11-3893-pr (L); 12-0439-pr Vincent v. Yelich; Earley v. Annucci
UNITED STATES COURT OF APPEALS 1
FOR THE SECOND CIRCUIT 2

- - - - - - 3 August Term, 2012 4 (Argued: October 16, 2012 Decided: June 4, 2013) 5 Docket Nos. 11-3893-pr, 11-3966-pr, 12-0439-pr 6

______________________________________________________________ 7 SHAWN MICHAEL VINCENT, JIMMIE JOHNSON, SENECA ROBINSON, GARY 8 ST. MARY, WALTER EADES, REGINALD JOHNSON, DONALD MCLEAN, 9 JEFFREY PALMER, WAYNE B. WRIGHT, JR., SHAWN GOODMAN, DAVID 10 WADDELL, 11 Plaintiffs-Appellants , 12

- v. - 13 BRUCE S. YELICH, Superintendent, Bare Hill Correctional Facility, in his official and 14 unofficial capacity; BRIAN FISCHER, in hi s individual capacity and his official 15 capacity as Commissioner of the New York St ate Department of Correctional Services; 16 ANTHONY J. ANNUCCI, in his individual cap acity and his official capacity as 17 Executive Deputy Commissioner of and counsel to the New York State Department of 18 Correctional Services; RICHARD deSIMONE , in his individual capacity and his 19 official capacity as Associate Counsel in Ch arge of the Office of Sentencing Review of 20 the New York State Department of Correc tional Services; LUCIEN J. LECLAIRE, JR., 21 in his individual capacity; GLENN S. GOORD, in his individual capacity; HENRY 22 LEMONS, JR., in his individual capacity and his official capacity as Chairman and 23 Chief Executive Officer of the New York State Division of Parole; GEORGE B. 24 ALEXANDER, in his individual capacity; ROBERT DENNISON, in his individual 25 capacity; BRION D. TRAVIS, in his indi vidual capacity; and JOHN and JANE DOES 26 1-50, various training, supervisory and policym aking employees of the New York State 27 Department of Correctional Services or th e New York Division of Parole, in their 28 individual capacities, 29 Defendants-Appellees

. 30

______________________________________________________________ 31

______________________________________________________________ 322 SEAN EARLEY, 1 Plaintiff-Appellant , 2

- v. - 3 ANTHONY J. ANNUCCI, in his personal and o fficial capacities as Executive Deputy 4 Commissioner of and counsel to the New York State Department of Correctional 5 Services; BRIAN FISCHER, Commissioner of the New York State Department of 6 Correctional Services, in his official cap acity and his unofficial capacity; RICHARD 7 deSIMONE, in his individual capacity and his official capacity as Associate Counsel 8 in Charge of the Office of Sentencing Revi ew of the New York State Department of 9 Correctional Services; LUCIEN J. LECLAIRE, JR., in his individual capacity; GLENN 10 S. GOORD, in his individual capacity; HENRY LEMONS, JR., in his individual 11 capacity and his official capacity as Chairm an and Chief Executive Officer of the New 12 York State Division of Parole; GEORGE B. ALEXANDER, in his individual capacity; 13 ROBERT DENNISON, in his individual capacity; BRION D. TRAVIS, in his 14 individual capacity; and JOHN and JANE DOE S 1-50, various training, supervisory and 15 policymaking employees of the New York St ate Department of Correctional Services 16 or the New York Division of Parole, in their individual capacities, 17 Defendants-Appellees

. 18

______________________________________________________________ 19 Before: KEARSE, KATZMANN, and PARKER, Circuit Judges

. 20 Appeals challenging judgments of the United States District Courts for the Western 21 District of New York and the Northern Distri ct of New York, respectively, dismissing, on grounds 22 of qualified immunity, plaintiffs' complaints alleging, on the basis of Earley v. Murray , 451 F.3d 71 23 (2d Cir.), reh'g denied , 462 F.3d 147 (2d Cir. 2006), cert. denied , 551 U.S. 1159 (2007), that 24 defendants' imposition and enforcement of post-release-from-prison conditions without a judicial 25 order was unconstitutional. SeeVincent v. Yelich , 812 F.Supp.2d 276 (W.D.N.Y. 2011); Earley v. 26 Annucci , No. 08-cv-669, 2012 WL 264210 (N.D.N.Y. Jan. 30, 2012). 27 Affirmed in part; vacated and remanded in part. 283 K. WADE EATON, Rochester, New York (Matthew J. Fusco, Jon P. 1 Getz, Gary Muldoon, Rochester, New York, on the brief), for 2 Plaintiffs-Appellants

. 3 ZAINAB A. CHAUDHRY, Assistan t Solicitor General,Albany, New 4 York (Eric T. Schneiderman, Attorney General of the State of New 5 York, Barbara D. Underwood, Solicitor General, Andrea Oser, Deputy 6 Solicitor General, Albany, New York, on the brief), for Defendants7 Appellees

. 8

KEARSE, Circuit Judge : 9 Plaintiffs Shawn Michael Vi ncent and Jimmie Johnson et al ., former New York State 10 ("State") prisoners who brought separate actions inthe district court and whose appeals have been 11 consolidated in this Court, appeal from a judgment of the United States Distri ct Court for the Western 12 District of New York, David G. Larimer, Judge , dismissing Vincent's second amended complaint 13 ("complaint") and Jimmie Johnson's amended complaint ("complaint") (collectively the 14 "Vincent/JJohnson complaints") against officials and employees of the New York State Department 15 of Correctional Services ("DOCS") and the New York State Division of Parole("Parole Division" or 16 "Division") (collectively "DOCS and Parole officials"). The Vincent/JJohnson complaints, brought 17 under 42 U.S.C. § 1983 for damages and declaratory relie f, alleged that defendants violated plaintiffs' 18 due process rights as announced in Hill v. United States ex rel. Wampler , 298 U.S. 460 (1936) 19 ("Wampler "), and described in Earley v. Murray , 451 F.3d 71 (2d Cir.) ("Earley I "), reh'g denied , 462 20 F.3d 147 (2d Cir. 2006) ("Earley II "), cert. denied , 551 U.S. 1159 (2007), by administratively 21 imposing and enforcing conditions of supervision on plaintiffs following their release from prison, 224 despite the absence of any order for such supervisi on by the courts that sentenced plaintiffs for their 1 crimes. The district court granted defendants' motions to dismiss the Vincent/JJohnson complaints 2 pursuant to Fed. R. Civ. P. 12(b)(6), ruling that defendants were entitled to qualified immunity 3 because the unconstitutionality of the administrative imposition of such supervision was not clear 4 prior to Earley I , and State cases decided after Earley Imade it unclear that administrative imposition 5 of such conditions was unconstitutional. Plaintiff Sean Earley, whose appeal was heard in tandem 6 with those of Vincent and Jimmie Johnson, appeal s from a judgment of the United States District 7 Court for the Northern District of Ne w York, Frederick J. Scullin, Jr., Judge , granting summary 8 judgment dismissing, also on the basis of qualified immunity, Earley's second amended complaint 9 ("complaint") asserting similar claims for damages against most of the same corrections and parole 10 officials. 11 On appeal, plaintiffs contend principally th at the defendant DOCS and Parole officials 12 are not entitled to qualified i mmunity because Earley Idetermined that the rights asserted by plaintiffs 13 had been sufficiently clearly established decades earlier by Wampler . For the reasons that follow, we 14 conclude that Earley I , an appeal from the denial of habeas corpus, did not rule that those rights were 15 clearly established by Wampler with respect to a defense of qualif ied immunity; but we conclude that 16 Earley Iitself, decided on June 9, 2006, did clearlyestablish the uncons titutionality of the 17 administrative imposition or enforcement of postrelease conditions that were not judicially imposed. 18 Accordingly, and for the reasons that follow, we vacate so much of the judgments of the district courts 19 as dismissed claims that defendant Anthony J. Annucci, DOCS's Executive Deputy Commissioner 20 and counsel, administratively imposed, enforced, or supervised employees who imposed or enforced, 215 such conditions on any plaintiff after that date. We affirm the judgments to the extent that they 1 dismissed plaintiffs' claims against the other defendants. 2

I. BACKGROUND 3

Plaintiffs are persons who were convicted of various New York State crimes 4 committed on or after September 1, 1998, were sentencedto prison terms that they served, and were 5 released from prison at various times between 2002 and mid-2007. It appears to be undisputed as to 6 each plaintiff that, either during his term of im prisonment or upon his release from prison, he was 7 informed that he was subject to postrelease superv ision ("PRS") conditions of which he had not been 8 informed by the court and which we re not stated in the written order of commitment. Most of the 9 plaintiffs were reincarcerated following determinati ons that they had violated their PRS conditions. 10 (SeePart II.D. below.) 11 The named defendants in each of the three complaints (collectively the "Complaints") 12 include five DOCS officials and four Parole Divi sion officials. The defendant DOCS officials in 13 addition to Annucci are identified as follows: Brian Fischer, Commissioner since January 1, 2007; 14 Richard deSimone, Associate Couns el in Charge of the Office of Sentencing Review; Lucien J. 15 Leclaire, Jr., former Acting Commissioner from August 30, 2006, to December 31, 2006; and Glenn 16 S. Goord, former Commissioner from 1996 to August 30, 2006. The defendant Parole Division 17 officials are identified as Henry Lemons, Jr., the Division's Chairman and Chief Executive Officer 18 since February 9, 2009, and three defendants who formerly held those positions: George B. 196 Alexander from 2007 to 2009; Robert Dennison fr om 2003 to 2007; and Brion D. Travis from 1995 1 to 2003. The remaining named defendant, Bruce S. Yelich, as Superintendent of the Bare Hill 2 Correctional Facility, is named only in the caption of the Vincent complaint and is nowhere mentioned 3 in the body of the Complaints. 4 Although some of the defendants were originally sued in both their individual and 5 official capacities, the official-capacity claims in the Vincent and Jimmie Johnson actions were 6 withdrawn, leaving claims against them in those two actions only in their individual capacities. 7

A. Postrelease Supervision in New York 8 In 1998, the New York Legislature passed a sentencing reform act (or the "Act")-- 9 commonly known as "Jenna's Law"--which, inter alia , established "a scheme of determinate 10 sentencing" for violent felony offenders, eliminated parole for all such offenders, and required that 11 determinate terms of imprisonment be followed by periods of mandatory postrelease supervision. 12 People v. Catu , 4 N.Y.3d 242, 244, 792 N.Y.S.2d 887, 888 (2005) ("Catu "). The section of the Act 13 at issue here provided in pertinent part that 14 [e]ach determinate sentence also include s, as a part thereof, an additional 15 period of post-release supervision . . . . [A] violation of any condition of 16 supervision occurring at any time during such period of post-release 17 supervision shall subject the defendant to a further period of imprisonment of 18 at least six months and up to the balance of the remaining period of 19 post-release supervision, not to exceed five years. 20 1998 N.Y. Laws Ch. 1, § 15 (codifi ed at N.Y. Penal Law § 70.45[1] (McKinney 2004) (emphasis 21 added)), amended by2008 N.Y. Laws Ch. 141, § 3 (codi fied at N.Y. Penal Law § 70.45[1] 22 (McKinney 2009) (requiring that the required PRS term be stated by the court when imposing 237 sentence)); see also id . § 70.45[2] (McKinney 2004), amended by2004 N.Y. Laws Ch. 738, § 35 1 (codified at N.Y. Penal Law § 70.45[2] (McKinne y 2009) (providing, with certain exceptions, a 2 maximum term of five years' PRS)). The Legislature intended "postrelease supervision [to be] a 3 distinct but integral part of the determinate sentence," Catu , 4 N.Y.3d at 244, 792 N.Y.S.2d at 888 4 (internal quotation marks omitted). 5 Following the 1998 effective date of Jenna 's Law and until the revision of § 70.45[1] 6 in 2008, some judges did not inform defendants who were pleading guilty that they would be subject 7 to PRS, a failure that the New York Court of Appeals in Caturuled unconstitutional, seeid . at 245, 8 792 N.Y.S.2d at 888-89. And in some cases the defendants' commitment orders likewise did not 9 mention PRS. 10 DOCS's position in the present actions is that its understanding during the relevant 11 period was that PRS was imposed automatically by operation of the Act and did not need to be 12 expressly imposed by a sentencing judge. (See , e.g. , January 14, 2011 Memorandum of Law in 13 Support of Defendants' Motion To Dismiss Vincent's complaint at 2 n.3 ("DOCS' position [is] that 14 it has not 'added' anything to plaintiff's sentence. . . . DOCS has simply enforced a consequence of 15 the plaintiff's determinant [sic ] sentence which is automatically effectuated pursuant to the Penal 16 Law."); Defendants' brief in Vincent/JJohnson app eal at 5-7.) Thus, DOC S regularly noted periods 17 of PRS in the records of prisoners who had not been expressly sentenced to such a term by the 18 sentencing courts, but who nevertheless should have had such a term imposed under § 70.45's 19 mandatory PRS provisions. (See generally Declaration of Anthony J. Annucci dated July 18, 2011 20 ("Annucci Decl."), ¶ 10, in support of summary judgment against Earley.) 218 B. Earley I and II 1 In 2000, following a plea of guilty, Earley was sentenced to six years' imprisonment. 2 Neither prior to the entry of his guilty plea nor at his sentencing was he informed that he was subject 3 to a term of PRS, and his commitment order did not refer to PRS conditions. DOCS administratively 4 added a five-year period of PRS to hi s sentence. As detailed in Part II.D. below, after his release from 5 prison, Earley violated the terms of his PRS and was reincarcerated. Having challenged the PRS 6 provision unsuccessfully in state administrative and judicial proceedings, Earley sought federal habeas 7 corpus relief on the ground that the imposition of PRS administratively by DOCS violated his due 8 process rights. Although the district court initially denied Earley's habeas petition, this Court in 9 Earley Iconcluded, applying the standard required by the Antiterrorism and Effective Death Penalty 10 Act of 1996 ("AEDPA"), that "clearly establishe d Supreme Court precedent render[ed] the five-year 11 PRS term added to Earley's sentence by DOCS invalid," 451 F.3d at 76. 12 Earley Iobserved that "[s]eventy years ago, th e Supreme Court established that the 13 sentence imposed by the sentencing judge is controlling; it is this sentence that constitutes the court's 14 judgment and authorizes the custody of a defendant." Id . at 74 (citing Wampler , 298 U.S. 460). We 15 noted that Wampler differed from Earley's case, in that the condition imposed in Wampler was 16 discretionary, whereas "state law requiredthat Earley be sentenced to a PRS term." Id . (emphasis 17 added). However, we noted that Wampler had 18 articulate[d] a broader holding: The judgment of the court establishes a 19 defendant's sentence , and that sentence may not be increased by an 20 administrator's amendment . Wampler [therefore] provides clearly established 21 Supreme Court precedent supporting Earley's claim . See also Greene v. 229 United States , 358 U.S. 326, 329 . . . (1959) (quoting Wampler's assertion that 1 "the only sentence known to the law is the sentence or judgment entered upon 2 the records of the court") . . . . The only cognizable sentence is the one 3 imposed by the judge. Any alteration to that sentence, unless made by a judge 4 in a subsequent proceeding, is of no effect

. 5 Earley I , 451 F.3d at 75 (emphases added). 6 Noting that "[p]ost-release supervision, admitting of the possibility of revocation and 7 additional jail time, is considered to be 'custody,'" id . (citing Jones v. Cunningham , 371 U.S. 236, 8 240-43 (1963) (parole satisfies the "in custody" requi rement for habeas petitions)), we stated that 9 [t]he sentence imposed by the court on Earley was six years in prison. The 10 judgment authorized the state to incarcerate him for six years and no more. 11 Any addition to that sentence not imposed by the judge was unlawful

. 12 Earley I , 451 F.3d at 75 (emphasis added). We concluded that "[t]he state court's determination that 13 the addition to Earley's sentence by DOCS was permissi ble is therefore contrary to clearly established 14 federal law as determined by the United States Supreme Court." Id . at 76. 15 We rejected the State's contention that because PRS was mandated by statute it was 16 "necessarily part of Earley's se ntence by operation of law." Id . Noting that New York law provided 17 procedures for correcting sentences that were invalid as a matter of law and that "[t]he state . . . could 18 have moved to correct [Earley's] sentence through a judicial proceeding, in [his] presence, before a 19 court of competent jurisdiction," we stated that 20 when DOCS discovered the oversight ma de by Earley's sentencing judge, the 21 proper course would have been to inform the state of the problem, not to 22 modify the sentence unilaterally. 23 Earley I , 451 F.3d at 76. We thus remanded for the distri ct court to grant Earley's habeas petition, if 24 timely, because we "determined that New York's modification of Earley's sentence violate[d] clearly 25 established federal law." Id . at 77. 2610 In Earley II , we denied the State's petition for re hearing which argued that "New York 1 law automatically includes a period of PRS in ev ery determinate sentence," 462 F.3d at 148, and that 2 "New York courts regularly fail to inform defendants of mandatory PRS terms but consider them part 3 of those defendants' sentence nonetheless," id . at 150. We reiterated: 4 When the sentence as imposed by the se ntencing judge is purportedly altered 5 to reflect something other than the sentence imposed, the source of that 6 alteration is immaterial. Whether it is DOCS administrators or the operation 7 of New York law that works the alteration, the alteration is of no effect

. 8 Id . at 149 (emphasis added). 9 The fact that New York law mandat es a different sentence than the one 10 imposed may render the sentence imposedunlawful, but it does not change it. 11 The sentence imposed remains the senten ce to be served unless and until it is 12 lawfully modified

. 13 Id . (emphasis added). 14 Whatever conceptualization respondent-appellee has about the function of 15 New York Penal Law sections 70.00 and 70.45, they cannot operate to 16 undermine protections contained in the Federal Constitution . And as Wampler 17 requires the custodial terms of sentences to be explicitly imposed by a judge, 18 any practice to the contrary is simply unconstitutionaland cannot be upheld. 19 Id . at 150 (emphases added). 20

C. The Decisions of the District Courts in the Present Actions 21 The Vincent/JJohnson complaints alleged, on information and belief, that the DOCS 22 defendants knew that plaintiffs had not been sentenced by the sentencing courts to PRS. (Vincent 23 Complaint ¶ 38; Jimmie Johnson Complaint ¶ 47.) All of the Complaints alleged that the DOCS 24 defendants unlawfully and unconstitutionally devised and promulgated a DOCS policy of 2511 administratively adding a five-year PRS period to prisoners' records even if the sentencing court had 1 failed to mention PRS. (See , e.g. , Vincent Complaint ¶ 41; Jimmie Johnson Complaint ¶ 50; Earley 2 Complaint ¶ 39.) Plaintiffs alleged that the polic y was maintained, supervised, and enforced by each 3 of the defendants throughout their respective tenures as state officials. (Vincent Complaint ¶ 42; 4 Jimmie Johnson Complaint ¶ 51; Earley Complaint ¶ 41.) 5 Plaintiffs alleged, on information and belief, that the Parole Division defendants 6 likewise knew that plaintiffs had not been sentenced by the sentencing courts to PRS (seeVincent 7 Complaint ¶ 43; Jimmie Johnson Complaint ¶ 52; Earley Complaint ¶ 42) and that those defendants 8 "established and implemented a policy of treating" prisoners whose sentences did not include mention 9 of PRS "as though they had been se ntenced to a period of post rel ease supervision by the sentencing 10 court" (Vincent Complaint ¶ 44; Jimmie Johnson Co mplaint ¶ 53; Earley Complaint ¶ 43). They 11 alleged that each of the Parole Division defendant s enforced this policy during his tenure as the 12 Division's Chairman and Chief Executive Officer. (Vincent Complaint ¶ 45; Jimmie Johnson 13 Complaint ¶ 54; Earley Complaint ¶ 44). 14

1. Dismissal of the Vincent/JJohnson Complaints 15 The Vincent action and the action by Jimmie Johnson and nine other plaintiffs, filed 16 in the Western District of New York, sought damages and declarat ory relief. Defendants moved to 17 dismiss the complaints in those actions pursuant to, inter alia , Fed. R. Civ. P. 12(b)(6), principally on 18 the grounds that defendants had no personal involveme nt in the imposition of PRS on the plaintiffs, 19 that the claims were barred by the statute of limitati ons, that the official-capacity claims were barred 2012 by the Eleventh Amendment, and that the indivi dual-capacity claims failed because defendants were 1 entitled to qualified immunity. The district court c onsolidated the cases for purposes of its decision 2 and granted the motions to dismiss on the ground of qualified immunity. 3 The court looked to "the law on this issue as it stood in and before February 2005, by 4 which time PRS had been administratively imposed on ni ne of the ten plaintiffs," and held that "the 5 unconstitutionality of DOCS' administrative impos ition of PRS pursuant to Penal Law § 70.45 was 6 far from well settled" at that time. Vincent v. Yelich , 812 F.Supp.2d 276, 279 (W.D.N.Y. 2011) 7 ("Vincent I "). 8 To the contrary, in the seven years that had passed since Penal Law § 70.45's 9 enactment, New York appellate courts had consistently and uniformly 10 endorsed the automatic imposition of PRS by DOCS, regardless of whether 11 PRS was ever specifically ordered by the sentencing court. . . . 12 The issue of whether Penal Law § 70.45 created a PRS requirement 13 that could b[e] applied only by sentencing judges . . . was not addressed at the 14 federal level in this Circuit until June2006. In the matter of Earley v. Murray , 15 451 F.3d 71 (2d Cir.2006), the Second Circuit considered the issue for the first 16 time, and held that a term of PRS was not enforceable unless it had been 17 pronounced by the sentencing judge on the record. 18 Vincent I , 812 F.Supp.2d at 279-80. "In light of the favorab le state case law that existed in New York 19 at the time," the court concluded that "a reasonabl e state official" would not "have been on notice that 20 the administrative imposition of PRS violated plaintiffs' rights." Id . at 280. 21 The district court in Vincent Ialso found that qualified immunity was appropriate for 22 the DOCS defendants' imposition of PRS terms on prisoners even after the Earley Idecision, noting 23 that "for two year s after the Earleyfederal court case was decided, New York state courts did not 24 always follow its holding" and that some instead held that "DOCS could still administratively mandate 2513 periods of PRS pursuant to Jenna's Law, even inthe absence of an explicit imposition of PRS by a 1 sentencing judge." Vincent I , 812 F.Supp.2d at 280 (emphasis added). The court found that it was 2 not the Earley Idecision, but decisions by the New York C ourt of Appeals in 2008 that "established 3 the temporal boundary of qualified immunity for DOC S officials alleged to have administratively 4 imposed PRS." Id . at 281. The district court therefore concluded that the defendants were entitled 5 to qualified immunity for all of plaintiffs' claims. The court did not address the other grounds asserted 6 by defendants for dismissal. 7

2. Dismissal of Earley's Complaint 8 In Earley's case, brought in the Northern District of New York, defendants similarly 9 moved to dismiss Earley's complaint pursuant to Rules 12(b)(1) and (6) arguing principally that 10 Earley's official-capacity claims were barred by the Eleventh Amendment and that the defendants 11 were entitled to qualified immunity from the indivi dual-capacity claims. The district court referred 12 the motion to a magistrate judge for report and recommendation. As defendants attached documents 13 to their motion to dismiss, the magistrate judge converted the motion to one for summary judgment. 14 The magistrate judge recommended that the district court grant summary judgment on 15 the ground of qualified immunity because PRS was administratively imposed on Earley some six 16 years before Earley Iwas decided. SeeEarley v. Annucci , No. 08-cv-669, 2011 WL 7112917, at *7 17 (N.D.N.Y. Dec. 28, 2011). The magistrate judgealso recommended that qualified immunity be 18 recognized with respect to Earley's claim that DOCS should have removed his PRS term in the wake 19 of Earley I . The magistrate judge notedthat "DOCS had no authority nor affirmative legal duty, much 2014 less a clearly established one, to seek" to have a de fendant resentenced, or to "unilaterally revoke the 1 PRS" it had administratively imposed, until th e law was changed in June 2008. 2011 WL 7112917, 2 at *7; seeN.Y. Corr. Law § 601-d (McKinney Supp. 2012) (imposing an affirmative duty on the part 3 of DOCS officials to notify sentencing courts of persons who were not sentenced to PRS terms but 4 who should have been so sentenced under § 70.45). 5 The district court accepted the magistrate 's report and recommendation, and granted 6 summary judgment to the defendants. SeeEarley v. Annucci , No. 08-cv-669, 2012 WL 264210 7 (N.D.N.Y. Jan. 30, 2012). 8

II. DISCUSSION 9

On appeal, plaintiffs contend principally that the district court erred in ruling that 10 defendants are entitled to qualified immunity withrespect to the admi nistrative imposition and 11 enforcement of PRS terms against plaintiffs, arguing that the right not to have any postrelease 12 supervision imposed except by a judge was clearly established by Wampler in 1936, and that Earley I 13 "stands as the law of this Circuit that Wampler established the unconstitutionality of any 14 administrative enhancement of a criminal sentence beyond what the sentencing court pronounced" 15 (Vincent/JJohnson brief on appeal at 19; Earley brief on appeal at 21) . For the reasons that follow, 16 we reject these characterizations of both Wampler and Earley I ; however, we conclude that Earley I 17 itself, in June 2006, clearly established that th e administrative imposition of PRS terms not imposed 18 by the court is unconstitutional. We conclude further, that as to Annucci--the only defendant 1915 discussed in plaintiffs' briefs on appeal--the dismi ssals as a matter of law on the basis of qualified 1 immunity on the present record were inappropriate. 2

A. Principles of Qualified Immunity 3 Qualified immunity, an affirmative defense on which the defendant officials bear the 4 burden of proof, see , e.g. , Gomez v. Toledo , 446 U.S. 635, 640 (1980); Harlow v. Fitzgerald , 457 U.S. 5 800, 815 (1982); Sudler v. City of New York , 689 F.3d 159, 174 (2d Cir. 2012) ("Sudler "), "protects 6 public officials performing discretionary functions from personal liability in a civil suit for damages 7 'insofar as their conduct does not violate clearly es tablished statutory or constitutional rights of which 8 a reasonable person would have know n,'" Lore v. City of Syracuse , 670 F.3d 127, 162 (2d Cir. 2012) 9 (quoting Harlow , 457 U.S. at 818). 10

1. An Objective Standard 11 A public official, when sued in his indivi dual capacity, is entitled to qualified immunity 12 from a claim for damages (1) if the conduct attributed to him was not prohib ited by federal law, see , 13
e.g. , County of Sacramento v. Lewis , 523 U.S. 833, 841 n.5 (1998); Siegert v. Gilley , 500 U.S. 226, 14 232 (1991); or (2) where that official action was so prohibited, if the plaintiff's right not to be 15 subjected to such action was not "'clearly established' at the time it was taken," Anderson v. 16 Creighton , 483 U.S. 635, 639 (1987) (quoting Harlow , 457 U.S. at 818). "A right is 'clearly 17 established' when '[t]he contours of the right [are ] sufficiently clear that a reasonable official would 18 understand that what he is doing violates that right.'" Jackler v. Byrne , 658 F.3d 225, 242 (2d Cir. 19 2011) (quoting Anderson , 483 U.S. at 640), cert. denied , 132 S. Ct. 1634 (2012). 2016 Qualified immunity "provides ample protec tion to all but the plainly incompetent or 1 those who knowingly violate the law ." Malley v. Briggs , 475 U.S. 335, 341 (1986) (emphasis added). 2 But the inquiry "turn[s] primarily on objective factors": Absent "extraordinary circumstances," "[i]f 3 the law was clearly established, the immunity de fense ordinarily should fail, since a reasonably 4 competent public official should know the law governing his conduct." Harlow , 457 U.S. at 818-19. 5 Because the immunity not only protects agai nst a judgment for damages but also "is 6 in part an entitlement not to be fo rced to litigate," Mitchell v. Forsyth , 472 U.S. 511, 526-27 (1985) 7 ("Forsyth "), early resolution of the qualified immunity defense is encouraged, see , e.g. , Harlow , 457 8 U.S. at 817-18. Where the nonexistence of a constitu tional right may be discerned from the face of 9 the complaint, an official defendant sued in his individual capacity may be granted a dismissal on the 10 ground of qualified immunity pursuant to Rule 12(b)(6), a decision that we review de novo , accepting 11 as true all material allegations of the complaint, and drawing all reasonable inferences in favor of the 12 plaintiff. See , e.g. , Scott v. Fischer , 616 F.3d 100, 105 (2d Cir. 2010) ("Scott "); see generally 13 Ashcroft v. Iqbal , 556 U.S. 662, 678-79 (2009). Where there ar e no genuinely disputed factual issues 14 material to the qualified immunity defense, a de fendant may move for summary judgment dismissing 15 the plaintiff's claim on that basis. See , e.g. , Forsyth , 472 U.S. at 526. On appeal from a grant of 16 summary judgment, we review the record de novo , viewing it in the light most favorable to the 17 plaintiff, and drawing all reasonable inferences in his favor. 18

2. When the Right at Issue Here Became Clearly Established 19 Plaintiffs urge us to rule that the right not to be subjected to PRS without having that 20 punishment imposed by the court was established by Wampler . (SeeVincent/JJohnson brief on 2117 appeal at 19, 21-24; Earley brief on appeal at 20- 21, 22-26.) That contention is foreclosed, however, 1 by prior decisions of this Court. As discussed in Part I.B. above, Earley Idealt with the AEDPA 2 principle that a federal court may not grant habeas unless the state court's adjudication of the claim 3 was "contrary to, or involved an unreasonable app lication of, clearly established Federal law, as 4 determined by the Supreme Court of the United States," 28 U.S.C. § 2254(d )(1). It was in that context 5 that Earley Iruled that the federal-law principle that punishment for a crime could not properly be 6 imposed administratively but could only be imposed by the court had been clearly established by the 7 United States Supreme Court in Wampler , seeEarley I , 451 F.3d at 75-76. Th at AEDPA question is 8 not the same as whether a federal right is clearly established for purposes of denying an official 9 qualified immunity: The conclusion that a "legalproposition was 'clearly established' for purposes 10 of its application by professional state court judge s does not require a conclusion that it was 'clearly 11 established' in the qualified imm unity context, which governs the c onduct of government officials who 12 are likely neither lawyers nor legal scholars." Scott , 616 F.3d at 106. We thus ruled in Scottthat 13 Earley I 's holding did not mean that the Wampler principle that there was a right not to be subjected 14 to administratively imposed PRS was clearly established for purposes of qualified immunity, Scott , 15 616 F.3d at 106-07. (Indeed, most of the plaintiffs recognize that Earley I"did not address whether 16 the plaintiff's rights were 'clearly established' for purposes of the qualified immunity defense" 17 (Vincent/JJohnson brief on appeal at 19-20 n.12).) Scottwent on to hold also that Wampler itself 18 neither clearly established that right nor was a clear harbinger of that right. SeeScott , 616 F.3d 19 at 107; see also Sudler , 689 F.3d at 175 ("We see no reason why Wampler , a seventy-year-old case 20 that does not on its face mention the C onstitution, could have given the [Sudler defendants] notice that 2118 administrative alteration of a sentence is in violati on of an inmate's due process rights, any more than 1 it could have given the defendants in Scott notice of the same."). Scott and Sudler are the law of this 2 Circuit, and a panel of the Court ha s no authority to overrule them. See , e.g. , Piesco v. Koch , 12 F.3d 3 332, 345 (2d Cir. 1993); Howe v. Commissioner , 814 F.2d 98, 101 (2d Cir.), cert. denied , 484 U.S. 4 895 (1987). 5 Earley Iitself, however, in dealing with the precise conduct at issue in the present 6 cases--the administrative imposition of PRS on a prisoner who has not had that condition imposed on 7 him by the sentencing court--applied Wampler and plainly held such an imposition of PRS to be 8 unconstitutional. We inferred in Earley Ithat the principles announced in Wamplerwere "based in 9 the due process guarantees of the Un ited States Constitution," Earley I , 451 F.3d at 76 n.1; see also 10 Earley II , 462 F.3d at 148 ("adher[ing] to our view that th e inclusion of . . . PRS in Earley's sentence 11 when that PRS was not included in the sentence impos ed at Earley's sentencing hearing violated his 12 rights under the Due Process Clause of the Unite d States Constitution"). Although we noted in 13 Earley Ithat "state law required that Earley be senten ced to a PRS term," 451 F.3d at 74, we held that, 14 as stated in Wampler , it is "[t]he judgment of th e court [that] establishes a defendant's sentence, and 15 that sentence may not be increased by an administrator's amendment ," Earley I , 451 F.3d at 75 16 (emphasis added). We stated that 17 [i]f, as in Wampler , an erroneous order of commitment prepared by the clerk 18 of court with the court's knowledge cannot alter the sentence imposed by the 19 court, then plainly a later addition to the sentence by an employee of the 20 executive branch cannot do it. Only the judgment of a court, as expressed 21 through the sentence imposed by a judge, has the power to constrain a person's 22 liberty

. 23 Id . (emphasis added). 2419 Thus, having noted that Earley's PRS term had been "administratively added" by 1 DOCS rather than imposed by the court, id . at 72-73, the Earley Icourt stated that "[t]he sentence 2 imposed by the court on Earley was six years in prison. The judgment authorized the state to 3 incarcerate him for six years and no more. Any addition to that sentence not imposed by the judge 4 was unlawful ," id . at 75 (emphasis added); see also id . at 76 (holding "the fi ve-year PRS term added 5 to Earley's sentence by DOCS invalid"); id . ("The state court's determination that the addition to 6 Earley's sentence by DOCS was permissible is therefore [within the meani ng of AEDPA] contrary 7 to clearly established federal law . . . ."). 8 We conclude that Earley Iitself clearly established that where the court has not 9 included PRS in a defendant's sentence, DOCS may not add that term without violating federal law. 10 Defendants do not--and could not plau sibly--argue that Earley Iitself was ambiguous 11 or that Annucci--who was then DOCS's counsel and Deputy Commissioner--did not understand 12 Earley I 's holding when it was announced. Earley, inopposition to summary judgment, submitted to 13 the district court a transcript of the following testimony given by Annucci in another case: 14 Q You were aware of the Second Circuit's decision in Earley v. 15 Murray at the time it came out in 2006. Correct ? 16
A Correct

. 17 Q I would assume you did not agree with that decision? 18 A I think that is a safe assumption. 19 Q But you were aware of it? 20
A Yes. 21 Q And you were aware that the S econd Circuit indicated that DOCS 2220 did not have the authority to add a peri od of post-release supervision, if it was 1 not included by the sentencing judge ? 2 A That is correct

. 3 (State v. Myers , No. 4834-08, Sup. Ct. Albany County, N.Y., Hearing Transcript, June 6, 2008 4 ("Myers Tr."), at 103-04 (emphases added).) 5 Instead, defendants argue, as they did in the district courts, that decisions by some of 6 the New York State courts subsequent to Earley Icast doubt on Earley I 's holding. We left 7 unanswered in Scott"[w]hether Earleyitself sufficed clearly to establish the unconstitutionality of 8 administratively imposed PRS for a reasonable New York State correctional official" in light of 9 decisions issued by courts of the New York Appellate Division that "thereafter continued to find the 10 practice constitutional." Scott , 616 F.3d at 107. Today, we answer Scott 's question in the affirmative. 11 Some state court decisions rejected Earley I . SeePeople v. Edwards , No. 5588/2001, 12 2007 WL 969416, at *9-*14 (Sup. Ct. N. Y. Co. Mar. 21, 2007); Qui nones v. State of New York 13 Department of Corrections , 14 Misc. 3d 390, 395-96, 824 N.Y.S.2d 877, 881 (Sup. Ct. Albany Co. 14 2006). Others distinguished Earley Ifor reasons that do not apply in the instant case. SeePeople v. 15 Thomas , 35 A.D.3d 192, 193-94, 826 N.Y.S.2d 36, 38 (1st De p't 2006), aff'd after modification sub 16

nom. People v. Sparber , 10 N.Y.3d 457, 859 N.Y.S.2d 582 (2008) ("Sparber II "); People v. Lingle , 17 34 A.D.3d 287, 289-90, 825 N.Y.S.2d 12, 14-15 (1st Dep' t 2006), aff'd after modification sub nom. 18 Sparber II , 10 N.Y.3d 457, 859 N.Y.S.2d 582; People v. Sparber , 34 A.D.3d 265, 265-66, 823 19 N.Y.S.2d 405, 405-06 (1st Dep't 2006) ("Sparber I "), aff'd after modification , 10 N.Y.3d 457, 859 20 N.Y.S.2d 582. At least one was entirely silent on the constitutional issue raised by Earley I , instead 21 finding a challenge to the administrative impositi on of PRS barred on a statutory procedural ground. 2221 SeeGarner v. New York State Department of Correctional Services , 39 A.D.3d 1019, 1019, 831 1 N.Y.S.2d 923, 923 (3d Dep't 2007) ("Garner I "), rev'd , 10 N.Y.3d 358, 859 N.Y.S.2d 590 (2008) 2 ("Garner II "). However, none of the state court decisions cited by defendants demonstrates any 3 confusion about whether Earley Iprohibited DOCS from imposing PRS. 4 Defendants thus provide no reas on to believe that Earley Iwas unclear in its holding. 5 "For a right to be 'clearly established' for purposes of qualified immunity, 'it is sufficient if decisions 6 of the Supreme Court or of the appropriate circ uit have defined the contours of the right with 7 reasonable specificity.'" Tellier v. Fields , 280 F.3d 69, 84 (2d Cir. 2000) (quoting Russell v. Coughlin , 8 910 F.2d 75, 78 (2d Cir. 1990) (emphasis ours)). Our decision in Earley Idid so: We stated that 9 "New York's Department of Correctional Serv ices has no . . . power to alter a sentence ," Earley I , 451 10 F.3d at 76 (emphasis added). 11 As a general matter, "[f]ederal constitutional st andards rather than state law define the 12 requirements of procedural due process. . . . '[T] he fact that the State may have specified its own 13 procedures that it may deem adequate for . . . offi cial action,' . . . does not settle what protection the 14 federal due process clause requires." Russell v. Coughlin , 910 F.2d at 78 n.1 (quoting Vitek v. Jones , 15 445 U.S. 480, 491 (1980)). State court d ecisions that rejected Earley I 's holding could not disestablish 16 the federal right to due process for the purposes of qualified immunity analysis. See , e.g. , Hopkins 17 v. Bonvicino , 573 F.3d 752, 772 (9th Cir. 2009) ("[A] decision by a state court contrary to a holding 18 of this court cannot unsettle or 'de-establish' the clarity of federallaw" because "we begin our inquiry 19 by looking to binding precedent [and i]f the right is clearly established by decisional authority of the 20 Supreme Court or this Circuit, our inquiry should come to an end." (emphasis in Hopkins ) (other 2122 internal quotation marks omitted)). Because Earley I 's explicit ruling that "New York's Department 1 of Correctional Services has no . . . power to alter a sentence" clearlyestablished the contour of the 2 right plaintiffs seek to vindicate, our inquiry ends there. 3 The district court in Vincent Ialso found qualified immunity appropriate on the ground 4 that "'absent contrary direction, state officials . . . are entitled to rely on a presumptively valid state 5 statute . . . until and unless the statute is declared unconstitutional,'" Vincent I , 812 F.Supp.2d at 281 6 (quoting Vives v. City of New York , 405 F.3d 115, 117 (2d Cir. 2005)). We agree with the principle. 7 But that presumption cannot be relied upon once the fe deral court of appeals for the circuit in which 8 the officials operate has ruled that the exact conduct of the official, undertaken on the basis of the state 9 statute, violates federal law. 10 Although we note that qualified immunity may sometimes be available where a 11 decision of the Supreme Court or this Court ha s announced a constitutional principle and subsequent 12 cases have differed as to the reach of that holding, see , e.g. , Safford Unified School District #1 v. 13 Redding , 557 U.S. 364, 378-79 (2009), such instances usually involve fact patterns that differ. Here, 14 however, the very conduct that is challenged in the present cases is the conduct that was held 15 unconstitutional in Earley I . Indeed, it was held unconstitutional with respect to one of the present 16 plaintiffs. 17 Defendants also argue that it did not become clearer to them (seeDefendants' brief in 18 Vincent/JJohnson appeal at 7 ("[s]omeof this confusion was resolved" (emphasis added)); 19 Defendants' brief in Earley appeal at 8 (same)) that DOCS's administrative imposition of PRS was 20 unlawful until April 2008, when the New York Court of Appeals decided Sparber II , 10 N.Y.3d 457, 2123 859 N.Y.S.2d 582, and Garner II , 10 N.Y.3d 358, 859 N.Y.S.2d 590. Those cases decided that the 1 administrative imposition of PRS was impermissible under New York law. See , e.g. , Sparber II , 10 2 N.Y.3d at 469-71, 859 N.Y.S.2d at 587-88; see also id . at 466, 859 N.Y.S.2d at 584 (noting that "the 3 United States Court of Appeals for the S econd Circuit's decision in Earley v. Murray(451 F3d 71 [2d 4 Cir 2006]), . . . held that DOCS's administrativ e addition of a PRS term not pronounced by [the] 5 Supreme Court violated federal 'due process guarantees' (id . at 76 n 1)"). 6 The fact that it was not until 2008 that the New York Court of Appeals declared the 7 administrative imposition of PRS on prisoners who had not been so sentenced judicially to be 8 unlawful under State law, however, did not affect th e invalidity of such impositions under federal law, 9 which was announced in Earley Iin 2006. State and local officials are required to comply not just 10 with state law but with federal law as well. 11

B. Plaintiffs' Arguments With Regard to Annucci 12 Defendants also argue that this Court in Scott , and in other cases following Scott that 13 were decided by summary order, "confirmed state officials' entitlement to qualified immunity for 14 claims of wrongful confinement followi ng the improper imposition of PRS" (e.g. , Defendants' brief 15 in Vincent/JJohnson appeal at 15; seeid . at 15-16). We reject the contention that Scott 's affirmance 16 of the qualified-immunity-based dismissal in that case is controlling in the present cases, for insofar 17 as the qualified immunity defense is concerned, the factual allegations in the present cases are 18 significantly different from those in Scott , at least as to claims against Annucci. 1924 First, in Scottthe complaint itself did not assert that DOCS failed to relieve Scott of 1 the PRS conditions imposed on her in 2002 or to remove PRS from her record. Rather, we noted that 2 [t]he onlyallegation contained in the complaint that addresses the DOC 3 defendants' purportedly unconstitutional acti ons with respect to Scott's PRS is 4 that they "adopted , approved , and/or ratified the imposition of mandatory 5 [PRS] on individuals such as plaintiff sentenced to determinate terms of 6 imprisonment in New York State courts but not sentenced to mandatory 7 [PRS]." Compl. ¶ 16. 8
Scott , 616 F.3d at 108 (emphases added). We stated that, even read "liberally . . . the challenge is 9 directed at the administrative imposition of PRS, not the failure to take action to remove it after it was 10 imposed." Id . As to the one claim asserted in the Scott complaint, qualified immunity was 11 appropriate because DOCS's practice of administratively imposing PRS began shortly after enactment 12 of the PRS statute in 1998; PRS was imposed on Scott in 2002, seeid . at 103; and, as discussed in Part 13 II.A.2. above, the unlawfulness of DOCS's administrative imposition of PRS was not clearly 14 established before the issuance of our 2006 decision in Earley I , seeScott , 616 F.3d at 107. 15 The Complaints in the present cases--although flawed as was Scott in their challenges 16 to the pre-Earley Iadoption of the DOCS policy--differ from Scott in that they challenged the 17 enforcement of administratively imposed PRS (see , e.g. , Vincent Complaint ¶¶ 67, 70; Jimmie 18 Johnson Complaint ¶¶ 239, 242; Earley Complaint ¶¶ 126, 129). 19 Second, Scottwent on to consider an assertion that was made only in opposition to the 20 motion to dismiss and not in the complaint, i.e. , that the DOCS defendants had violated Scott's due 21 process rights by not taking action to release her fr om custody after she was returned to prison for 22 PRS violations, see616 F.3d at 110. However, the Scott court noted that there were no allegations 23 in the complaint that "would support a conclusion that the defendants were deliberately indifferent 2425 to known violations of Scott's rights"; indeed, Sc ott's complaint did not even "assert that the DOC 1 defendants themselves knew whether her PRS had beenimposed administratively or judicially." Id

. 2
at 110-11. 3 Here, in contrast to the complaint in Scott , the Complaints alleged that defendants 4 "knew" that plaintiffs "had not been sent enced" to PRS "by the sentencing court." (E.g. , Vincent 5 Complaint ¶ 43; Jimmie Johnson Comp laint ¶ 52.) Plaintiffs here also allege that defendants have 6 continued, "beyond the scope of their authority " (Vincent Complaint ¶¶ 69, 75, 81; Jimmie Johnson 7 Complaint ¶¶ 241, 247, 253; Earley Complaint ¶¶ 111, 119, 128, 136; see alsoEarley Complaint ¶ 86 8 (citing Earley I )), to "enforc[e]" DOCS-imposed PRS while "knowing[]" that enforcement "deprive[s] 9 plaintiff of rights secured by the Fifth . . . and Fourteenth Amendments to the United States 10 Constitution" (Vincent Complaint ¶¶ 67, 70; seeJimmie Johnson Complaint ¶ 239, 242; Earley 11 Complaint ¶¶ 126, 129; see , e.g. , Jimmie Johnson Complaint ¶¶ 67, 100, 179, 196 (alleging 12 enforcement against various plaintiffs in 2007)). 13 The most glaring difference between Scott and the present cases, however, is simply 14 that in Scott , Annucci was not a defendant. In contrast, all of the present Complaints named Annucci 15 as one of the defendants; and all of the present Complaints focused principally on Annucci's role as 16 DOCS's legal counsel and alleged that he "has been and continues to be responsible for . . . ensuring 17 that Department of Correctional Services pers onnel obey the Constitution and laws of the United 18 States." (Vincent Complaint ¶ 13; Jimmie Johnson Co mplaint ¶ 20; Earley Complaint ¶ 9.) Further, 19 the record, even as modestly developed as it was before the dismissal of Earley's complaint, contains 20 supporting information as to Annucci's relevant responsibilities. In the State v. Myers transcript 2126 submitted to the district court by Earley, Annucci testified: "[I]n mycapacity as the head of counsel's 1 office I am responsible for all of the legal services necessary for the day-to-day operation of the State 2 Prison system" (Myers Tr. 75; see also Annucci Decl. ¶ 2). In a 2009 DOCS press release submitted 3 to the district court by Earley, DOC S described Annucci as having "served as the agency's chief legal 4 advisor" since 1989 and as "coordinat[or of] th e work of the entire ag ency with respect to 5 intergovernmental, legislative and various operational and program issues." (Declaration of K. Wade 6 Eaton dated June 20, 2011, Exhibit A ("DOCS Press Release") at 2.) 7 Although Scottconcluded with respect to the defendants sued in that case that there 8 was no pleaded basis on which to rule that Earley Iobligated any of those defendants "unilaterally" 9 to revoke Scott's PRS, Scott , 616 F.3d at 109, we read Earley Ias affording the State two alternatives. 10 Our Earley Iruling, in consequence of our conclusion that the administrative imposition of PRS by 11 DOCS was unconstitutional, was that if Earley's habeas corpus petition was timely, "the term of post12 release supervision" must be "excis[ed] . . . from Earley's sentence," and Earley must be "reliev[ed] 13 . . . of any subsequent penaltyor other consequence of its imposition," 451 F.3d at 77 (emphases 14 added); but we added that nothing in our ruling barred the State from, instead, having Earley 15 resentenced by a court to include the mandatory PRS conditions, seeid . In sum, Earley, who was then 16 in prison for violating the administratively imposed PRS terms, seeid . at 75, was entitled, unless he 17 was resentenced, to be released from DOCS's custody. 18 We think it clear from these alternatives that, with respect to persons on whom PRS 19 had been imposed administratively, the State was required either to have them resentenced by the 20 court for the imposition of PRS terms in a constituti onal manner or to excise the PRS conditions from 2127 their records and relieve them of those c onditions. Indeed, on remand from Earley I , the district court, 1 after finding Earley's habeas petition timely, ordere d the required habeas relief, but stayed the 2 judgment for a period of time in order to permit the state court to rectify the constitutional violation 3 by conforming Earley's sentence to the requirements of New York's PRS statute. SeeEarley v. 4 Murray , No. 03-CV-3104, 2007 WL 1288031, at *3 (E.D.N.Y. May 1, 2007). 5 While we do not suggest that agencies othe r than DOCS, such as District Attorneys' 6 offices, could not seek to have the courts conduc t such a permissible resentencing, we think it clear 7 that DOCS, which (a) unconstitutionally imposed PRS, (b) was custodian of the records in which PRS 8 was imposed and from which PRS was required to be excised (in the absence of appropriate 9 resentencing), and (c) resumed custody of persons who violated the unconstitutionally imposed 10 conditions and were penalized for those violations by reimprisonment, had an obligation to at least 11 attempt to cease its administrative and custodial operations that had been held to violate federal law. 12 As Annucci was "coordinat[or of] the work of the entire [DOCS] agency with respect 13 to intergovernmental . . . issues" (DOCS Press Release at 2), it appears to be among his duties to seek 14 a resolution of the PRS issues among DOCS, the prosecutors, and the courts by attempting, through 15 direct or indirect communication with the c ourts, to have persons who should, under New York 16 substantive law, have had PRS imposed as part of their sentences, resentenced by the court in order 17 to impose those terms in compliance with the dueprocess required by the Constitution of the United 18
States. 19 The present record does not indicate that Annucci took prompt action in light of 20 Earley Ito end its custody of persons who were be ing unconstitutionally punished for violating PRS 2128 terms administratively imposed by DOCS. The allegations of the present Complaints, taken as true, 1 show that these 12 plaintiffs had PRS imposed on them administratively by DOCS. And, as set out 2 in Part II.D. below, at least half of these plaintiffs, as punishme nt for PRS-condition violations, were 3 reimprisoned after the decision in Earley I . It is unclear whether Annucci had any cognizable 4 responsibility for ordering their reimprisonment, sin ce "the practice of re-incarcerating persons who 5 violated their administratively-imposed PRS was a practice of the Division of Parole, and not of 6 DOC[S]," Scott , 616 F.3d at 110. But as punishment for thei r PRS violations they were returned to 7 the custody of DOCS. And in Earley I , without regard to whether DOC S had any participation in the 8 parole revocation proceedings for alleged violati on of PRS conditions, we ruled that DOCS's ensuing 9 custody of Earley for such violations was unlawful. 10 A supervisory official may be liable in an action brought under § 1983 if he "exhibited 11 deliberate indifference to the rights of inmates by failing to act on information indicating that 12 unconstitutional acts were occurring ." Colon v. Coughlin , 58 F.3d 865, 873 (2d Cir. 1995) (emphasis 13 added); see , e.g. , Williams v. Smith , 781 F.2d 319, 323 (2d Cir. 1986) ("supervisory official may be 14 liable" where he knowingly "allowed such a policy orcustom to continue"). Qualified immunity is 15 not available to "those who knowingly violate the law." Malley v. Briggs , 475 U.S. at 341. 16 As set out in Part II.A.2. above, A nnucci testified in State v. Myers that he was "aware 17 of the Second Circuit's decision in Earley v. Murray at the time it came out in 2006," that he was 18 aware that Earley Iruled "that DOCS did not have the authority to add a period of post-release 19 supervision, if it was not included by the sentencing judge," and that he "did not agree with that 20 decision" (Myers Tr. 103-04). Annucci testified that, "at that time in 2006" he "did not begin a 21

re sentencing initiative." (Id . at 104 (emphases added).) 2229 Indeed, it is not clear that at that time Annucci instructed DOC S employees even to 1 cease adding PRS to sentences that were silent as to PRS. The allegations of the Jimmie Johnson 2 complaint, accepted as true, indi cate that DOCS did not in fact cease that practice in light of the 3 decision in Earley Iin June 2006: DOCS administrativel y imposed PRS on Jimmie Johnson in June 4 2007. (SeeJimmie Johnson Complaint ¶¶ 64-65.) 5 We conclude that in these actions, as the record stands, given our conclusion that 6 Earley Iclearly established that DOCS violated federal law in adding PRS terms to the sentences of 7 prisoners who had not received such terms from the court, the district courts erred in ruling that 8 Annucci was entitled to qualified immunity as a matter of law. 9 That said, we note Annucci al so testified in the Myers case that, while he did not begin 10 a resentencing initiative immediately after the decision in Earley I , 11

some time thereafter I began an initiative with the Office of Court 12 Administration asking them going forwardto put out an instruction to all 13 judges in the State that the good practice would bewhenever a determinate 14 sentence of imprisonment was imposed, they should announce the period of 15 post-release supervision on the record. 16 (Myers Tr. 104 (emphases added).) While that initiative, as Annucci described it, looked only 17 "forward," Annucci also testified that in early 2007, DOCS conducted a study "to identify every 18 individual in [DOCS's] custody who required PRS, but for whom the commitment was silent" (id

. 19 at 93). So far as we have seen, however, the record does not indicate what action, if any, DOCS took 20 after identifying those individuals. It is possibl e that behind these statements may lie concrete 21 evidence that could establish that Annucci made reas onable efforts either to seek resentencing of such 22 persons or to end their unconstitutional imprisonment and excise PRS from their prison records. But, 2330 as set out in Part II.D. below, the Complaints suggest that DOCS had custody of several of the 1 plaintiffs at least through 2007. The record as it stands thus leaves it unclear as to when--or whether-- 2 DOCS began to urge resentencing of prisoners w hose PRS terms had been administratively imposed 3 and who had been reimprisoned for violating those te rms. And it is silent as to when--or whether-- 4 DOCS ceased its practice of administratively impos ing PRS on prisoners who had not been sentenced 5 to PRS terms by the court. 6 Plainly, the record in the Vincent and Ji mmie Johnson cases has not been developed, 7 the court having dismissed those complaints pursuant to Rule 12(b)(6). And the record was only 8 slightly more developed in the Earley case; the c ourt converted the Rule 12(b)(6) motion into one for 9 summary judgment, but apparently no discovery ha d been conducted. Focused discovery in the 10 present cases may well reveal facts material to the qualified immunity inquiry, and we cannot 11 determine at this stage whether or not Annucci will eventually be entitled to such immunity. 12

C. Defendants Other Than Annucci 13 Plaintiffs' briefs on appeal do not discuss any defendant other than Annucci. Although 14 there are occasional group references to "DOCS" or "appellees," all of plaintiffs' factual assertions 15 and challenges to the district courts' rulings focus solely on Annucci. (See , e.g. , Vincent/JJohnson 16 brief on appeal at 12 (urging "this Court to review de novo[the] claim that appellee Annucciacted 17 not only in violation of the United States Constitution, but also irresponsibly, when heauthorized and 18 implemented the practice of administratively imposi ng periods of post-release supervision on inmates, 19 where the sentencing judge had omitted such a provisi on in the inmate's sentence" (emphases added)); 2031 Earley brief on appeal at 12 (same); Vincent/JJohns on brief on appeal at 33 ("[t]he decision of the 1 District Court should be reversed and the matter remanded with instructions to deny appellee 2 Annucci's motion to dismiss" (emphasis added)); Earleybrief on appeal at 35 ("[t]he decision of the 3 district court should be reversed and the matter remanded with direction to deny the application of 4 Anthony Annuccifor qualified immunity" (emphasis added)).) 5 The Federal Rules of Appellate Procedure re quire that an appellant's brief on appeal 6 contain the party's contentions and "the reasons fo r them, with citations to the authorities." Fed. R. 7 App. P. 28(a)(9)(A). Where those requirements havenot been met--or where contentions have been 8 made only perfunctorily--we normally decline to entertain them. See , e.g. , Lore v. City of Syracuse , 9 670 F.3d at 171-72; Jackler v. Byrne , 658 F.3d at 233; Day v. Morgenthau , 909 F.2d 75, 76 (2d Cir. 10 1990). 11 We see no reason to deviate from that prac tice here. Defendants, in their responding 12 appellate briefs, pointed out that plaintiffs had not advanced arguments as to any defendant other than 13 Annucci. (See , e.g. , Defendants' brief in Vincent/JJohnson appeal at 3; id . at 15 ("By their brief, 14 [plaintiffs] have effectively limited their appeal to challenging only so much of the district court's 15 decision as refused to treat defendant Annucci differently from the other" offici als.); Defendants' brief 16 in Earley appeal at 3, 13-14.) Plaintiffs' reply brie fs neither disputed that characterization of their 17 arguments nor requested permission to add new arguments as to any other defendants. They simply 18 reiterated their requests for reversal as to Annucci. 19 Plaintiffs' appellate briefs ask that plaintiffs be allowed to conduct "discovery 20 concerning the other defendants' entitlement to qualified immunity." (Vincent/JJohnson brief on 2132 appeal at 33; see also id . at 30; id . at 2 ("discovery concerning whether each defendant acted as a 1 reasonable person in his or her positi on would have acted"); Earley brie f on appeal at 2 (same).) But 2 these requests are unaccompanied by references to anything in the record to show that the district 3 judges abused their discretion in not delayi ng decision until plaintiffs conducted discovery. 4 In sum, plaintiffs' have not made any arguments with respect to defendants other than 5 Annucci and have provided us with no basis for reversing the districtcourts' rulings that defendants 6 other than Annucci are entitled to qualified immunity from plaintiffs' claims for damages. 7

D. The Facts Alleged as to Each Plaintiff 8 The Complaints alleged that each of the pl aintiffs pleaded guilty to a felony under New 9 York law; that none of the plaintiffs was informed by the sentencing judge that he was subject to a 10 PRS term; that none of the plaintiffs' commitment orders mentioned a PRS term; and that each 11 plaintiff was subjected to a PRS term administrativ ely imposed by DOCS. Only one of the plaintiffs, 12 however, had PRS conditions imposed on him after our June 2006 decision in Earley I : PRS was 13 imposed on Jimmie Johnson by DOCS upon his release from prison in June 2007. His parole was 14 revoked three days later, and he was returned to prison. There is nothing in the record to indicate that 15 Annucci has established his entitlement to qualified immunity against the claim for damages by 16 Jimmie Johnson. 17 Most of the other plaintiffs, although havi ng PRS terms imposed on them prior to June 18 2006, alleged that they suffered the consequences of PRS even following our decision in Earley I

-- 19 principally in having their release (referred here to as "parole") revoked for violations of various PRS 2033 terms and being returned to prison. The PRS-related allegations as to those plaintiffs were as follows. 1 Vincent was subjected to PRS upon his rele ase from prison in January 2005. His 2 parole was revoked first in October 2005; after he served additional prison time and was released, his 3 parole was revoked again in April 2007, and he was returned to prison. 4 Plaintiff Seneca Robinson was subjected to PRS upon his release from prison in 5 January 2004. His parole was revoked first in Sept ember 2004; after he served additional time and 6 was released, his parole was revoked again in August 2005. He remained incarcerated for the latter 7 PRS violation until August 2006; he remained subject to PRS until August 2009. 8 Plaintiff Gary St. Mary was subjected to PRS upon his release from prison in October 9 2003. His parole was revoked in October 2007 and he was returned to prison. 10 Plaintiff Walter Eades was subjected to PRS upon his release from prison in May 2003. 11 His PRS term was scheduled to expire in September 2008. 12 Plaintiff Reginald Johnson was subjected toPRS upon his release from prison in March 13 2002. His parole was revoked first in June 2002, second in January 2003, third in March 2004, and 14 fourth in April 2006. His PRS term was scheduled to expire in March 2007. He remained 15 incarcerated for his 2006 PRS violation until August 2008, when a State court granted habeas 16 requiring his release. 17 Plaintiff Donald I. McLean, Jr., was subj ected to PRS upon his release from prison in 18 June 2004. His PRS term was scheduled to expire in June 2009. 19 Plaintiff Jeffrey Palmer was subjected to PRS upon his release from prison in February 20 2005. His parole was revoked first in August 2005, second in March 2006, and third in July 2007. 21 He remained imprisoned for his third PRS violation until September 2008. 2234 Plaintiff Wayne B. Wright, Jr., was subjected to PRS upon his release from prison in 1 January 2003. His parole was revoked first in July 2004; after he served additional prison time and 2 was released, his parole was revoked again in June 2007, and he was again returned to prison. 3 Plaintiff Shawn Goodman was subjected to PRS upon his release from prison in 4 December 2003. His PRS term was scheduled to expire in December 2008. 5 Plaintiff David Waddell was subjected to PRS upon his release from prison in 6 September 2004. His parole was revoked first in Oc tober 2006; after he served additional time and 7 was released, his parole was revoked again in June 2008, and he was again returned to prison. 8 Earley was subjected to PRS upon his release from prison in 2004. His parole was 9 revoked first in July 2005; after he served additional prison time and was released, his parole was 10 revoked again for PRS violations in September 2006--after Earley Ihad been decided--and he was 11 again returned to prison. Eventually, having successf ully pursued federal habeas relief as discussed 12 in Part I.B. above, Earley was released from prison in June 2007. 13 As indicated above, Jimmie Johnson, who was subjected to PRS by DOCS in June 14 2007, is the only plaintiff alleged to have had those conditions imposed on him subsequent to our 15 decision in Earley I . The record remains to be developed as to whether Annucci, who was then 16 "responsible for all of the legal services necessa ry for the day-to-day operations of the entire 17 correctional system in the State of New York" (A nnucci Decl. ¶ 2), made reasonable efforts to have 18 DOCS comply with federal law or whether he unreasonably allowed the DOCS policy or custom to 19 be applied to Jimmie Johnson. 20 Six other plaintiffs (Vincent, St. Mary, Palmer, Wright, Waddell, and Earley) were 21 found to have committed various violations of PR S and had their parole revoked after Earley Iwas 2235 decided. They were returned to DOCS's custody fo r various periods. The remaining five plaintiffs 1 (i.e. , Robinson and Reginald Johnson, whose last alle ged reimprisonments for PRS violations began 2 prior to Earley Ibut continued after Earley I , and Eades, McLean, and Goodman, who did not allege 3 that they were punished for PRS violations) allege d that the periods during which they were required 4 to comply with the unlawfully imposed PRS conditi ons extended years past the decision of Earley I

. 5 "In addition to supervision by and reporting to a parole officer, postrelease supervision may require 6 . . . for example, a curfew, restri ctions on travel, and substance abuse testing and treatment." Catu , 7 4 N.Y.3d at 245, 792 N.Y.S.2d at 888. 8 We conclude that with respect to all of the plaintiffs, whether their paroles were 9 revoked after Earley Ifor violation of PRS conditions or their conduct was merely constrained after 10 Earley Iby those conditions, the record remains to bedeveloped as to the objective reasonableness 11 of Annucci's efforts to relieve them of the burde ns of those unlawfully imposed terms after he knew 12 it had been ruled that the imposition violated federal law. 13

E. Other Claims or Contentions 14 Although the district courts dismissed th e Earley and Vincent/Jimmie Johnson actions 15 on the basis of qualified immunity, defendants had moved to dismiss on several other grounds as well. 16 These included (1) jurisdictional challenges to claims asserted against them in their official capacities, 17 as such claims are in essence suits against the governmental entities themselves, and suits against the 18 State under § 1983 are barred by sovereign immunity, see , e.g. , Hafer v. Melo , 502 U.S. 21, 25 19 (1991); (2) claims that the defendants--includi ng Annucci--lacked personal involvement in the 20 development, imposition, and enforcement, etc., of PR S; and (3) the statute of limitations. Aside from 2136 the observation that the Vincent/Jimmie Johnson plaintiffs had withdrawn their official-capacity 1 claims, seeVincent I , 812 F.Supp.2d at 278 n.1, the district courts did not address these alternative 2 grounds for dismissal. Although plain tiffs have included in their appellate briefs arguments that their 3 claims are timely, we decline to address that issue si nce the district courts did not reach it. We leave 4 it to the district courts in the first instance to address the merits of any such unresolved issues should 5 they be raised again by Annucci. 6 We note also that the complaints in the Vincent and Jimmie Johnson actions sought 7 declaratory judgments. Although the sole basis for the district court's dismissal of the actions was 8 qualified immunity, qualified immunity does not protect a public official against a claim for 9 declaratory or injunctive relief, see , e.g. , Sudler , 689 F.3d at 177; Adler v. Pataki , 185 F.3d 35, 48 (2d 10 Cir. 1999). However, there being no allegations in the Complaints that any of the plaintiffs remain 11 subject to PRS terms, and the New York Legisl ature having amended § 70.45 in 2008 to require that 12 the mandated PRS terms be imposed by sentencing judges, it seems likely that any claims for 13 declaratory relief have become moot. In any event, plaintiffs on appeal have characterized their suits 14 solely as "civil action[s] seeking money damages for violation of [their ] rights" (Vincent/JJohnson 15 brief on appeal at 1; Earley brief on appeal at 1-2), and they do not argue that their claims for 16 declaratory relief should be reinstated. We deem any claims for declaratory relief to have been 17 abandoned. 18 1937 CONCLUSION 1

We have considered all of the arguments made by both sides in support of their 2 respective positions and, except as indicated above, have found them to be without merit. For the 3 reasons stated above, we affirm so much of the judgments of the respective district courts as dismissed 4 plaintiffs' claims against defendants other than Annucci. We conclude that on the present record 5 Annucci was not entitled to qualified immunity. To the extent that the judgments dismissed the 6 Complaints against Annucci, they are vacated, and the matters are remanded for further proceedings. 7 We express no view as to whether qualified immunitymay be appropriate for Annucci after the record 8 is developed. 9
No costs. 10