21

- 2792

- pr Michael Matzell v. Anthony J. Annucci et al. U NITED S TATES C OURT OF A PPEALS FOR THE S ECOND C IRCUIT
August Term 202 2 (Argued: October 1 2 , 202 2 Decided: April 4, 2023 )
Docket No. 21

- 2792

- pr

M ICHAEL M ATZELL , individually and on behalf of all others similarly situated , Plaintiff

- Appellee ,

v. A NTHONY J. A NNUCCI , Acting DOCCS Commissioner, J EFFREY M C K OY , Deputy DOCCS Commissioner, B RUCE Y ELICH , Superintendent, S TANLEY B ARTON ,

Deputy Superintendent of Programs, K AY H EADING S MITH , Coordinator, E LIZABETH L ARAMAY , J ANE B OYEA , Coordinator , Defendant s - Appellant s . J OHN AND J ANE D OES 1

- 10 , Defendants.

O N A PPEAL FROM THE U NITED S TATES D ISTRICT C OURT FOR THE N ORTHERN D ISTRICT OF N EW Y ORK

Before: L EVAL , C HIN , and L EE , Circuit Judges

.2 Interlocutory a ppeal from a decision and order of the United States District Court for the Northern District of New York ( Hurd , J. ), denying the
motion of defend ant s - appellant s -- seven New York S tate prison officials

-- for judgment on the pleadings on the ground of qualified immunity

. Plaintiff

appellee , 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 Amendment s when they denied his judicially ordered
enrollment in New York's Shock Incarceration Progr am , thereby potentially extending his period of confinement

. The district court denied th e 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

. A FFIRMED IN P ART , R EVERSED IN P ART , AND R EMANDED
.

L AURA E TLINGER , Assistant Solicitor General ( Barbara D. Underwood, Solicitor General, and Jeffr e y W. Lang, Deputy Solicitor General , on the brief ), for Letitia James, Attorney General of the State of New York, Albany , New York, for Defendants

Appellants

. D EBRA L. G REENBERGER ( Katherine R. Rosenfeld and Vivake Prasad , on the brief ), Emery Celli3 Brinckerhoff Abady Ward & Maazel , LLP, New York, N ew Y ork , for Plaintiff

- Appell ee .

C HIN , 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 release d 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 S upervision ("DOCCS") and five staff members at the correctional facility w here 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 Amendment s. 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 D efendants 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 wh ose 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 hi s 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 substanti ve 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, w e 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

. U pon 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
convict ed 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 suc h 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 pen al 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 g a v e sentencing judges the power t o
sentence defendants to enrollment in Shock. N.Y. Penal Law § 60.04(7)(a) provides tha t "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 202 2 )

. 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 h ave 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 complet ion of the program. N.Y. Correct. Law § 867 (2

- a) (McKinney 20 22 )

. 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 early

releas e 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 Sentenc e 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. Correct ion Law § 867 quoted and cited here in 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 agree d 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, ord ered 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 h is Shock eligibility date of January 18, 2018

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

-- Matzell

co ntacted 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 d eputy superintendent of p rograms 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 s ervices 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 discip linary reasons. Before and after this final determination, Matzell's counsel10 sent letters to the superintendent of the facility , the deputy commissioner , the deputy sup erintendent of programs, and the offender rehabilitation coordinator , explaining that Matzell 's sentence mandated enrollment in Shock absent disqualifying medical or mental health conditions . N one of the DOCCS officials
had articulated or identified medical or mental health conditions in their
communications.
C. T he 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 " t he controlling
sta tutes 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 St ate C ourt of Appeals and the T hird D epartment 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 t h e T hird Department granted his motion on May 31, 2019

. On February 27, 2020, t he 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 2 020)

. 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 inma te 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 inte nded DOCCS to12 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 Legislatu re 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 1 5 7

- 5 8 (internal citation s 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, t hat Defendants' interpretation was not reasonable because it w as contrary to the plain statutory text and would nullif y the statute's purpose. Id.
D. Matzell's Enrollment in Shock
DOCCS finally enrolled Matzell in Shock on June 7, 2019

-- 506 days
after h e 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

- s hock program, Matzell completed the program and was immediately granted early conditional release. As alleged in his complaint, if13 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 Def endants , alleging that they violated his Eight h and Fourteenth Amendment rights

. Defendants moved for judgment on the pleadings. On October 7, 2021, t he district court denied D efendants' motion. In doing so, t he
district court did not consider whether M atzell sufficiently pleaded violations of
his constitutional right s , as Defendants did no t address that part of the qualified immunity inquiry. The district court held, however, that in light of D efendant s '
awareness of the DLRA , the DRLA's plain language , existing Second Circuit precedent, a nd earlier sta te court decisions , Matzell plausibly alleged that
D efendant s ' 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 for14 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.
K i rkendall 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, 5 70 (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. " I qbal , 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 a sk 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 , co nclud ing 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 judgme nts 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) t he official violated a statutory or constitutional ri ght , and (2) t hat 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 to16 sufficie ntly 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 determin e 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 l aw. " 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 debat e." 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 circumstance s a district court17 may address qualified immunity at the pleadings sta g e." 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" a t 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 qualif ied 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 con clude 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 d enying a prisoner the opportunity to obtain early release from his sentence o f 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. S eiter , 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 o bjectively "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.3 d 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. Cou ghlin , 99 F.3d 550, 553 (2d Cir. 1996)) , or that the prison officials acted with deliberate indifference ,

s ee , e.g. , Hurd , 984 F.3d at 1084

- 85 (finding that prison officials can be19 "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 , 135 5 (9th Cir. 1985) (en banc),

ce rt. 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 rel ease 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 r ights 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 Def endants denied Matzell an opportunity to obtain early release through participation in Shock.20 In Hurd v. Fredenburgh , an inmate alleg ed deprivation of his Eighth Amendment righ t because a DOCCS coordinator miscalculated his sentence

caus ing him to be impri soned for 11 months and 11 days beyond his statutorily
mandated release date. 984 F.3d at 108 2. 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 rel ease date qualifies as a harm of constitutional magnitude under the first prong of the Eighth Amendment analysis

. " Id. at 1085

. B ut 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 qual ified immunity because " it was not clearly established that prolonged
detention past one's mandatory conditional release date constitute s a harm of constitutional magnitude under the Eighth Amendment

. " Hurd , 984 F.3d at 108 7

. 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 Amendme nt

. Hence, we conclude21 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 Amendmen t. 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 o n a substantive due pro cess 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 108 7

. 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 "c onduct intended to injure in some way unjustifiable by any government interest " can satisfy the shock

- the

- conscience23 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

- sp eed 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 Amendment24 substantive due process right, and second, if so, whether that right was clearly
established. 7
1. Substa ntive 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
fundamenta l 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 [a n 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 e nrollment 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 enrol ling in Shock diverged fro m 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 D efendants '
conduct shocks the conscience. See Hurd , 984 F.3d at 1087

. As alleged in the complaint, D efendants repeatedly refus ed to enroll Matzell in Shock even though
the amendment of N.Y. Penal Law § 60.04 g a v e 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. N one of the
Defendants articulated medical or mental health reasons for excluding Matzell , and thus they exceeded and abused their governmental authority by ignoring the26 Cou rt'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. H is four

- year custodial sentence was increased by almost a third. Hence, Matzell plausibly alleged that Defendants' actions r o se to the level of deliberate indifference in violation of his substantive due process rights. See Hurd , 984 F.3d at 108 8 ; see also Rosales

- Mireles , 138 S. Ct. at 1906

. Furthermore, as determined in thr ee state court proceedings , Defendants' justification t hat 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 clarit y of the statutory law , w e hold that Matzell plausibly alleged that
Defendants' actions were egregious, shocking to the conscience, and27 unreasonable and , thus, we conclude that Matzell plausibly alleged that
D efendants violated his Fourteenth Amendment sub stantive 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, t he DLRA's plain language clearly outlined
Defendants' responsibilities and limitations regarding judicially ordered S hock
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 s electing participants in Shock and distinguishes between incarcerated individuals who apply for enrollment and incarcerated individuals who are "judicially sentenced"
to S hock. N.Y. Correction Law § 867(2) provides that an eligible individual who28 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 individua l 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 individual29 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 t hat
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, i s invalid. 451 F.3d
75

- 76 ; i d. 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 , t his Court held that the action violated clearly30 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 ("T he 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,

a nd 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 i n 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." Appell a nts ' 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 , f aced 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 run32 concurrently with a federal sentence unless the federal sent ence 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 1 47

. Th is Court had previously reached a similar conclusi on in Sudler , where inmates sued state officials for allegedly violating th eir constitutional rights when they incorrectly calculat ed 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 th e 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 clearly33 establishe d where the calculation of the credit "implicat[ed] multiple sentences." Id. at 176. Our a pplication 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 sentenc ing
court's order with respect to "a single sentence." Id. at 173. 9
Nor did Francis and Sudler involve a circumst ance 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 w hat 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 Additi onally, i n 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 108 9. 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 ma ndate, to grant jail

- time and good

- time credits. Id. at 1082. H ere, 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 wi th 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 re fus ing 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

.