19-3482

Hurd v. Fredenburgh

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

______________ 

August Term 2020

(Argued: November 18, 2020 | Decided: January 12, 2021)

Docket No. 19-3482

DEVAR HURD,

 Plaintiff-Appellant,

v.

STACEY FREDENBURGH, IN HER INDIVIDUAL CAPACITY,

 Defendant-Appellee.†

______________

Before:

WALKER, KATZMANN, WESLEY, Circuit Judges.

Appeal from a judgment of the United States District Court for the Eastern

District of New York (Matsumoto, J.), dismissing the complaint for failure to state 

a claim.

Because of errors in his sentencing calculation, Plaintiff-Appellant Devar

Hurd was incarcerated for almost a year past the date on which state law 

mandated his release. Hurd sued Defendant-Appellee Stacey Fredenburgh, a 

New York State prison official, alleging that she violated his Eighth and 

Fourteenth Amendment rights by keeping him imprisoned based upon those 

errors. The district court concluded that Hurd’s alleged injury was not cognizable 

† The Clerk of the Court is directed to amend the official caption as set forth above.
2

under either constitutional provision and, in the alternative, that Fredenburgh was 

entitled to qualified immunity.

We agree with the district court that the complaint should be dismissed, but 

agree with its reasoning only in part. Contrary to the district court’s 

determination, we hold that Hurd alleged a harm of constitutional magnitude 

under the Eighth Amendment because New York State lacked authority to detain 

him past his mandatory conditional release date. We also hold that Hurd had a 

liberty interest in his right to conditional release protected by the Fourteenth

Amendment’s substantive due process clause, and the district court erred in 

concluding otherwise. But because neither of these rights was clearly established

before today, Fredenburgh is entitled to qualified immunity for any responsibility 

she may have had for Hurd’s prolonged detention.

Accordingly, we AFFIRM the judgment of the district court.

_________________

JACOB LOUP (Joel B. Rudin, on the brief), Law Offices of Joel B. Rudin, 

P.C., New York, NY, for Plaintiff-Appellant.

LINDA FANG, Assistant Solicitor General (Barbara D. Underwood, 

Solicitor General, Anisha S. Dasgupta, Deputy Solicitor 

General, on the brief), for Letitia James, Attorney General of the 

State of New York, New York, NY, for Defendant-Appellee.

_________________

WESLEY, Circuit Judge:

Devar Hurd was charged in a single state indictment with nine 

misdemeanors and one felony, which took three trials to resolve. He remained in 

local custody throughout the lengthy trial process. Hurd received a sentence 

specific to each conviction, but those sentences merged into one by operation of 

New York law. When Hurd was transferred into state custody to serve what 
3

became his single felony sentence, his credit for time already served and good 

behavior entitled him to immediate release. But Hurd was not released from state 

custody for nearly a year. He contends this prolonged incarceration violated his 

rights under the Eighth Amendment and the Fourteenth Amendment’s 

substantive due process clause.

BACKGROUND1

Devar Hurd was arrested in July 2013 and indicted for seven counts of 

misdemeanor criminal contempt in the second degree, one count of misdemeanor 

stalking in the fourth degree, one count of misdemeanor harassment in the first 

degree, and one count of felony stalking in the second degree. He was held in the 

custody of the New York City Department of Correction (“NYCDOC”) following 

his arrest, where he remained during multiple trials on the indictment. 

Hurd’s first trial in December 2014 ended in a mistrial. At his retrial in 

October 2015, the jury convicted Hurd of the nine misdemeanor counts; the state 

court declared a mistrial on the felony. The state court imposed a set of definite 

sentences for the misdemeanors ranging from 90 days to one year each, to run 

consecutive to the others, in the custody of NYCDOC. Under New York law, 

1 Except as otherwise noted, these facts are as alleged in Hurd’s First Amended 

Complaint.
4

however, because the aggregate term of these definite sentences exceeded two 

years, Hurd’s term of imprisonment on the misdemeanor counts was capped at 

two years. See N.Y. Penal Law § 70.30(2)(b).

Hurd faced another retrial on the felony count in March 2016; the jury 

convicted him of stalking in the second degree. The state court sentenced Hurd to 

an indeterminate sentence with a minimum of one-and-one-third years and a 

maximum of four years, to be served in the custody of the New York State 

Department of Corrections and Community Supervision (“DOCCS”). Because the

state court did not specify the manner in which Hurd’s felony sentence was to run, 

New York law mandated that it would run concurrently with his two-year 

sentence on the misdemeanors. See id. § 70.25(1)(a). Hurd’s misdemeanor and 

felony sentences also merged by operation of New York law. See id. § 70.35. Thus, 

Hurd’s maximum sentence on the indictment was four years.

Hurd would not have to serve four full years in prison after his sentence 

was imposed, however. New York law provides that any sentence “shall be 

credited with and diminished by the amount of time the person spent in custody 

prior to the commencement of such sentence as a result of the charge that 

culminated in the sentence.” Id. § 70.30(3). This is known as “jail-time credit.” 
5

Thus, Hurd was entitled to credit against his maximum four-year “state sentence” 

for all the time he spent in NYCDOC custody from his arrest in July 2013 to his 

transfer to DOCCS custody in April 2016.

New York law also provides for “good-time credit,” whereby an inmate 

“may receive time allowance against the term or maximum term of his or her 

sentence . . . for good behavior . . . .” N.Y. Corr. Law § 803(1)(a). Once good-time 

credit is approved, an inmate “shall, if he or she so requests, be conditionally 

released from the institution in which he or she is confined when the total good 

behavior time allowed to him or her . . . is equal to the unserved portion of his or 

her term, maximum term or aggregate maximum term.” N.Y. Penal Law 

§ 70.40(1)(b) (emphasis added). This is known as the inmate’s “conditional release 

date.”

The New York Court of Appeals has referred to a conditional release date 

as “the statutorily mandated release date, calculated by applying both his good 

behavior time and his jail time, or time served awaiting trial.” Eiseman v. New York, 

70 N.Y.2d 175, 180 (1987) (Kaye, J.) (internal quotation marks and citations 

omitted). Thus, conditional release under New York law is unlike parole, which 

is a discretionary decision reserved to the judgment of the parole board. As then-
6

Judge Kaye’s explanation suggests, conditional release is a mathematical concept: 

an inmate will have completed their term of imprisonment when (1) the number 

of pre- and post-trial custody days served, plus (2) the number of approved days 

earned for good behavior, equals the inmate’s sentence term. By sheer calculation 

of days, the inmate has satisfied their term of imprisonment, and they are entitled 

to immediate release from prison.

Hurd was transferred from NYCDOC custody into DOCCS custody in April 

2016. Whenever an inmate is transferred from local to state custody, the local 

jurisdiction must calculate the inmate’s jail-time credit and provide DOCCS with 

a certified record of that credit. See N.Y. Corr. Law § 600-a. Accordingly, 

NYCDOC officials issued a “Jail Time Certification” (“JTC”), confirming that Hurd

was entitled to 996 days of jail-time credit against his maximum four-year

sentence. DOCCS officials also produced a “Legal Date Computation,” indicating 

Hurd’s eligibility for good-time credit of up to one year and four months and jailtime credit of two years, eight months, and 26 days.

Assuming his good-time credit would be approved, the combination of his 

jail-time credit and good-time credit gave Hurd a conditional release date of March 

17, 2016—pre-dating his transfer into DOCCS custody. This conditional release 
7

date was reflected on the Legal Date Computation. Thus, at the time of his arrival 

in state custody, Hurd “was told that he was eligible to be immediately released.” 

J.A. 17. DOCCS approved Hurd’s good-time credit on April 19, 2016, at which 

point he satisfied the statutory requirements entitling him to conditional release.

DOCCS Inmate Records Coordinator Stacey Fredenburgh began to process 

Hurd’s release documents. Hurd’s complaint sets out a series of interactions 

between Fredenburgh and NYCDOC all centered around verifying the correct 

computation of his local jail-time credit. Without identifying a reason for any 

animus towards him, Hurd alleges that Fredenburgh and NYCDOC employees—

most notably Principal Administrative Associate for NYCDOC’s Legal Division, 

Edwin Felicien—“agreed to reduce Mr. Hurd’s jail-time credit so that he would 

not be released.” J.A. 17. Between April and June 2016, Felicien sent Fredenburgh 

four amended JTCs, each of which reflected a different, and much lower, jail-time 

credit than the 996 days reflected in the original JTC. It is undisputed that each of 

these revised JTCs was wrong. The last amended JTC credited Hurd with 508 days 

of jail-time credit. As a result, DOCCS no longer considered Hurd eligible for 

conditional release; Hurd remained in prison.
8

Hurd pursued the official grievance process, filed two notices of claim, and 

lodged informal letter complaints to prison officials, including Fredenburgh,

protesting that he was being held past his conditional release date. Fredenburgh 

responded in a letter to Hurd, telling him “that she could do nothing to address 

his concerns and that he must contact ‘Rikers Island’” (an apparent reference to 

NYCDOC). J.A. 19. DOCCS took no other action in response to Hurd’s 

complaints.

Finally, Hurd’s counsel contacted NYCDOC’s legal department on March 

20, 2017. Three days later, NYCDOC sent an amended JTC crediting Hurd with 

the original 996 days of jail-time credit. DOCCS released Hurd on March 30, 

2017—11 months and 11 days after the date on which he was entitled to immediate 

release.

Hurd filed the instant lawsuit under 42 U.S.C. § 1983 against New York City

(the “City”), an NYCDOC employee, and Fredenburgh for violating his rights 

under the Eighth Amendment and the Fourteenth Amendment’s substantive due 

process clause. Hurd settled with the City defendants. The district court thereafter 

granted Fredenburgh’s motion to dismiss under Federal Rule of Civil Procedure

12(b)(6) for failure to state a claim, holding that the prolonged imprisonment 
9

beyond Hurd’s mandatory conditional release date was not a cognizable injury 

under the Eighth and Fourteenth Amendments, and, in the alternative, that 

Fredenburgh was entitled to qualified immunity.

Hurd also filed a state law false imprisonment claim in New York’s Court 

of Claims. Two weeks after the district court dismissed Hurd’s § 1983 complaint, 

the Court of Claims granted summary judgment for the State, concluding that 

Fredenburgh acted reasonably considering her state law obligations and that 

Hurd’s prolonged detention was attributable to the City’s errors only.2

The Court of Claims noted that NYCDOC has the obligation under Penal 

Law § 600-a to send a JTC to DOCCS when an inmate is transferred from local to 

state custody. It noted further that the State “is bound by the jail time certifications 

it receives from local authorities and ‘may not add or subtract therefrom.’” Add. 

34 (quoting McLamb v. Fischer, 70 A.D.3d 1090, 1091 (3d Dep’t 2010)); see also Torres 

2 The parties dispute whether we can (or should) consider the Court of Claims record in 

resolving this appeal. As discussed below, we need not answer this question. We take 

judicial notice of that court’s decision only to establish its existence and that the court 

made certain factual findings, which is necessary to complete the narrative of Hurd’s 

federal action and provide context for Fredenburgh’s defenses. See Glob. Network 

Commc'ns, Inc. v. City of New York, 458 F.3d 150, 157 (2d Cir. 2006) (citing Kramer v. Time 

Warner Inc., 937 F.2d 767, 774 (2d Cir. 1991)). We do not give any effect to those factual 

findings, nor do we consider them for their truth or use them to support any factual 

determination (for we make none) in this appeal.
10

v. Bennett, 271 A.D.2d 830, 831 (3d Dep’t 2000). Although the State “changed its 

policy in 2014 to take affirmative steps to review a local commitment order after 

an inmate is returned to state custody from a local jail,” Torres v. New York, 149 

A.D.3d 1290, 1292 n.* (3d Dep’t 2017), the Court of Claims found that 

Fredenburgh’s communications with Felicien satisfied the necessary review.

The Court of Claims concluded that, although “Fredenburgh’s actions may 

have resulted in DOCCS receiving incorrect information, . . . her actions were 

reasonable at the time.” Add. 35. It reasoned that the City’s errors caused Hurd’s 

prolonged detention, and Hurd’s proper recourse was against the City, not the 

State. Hurd did not appeal the decision.

Hurd did appeal the dismissal of his federal complaint.

DISCUSSION

We review de novo a district court’s decision granting a Rule 12(b)(6) motion, 

including on qualified immunity grounds. See Hernandez v. United States, 939 F.3d 

191, 198 (2d Cir. 2019); Charles W. v. Maul, 214 F.3d 350, 356 (2d Cir. 2000). In 

conducting our review, we “accept as true all factual allegations and draw from 

them all reasonable inferences; but we are not required to credit conclusory 

allegations or legal conclusions couched as factual allegations.” Hernandez, 939 

F.3d at 198 (citation omitted).
11

The crux of both of Hurd’s constitutional arguments is that “[o]n April 19, 

2016, Hurd had enough jail-time credit and approved good-time credit to make 

his conditional release from prison mandatory under state law. However, 

Fredenburgh worked with an official of [NYCDOC] to reduce Hurd’s jail-time 

credit so that he would not be released on his mandatory conditional release 

date . . . .” Appellant Br. 2–3. The district court rejected this theory, determining 

that neither the Eighth Amendment nor the Fourteenth Amendment’s substantive 

due process clause protects an inmate’s right to, or interest in, conditional release

under state law. The district court concluded that Hurd failed to plead a violation 

of his Eighth Amendment rights because “he was released prior to the date his 

maximum sentence expired,” J.A. 39, and that Hurd failed to allege a violation of 

his Fourteenth Amendment rights because he “has no substantive due process 

right to conditional release” before the expiration of his maximum sentence, J.A. 

51, 54. 

After finding that Hurd failed to state a claim for violations of his Eighth or

Fourteenth Amendment rights, the district court concluded in the alternative that 

Fredenburgh was entitled to qualified immunity. We agree with the district 
12

court’s latter determination, but we disagree with its conclusions that Hurd did 

not plausibly allege harm to either his Eighth or Fourteenth Amendment rights.3

I. Eighth Amendment 

“A plaintiff asserting an Eighth Amendment claim pursuant to 42 U.S.C. 

§ 1983 must meet two requirements. First, the alleged deprivation must be, in 

objective terms, sufficiently serious. Second, the charged official must act with a 

sufficiently culpable state of mind.” Francis v. Fiacco, 942 F.3d 126, 150 (2d Cir. 

2019) (internal quotation marks and citations omitted).

To satisfy the first requirement, a plaintiff must plead “a harm of a

magnitude that violates a person’s eighth amendment rights.” Calhoun v. N.Y. 

State Div. of Parole Officers, 999 F.2d 647, 654 (2d Cir. 1993) (internal quotation 

3 Our qualified immunity analysis “is guided by two questions: first, whether the facts 

show that the defendants’ conduct violated plaintiffs’ constitutional rights, and second, 

whether the right was clearly established at the time of the defendants’ actions.” Golodner 

v. Berliner, 770 F.3d 196, 201 (2d Cir. 2014) (internal quotation marks, alteration, and

citation omitted). “We may address these questions in either order,” and “[i]f we answer 

either question in the negative, qualified immunity attaches.” Id. Although it has become 

the virtual default practice of federal courts considering a qualified immunity defense to 

assume the constitutional violation in the first question and resolve a case on the clearly 

established prong, “it is often beneficial” to analyze both prongs of the qualified 

immunity analysis. Pearson v. Callahan, 555 U.S. 223, 236 (2009). “[T]he two-step 

procedure promotes the development of constitutional precedent and is especially 

valuable with respect to questions that do not frequently arise in cases in which a 

qualified immunity defense is unavailable.” Id. This is such a case.
13

marks and citation omitted). “The Eighth Amendment[] . . . proscribes more than 

physically barbarous punishments. It prohibits penalties that are grossly 

disproportionate to the offense, as well as those that transgress today’s broad and 

idealistic concepts of dignity, civilized standards, humanity, and decency.” Hutto 

v. Finney, 437 U.S. 678, 685 (1978) (internal quotation marks, alteration, and 

citations omitted).

The constitutional claim is not measured by the punishment alone, for “an 

Eighth Amendment violation typically requires a state of mind that is the 

equivalent of criminal recklessness.” Francis, 942 F.3d at 150 (internal quotation 

marks and citation omitted). “This standard requires that only the deliberate 

infliction of punishment, and not an ordinary lack of due care for prisoner interests 

or safety, lead to liability.” Id. (alteration and citation omitted). Under this 

standard, prison officials can be found “deliberately indifferent to their own 

clerical errors on the basis of their refusals to investigate well-founded complaints 

regarding these errors.” Id. at 151 (internal quotation marks and citations omitted).

The district court concluded that Hurd failed to allege a harm of 

constitutional magnitude because he was released before his maximum sentence 

expired. We disagree. The Eighth Amendment prohibits “the unnecessary and 
14

wanton infliction of pain,” including punishments that are “totally without 

penological justification.” Gregg v. Georgia, 428 U.S. 153, 173, 183 (1976). There is 

no penological justification for incarceration beyond a mandatory release date

because “any deterrent and retributive purposes served by [the inmate’s] time in 

jail were fulfilled as of that date.” See Sample v. Diecks, 885 F.2d 1099, 1108 (3d Cir. 

1989).

“Next to bodily security, freedom of choice and movement has the highest 

place in the spectrum of values recognized by our Constitution.” Id. at 1109. For 

that reason, unauthorized detention of just one day past an inmate’s mandatory 

release date qualifies as a harm of constitutional magnitude under the first prong 

of the Eighth Amendment analysis.4 Hurd’s unauthorized imprisonment for 

4 We acknowledge that, in Calhoun, we stated that a “five-day extension of [the plaintiff’s] 

release date did not inflict ‘a harm of a magnitude’ that violates a person’s eighth 

amendment rights.” 999 F.2d at 654. But we did not announce this as a constitutional 

rule. The single paragraph devoted to the plaintiff’s Eighth Amendment claim in Calhoun

included only a descriptive, rather than normative, discussion of this issue, and we are 

not bound by its conclusion in announcing a constitutional rule here.

Indeed, in Calhoun we cited to Sample, which relied on the deliberate indifference prong 

as dispositive in cases of unavoidable administrative delay, mistakes, errors, and 

accidents. See, e.g., Sample, 885 F.2d at 1109 (“Because such discretion is necessary to the 

administration of prisons, an official acting in good faith within that discretion, although 

in the process perhaps injuring an inmate, has not inflicted a cruel and unusual 

punishment upon that inmate.”). This approach—recognizing a harm of constitutional 

magnitude whenever an inmate is detained without authorization but finding a 
15

almost one year certainly qualifies under that standard. See id. (“Detention for a 

significant period beyond the term of one’s sentence inflicts a harm of a magnitude

[recognized under the Eighth Amendment].”).

It matters not that Hurd was detained past his statutory conditional release 

date as opposed to the expiration of the maximum sentence imposed on him by 

the sentencing judge. By using the word “shall,” New York chose to make 

conditional release mandatory upon the approval of good-time credit and the 

inmate’s request for release. See N.Y. Penal Law § 70.40(1)(b). It is the mandatory 

nature of that release, not the label of “conditional” or “maximum,” that is 

dispositive.

In effect, Hurd’s conditional release date became the operative date on 

which his maximum term of imprisonment expired. Once Hurd met the statutory 

requirements for conditional release, his release from prison was mandatory 

under state law. Fredenburgh does not dispute that DOCCS had no authority to 

keep Hurd incarcerated past his conditional release date for the crimes of which 

constitutional violation only where that harm is deliberately inflicted—avoids the 

arbitrary task of distinguishing between the permissible and impermissible length of 

unauthorized detention under the Constitution. Moreover, it reflects the notion that 

freedom from unlawful restraint is a right so core to our understanding of liberty that 

suffering even one day of unlawful detention is a harm recognized by the Constitution.
16

he was convicted and sentenced. Even assuming the State could impose some 

supervisory conditions following Hurd’s release,5 his continued imprisonment was 

a punishment that was neither authorized by law nor justified by any penological 

interest asserted by the State. See Sample, 885 F.2d at 1108. Because the State 

detained him for over 11 months past the last date on which New York law 

authorized his imprisonment, Hurd suffered a harm of constitutional magnitude 

under the Eighth Amendment. The district court erred in concluding otherwise.

That does not mean Hurd suffered a violation of his Eighth Amendment 

rights, however. Nor does it mean an inmate whose release is not processed on 

their conditional release date is entitled to damages under § 1983. Far from it. If

a period of prolonged detention results from discretionary decisions made in good 

faith, mistake, or processing or other administrative delays, as opposed to the 

deliberate indifference of prison officials, then there is no Eighth Amendment 

5 New York law provides that inmates granted conditional release “shall be under the 

supervision of the state department of corrections and community supervision for a 

period equal to the unserved portion of the [maximum] term,” and that “[t]he conditions 

of release, including those governing post-release supervision, shall be such as may be 

imposed by the state board of parole in accordance with the provisions of the executive 

law.” N.Y. Penal Law § 70.40(1)(b); see also N.Y. Exec. Law § 259-c(2) (granting the state 

board of parole authority of “determining the conditions of release of the person who 

may be . . . conditionally released”). As noted above, the State’s right to impose some 

form of punishment through supervision or other conditions of release (if any) does not 

justify a punishment of imprisonment that is unauthorized by law.
17

liability. The deliberate indifference prong will do most of the work under these 

and similar circumstances, as “[t]he degree to which a harm is ‘unnecessary’ in the 

sense of being unjustified by the exigencies of prison administration will affect the 

state-of-mind requirement a plaintiff must meet to demonstrate that a particular 

prison official violated the eighth amendment.” Sample, 885 F.2d at 1109. 

To that end, the district court concluded that “Fredenburgh’s alleged 

conduct is troublesome and would certainly satisfy deliberate indifference if not 

willfulness, as [Hurd] alleges Fredenburgh agreed with Felicien to keep [Hurd] 

incarcerated past his conditional release date.” J.A. 57. Fredenburgh argues that 

collateral estoppel applies here because of the Court of Claims’ finding that she 

acted reasonably under the circumstances, and that Hurd is therefore precluded 

from arguing that Fredenburgh acted with deliberate indifference.

Regardless of the Court of Claims’ decision, we are skeptical that 

Fredenburgh—whom Hurd failed to demonstrate has any authority or duty to 

change an erroneous JTC from the City—can be deliberately indifferent to any 

harm suffered because of that error. There must be “a causal connection between 

the official’s response to the problem and the infliction of the unjustified 

detention,” Sample, 885 F.2d at 1110, and if Fredenburgh could not do anything 
18

about Hurd’s prolonged detention as a matter of law, then any deliberate 

indifference on her part would likely be irrelevant.

For example, in this case, Hurd cites to no authority or factual allegations 

establishing that Fredenburgh had an obligation under New York law or DOCCS 

policy to confirm the accuracy of the JTCs she received. Nor is it clear how 

Fredenburgh would or could have accomplished that, given that Penal Law § 600-

a delegates the sole responsibility for certifying jail-time credit to NYCDOC, and 

the relevant information would be contained within NYCDOC records regardless.

Nor are there any allegations that the prison had “procedures in place calling for 

[Fredenburgh] to pursue the matter,” or that “given . . . [Fredenburgh’s] job 

description or the role . . . she has assumed in the administration of the prison, [the 

jail-time credit] calculation problem will not likely be resolved unless . . . she 

addresses it or refers it to others . . . .” Id. Hurd’s legal conclusion that 

Fredenburgh had such a duty or responsibility is not entitled to unquestioned 

acceptance at the motion to dismiss stage.

We acknowledge that Hurd’s allegations do not concern only 

Fredenburgh’s ability to change his jail-time credit but also her alleged conduct in 

agreeing to create the erroneous JTCs to keep Hurd in prison in the first place. As 
19

the district court concluded, such allegations could amount to deliberate 

indifference. We need not resolve this issue. Nor do we reach the issue of whether 

the Court of Claims’ reasonableness finding has preclusive effect here. Because it 

was not clearly established that prolonged detention past one’s mandatory 

conditional release date constitutes a harm of constitutional magnitude under the 

Eighth Amendment, Fredenburgh is entitled to qualified immunity on Hurd’s 

claim. Before addressing that point, however, we turn to Hurd’s Fourteenth 

Amendment argument.

II. Fourteenth Amendment

The Fourteenth Amendment guarantees “more than fair process”; it 

“cover[s] a substantive sphere as well, barring certain government actions 

regardless of the fairness of the procedures used to implement them.” Cnty. of

Sacramento v. Lewis, 523 U.S. 833, 840 (1998) (internal quotation marks and citations 

omitted). “Substantive due process rights safeguard persons against the 

government’s exercise of power without any reasonable justification in the service 

of a legitimate governmental objective.” Southerland v. City of New York, 680 F.3d 

127, 151 (2d Cir. 2012) (internal quotation marks and citation omitted).

“The first step in substantive due process analysis is to identify the 

constitutional right at stake.” Kaluczky v. City of White Plains, 57 F.3d 202, 211 (2d 
20

Cir. 1995). Next, the plaintiff “must demonstrate that the state action was so 

egregious, so outrageous, that it may fairly be said to shock the contemporary 

conscience.” Southerland, 680 F.3d at 151–52 (internal quotation marks and citation

omitted). “The interference with the plaintiff’s protected right must be so 

shocking, arbitrary, and egregious that the Due Process Clause would not 

countenance it even were it accompanied by full procedural protection.” Id. at 152 

(internal quotation marks and citation omitted).

The district court rejected Hurd’s substantive due process claim, concluding

that he lacked a cognizable liberty interest in conditional release because it is a 

state-created right. We disagree.

The district court reasoned that conditional release “is clearly a state-created 

right, as the Supreme Court has held that conditional release is not protected by 

the Constitution.” J.A. 51. Although “[t]here is no right under the Federal 

Constitution to be conditionally released before the expiration of a valid sentence,” 

Swarthout v. Cooke, 562 U.S. 216, 220 (2011), that does not establish that state 

inmates lack a liberty interest in conditional release where the state has created a 

statutory mechanism providing for mandatory conditional release for eligible 

inmates. It means only that an inmate has no constitutional right to demand or 
21

expect conditional release where the incarcerating authority does not offer such an 

opportunity under its law.6

Because “[f]reedom from bodily restraint has always been at the core of the 

liberty protected by the Due Process Clause from arbitrary governmental 

action[,] . . . commitment for any purpose constitutes a significant deprivation of 

liberty that requires due process protection.” Foucha v. Louisiana, 504 U.S. 71, 80 

(1992) (internal quotation marks and citations omitted); see also Davis v. Hall, 375 

F.3d 703, 712 (8th Cir. 2004) (noting that individuals have a “protected liberty 

interest in being free from wrongful, prolonged incarceration”). Inmates eligible 

for mandatory conditional release are not limited to the confines of procedural due 

process in protecting that right. Cf. Swarthout, 562 U.S. at 220. They also are

6 Along these lines, the district court relied on our reaffirmation in Graziano v. Pataki, 689 

F.3d 110, 114–15 (2d Cir. 2012) (per curiam), that New York inmates lack a liberty interest 

in parole because New York’s parole scheme does not create a legitimate expectation of 

release. But New York’s parole scheme differs from the promise of conditional release. 

No inmate is entitled to parole; it is a discretionary decision reserved to the judgment of 

the parole board. See id. at 113–14. All state inmates are eligible for conditional release. 

Unlike parole, where inmates have only a possibility or probability of being granted the 

chance to complete their sentence outside prison, inmates such as Hurd who satisfy the 

statutory requirements for conditional release are guaranteed immediate release from 

prison. That difference creates a legitimate expectation of release, and by extension a 

liberty interest protected by the due process clause.
22

entitled to substantive due process protection against egregious and arbitrary 

government interference.

Substantive due process protects rights that are rooted in the principles of 

ordered liberty. Freedom from unlawful restraint is exactly that. Hurd remained 

in prison for almost one year while the State lacked any authority to further detain 

him. Because New York’s conditional release scheme is mandatory, there is no 

meaningful difference in Hurd’s liberty interest in release from prison at the 

expiration of his maximum sentence and conditional release when he became

entitled to an earlier release date. Once Hurd’s good-time credit was approved, 

the expiration date of his maximum term of imprisonment and his “conditional”

release date were one and the same for substantive due process purposes.

It is of no moment that conditional release is a state-created right. Although 

many state-created rights are not recognized under the substantive due process 

clause, state-created rights that trigger core constitutional interests are entitled to 

its protection. Cf. Local 342, Long Island Pub. Serv. Emps. v. Town Bd. of Town of 

Huntington, 31 F.3d 1191, 1196 (2d Cir. 1994) (explaining that the substantive due 

process clause does not protect “simple, state-law contractual rights, without 

more”). It is the nature of the right, not just its origin, that matters. Conditional 
23

release under New York law is not akin to a state-created right of contract; it is a 

state-created right of mandatory release from prison, preventing unlawful 

continued physical restraint. Cf. Harrah Indep. Sch. Dist. v. Martin, 440 U.S. 194, 198 

(1979) (“[I]nterest[s] entitled to protection as a matter of substantive due process 

[must] resembl[e] the individual’s freedom of choice with respect to certain basic 

matters of procreation, marriage, and family life.” (internal quotation marks and 

citation omitted)); see also Local 342, 31 F.3d at 1196 (substantive due process 

protects rights that are “so vital that neither liberty nor justice would exist if they 

were sacrificed” (internal quotation marks and citation omitted)). That distinction 

makes all the difference. Once Hurd satisfied the statutory requirements for 

conditional release, he had a liberty interest in freedom from detention upon his 

conditional release date, as guaranteed by New York law.7

7 Although Fredenburgh does not raise the issue, we acknowledge that the Supreme 

Court cautions against expanding the substantive due process clause where a more 

specific Amendment provides a source for protection against government conduct. See, 

e.g., Lewis, 523 U.S. at 842. Our holding does not expand the protection of the Fourteenth 

Amendment’s substantive due process clause, however. We are applying the clause to 

one of the explicit concepts it exists to protect: liberty from unjustified restraint. Cf. Davis, 

375 F.3d at 714. Our conclusion that Hurd also alleged a harm of constitutional 

magnitude under the Eighth Amendment does not deprive him of a liberty interest in his 

mandatory conditional release.
24

Fredenburgh’s error is considered at the second step of the substantive due 

process analysis—the nature of the alleged interference with Hurd’s liberty 

interest. Specifically, we must determine whether Fredenburgh’s conduct was

egregious and shocking to the conscience.

The district court reasoned that, “if true, [Hurd’s] allegations that 

Fredenburgh intentionally took actions to keep [Hurd] imprisoned without 

justification might shock the judicial conscience . . . .” J.A. 52. Here, too, 

Fredenburgh argues that collateral estoppel applies because of the Court of 

Claims’ finding that she acted reasonably under the circumstances, which 

precludes any finding in this case that her conduct satisfied the high standard for 

a substantive due process violation. Again, we need not reach this issue, because 

it was not clearly established that Hurd had a liberty interest in his mandatory

conditional release at the time of the sentencing miscalculations.

III. Clearly Established Law

“Government actors are entitled to qualified immunity insofar as their 

conduct does not violate clearly established statutory or constitutional rights of 

which a reasonable person would have known.” Okin v. Vill. of Cornwall-OnHudson Police Dep’t, 577 F.3d 415, 432–33 (2d Cir. 2009) (internal quotation marks 

and citation omitted). “The relevant, dispositive inquiry in determining whether 
25

a right is clearly established is whether it would be clear to a reasonable officer 

that his conduct was unlawful in the situation he confronted.” Id. at 433 (citation 

omitted). “The principle of qualified immunity ensures that before they are 

subjected to suit, officers are on notice their conduct is unlawful.” Id. (internal 

quotation marks and citation omitted).

Fredenburgh is entitled to qualified immunity under this standard. It was

not clearly established during the period of Hurd’s prolonged detention that an

inmate suffers harm of a constitutional magnitude under the Eighth Amendment 

when they are imprisoned past their mandatory conditional release date, nor was 

it clearly established that an inmate has a liberty interest in mandatory conditional 

release protected by the Fourteenth Amendment’s substantive due process clause.

Hurd nevertheless urges us to find that these rights were clearly established 

because they follow from existing precedent. For his Eighth Amendment claim, 

Hurd relies on Sample, 885 F.2d 1099, Calhoun, 999 F.2d 647, Sudler v. City of New 

York, 689 F.3d 159 (2d Cir. 2012), and Francis, 942 F.3d 126. These cases confirm a

uniform legal principle that no federal, state, or local authority can keep an inmate 

detained past the expiration of the sentence imposed on them. But in the qualified 

immunity analysis, the Supreme Court has admonished that rights should not be 
26

defined at a high level of generality and instead must be “particularized to the 

facts of the case.” White v. Pauly, 137 S. Ct. 548, 552 (2017) (internal quotation 

marks and citation omitted). None of the cases upon which Hurd relies addresses 

a conditional release scheme, let alone one in which an inmate is entitled to 

mandatory release prior to the expiration of their maximum sentence. More to the 

point, none of them confirm that prolonging an inmate’s detention past their 

conditional release date might violate the inmate’s rights under the Eighth 

Amendment.

Sample concerned Pennsylvania inmate Joseph Sample, who was granted 

bail pending a new trial after his life sentence was vacated on appeal. 885 F.2d at 

1102. The senior records officer at a Pittsburgh detention facility was instructed to 

determine whether Sample could be released; the officer erroneously informed 

authorities that Sample still had time left on another sentence. Id. Sample served 

nine extra months in prison as a result. Id. at 1102–03.

Because of his authority and job responsibilities, the records officer’s error 

rendered him liable under the Eighth Amendment. Id. at 1110–12. Specifically, 

the Third Circuit held that prolonged incarceration past the expiration of a prison 

sentence constitutes punishment under the Eighth Amendment. Id. at 1108.
27

Where there is no penological justification for that incarceration, as determined by 

the deliberate indifference prong, that punishment is cruel and unusual; and to be 

liable under § 1983, the officer’s deliberate indifference must have caused the 

prolonged incarceration. Id. at 1108–11. 

To be sure, Sample clearly established that “imprisonment beyond one’s 

term constitutes punishment within the meaning of the eighth amendment.” 885 

F.2d at 1108. But it did not establish that the Eighth Amendment prohibits 

imprisonment beyond a mandatory conditional release date that occurs prior to 

the expiration of the maximum sentence.

Calhoun concerned New York inmate Bennie Calhoun, who was sentenced 

to a maximum term of six years, released on parole, arrested for a parole violation 

with two months left on the maximum term, and reincarcerated on a finding of 

probable cause for the parole violation. 999 F.2d at 650. The parole board declared 

Calhoun a “delinquent,” meaning the time between his arrest and reincarceration 

—in this case, five days—was added to his maximum sentence. Id. at 650–51. New 

York law entitled Calhoun to a final parole revocation hearing to determine his 

guilt on the parole violation, but his amended maximum sentence expired before 
28

this hearing could take place, and Calhoun was administratively discharged. Id. 

He sued based on this prolonged incarceration of five days. Id. at 651–52.

We focused on Calhoun’s due process claim—that he was sentenced based 

on a parole violation charge, rather than any finding of guilt. Id. at 652–54. But in 

a single paragraph, we noted (again, as a descriptive matter) that five extra days 

in prison does not satisfy the constitutional harm prong of the Eighth Amendment 

analysis, and even if it did, Calhoun could not show any deliberate indifference 

and his Eighth Amendment claim failed. Id. at 654. We distinguished those five 

days from the nine months of prolonged detention in Sample—long enough to 

qualify as harm of a constitutional magnitude. Id. Thus, at most, Calhoun

reinforced Sample’s holding that unlawful detention past the expiration of a 

maximum sentence constitutes punishment under the Eighth Amendment. Like 

Sample, Calhoun did not touch on conditional release.

Sudler concerned New York inmates who were sentenced to felony state 

prison terms, released on parole, convicted of misdemeanor parole violations,

sentenced to concurrent sentences in City custody for those parole violations, and

denied “parole jail-time credit” by prison officials upon their transfer back into 

state custody to complete their original sentence terms. 689 F.3d at 162–65. By 
29

denying the inmates credit for the time served on their misdemeanor parole 

violations against their felony prison terms, the prison officials effectively imposed

consecutive sentences and prolonged the terms of the inmates’ sentences, without 

an order from the sentencing judges.

We held that the prison officials were entitled to qualified immunity because 

it was not clearly established that an inmate’s procedural due process rights are 

violated when an administrator alters a sentence imposed by the court. Id. at 174–

77. After introducing the inmates’ due process theory, we noted in a footnote that 

“[w]e have suggested in the past, and other courts within and without this Circuit 

have held, that detention beyond that authorized by law may violate the Eighth 

Amendment.” Id. at 169 n.11. In addition to Sample, we cited to Calhoun for 

support, describing the latter decision as “assuming that detention of a prisoner 

beyond the end of his term could violate the Eighth Amendment in appropriate 

circumstances, but finding no violation where the unauthorized detention lasted 

only five days and the plaintiff failed to demonstrate the defendants’ deliberate 

indifference.” Id. Because no party in Sudler raised the issue, however, any Eighth 

Amendment claim was waived. Id. Accordingly, Sudler only reinforces the 

principle established in Sample and acknowledged in Calhoun that the Eighth 
30

Amendment protects against prolonged imprisonment that is not authorized by 

law. It too did not discuss conditional release or how conditional release relates 

to the expiration of a maximum term of imprisonment.

Francis concerned New York inmate Byran Francis, who was sentenced in

state court to serve time concurrent with a federal sentence yet to be imposed, 

contrary to New York law. 942 F.3d at 131–35. The subsequently imposed federal 

sentence was not ordered to run concurrently with the previously imposed state 

sentence. Id. at 132. After Francis commenced his federal sentence, DOCCS 

officials realized the state court’s error, determined of their own accord that 

Francis’s sentences were consecutive, and requested the federal authorities 

transfer him back to state custody at the completion of his federal sentence, 

without seeking clarification or providing Francis an opportunity to be heard. Id.

at 134–36. Upon release from federal custody into state custody, Francis sought 

resentencing in state court and was released four months later. Id. at 136–37.

We held that this violated the Francis’s procedural due process rights. Id. at 

141–45. The officials were entitled to qualified immunity, however, because the 

specific procedural protections to which we found Francis entitled were not clearly 

established before that decision. Id. at 148–49. By contrast, we declined to reach 
31

the merits of Francis’s Eighth Amendment claim in determining that the officials

were entitled to qualified immunity for any constitutional violation. Id. at 149–51. 

We acknowledged in Francis that “[n]o case establishes that these four 

months of additional incarceration, although of serious dimension, crossed the 

threshold of sufficient objective seriousness to constitute cruel and unusual 

punishment under the Eighth Amendment.” Id. at 150 (internal quotation marks, 

alteration, and citation omitted). In doing so, we rejected the inmate’s argument 

that Haygood v. Younger, 769 F.2d 1350, 1352–53, 1358 (9th Cir. 1985) (en banc)—

where an inmate remained incarcerated for five years due to an erroneous 

interpretation of state law—and Sample, 885 F.2d 1099, clearly foreshadowed a

constitutional determination.

Although these courts hinted at the outcome in this case, our legal 

conclusion was not manifest. Each case concerns detention beyond an inmate’s 

maximum sentence. Before today, we have never held that an inmate suffers a 

constitutional harm under the Eighth Amendment when they are detained beyond 

a statutorily mandated release date, even if that mandatory release date precedes 

the expiration of the maximum term of their sentence. It was clearly established 

that New York State could not detain Hurd past the expiration of his maximum
32

sentence, but it was not clearly established that once Hurd’s conditional release 

date was approved, continued detention beyond that date qualifies as a 

constitutional harm for Eighth Amendment purposes.

As for his substantive due process claim, Hurd admits that no decision has 

held that imprisonment past a mandatory conditional release date violates the 

Fourteenth Amendment’s substantive protections. He nevertheless argues that 

“such a conclusion follows inescapably from the procedural due process cases, as 

a prisoner must have such a right once state officials have actually granted him 

discretionary early release.” Appellant Br. 39.

We disagree. The substantive due process analysis differs from procedural 

due process; and it is not the case that one must follow from the other. And for 

the same reasons that our precedents do not dictate the outcome of his Eighth 

Amendment claim, Hurd’s liberty interest in conditional release does not 

obviously follow from the procedural due process cases upon which Hurd relies.

Fredenburgh is therefore entitled to qualified immunity on Hurd’s Eighth 

and Fourteenth Amendment claims.

CONCLUSION

For the reasons stated above, we AFFIRM the judgment of the district court.