21-2792-pr

Michael Matzell v. Anthony J. Annucci et al.

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

August Term 2022

(Argued: October 12, 2022 Decided: April 4, 2023)

Docket No. 21-2792-pr

MICHAEL MATZELL, individually and on behalf of all others similarly situated,

Plaintiff-Appellee,

v.

ANTHONY J. ANNUCCI, Acting DOCCS Commissioner, JEFFREY MCKOY, Deputy 

DOCCS Commissioner, BRUCE YELICH, Superintendent, STANLEY BARTON, 

Deputy Superintendent of Programs, KAY HEADING SMITH, Coordinator, 

ELIZABETH LARAMAY, JANE BOYEA, Coordinator,

Defendants-Appellants.

JOHN AND JANE DOES 1-10,

Defendants.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF NEW YORK

Before: LEVAL, CHIN, and LEE, Circuit Judges.
2

Interlocutory appeal from a decision and order of the United States 

District Court for the Northern District of New York (Hurd, J.), denying the 

motion of defendants-appellants -- seven New York State prison officials -- for 

judgment on the pleadings on the ground of qualified immunity. Plaintiffappellee, a former New York State prisoner, sued defendants-appellants 

pursuant to 42 U.S.C. § 1983 for purportedly violating his rights under the Eighth 

and Fourteenth Amendments when they denied his judicially ordered 

enrollment in New York's Shock Incarceration Program, thereby potentially 

extending his period of confinement. The district court denied the motion for 

judgment on the pleadings, holding that plaintiff-appellee plausibly alleged that 

defendants-appellees were not entitled to qualified immunity because they 

violated clearly established law.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

LAURA ETLINGER, Assistant Solicitor General (Barbara D. 

Underwood, Solicitor General, and Jeffrey W. 

Lang, Deputy Solicitor General, on the brief), for 

Letitia James, Attorney General of the State of 

New York, Albany, New York, for DefendantsAppellants.

DEBRA L. GREENBERGER (Katherine R. Rosenfeld and

Vivake Prasad, on the brief), Emery Celli 
3

Brinckerhoff Abady Ward & Maazel, LLP, New 

York, New York, for Plaintiff-Appellee.

CHIN, Circuit Judge: 

On July 9, 2015, plaintiff-appellee Michael Matzell was sentenced in 

New York state court to four years' imprisonment followed by three years of 

post-release supervision for a controlled substance offense. The sentencing 

judge, pursuant to his authority under New York Penal Law § 60.04(7), ordered 

Matzell's enrollment in the Shock Incarceration Program ("Shock"), a six-month 

bootcamp program that, if successfully completed, allows inmates to be released

from prison early. Once Matzell became time-eligible for enrollment in Shock, 

defendants-appellants -- the Acting Commissioner and Deputy Commissioner of 

the New York State Department of Corrections and Community Supervision 

("DOCCS") and five staff members at the correctional facility where Matzell was

housed (collectively, "Defendants") -- denied his admission to Shock because of

disciplinary "tickets" he had received for drug use while in prison.1

1 Matzell also named as defendants John and Jane Does 1-10 -- DOCCS training, 

supervisory, and policy making personnel who implemented, enforced, or perpetuated 

the policy of applying exclusionary rules to those judicially sentenced to Shock. [JA 32]
4

Matzell brought a 42 U.S.C. § 1983 putative class action against

Defendants alleging that they violated his rights under the Eighth and 

Fourteenth Amendments.2 Defendants filed a motion for judgment on the 

pleadings, contending that they are entitled to qualified immunity as a matter of 

law. The district court denied the motion, holding that Matzell plausibly alleged 

a violation of clearly established constitutional law. Defendants appeal.

We hold that Defendants are entitled to qualified immunity on the 

Eighth Amendment claim but not on the Fourteenth Amendment claim. 

Accordingly, we AFFIRM in part, REVERSE in part, and REMAND for further 

proceedings.

2 Matzell sued on behalf of individuals convicted in New York whose sentences 

included a judicial order that they be enrolled in Shock, but whom DOCCS excluded or 

will exclude from Shock. Matzell's class action complaint does not specify whether his 

Fourteenth Amendment claim relates to substantive or procedural due process. The

parties agree, however, that Matzell's claim sounds in substantive rather than 

procedural due process. Appellants' Br. at 40 ("[P]laintiff's claim here sounds in 

substantive due process, rather than procedural due process, because he was not denied 

any process under these facts."); Appellee's Br. at 51 n.13 ("As Defendants recognize, 

Plaintiff's due process right to serve the sentence imposed by the sentencing court -- and 

not the sentence imposed by the prison officials -- sounds more clearly in substantive, 

rather than procedural, due process." (internal citation omitted)). Accordingly, we 

evaluate the claim as a substantive rather than procedural due process claim.
5

BACKGROUND

I. Shock

Shock is a six-month intensive bootcamp program administered by 

DOCCS that allows inmates to receive rehabilitation and reintegration services. 

Upon successful completion of the program, participants are released from 

prison before the conclusion of their sentence. To be eligible for Shock, an 

inmate must be sentenced to a term of imprisonment that permits his release 

within three years; he must be under fifty years old; and he must not have been 

convicted of certain violent felonies. N.Y. Correct. Law § 865(1) (McKinney 

2022).3

3 "'Eligible inmate' means a person sentenced to an indeterminate term of 

imprisonment who will become eligible for release on parole within three years or 

sentenced to a determinate term of imprisonment who will become eligible for 

conditional release within three years, who has not reached the age of fifty years, who 

has not previously been convicted of a violent felony as defined in article seventy of the 

penal law, or a felony in any other jurisdiction which includes all of the essential

elements of any such violent felony, upon which an indeterminate or determinate term 

of imprisonment was imposed and who was between the ages of sixteen and fifty years 

at the time of commission of the crime upon which his or her present sentence was 

based. Notwithstanding the foregoing, no person who is convicted of any of the 

following crimes shall be deemed eligible to participate in this program: (a) a violent

felony offense as defined in article seventy of the penal law, (b) an A-I felony offense, 

(c) any homicide offense as defined in article one hundred twenty-five of the penal law, 

(d) any felony sex offense as defined in article one hundred thirty of the penal law and 

(e) any escape or absconding offense as defined in article two hundred five of the penal 

law." N.Y. Correct. Law § 865(1) (McKinney 2018).
6

Before 2009, DOCCS had sole authority to determine an individual's 

eligibility for Shock and had broad discretion to admit or exclude individuals 

based on its own criteria. In 2009, however, the New York State Legislature 

passed the Drug Law Reform Act of 2009 (the "DLRA"), 2009 N.Y. Laws ch. 56, 

which amended N.Y. Penal Law § 60.04 and gave sentencing judges the power to 

sentence defendants to enrollment in Shock.

N.Y. Penal Law § 60.04(7)(a) provides that "the court may issue an 

order directing that [DOCCS] enroll the defendant in the shock incarceration 

program as defined in [Article 26-a] of the correction law" and further provides

that "any defendant to be enrolled in such program . . . shall be governed by the 

same rules and regulations promulgated by [DOCCS], including without 

limitation those rules and regulations establishing requirements for completion 

and such rules and regulations governing discipline and removal from the 

program." N.Y. Penal Law § 60.04(7)(a) (McKinney 2022).4

N.Y. Correction Law § 867(2-a) provides that when an individual is 

judicially sentenced to Shock, state prison officials may only screen out the

4 The portions of N.Y. Penal Law § 60.04(7) quoted and cited herein have remained 

the same since their passage in 2009, except the word "inmate" was subsequently 

replaced with "incarcerated individual" throughout.
7

individual when the individual "has a medical or mental health condition" that 

would prevent successful completion of the program. N.Y. Correct. Law § 867(2-

a) (McKinney 2022).5 If an incarcerated individual who has been judicially 

ordered to Shock has a medical or mental health condition that would render 

him unable to complete the program, DOCCS must notify the individual and 

propose "an alternative-to-shock incarceration program" offering the same earlyrelease benefits. N.Y. Penal Law § 60.04(7)(b)(i)-(ii) (McKinney 2022).

II. The Facts

The following facts are drawn from Matzell's complaint, except as 

otherwise noted.

A. The Sentence

On May 20, 2015, Matzell pleaded guilty in the St. Lawrence County 

Court to possession of a controlled substance in the third degree. In a colloquy 

with the Assistant Attorney General and Assistant Public Defender, the court 

explained that "a question arose concerning if the defendant's unsatisfied parole 

sentence would affect . . . his ability to be eligible for Shock Incarceration." 

5 The portions of N.Y. Correction Law § 867 quoted and cited herein were the 

same in 2018, except the word "inmate" was subsequently replaced with "incarcerated 

individual" throughout.
8

J. App'x at 81. After telephoning DOCCS to clarify Matzell's eligibility for Shock, 

the court revised the proposed sentence to include enrollment in Shock, and the 

Assistant Attorney General agreed to the revision. Accordingly, the court 

remarked: "[A]ll parties are satisfied with the Court's commitment to sentence 

the defendant as a second felony drug offender to a determinate term of four 

years, plus three years of post-release supervision, ordered to the Shock 

Incarceration Program." Id. at 82.

At the sentencing on July 9, 2015, the Assistant Public Defender 

requested a "negotiated sentence of four years, with three years of post-release 

supervision, determinate sentence, with additional order to shock." Id. at 98. The 

court imposed the sentence as follows: "It is the judgment of the Court that 

defendant . . . be sentenced to a determinate term of imprisonment with [DOCCS 

for] four years. . . . In addition, he is sentenced to three years of post-release 

supervision. That sentence is directly to the shock -- or to the shock incarceration 

program." Id. at 100. In the sentence and commitment order, the court wrote: 

"SHOCK INCARCERATION Ordered [PL 60.04(7)]." Id. at 42.
9

B. DOCCS's Implementation of the Sentence

On July 16, 2015, Matzell entered DOCCS custody to begin his 

sentence. As he neared his Shock eligibility date of January 18, 2018 -- three 

years before his earliest conditional release date of January 18, 2021 -- Matzell 

contacted a DOCCS coordinator to inquire about his upcoming enrollment in 

Shock. On August 25, 2017, the DOCCS coordinator informed him that, despite 

the court's judgment and sentence, he could not be enrolled in Shock because of 

disciplinary tickets he had received for substance abuse while incarcerated. 

Matzell next contacted the deputy superintendent of programs who informed 

him on September 15, 2017, that he was not eligible for enrollment due to the 

disciplinary tickets. Thereafter, the rehabilitation coordinator and the deputy 

commissioner for program services wrote to Matzell, on September 25, 2017, and 

December 15, 2017, respectively, stating that his drug tickets excluded him from 

Shock and that he did not meet the "suitability criteria" for the program. J. App'x 

at 45.

Finally, on January 5, 2018, the offender rehabilitation coordinator 

screened Matzell and concluded that he was not suitable for Shock for 

disciplinary reasons. Before and after this final determination, Matzell's counsel 
10

sent letters to the superintendent of the facility, the deputy commissioner, the 

deputy superintendent of programs, and the offender rehabilitation coordinator,

explaining that Matzell's sentence mandated enrollment in Shock absent 

disqualifying medical or mental health conditions. None of the DOCCS officials 

had articulated or identified medical or mental health conditions in their 

communications.

C. The Article 78 Proceedings

On May 8, 2018, after exhausting his administrative avenues of 

relief, Matzell commenced an Article 78 proceeding in New York State Supreme 

Court, Albany County, against defendant-appellant Anthony J. Annucci, the 

Acting DOCCS Commissioner, challenging DOCCS's determination that he was 

ineligible for enrollment in Shock. On March 7, 2019, the court ordered DOCCS

to enroll Matzell in Shock within thirty days, holding that "the controlling 

statutes do not permit DOCCS to administratively bar an inmate from entering 

the shock program when shock has been judicially ordered. To do so constitutes 

an administrative alteration of a sentence, which is not permitted." Matzell v. 

Annucci, No. 3111-18, 2019 WL 12498103, at *3 (N.Y. Sup. Ct. Albany Cnty. Mar. 

7, 2019). The court also stated that the DLRA created "clear statutory mandates"
11

eliminating DOCCS's discretion in cases of judicially ordered Shock, id. at *2, and

cited cases from the New York State Court of Appeals and the Third Department

decided in 2008, id. at *3, which held that DOCCS could not administratively 

alter a sentence.

Annucci appealed the court's order, thereby invoking an automatic 

stay of the judgment. Matzell moved to vacate the stay, and the Third 

Department granted his motion on May 31, 2019.

On February 27, 2020, the Third Department affirmed the Supreme 

Court's March 7, 2019 order in full, holding that Defendants' interpretation of 

Penal Law § 60.04(7) was unreasonable and inconsistent with the statute. See 

Matzell v. Annucci, 121 N.Y.S.3d 153, 158 (3d Dep't 2020). Applying principles of

statutory construction and based on the plain language of the statute, the court 

explained:

Notably, prior to the enactment of the DLRA, DOCCS made the ultimate 

determination regarding an inmate's enrollment in the program. The 

DLRA clearly and specifically changed that mandate.

. . . 

Once an inmate has been judicially ordered into the program, DOCCS' 

participation under Penal Law § 60.04(7) is expressly limited to its 

administration of the program, i.e., the completion, discipline and removal 

of an inmate from the program. If the Legislature intended DOCCS to 
12

have administrative discretion as to the eligibility criteria, it could have 

said so. It is a canon of statutory interpretation that a court cannot by 

implication supply in a statute a provision that it is reasonable to suppose 

the Legislature intended to omit. . . . DOCCS' interpretation would permit 

it to administratively modify a criminal sentence, rendering the 

Legislature's grant of judicial authority under the statute meaningless and 

hamper the purpose of the statute under the DLRA.

Id. at 157-58 (internal citations omitted).

On July 9, 2021, Matzell was awarded attorneys' fees in connection 

with the Article 78 proceedings. Matzell v. Annucci, Decision and Order, No.

3111-18 (N.Y. Sup. Ct. Albany Cnty. Apr. 6, 2021). Defendants argued that the 

award of attorneys' fees was not warranted because their interpretation of New 

York Penal Law § 60.04(7) was reasonable. Id. at 3. The court concluded, 

however, that Defendants' interpretation was not reasonable because it was 

contrary to the plain statutory text and would nullify the statute's purpose. Id.

D. Matzell's Enrollment in Shock

DOCCS finally enrolled Matzell in Shock on June 7, 2019 -- 506 days 

after he actually became eligible for the program. On December 24, 2019, some 

six-and-a-half months later, after an injury caused him to be reassigned to an 

alternative-to-shock program, Matzell completed the program and was 

immediately granted early conditional release. As alleged in his complaint, if 
13

Matzell had been enrolled in Shock when he became eligible on January 18, 2018, 

he could have completed the program and been released from prison 506 days 

earlier.

III. The Proceedings Below

On November 25, 2020, Matzell commenced this § 1983 action 

against Defendants, alleging that they violated his Eighth and Fourteenth 

Amendment rights. Defendants moved for judgment on the pleadings. On 

October 7, 2021, the district court denied Defendants' motion. In doing so, the 

district court did not consider whether Matzell sufficiently pleaded violations of 

his constitutional rights, as Defendants did not address that part of the qualified 

immunity inquiry. The district court held, however, that in light of Defendants'

awareness of the DLRA, the DRLA's plain language, existing Second Circuit 

precedent, and earlier state court decisions, Matzell plausibly alleged that

Defendants' refusal to enroll him in Shock violated clearly established law.

This appeal followed.6

6 "[W]here a district court denies a defendant qualified immunity, there is 

appellate jurisdiction over that defendant's interlocutory appeal if the defendant 

contests the existence of a dispute or the materiality as a matter of law, or contends that 

he is entitled to qualified immunity even under the plaintiff's version of the facts." Nat'l 

Rifle Ass'n of Am. v. Vullo, 49 F.4th 700, 712 (2d Cir. 2022). In arguing on their motion for 
14

DISCUSSION

The standard for reviewing a motion for judgment on the pleadings 

is the same as that for a motion to dismiss. Cleveland v. Caplaw Enters., 448 F.3d 

518, 521 (2d Cir. 2006). We review a district court's decision on a motion for 

judgment on the pleadings de novo, accepting the material facts alleged in the 

complaint as true and drawing all reasonable inferences in favor of the plaintiff. 

Kirkendall v. Halliburton, Inc., 707 F.3d 173, 178 (2d Cir. 2013).

To survive a motion for judgment on the pleadings, "a complaint 

must contain sufficient factual matter, accepted as true, to 'state a claim to relief 

that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting 

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)); accord Hayden v. Paterson, 594 

F.3d 150, 160 (2d Cir. 2010). A claim is plausibly alleged "when the plaintiff 

pleads factual content that allows the court to draw the reasonable inference that 

the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678.

Matzell alleges that Defendants violated his Eighth and Fourteenth 

Amendment rights by denying his judicially ordered enrollment in Shock. 

judgment on the pleading that they are protected by qualified immunity, both below 

and in this court, Defendants do not dispute Matzell's asserted facts. Accordingly, we 

have jurisdiction over this interlocutory appeal.
15

Defendants contend that they are entitled to qualified immunity and ask this 

Court to reverse the district court's denial of their motion for judgment on the 

pleadings. First, we discuss the doctrine of qualified immunity. Then, we 

discuss the Eighth Amendment and Fourteenth Amendment claims, concluding

that Defendants are entitled to qualified immunity on the Eighth Amendment 

claim but not on the Fourteenth Amendment claim.

I. Qualified Immunity

Qualified immunity shields government officials from liability for 

money damages for violation of a right under federal law if "their conduct does 

not violate clearly established statutory or constitutional rights of which a 

reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 

(1982). It allows government officials to make reasonable judgments and is said 

to protect "all but the plainly incompetent or those who knowingly violate the 

law." Malley v. Briggs, 475 U.S. 335, 341 (1986). Qualified immunity bars a 

plaintiff's claim unless (1) the official violated a statutory or constitutional right,

and (2) that right was clearly established at the time of the challenged conduct. 

Francis v. Fiacco, 942 F.3d 126, 139 (2d Cir. 2019). "Courts have discretion to 

decide which of the two prongs to address first, but if the complaint fails to 
16

sufficiently plead the violation of a constitutional right, the second question is 

moot." Nat'l Rifle Ass'n of Am. v. Vullo, 49 F.4th 700, 714 (2d Cir. 2022) (internal 

citations omitted).

A right is clearly established when "[t]he contours of the right [are]

sufficiently clear that a reasonable official would understand that what he is 

doing violates that right." Anderson v. Creighton, 483 U.S. 635, 640 (1987); see 

Jackler v. Byrne, 658 F.3d 225, 242 (2d Cir. 2011). To determine whether a law is 

clearly established, this Court considers "the specificity with which a right is 

defined, the existence of Supreme Court or Court of Appeals case law on the 

subject, and the understanding of a reasonable officer in light of preexisting law." 

Terebesi v. Torreso, 764 F.3d 217, 231 (2d Cir. 2014). The Supreme Court has 

emphasized that its case law does not "require a case directly on point" but that 

"existing precedent must have placed the statutory or constitutional question 

beyond debate." Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011); see Mullenix v. Luna, 

577 U.S. 7, 12 (2015) (per curiam); White v. Pauly, 137 S. Ct. 548, 551 (2017) (per 

curiam).

"Although qualified immunity defenses are often decided on 

motions for summary judgment, in appropriate circumstances a district court 
17

may address qualified immunity at the pleadings stage." Vullo, 49 F.4th at 714

(citing Drimal v. Tai, 786 F.3d 219, 225 (2d Cir. 2015)). We have recognized, 

however, that a qualified immunity defense "faces a formidable hurdle" at the

motion to dismiss stage "and is usually not successful." Sabir v. Williams, 52 F.4th

51, 64 (2d Cir. 2022) (citation omitted); see also Green v. Maraio, 722 F.2d 1013, 1018 

(2d Cir. 1983) ("Usually, the defense of qualified immunity cannot support the 

grant of a [Rule] 12(b)(6) motion for failure to state a claim upon which relief can 

be granted."). Where a defendant presents a qualified immunity defense on a 

motion to dismiss or, as here, for judgment on the pleadings, "the plaintiff is 

entitled to all reasonable inferences from the facts alleged, not only those that 

support his claim, but also those that defeat the immunity defense." McKenna v. 

Wright, 386 F.3d 432, 436 (2d Cir. 2004).

II. The Eighth Amendment Claim

We conclude that Matzell's Eighth Amendment claim fails at the 

second prong of the qualified immunity analysis: it was not clearly established 

at the time of Defendants' conduct that denying a prisoner the opportunity to 

obtain early release from his sentence of confinement by denying judicially 

ordered entry into the Shock program would violate the Eighth Amendment.
18

A. Applicable Law

"The Eighth Amendment protects prisoners from cruel and unusual 

punishment by prison officials." Crawford v. Cuomo, 796 F.3d 252, 256 (2d Cir. 

2015) (citing Wilson v. Seiter, 501 U.S. 294, 297 (1991)). A plaintiff asserting an 

Eighth Amendment claim must allege both an objective and a subjective element. 

First, a plaintiff must show that the alleged deprivation is objectively "sufficiently 

serious" to constitute "cruel and unusual punishment," and second, a plaintiff 

must show that the charged official acted with a "sufficiently culpable state of 

mind." Francis, 942 F.3d at 150; see also Hurd v. Fredenburgh, 984 F.3d 1075, 1084 

(2d Cir.), cert. denied, 142 S. Ct. 109 (2021).

To meet the objective element, 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 

marks omitted). To meet the subjective element, a plaintiff must show that the 

prison officials had "a state of mind that is the equivalent of criminal 

recklessness," Francis, 942 F.3d at 150 (quoting Hathaway v. Coughlin, 99 F.3d 550, 

553 (2d Cir. 1996)), or that the prison officials acted with deliberate indifference,

see, e.g., Hurd, 984 F.3d at 1084-85 (finding that prison officials can be
19

"deliberately indifferent to their own clerical errors on the basis of their refusals 

to investigate well-founded complaints regarding these errors" (quoting Francis, 

942 F.3d at 151)); Haygood v. Younger, 769 F.2d 1350, 1355 (9th Cir. 1985) (en banc), 

cert. denied sub nom. Cranke v. Haygood, 478 U.S. 1020 (1986) (determining that 

"deliberate indifference" rather than "actual intent" is the correct standard for 

assessing Eighth Amendment liability where a prison official's miscalculation of 

an inmate's release date resulted in five years of additional incarceration and 

holding that the inmate alleged an Eighth Amendment violation); Sample v. 

Diecks, 885 F.2d 1099, 1110-12 (3d Cir. 1989) (holding that a prison official 

violated an inmate's Eighth Amendment rights where the official exhibited 

deliberate indifference by wrongly determining that the inmate still had time to 

serve and caused the inmate's detention to be prolonged by nine months).

B. Application

We need not address the first prong of the qualified immunity 

analysis, for even assuming Matzell plausibly alleged a violation of his Eighth

Amendment right, our decision in Hurd compels the conclusion that the law was 

not clearly established at the time Defendants denied Matzell an opportunity to 

obtain early release through participation in Shock.
20

In Hurd v. Fredenburgh, an inmate alleged deprivation of his Eighth 

Amendment right because a DOCCS coordinator miscalculated his sentence

causing him to be imprisoned for 11 months and 11 days beyond his statutorily

mandated release date. 984 F.3d at 1082. We observed that Hurd adequately 

alleged a harm under the Eighth Amendment, noting that "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." Id. at 1085. But see Calhoun, 999 F.2d at 654 (holding that 

a "five-day extension of [an incarcerated person's] release date did not inflict 'a 

harm of magnitude' that violates a person's eighth amendment rights"). We 

further concluded, however, that the DOCCS coordinator was entitled to 

qualified immunity 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." Hurd, 984 F.3d at 1087.

Hurd, which involved conduct that took place in 2016 and 2017, see 

id. at 1075, 1082, was decided on January 20, 2021. Accordingly, at the time of the

conduct in this case, that is 2017 and 2018, there was no precedent establishing 

that Defendants' conduct violated the Eighth Amendment. Hence, we conclude 
21

that when Defendants denied Matzell's judicially ordered entry into Shock, it 

was not clearly established that denying an inmate such an opportunity for early 

conditional release would violate the Eighth Amendment. Thus, we reverse the 

district court's denial of Defendants' motion for judgment on the pleadings as to 

the Eighth Amendment claim.

III. The Fourteenth Amendment Claim

We conclude that Matzell has plausibly alleged that Defendants 

violated a clearly established Fourteenth Amendment right.

A. Applicable Law

The Fourteenth Amendment Due Process Clause prohibits states 

from "depriv[ing] any person of life, liberty, or property, without due process of 

law." U.S. Const. amend. XIV, § 1. In addition to "guarantee[ing] . . . fair 

process," Washington v. Glucksberg, 521 U.S. 702, 719 (1997), the Fourteenth 

Amendment "cover[s] a substantive sphere . . . '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) (quoting Daniels v. Williams, 

474 U.S. 327, 331 (1986)).
22

"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). 

This Court has held that "[s]ubstantive due process standards are violated only 

by conduct that is so outrageously arbitrary as to constitute a gross abuse of 

governmental authority." Natale v. Town of Ridgefield, 170 F.3d 258, 263 (2d Cir. 

1999). To succeed on a substantive due process claim a plaintiff must (1) 

"identify the constitutional right at stake" and (2) "demonstrate that the state 

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

contemporary conscience." Hurd, 984 F.3d at 1087.

To satisfy the second prong, "[t]he 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." Southerland, 680 F.3d at 152 (internal quotation marks 

and citation omitted). Negligently inflicted harm will not constitute a 

constitutional violation, but "conduct intended to injure in some way 

unjustifiable by any government interest" can satisfy the shock-the-conscience 
23

standard, Lewis, 523 U.S. at 849, as can, in some circumstances, conduct that 

"resulted from deliberate indifference," Rosales-Mireles v. United States, 138 S. Ct. 

1897, 1906 (2018). The Supreme Court has explained that "[d]eliberate 

indifference that shocks in one environment may not be so patently egregious in 

another." Lewis, 523 U.S. at 849. The deliberate indifference standard may not be 

applicable in the context of a high-speed chase or a police riot in which an officer 

must make a snap decision, but it may be appropriately applied in the context of 

a custodial prison situation in which prison officials can actually deliberate. See 

id. at 851; see also Rivera v. Rhode Island, 402 F.3d 27, 36 (1st Cir. 2005) ("In 

situations where actors have an opportunity to reflect and make reasoned and 

rational decisions, deliberately indifferent behavior may suffice to shock the 

conscience." (internal quotation marks omitted)).

B. Application

We consider both prongs of the qualified immunity analysis: first, 

whether Matzell plausibly alleged a violation of his Fourteenth Amendment 
24

substantive due process right, and second, if so, whether that right was clearly 

established.7

1. Substantive Due Process Right

The first step in the substantive due process analysis is to determine 

the constitutional right that is implicated. See Hurd, 984 F.3d at 1087. "The 

general liberty interest in freedom from detention is perhaps the most 

fundamental interest that the Due Process Clause protects." Francis, 942 F.3d at 

141. This liberty interest is implicated "not only . . . when a court initially 

sentences [someone], but also when prison officials interpret and implement the 

sentence that the trial court has imposed." Id. at 142. In Francis, this Court found 

that "[r]egardless of whether [DOCCS's] course of conduct was legally justified 

(or perhaps even legally required), their decision to implement [an inmate's] 

sentence in a manner that diverged from the sentence pronounced by the 

sentencing court implicated a liberty interest of the highest order." Id.

7 Before the district court, Defendants argued that no clearly established law gave 

them notice that their actions violated constitutional law but did not argue that they did 

not violate Matzell's constitutional rights. Plaintiff contends that the argument is 

waived as it was not raised below. We have the discretion to reach an issue not raised 

below, and we exercise that discretion now. See Burns v. Martuscello, 890 F.3d 77, 94 n.4 

(2d Cir. 2018).
25

Matzell has alleged that he was sentenced to enrollment in Shock, 

and that Defendants illegally denied his enrollment despite the provisions of 

New York statutory law that explicitly deprived them of their authority to deny 

admission to one sentenced to Shock in these circumstances. Defendants' 

decision to disqualify Matzell from enrolling in Shock diverged from the 

sentencing court's order and implicated his liberty interest in having his sentence 

implemented in a manner consistent with law and the sentencing court's order. 

See id. Therefore, Matzell has plausibly alleged the violation of a due process

right.

The second step in the analysis is to determine whether Defendants' 

conduct shocks the conscience. See Hurd, 984 F.3d at 1087. As alleged in the 

complaint, Defendants repeatedly refused to enroll Matzell in Shock even though

the amendment of N.Y. Penal Law § 60.04 gave sentencing courts the authority to 

sentence defendants to Shock and limited DOCCS's screening authority to 

instances when it determines that an individual has a medical or mental 

condition that will hinder the completion of the program. None of the

Defendants articulated medical or mental health reasons for excluding Matzell, 

and thus they exceeded and abused their governmental authority by ignoring the 
26

Court's sentencing order and the DLRA's plain statutory language. See Natale, 

170 F.3d at 263. Even though the law was clear and Matzell's counsel sent 

multiple letters alerting DOCCS to the statute that mandated his admission to the 

program, Defendants refused to enroll Matzell in Shock. As a result, Matzell was

deprived of the opportunity to secure his release 506 days earlier than his actual 

releasee. His four-year custodial sentence was increased by almost a third. 

Hence, Matzell plausibly alleged that Defendants' actions rose to the level of 

deliberate indifference in violation of his substantive due process rights. See

Hurd, 984 F.3d at 1088; see also Rosales-Mireles, 138 S. Ct. at 1906.

Furthermore, as determined in three state court proceedings, 

Defendants' justification that they interpreted N.Y. Penal Law § 60.04(7)(a) as 

giving them authority to exclude those judicially ordered to be enrolled in Shock 

based on DOCCS's administrative criteria was objectively unreasonable in light 

of the DLRA's purpose and the plain statutory language of N.Y. Penal Law 

§ 60.04(7)(a) and N.Y. Correction Law § 867. Given the liberty interest at stake

and the clarity of the statutory law, we hold that Matzell plausibly alleged that 

Defendants' actions were egregious, shocking to the conscience, and 
27

unreasonable and, thus, we conclude that Matzell plausibly alleged that 

Defendants violated his Fourteenth Amendment substantive due process rights.

2. Clearly Established Law

We next consider whether Matzell's right to have his sentence 

implemented in accordance with the sentencing court's order was clearly 

established at the time of Defendants' conduct. We consider both the DLRA's 

plain statutory language and the precedent established by Hill v. United States ex 

rel. Wampler, 298 U.S. 460 (1936), Earley v. Murray, 451 F.3d 71 (2d Cir. 2006), and 

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

As an initial matter, the DLRA's plain language clearly outlined 

Defendants' responsibilities and limitations regarding judicially ordered Shock 

enrollment. See Matzell, 121 N.Y.S.3d at 156; Matzell, 2019 WL 12498103, at *2. 

N.Y. Penal Law § 60.04(7)(a) provides that the court may issue an order directing 

an individual's enrollment in Shock as defined in Article 26-a of New York 

Correction Law. N.Y. Correction Law § 867 sets out the procedure for selecting 

participants in Shock and distinguishes between incarcerated individuals who 

apply for enrollment and incarcerated individuals who are "judicially sentenced" 

to Shock. N.Y. Correction Law § 867(2) provides that an eligible individual who 
28

applies may be screened for approval or disapproval. N.Y. Correct. Law § 867(2) 

(McKinney 2022). N.Y. Correction Law § 867(2-a), however, explains that N.Y. 

Correction Law § 867(2) "shall apply to a judicially sentenced shock incarceration 

incarcerated individual only to the extent that the screening committee may 

determine whether the incarcerated individual has a medical or mental condition 

that will render the incarcerated individual unable to successfully complete the 

shock incarceration program." Id. § 867(2-a) (McKinney 2022) (emphasis added). 

And even when it lawfully screens an individual out of admission to Shock due 

to a medical or mental condition, DOCCS must propose an alternative program 

with the same early-release benefit. N.Y. Penal Law § 60.04(7)(b) (McKinney 

2022). The words of the statute clearly provide that individuals judicially 

ordered to Shock may only be excluded from enrollment upon a finding that 

they have medical or mental conditions that would inhibit them from completing 

the program. No such finding was made here.

Furthermore, while N.Y. Correction Law § 867(5) provides that 

participation in Shock is a "privilege" and that nothing in the article confers a 

right to participate, N.Y. Correction Law § 867(2-a) clarifies that

"[n]otwithstanding [N.Y. Correction Law § 867(5)], an incarcerated individual 
29

sentenced to shock incarceration shall promptly commence participation in the 

program when such incarcerated individual is an eligible incarcerated 

individual." N.Y. Correct. Law §§ 867(2-a), (5) (McKinney 2022) (emphasis 

added). This clarification makes clear that judicially ordered enrollment in Shock 

is not subject to DOCCS's administrative discretion.

Moreover, Second Circuit precedent clearly established that 

DOCCS's alteration of the court's sentence was unconstitutional. In Earley, this 

Court relied on Wampler to hold that any alteration to a sentence imposed by a 

judge, unless made by a judge in a subsequent proceeding, is invalid. 451 F.3d 

75-76; id. at 76 n.1 (2d Cir. 2006) ("Although Wampler does not identify the source 

of the rule that it announces, we believe that it is based in the due process 

guarantees of the United States Constitution."). In Wampler, the Supreme Court 

had struck down a condition imposed on a defendant's sentence (that he would 

only be released upon the payment of a fine) because it was not in the judge's 

order and had been added by the clerk of the court. 298 U.S. at 465. In Earley, 

DOCCS added a five-year term of supervised release to a defendant's sentence 

pursuant to a New York law that mandated a term of supervised release. 451 

F.3d at 75-76. Based on Wampler, this Court held that the action violated clearly 
30

established federal law even though the change was made pursuant to state law, 

because "any addition to [a] sentence not imposed by the judge was unlawful." 

Id. at 75; see also id. at 76 ("The state court's determination that the addition to 

Earley's sentence by DOCS was permissible is therefore contrary to clearly 

established federal law as determined by the United States Supreme Court."). 

What is more, Vincent further confirmed that our decision in Earley clearly 

established that "[DOCCS] has no . . . power to alter a sentence." 718 F.3d at 169 

(quoting Earley, 451 F.3d at 76).8

Based on this precedent, it was clearly established at the time of

Defendants' conduct that they did not have the power to alter Matzell's sentence. 

Yet that is what they did by denying Matzell the opportunity to obtain early 

conditional release in direct contradiction to the sentencing judge's order to 

enroll Matzell in Shock. Even though Wampler, Earley, and Vincent did not 

specifically involve excluding an incarcerated individual from Shock, Supreme 

Court case law does not "require a case directly on point," al-Kidd, 563 U.S. at 741, 

and the Court has explained that "a general constitutional rule already identified 

8 Vincent also involved state prison officials imposing conditions of supervision on 

former prisoners despite the absence of the conditions from the sentencing court's 

order. 718 F.3d at 161-62.
31

in the decisional law may apply with obvious clarity to the specific conduct in 

question," even if the specific conduct has not already been held unlawful. Hope 

v. Pelzer, 536 U.S. 730, 741 (2002). Furthermore, the existing cases "defined the 

contours of the right with reasonable specificity" by showing that a sentence 

must be implemented consistent with a sentencing court's orders even when the 

change to the order is made pursuant to state law. Tellier v. Fields, 280 F.3d 69, 84 

(2d Cir. 2000) (quoting Russell v. Coughlin, 910 F.2d 75, 78 (2d Cir. 1990)).

Defendants argue that neither Wampler nor Earley "clearly 

established a general principle that all administrative deviations from an 

intended sentence violate due process." Appellants' Br. at 34. To support this 

argument, Defendants rely on this Court's holdings in Francis and Sudler v. City of 

New York, 689 F.3d 159 (2d Cir. 2012). These cases, however, do not change our 

analysis in this case. In Francis, an inmate sued DOCCS officials for violating his 

Eighth Amendment and Fourteenth Amendment procedural due process rights 

when, faced with a federal sentence imposed after a state sentence, the officials

failed to implement a term of the state sentence that the inmate's state sentence 

run concurrently with his federal sentence. 942 F.3d at 131. Under New York 

law, state courts lacked the authority to direct that an inmate's state sentence run 
32

concurrently with a federal sentence unless the federal sentence had already been 

imposed. See id. Relying on their understanding of the statute in the face of this 

conflict, the officials did not implement the command of the state sentence to run 

the sentences concurrently. See id. at 134-35, 148. Upon review of the district 

court's denial of the officials' motion for summary judgment, this Court held that 

Wampler and Earley did not clearly establish that the state officials would violate 

constitutional law where they failed to implement a state court directive in the 

face of a conflicting federal sentence. See id. at 147.

This Court had previously reached a similar conclusion in Sudler,

where inmates sued state officials for allegedly violating their constitutional 

rights when they incorrectly calculated jail time credits due to the interaction 

between two concurrent sentences. 689 F.3d at 163-64. The plaintiffs in Sudler

argued that Wampler and Earley "should apply not only with regard to a single 

sentence, but also in the context of a sentencing judge's pronouncement as to the 

relationship between the sentence he is imposing and another sentence imposed 

in a separate proceeding." Id. at 173. The Court declined to resolve the question 

about Wampler and Earley's scope, but held that plaintiff's right was not clearly 
33

established where the calculation of the credit "implicat[ed] multiple sentences." 

Id. at 176.

Our application of Wampler and Earley in Francis and Sudler does not

control here because Defendants were not faced with a decision involving 

multiple or conflicting sentences. Rather, they failed to adhere to the sentencing

court's order with respect to "a single sentence." Id. at 173.9

Nor did Francis and Sudler involve a circumstance where the 

defendants' conduct violated not only a term of the state sentence but also state 

law that clearly established the absence of DOCCS's authority to do what it did. 

In Matter of Garner v. New York State Dep't of Corr. Servs., the New York Court of 

Appeals held that DOCCS exceeded its jurisdiction by administratively adding a 

mandatory period of post-release supervision to a petitioner's sentence when 

post-release supervision was not ordered by the sentencing judge. 889 N.E.2d 

9 Additionally, in Hurd, we concluded that it was not clearly established that the 

inmate's liberty interest in his mandatory conditional release date was protected by the 

Fourteenth Amendment. 984 F.3d at 1089. Defendants rely on Hurd to argue that 

Matzell's Fourteenth Amendment right was not clearly established. Hurd, however, did 

not involve the right established by Wampler and Earley. In Hurd, the defendants did 

not comply with a statutory mandate, as opposed to a court-ordered mandate, to grant 

jail-time and good-time credits. Id. at 1082. Here, Defendants altered Matzell's sentence 

by denying him the opportunity for conditional release in contravention of the 

sentencing court's explicit order to enroll Matzell in Shock.
34

467, 470 (N.Y. 2008) ("[I]n recognition of DOCS's limited authority in the 

sentencing arena, we have previously held that 'prison officials are conclusively 

bound by the contents of commitment papers accompanying a prisoner' and 

therefore DOCS must generally 'comply with the plain terms of the last 

commitment order received.'" (quoting Matter of Murray v. Goord, 801 N.E.2d 385, 

387-88 (N.Y. 2003))). In Matter of Prendergast v. State of N.Y. Dep't of Corrs., the 

Third Department also held that a defendant's sentence can only be altered by a 

judge in a subsequent proceeding. 856 N.Y.S.2d 725, 726 (3d Dep't 2008). These 

decisions clearly established that DOCCS could not disregard the sentencing 

judge's order in such a manner as to effectively extend Matzell's sentence by 506 

days.

Matzell has plausibly alleged that his substantive due process right 

to have his sentence implemented consistent with the sentencing court's order 

was clearly established and that this right was violated when Defendants

essentially extended his sentencing by refusing to enroll him in Shock when he 

was eligible. Thus, we affirm the district court's denial of Defendants' motion for 

judgment on the pleadings as to the Fourteenth Amendment claim.
35

CONCLUSION

For the reasons stated above, we AFFIRM the district court's denial 

of Defendants' motion for judgment on the pleadings as to the Fourteenth 

Amendment claim, we REVERSE the district court's denial of Defendants' 

motion for judgment on the pleadings as to the Eighth Amendment claim, and 

we REMAND for further proceedings.