional Services (DOCS)), Terence Tracy(in his individual capacity), Terence Tracy(in his capacity as Chief Counsel for DOP)..(Johannesen, Rebecca) (Entered: 10/01/2020)

10/02/2020

276 MEMO ENDORSED ORDER granting 275 Motion to Withdraw as Attorney. ENDORSEMENT: IT IS SO ORDERED. Attorney Rebecca Lynn Johannesen terminated. (Signed by Magistrate Judge Robert W. Lehrburger on 10/2/2020) (mml) (Entered: 10/02/2020)

10/28/2020

277 JOINT LETTER MOTION for Extension of Time to Complete Expert Depositions and Submit Pre-Trial Materials addressed to Magistrate Judge Robert W. Lehrburger from Matthew Brinckerhoff dated 10/28/20. Document filed by Lloyd A. Barnes, Paul Betances, Gabriel Velez..(Brinckerhoff, Matthew) (Entered: 10/28/2020)

10/28/2020

278 ORDER granting 277 JOINT LETTER MOTION for Extension of Time to Complete Expert Depositions and Submit Pre-Trial Materials. SO ORDERED. Deposition due by 11/10/2020. (Signed by Magistrate Judge Robert W. Lehrburger on 10/28/2020) (jca) (Entered: 10/28/2020)

11/25/2020

279 LETTER MOTION for Extension of Time addressed to Magistrate Judge Robert W. Lehrburger from Michael J. Keane dated November 25, 2020. Document filed by Anthony J. Annucci(in his capacity as Deputy Commissioner and Counsel for DOCS), Brian Fischer(Individually), Terence Tracy(in his individual capacity)..(Keane, Michael) (Entered: 11/25/2020)

11/25/2020

280 ORDER granting 279 Letter Motion for Extension of Time. Extension granted. The Court has scheduled a tentative trial date of March 15, 2021. (HEREBY ORDERED by Magistrate Judge Robert W. Lehrburger)(Text Only Order) (Stephan, Keegan) (Entered: 11/25/2020)

12/23/2020

281 NOTICE OF APPEARANCE by Nicholas Bourland on behalf of Lloyd A. Barnes, Paul Betances, Gabriel Velez..(Bourland, Nicholas) (Entered: 12/23/2020)

01/14/2021

282 JOINT LETTER MOTION for Extension of Time to modify scheduluing order to accodmmodate motions related to experts addressed to Magistrate Judge Robert W. Lehrburger from Michael J. Keane dated January 14, 2021. Document filed by Anthony

J. Annucci(Individually), Brian Fischer(Individually), Terence Tracy(in his individual capacity)..(Keane, Michael) (Entered: 01/14/2021)

01/14/2021

283 ORDER granting 282 Letter Motion for Extension of Time. Application granted. However, due to that change in the schedule, and due to the uncertainty of when jury trials will resume in this District, trial will be reschedule for the second quarter of 2021. Dates for pretrial submissions will be reset based on the new trial date. SO ORDERED. Motions due by 1/19/2021. (Signed by Magistrate Judge Robert W. Lehrburger on 1/14/2021) (mml) (Entered: 01/14/2021)

01/14/2021

Set/Reset Deadlines: Responses due by 2/2/2021. Replies due by 2/9/2021. (mml) (Entered: 01/14/2021)

01/19/2021

284 MOTION to Preclude Rebuttal Expert Testimony. Document filed by Lloyd A. Barnes, Paul Betances, Gabriel Velez..(Bourland, Nicholas) (Entered: 01/19/2021)

01/19/2021

285 MEMORANDUM OF LAW in Support re: 284 MOTION to Preclude Rebuttal Expert Testimony. . Document filed by Lloyd A. Barnes, Paul Betances, Gabriel Velez..(Bourland, Nicholas) (Entered: 01/19/2021)

01/19/2021

286 DECLARATION of Nick Bourland in Support re: 284 MOTION to Preclude Rebuttal Expert Testimony.. Document filed by Lloyd A. Barnes, Paul Betances, Gabriel Velez. (Attachments: # 1 Exhibit - A Report of Dr. Frank Lovett (June 15, 2020), # 2 Exhibit - B Defendants Rule 26 Disclosures of Dr. Lofgreen's Record of Testimony (May 20, 2020), # 3 Exhibit - C CV of Dr. Victor Lofgreen, # 4 Exhibit - D Rebuttal Report of Dr. Lofgreen (Aug 25, 2020), # 5 Exhibit - E Deposition Transcript of Dr. Lofgreen (Nov 10, 2020)).(Bourland, Nicholas) (Entered: 01/19/2021)

01/19/2021

287 MOTION to Preclude Plaintiffs' Expert OPinion and Testimony. Document filed by Anthony J. Annucci(in his capacity as Deputy Commissioner and Counsel for DOCS), Brian Fischer(Individually), Terence Tracy(in his individual capacity)..(Keane, Michael) (Entered: 01/19/2021)

01/19/2021

288 MEMORANDUM OF LAW in Support re: 287 MOTION to Preclude Plaintiffs' Expert OPinion and Testimony. . Document filed by Anthony J. Annucci(in his capacity as Deputy Commissioner and Counsel for DOCS), Brian Fischer(in his capacity as Commissioner of the New York State Department of Correctional Services (DOCS)), Terence Tracy(in his individual capacity)..(Keane, Michael) (Entered: 01/19/2021)

01/19/2021

289 DECLARATION of Michael J Keane in Support re: 287 MOTION to Preclude Plaintiffs' Expert OPinion and Testimony.. Document filed by Anthony J. Annucci(Individually), Brian Fischer(in his capacity as Commissioner of the New York State Department of Correctional Services (DOCS)), Terence Tracy(in his capacity as Chief Counsel for DOP). (Attachments: # 1 Exhibit A, # 2 Exhibit C, # 3 Exhibit D).(Keane, Michael) (Entered: 01/19/2021)

01/20/2021

290 AFFIRMATION of Michael J Keane in Support re: 287 MOTION to Preclude Plaintiffs' Expert OPinion and Testimony.. Document filed by Brian Fischer(in his capacity as Commissioner of the New York State Department of Correctional Services (DOCS)), Terence Tracy(in his capacity as Chief Counsel for DOP). (Attachments: # 1 Exhibit B-1, # 2 Exhibit B-2).(Keane, Michael) (Entered: 01/20/2021)

02/02/2021

291 RESPONSE in Opposition to Motion re: 287 MOTION to Preclude Plaintiffs' Expert OPinion and Testimony. . Document filed by Lloyd A. Barnes, Paul Betances, Gabriel Velez..(Bourland, Nicholas) (Entered: 02/02/2021)

02/02/2021

292 DECLARATION of NICK BOURLAND in Opposition re: 287 MOTION to Preclude Plaintiffs' Expert OPinion and Testimony.. Document filed by Lloyd A. Barnes, Paul Betances, Gabriel Velez. (Attachments: # 1 Exhibit (Ex. A) Report of Dr. Frank Lovett (June 15, 2020), # 2 Exhibit (Ex. B) Excerpts of Dr. Frank Lovett deposition transcript (Nov 6, 2020)).(Bourland, Nicholas) (Entered: 02/02/2021)

02/02/2021

293 MEMORANDUM OF LAW in Opposition re: 284 MOTION to Preclude Rebuttal Expert Testimony. . Document filed by Anthony J. Annucci(in his capacity as Deputy Commissioner and Counsel for DOCS), Anthony J. Annucci(Individually), Brian Fischer(Individually), Brian Fischer(in his capacity as Commissioner of the New York State Department of Correctional Services (DOCS)), Terence Tracy(in his individual capacity), Terence Tracy(in his capacity as Chief Counsel for DOP)..(Keane, Michael) (Entered: 02/02/2021)

02/09/2021

294 REPLY to Response to Motion re: 284 MOTION to Preclude Rebuttal Expert Testimony. Re: Reply Memorandum of Law In Further Support of Plaintiffs' Motion to Preclude Rebuttal Expert Testimony. Document filed by Lloyd A. Barnes, Paul Betances, Gabriel Velez..(Bourland, Nicholas) (Entered: 02/09/2021)

02/09/2021

295 REPLY MEMORANDUM OF LAW in Support re: 287 MOTION to Preclude Plaintiffs' Expert OPinion and Testimony. . Document filed by Anthony J. Annucci(in his capacity as Deputy Commissioner and

Counsel for DOCS), Brian Fischer(Individually), Terence Tracy(in his individual capacity)..(Keane, Michael) (Entered: 02/09/2021)

02/23/2021

296 ORDER: MOTIONS TO EXCLUDE EXPERT TESTIMONY granting 284 Motion to Preclude; granting 287 Motion to Preclude. For the reasons set forth, Defendants' motion to exclude the testimony of Plaintiffs' expert Frank Lovett is GRANTED, and Plaintiffs' motion to exclude the testimony of Defendants' expert Victor Lofgreen is GRANTED. By April 22, 2021, the parties shall file final pre-trial order papers consistent with the individual rules of this Court. Jury trial dates are being set by a court committee based on a number of factors; accordingly, the Court cannot schedule a firm trial date at this time but will keep the parties apprised. The Clerk of Court is respectfully requested to terminate the motions at Dkt. 284 and 287. SO ORDERED. (Signed by Magistrate Judge Robert W. Lehrburger on 2/23/2021) (mml) (Entered: 02/23/2021)

02/23/2021

Set/Reset Deadlines: Pretrial Order due by 4/22/2021. (mml) (Entered: 02/23/2021)

03/01/2021

297 ORDER: The Court's jury trial coordinator has advised that trial of this matter is scheduled to begin on June 16, 2021. Trial is scheduled to last no more than five days. The final pre-trial conference will be held on June 9, 2021 at 9:30 a.m. SO ORDERED. Final Pretrial Conference set for 6/9/2021 at 09:30 AM before Magistrate Judge Robert W. Lehrburger. (Signed by Magistrate Judge Robert W. Lehrburger on 3/1/2021) Copies transmitted to all counsel of record. (mml) (Entered: 03/01/2021)

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