15‐2836‐cv

Betances v. Fischer

1 

2 In the 

3 United States Court of Appeals 

4 For the Second Circuit 

5 ________

6 

7 AUGUST TERM, 2015

8 

9 ARGUED: MARCH 28, 2016

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 
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 
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
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”)

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 Community
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.  
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
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.
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
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.
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.
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.
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
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?
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
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.   
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
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
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.   
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
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
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,
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
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
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
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
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
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
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

for the purposes of determining qualified immunity.2 10   

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.
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.