15

‐ 2836

‐ cv

Betances v. Fischer

1



## In the 2



# United States Court of Appeals

3



## For the Second Circuit 4

________ 5

6

A UGUST T ERM

, 2015 7

8

A RGUED : M ARCH 28, 2016 9

D ECIDED : S EPTEMBER 16, 2016 10

11

No. 15

‐ 2836

‐ cv 12

13

P AUL B ETANCES

, individually and on behalf of others similarly 14

situated, L LOYD A. B ARNES

, and G ABRIEL V ELEZ

, a/k/a G ABRIEL 15

B ELIZE

, individually and on behalf of others similarly situated, 16

Plaintiffs

‐ Appellees, 17

18

v. 19

20

B RIAN F ISCHER

, individually and in his capacity as Commissioner of 21

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

A NTHONY J. A NNUCCI

, individually and in his capacity as Deputy 23

Commissioner and Counsel for the New York State Department of 24

Corrections and Community Supervision, and T ERENCE T RACY

, in 25

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

Division of Parole, 27

Defendants

‐ Appellants. 28

________ 29

30

Appeal from the United States District Court 31

for the Southern District of New York. 32

No. 11 Civ. 03200

– Shira A. Scheindlin, Judge

. 33

342 No. 15

‐ 2836

‐ cv

________ 1

2

Before: W ALKER

, R AGGI

, and D RONEY

, Circuit Judges

. 3

________ 4

5

In Earley v. Murray

, 451 F.3d 71 (2d Cir. 2006) (“ Earley I ”), we 6

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

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

‐ release 8

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

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

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

PRS terms violated the Constitution. Notwithstanding their 12

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

Annucci and Brian Fischer and DOP official Terence Tracy decided 14

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

invalidated the administrative practice more than 22 months later. 16

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

Earley I

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

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

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

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

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

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

damages. We AFFIRM. 24

253 No. 15

‐ 2836

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________ 1

2

H AYLEY H OROWITZ (Matthew D. Brinckerhoff, 3

Alanna Small, on the brief ), Emery Celli 4

Brinckerhoff & Abady LLP, New York, NY, for 5

Plaintiffs

‐ Appellees

. 6

S TEVEN C. W U

, Deputy Solicitor General (Barbara 7

D. Underwood, Solicitor General; Claude S. 8

Platton, Senior Assistant Solicitor General, on the 9

brief ), for Eric T. Schneiderman, Attorney General 10

of the State of New York, for Defendants

‐ 11

Appellants

. 12

________ 13

14

J OHN M. W ALKER

, J R

., Circuit Judge : 15

In Earley v. Murray

, 451 F.3d 71 (2d Cir. 2006) (“ Earley I ”), we 16

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

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

‐ release 18

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

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

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

PRS terms violated the Constitution. Notwithstanding their 22

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

Annucci and Brian Fischer and DOP official Terence Tracy decided 24

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

invalidated the administrative practice more than 22 months later. 26

The plaintiffs, offenders who had been subject to PRS in violation of 274 No. 15

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Earley I

, sued the defendants for the actions they took in violation of 1

Earley I and moved for summary judgment. The district court 2

(Scheindlin, J. ) granted the motion. The defendants appeal the grant 3

of summary judgment and also argue that the district court erred in 4

granting plaintiffs’ motion to deem the appeal frivolous so that the 5

district court could retain jurisdiction and proceed with a trial on 6

damages. We AFFIRM. 7

BACKGROUND 8

I. Determinate Sentencing and Post

‐ Release Supervision 9

in New York 10

In 1998, the New York State Legislature amended the 11

sentencing scheme for violent felons to require that every 12

determinate sentence of imprisonment for a violent felony be 13

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

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

permissible lengths for others, leaving the ultimate determination to 16

the sentencing judge. Id. § 70.45(2), (2

‐ a). During the time period 17

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

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

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

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

1 In 2011, after the events giving rise to this lawsuit, DOCS and DOP

merged to create the Department of Corrections and Community5 No. 15

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

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

post

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

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

entered DOCS custody with sentence and commitment orders that 5

informed DOCS employees of the term and conditions of the 6

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

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

sentencing court, DOCS simply added the PRS term 9

administratively. 10

When DOCS first took custody of an inmate, it received the 11

inmate’s sentence and commitment order. DOCS employees 12

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

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

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

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

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

Upon their release from prison, the inmates began to serve 18

their PRS terms under DOP supervision. Approximately 45 days 19

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

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.6 No. 15

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

furnished these dates to DOP employees. Before beginning 2

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

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

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

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

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

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

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

conditions of his release. 10

II. Our Decision in Earley v. Murray 11

On June 9, 2006, we decided Earley v. Murray

, 451 F.3d 71 12

(2d Cir.) (“ Earley I ”), reh’g denied

, 462 F.3d 147 (2d Cir. 2006) (“ Earley 13

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

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

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

Earley pleaded guilty to attempted burglary and was sentenced to 17

six years in prison. Earley I

, 451 F.3d at 73. The sentencing judge 18

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

neither the written judgment nor the written order of commitment 20

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

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

of PRS upon the conclusion of his term of imprisonment. Id. While 237 No. 15

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he was incarcerated, Earley became aware that DOCS had 1

administratively added a five

‐ year PRS term to his sentence. Id. 2

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

petition in federal court arguing that DOCS’s administrative 4

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

We agreed with Earley that the Constitution forbids DOCS 6

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

required that PRS be a part of his sentence. Id. at 74

‐ 76. Because 8

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

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

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

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

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

‐ 13

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

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

76

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

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

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

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

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

rehearing in Earley II. 218 No. 15

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III. The General Response to Earley I 1

The holding in Earley I was met with resistance at the state 2

level. Certain district attorneys expressed their disagreement with 3

our holding. Officials in the Office of Court Administration 4

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

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

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

view. OCA nevertheless urged courts to pronounce PRS terms 8

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

opportunity to weigh in. 10

New York courts were inconsistent in adhering to Earley I ’s 11

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

the outset. See People v. Smith

, 37 A.D.3d 499, 499, 829 N.Y.S.2d 226 13

(2d App. Div. 2007); People ex rel. Burch v. Goord

, 48 A.D.3d 1306, 14

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

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

decided but later did. Compare People v. Thomas

, 35 A.D.3d 192, 826 17

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

reference to Earley I but without applying its holding), aff ʹ d as 19

modified and remanded sub nom. People v. Sparber

, 10 N.Y.3d 457, 889 20

N.E.2d 459 (2008), and Garner v. N.Y.S. Dep ʹ t of Corr. Servs.

, 39 A.D.3d 21

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

unpronounced PRS without reference to Earley I ), rev ʹ d, 10 N.Y.3d 239 No. 15

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358, 889 N.E.2d 467 (2008), abrogated by Dreher v. Goord

, 46 A.D.3d 1

1261, 848 N.Y.S.2d 758 (2007), with People v. Figueroa

, 45 A.D.3d 297, 2

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

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

, 46 4

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

Earley I ). See also Scott v. Fischer

, 616 F.3d 100, 107 (2d Cir. 2010) 6

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

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

On April 29, 2008, the New York Court of Appeals weighed in 9

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

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

term in People v. Sparber

, 10 N.Y.3d 457, 889 N.E.2d 459 (2008), and 12

Garner v. New York State Department of Corrections Services

, 10 N.Y.3d 13

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

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

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

address whether the Constitution required sentencing judges to 17

pronounce PRS terms, as we had held in Earley I

. Sparber

, 889 18

N.E.2d at 469

‐ 70; Garner

, 889 N.E.2d at 362

‐ 63. 19

IV. The Actions of the Defendants after Earley I 20

The three defendants in this case were officials with DOCS 21

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

designing and implementing their departments’ response to Earley I

. 2310 No. 15

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A. Anthony J. Annucci 1

Anthony J. Annucci was DOCS’s counsel from September 2

1989 until October 2007, when he became executive deputy 3

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

Annucci immediately understood Earley I ’s holding but 5

deliberately refused to change DOCS procedures to bring them into 6

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

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

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

cautioned OCA that inmates would probably file individual suits to 10

relieve them from their administratively imposed PRS terms. 11

In August 2006, Annucci emailed DOCS personnel to inform 12

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

DOCS would not follow its holding. Annucci confirmed his 14

decision not to follow Earley I at his deposition: 15

Q: You’ve read [ Earley I ], you made decisions 16

about policy for DOCS based on that opinion, right? 17

A: I didn’t make any decisions to change policy. 18

Q: Right, you made a decision to either take 19

action or not take action after Earley

, right? 20

A: Correct. 21

Q: You made the decision to take action in 22

notifying the courts to deal with the problem 23

prospectively? 24

A: Correct. 25

Q: You made the decision not to take any action 26

retroactively until further notice, right? 27

A: Correct. 2811 No. 15

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Q: And you made the decision to take no action 1

prospectively

. . . to conform DOCS policy and conduct 2

to the holding of Earley as well, right? 3

. . . 4

A: Correct. 5

Annucci Dep. 87:11

‐ 88:7; J.A. 197. 6

B. Brian Fischer 7

Brian Fischer was the commissioner of DOCS from January 8

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

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

decision not to follow its holding: 11

Q: But the decision to continue basically 12

enforcing that policy [of administratively adding PRS to 13

inmates’ sentences] notwithstanding Earley

, is it fair to 14

characterize that as an operational decision? 15

A: Yes. 16

Q: And that was a decision you took early on in 17

your tenure as commissioner, right, to continue that 18

policy? 19

A: That’s correct. 20

Q: And when you made that decision I assume 21

you understood that what that meant was that inmates 22

would continue to get post

‐ release supervision, be 23

subjected to it upon release, be reincarcerated for 24

violating post

‐ release supervision going forward, 25

notwithstanding the fact that the Second Circuit Court 26

of Appeals had made it clear that that violated the 27

federal constitutional right to due process? 28

. . . 29

A: That was our position. 30

Q: That was your position? 31

A: We continued, correct. 3212 No. 15

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Q: And that was a decision that you felt 1

comfortable making, right? 2

A: Yes. 3

Fischer Dep. 40:12

‐ 41:14; J.A. 224. 4

C. Terence Tracy 5

Terence Tracy was the chief counsel of DOP from December 6

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

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

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

review any DOP files to determine whether DOP was supervising 10

any inmates whose PRS terms had been administratively added by 11

DOCS because he believed that reviewing the files was the 12

responsibility of DOCS. Tracy Dep. 17:5

‐ 19:11; J.A. 249

‐ 50. But he 13

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

conversations with anyone at DOCS about Earley I

. Tracy Dep. 15

19:12

‐ 23; 24:2

‐ 10; J.A. 250

‐ 51. Even without reviewing DOP files or 16

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

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

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

affirmatively decided to continue DOP’s former approach in 20

contravention of Earley I : 21

Q:

. . . [W]hen you first read the Earley versus 22

Murray decision from the Second Circuit Court of 23

Appeals, I take it from your testimony you were aware 24

of the way DOCS was entering post

‐ release supervision 2513 No. 15

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terms into their system as you’ve testified to earlier 1

today; right? 2

A: Correct. 3

Q: And as I understand your testimony, you 4

recognize when you read Earley that there was a need to 5

go back and look at these sentence and commitment 6

orders to determine who amongst the inmate 7

population and the people under Department of Parole 8

had had post

‐ release supervision entered into the 9

system even though it did not appear on their sentence 10

and commitment orders; right? 11

. . . 12

A: All I know from reading that decision is that 13

this decision could have an impact upon our 14

population. Because I did know at the time that there 15

were individuals coming into state custody and then 16

coming under our jurisdiction for supervision purposes 17

who had no period of post

‐ release supervision stated on 18

their sentence and commitment order. 19

Tracy Dep. 40:25

‐ 42:2; J.A. 253

‐ 54. 20

Q: But I am correct, am I not, that in weighing 21

these two competing interests concern for people who 22

you would be continuing to incarcerate or supervise 23

without authority and/or freeing or lifting the 24

supervision of individuals who may turn out to actually 25

have a constitutionally imposed sentence of post

‐ 26

release[] supervision, your determination was to err on 27

the side of continuing supervision and continuing 28

incarceration until you could get those people back 29

before courts; right? 30

. . . 31

A: Yes. That’s the decision that the agency arrived 32

at, yes. 33

Q: Okay. And was that consistent with your own 34

view as well? 3514 No. 15

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A: Yes, that was consistent with my own view as 1

well. 2

Tracy Dep. 69:9

‐ 70:2; J.A. 258

‐ 59. 3

In short, the three defendants decided not to comply with 4

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

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

decision in Earley I

, DOCS continued to violate its holding 7

prospectively, by entering statutorily

‐ required PRS terms when 8

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

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

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

DOCS employees. 12

V. The Defendants’ Actions after New York State Court 13

Decisions on Administratively Adding PRS Terms 14

The defendants’ later responses to the subsequent state court 15

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

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

following Earley I. 18

In either February or March 2007, shortly after the Second 19

Department decided Smith

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

Appellate Division case applying the holding of Earley I

, DOCS 21

began to review its files to identify inmates whose sentences 22

included PRS terms added by DOCS employees. The reviewers 23

began by examining the sentence and commitment orders that are 2415 No. 15

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

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

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

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

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

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

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

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

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

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

possession. 11

In April 2007, DOCS employees completed their initial review, 12

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

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

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

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

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

reflected sentence and commitment orders that included PRS terms 18

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

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

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

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

the supervision of DOP. 2316 No. 15

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The New York Court of Appeals decisions in Garner and 1

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

and 19 months after we denied reconsideration in Earley II

— 3

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

significant steps toward compliance with Earley I

. 5

DOP promptly reviewed its records to determine which 6

inmates under its supervision were subject to DOCS

‐ imposed PRS 7

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

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

‐ Release 9

Supervision Resentencing Initiative” to obtain resentencing of 10

individuals in its custody whose sentencing judges had not 11

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

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

files that identified inmates whose sentence and commitment orders 14

were silent about PRS. The initiative required an additional 15

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

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

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

identified specific inmates who needed to be resentenced or whose 19

sentencing minutes were missing, DOCS employees emailed the 20

information to district attorneys and sent formal notifications, 21

including the sentence and commitment orders and available 2217 No. 15

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sentencing minutes, to both the relevant sentencing courts and 1

district attorneys. 2

Finally, on June 4, 2008, DOCS and DOP filed a declaratory 3

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

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

to systematically identify and refer improperly sentenced inmates 6

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

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

DOP. 9

The defendants all testified that immediately after Earley I and 10

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

measures that they later took when prompted by Smith

, Garner and 12

Sparber in the spring of 2008. Annucci Dep. 81:10

‐ 82:9; Fischer Dep. 13

60:23

‐ 61:21; Tracy Dep. 85:12

‐ 20; J.A. 195, 226, 260. 14

VI. The Legislative Response to Earley I 15

In June 2008, the New York legislature passed New York 16

Correction Law § 601

‐ d, which codified a process for resentencing 17

individuals with unpronounced PRS terms. Section 601

‐ d required 18

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

supervision over a defendant with an administratively imposed PRS 20

term and permitted the sentencing court either to resentence the 21

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

attorney’s consent, to decline to resentence, resulting in no PRS 2318 No. 15

‐ 2836

‐ cv

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

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

VII. Procedural History 3

The plaintiffs are offenders who were subject to mandatory 4

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

judge, imposed these terms. Their action seeks compensatory 6

damages based upon administratively imposed PRS terms that 7

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

decided. 9

The defendants filed a Rule 12(b)(6) motion to dismiss on the 10

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

of the motion in Betances v. Fischer

, 519 F. App’x 39, 41 (2d Cir. 2013) 12

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

day as Vincent v. Yelich

, 718 F.3d 157, 168 (2d Cir. 2013), in which we 14

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

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

term without violating federal law.” In Betances I

, our remand 17

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

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

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

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

, 21

718 F.3d at 177. 2219 No. 15

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On remand, the district court granted plaintiffs’ motion to 1

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

‐ 2

moved for summary judgment, denied defendants’ cross

‐ motion for 3

summary judgment on the basis of qualified immunity and granted 4

plaintiffs’ cross

‐ motion for summary judgment holding defendants 5

personally liable. 6

After defendants noticed their appeal but before their brief 7

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

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

retain jurisdiction and proceed with a trial on damages 10

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

the proceedings in the district court pending appeal. 12

DISCUSSION 13

I. Qualified Immunity 14

The defendants first challenge the district court’s denial of 15

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

motion for summary judgment on the questions of whether the 17

defendants were entitled to qualified immunity and thus whether 18

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

plaintiffs by their decision not to comply with Earley I

. 20

We review a “grant of summary judgment de novo, 21

construing all evidence in the light most favorable to the non

‐ 22

moving party, and affirming only where there is no genuine issue as 2320 No. 15

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

matter of law.” Hubbs v. Suffolk Cty. Sheriff’s Dep’t

, 788 F.3d 54, 59 2

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

We deny qualified immunity to government officials on 4

summary judgment if (1) “the facts

. . . taken in the light most 5

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

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

statutory or constitutional rights of which a reasonable person 8

would have known.” See Jones v. Parmley

, 465 F.3d 46, 55 (2d Cir. 9

2006) (internal quotation marks omitted). 10

A. The Questions on Appeal 11

The questions we must resolve in this appeal are narrow. Our 12

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

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

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

violating federal law.” Vincent

, 718 F.3d at 168. The court also 16

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

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

that had been held unlawful under Earley I

. Id. at 172

‐ 73. 19

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

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

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

[defendants] knew it had been ruled that the imposition violated 2321 No. 15

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

to what was clearly established by Earley I

. Therefore, the only 2

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

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

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

reasonably would have known that their conduct violated federal 6

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

holding of Earley I

. 8

B. When Defendants Realized Their Conduct Violated 9

Federal Law 10

The three defendants became aware of the implications of 11

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

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

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

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

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

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

understood Earley I

, but this probably took place no later than 18

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

Considering the dates in the light most favorable to the 20

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

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

Annucci, although he indisputably understood Earley I as of June 20, 2322 No. 15

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

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

Earley II

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

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

specificity the dates that Tracy and Fischer understood the holding 5

of Earley I

, but should the district court determine that either 6

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

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

C. Defendants’ Efforts to Comply with Earley I 9

The defendants did not take objectively reasonable steps to 10

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

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

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

bring their departments into compliance with Earley I

. 14

All three confirmed that their noncompliance was not the 15

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

required them to change their practices but affirmatively decided 17

not to do so. 18

It was only after the Second Department decided Smith

, 37 19

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

applying Earley I

, on February 6, 2007, that Annucci and Fischer took 21

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

files to determine who had PRS terms that had been added by DOCS 2323 No. 15

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

would be essential to any remediation of retrospective violations of 2

Earley I

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

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

continued to violate Earley I prospectively, by persisting in 5

administratively adding PRS terms to the sentences of inmates 6

whose sentence and commitment orders did not include them. 7

Throughout this period, Tracy took no steps to bring DOP into 8

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

although he knew that DOCS was disregarding its holding and 10

continuing to administratively impose PRS terms. 11

Finally, prompted by the New York Court of Appeals’ 12

decisions in Garner and Sparber

, the defendants in late April and 13

early May 2008 took their first meaningful steps to remediate 14

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

launched a “Post

‐ Release Resentencing Initiative,” which notified 16

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

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

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

together filed a declaratory judgment action seeking judicial 20

approval of a mass

‐ resentencing plan. These actions were 21

reasonable steps towards bringing DOCS and DOP into compliance 22

with Earley I

, but they had been unreasonably delayed. Between 14 2324 No. 15

‐ 2836

‐ cv

and 19 months had elapsed from when the defendants understood 1

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

admitted that nothing prevented them from taking these same 3

actions when they first understood the requirements of Earley I

. 4

That the defendants eventually took reasonable steps to comply with 5

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

The defendants’ refusal to bring DOCS and DOP into 7

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

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

compliance would have been forthcoming. DOCS only began its 10

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

applied Earley I

, and the defendants conceded that Sparber and 12

Garner

, not Earley I

, prompted the efforts they undertook in the 13

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

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

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

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

to comply with Earley I

, the unexcused delay of 14 to 19 months 18

between Earley II and their first significant remedial efforts was 19

objectively unreasonable. 20

D. Defendants’ Counterarguments 21

The arguments advanced by the defendants are unpersuasive. 22

Their principal arguments are that (1) their only responsibility was 2325 No. 15

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‐ cv

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

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

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

this prevented the prompt implementation of its holding. We 4

address each in turn. 5

1. The Scope of Defendants’ Responsibilities 6

The defendants seek to diminish the scope of their obligations 7

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

only responsibility was to prepare for individual resentencings 9

when requested by the defendants. 10

This argument makes no sense when applied to the subset of 11

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

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

. 13

The appropriate remedy for these offenders was not to 14

administratively add the PRS term and then prepare for 15

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

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

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

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

the term had been pronounced by a judge. 20

The argument is more plausible, but still unsuccessful, when 21

applied to the offenders who suffered retrospective PRS violations: 22

those in the custody of DOCS when Earley II was decided who had 2326 No. 15

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‐ cv

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

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

reincarcerated for violations of such terms after Earley II

. It is true 3

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

addressing the problem of unpronounced PRS terms. However, 5

defendants’ launching of the resentencing initiative in 2008 coupled 6

with their filing of the declaratory judgment action undercuts their 7

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

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

situation they showed that they could take prompt and reasonable 10

steps to do so. 11

2. The Practical Difficulties of Resentencing 12

To be sure, resentencing all the violent felons with 13

unpronounced PRS terms presented practical difficulties and 14

required DOCS and DOP to devote significant resources to the 15

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

do not persuade us that the defendants made objectively reasonable 17

efforts to comply with Earley I

. 18

First, the defendants overstate what compliance with Earley I 19

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

resentencing hearings for thousands of violent

‐ felony offenders

. . . 21

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

to “notify[] state courts or prosecutors of each of the eight thousand 2327 No. 15

‐ 2836

‐ cv

individuals they had identified as potentially requiring 1

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

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

reasonable[]” efforts to comply with Earley I

, which we have 4

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

administrative and custodial operations that had been held to 6

violate federal law.” Vincent

, 718 F.3d at 172

‐ 73, 177. Contrary to 7

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

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

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

unreasonable. 11

The second answer to defendants’ argument based on the 12

logistical difficulties of resentencing is that the same supposed 13

difficulties did not prevent them from taking appropriate actions 14

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

II

. Each defendant testified that nothing prevented him from taking 16

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

decrease in the interim. 18

3. The Resistance of Other Parties to Earley I 19

We accept the defendants’ claim that other state actors with 20

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

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

and Fourth Departments of the Appellate Division applied Earley I 2328 No. 15

‐ 2836

‐ cv

prospectively without resistance. See Smith

, 37 A.D.3d 499, 499, 829 1

N.Y.S.2d 226; Goord

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

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

entirely resistant to Earley I

, we must still answer the question 4

whether defendants themselves undertook “objective[ly] 5

reasonable[]

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

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

that the imposition violated federal law.” Vincent

, 718 F.3d at 177. 8

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

for the purposes of determining qualified immunity. 2 10

As the steps taken by defendants in the wake of Garner and 11

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

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

filing of a declaratory judgment action seeking approval of a 14

resentencing plan did not require the approval or cooperation of 15

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

and notify state judges and district attorneys about defendants who 17

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

the district attorneys and judges ultimately rejected compliance, the 19

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

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.29 No. 15

‐ 2836

‐ cv

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

reasonable[]” effort, Vincent

, 718 F.3d at 177, to comply with Earley I

. 2

In sum, we agree with the district court that the defendants 3

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

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

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

II. Motion to Deem the Appeal Frivolous 7

The defendants attack the district court’s decision to grant 8

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

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

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

defendants obtained a stay of further proceedings in the district 12

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

We have considered the parties’ remaining arguments and 14

find them without merit. 15

CONCLUSION 16

For the reasons stated above, we AFFIRM the judgment of the 17

district court and REMAND for further proceedings consistent with 18

this opinion. 19