Betances v. Fischer 1 In the 2

15‐2836‐cv
Betances v. Fischer
1
In the 2
United States Court of Appeals 3
For the Second Circuit 4
________ 5
6
A UGUST TERM , 2015 7
8
A RGUED: MARCH 28, 2016 9
D ECIDED: S EPTEMBER 16, 2016 10
11
No. 15‐2836‐cv 12
13
PAUL B ETANCES, individually and on behalf of others similarly 14
situated, LLOYD A. BARNES , and G ABRIEL V ELEZ , a/k/a G ABRIEL 15
B ELIZE, individually and on behalf of others similarly situated, 16
Plaintiffs‐Appellees, 17
18
v. 19
20
B RIAN F ISCHER , individually and in his capacity as Commissioner of 21
the New York State Department of Correctional Services (DOCS), 22
A NTHONY J. A NNUCCI, individually and in his capacity as Deputy 23
Commissioner and Counsel for the New York State Department of 24
Corrections and Community Supervision, and TERENCE TRACY , in 25
his individual capacity and in his capacity as Chief Counsel for the 26
Division of Parole, 27
Defendants‐Appellants. 28
________ 29
30
Appeal from the United States District Court 31
for the Southern District of New York. 32
No. 11 Civ. 03200 – Shira A. Scheindlin, Judge. 33
34

-- 1 of 29 --

2 No. 15‐2836‐cv
________ 1
2
Before: WALKER , R AGGI, and DRONEY , Circuit Judges. 3
________ 4
5
In Earley v. Murray, 451 F.3d 71 (2d Cir. 2006) (“Earley I”), we 6
held that the New York State Department of Correctional Services’s 7
(“DOCS”) practice of administratively adding a term of post‐release 8
supervision (“PRS”) to sentences in which PRS had not been 9
imposed by the sentencing judge and the New York State Division 10
of Parole’s (“DOP”) practice of enforcing the administratively added 11
PRS terms violated the Constitution. Notwithstanding their 12
awareness of our holding, defendants DOCS officials Anthony J. 13
Annucci and Brian Fischer and DOP official Terence Tracy decided 14
not to follow it and only did so after the New York Court of Appeals 15
invalidated the administrative practice more than 22 months later. 16
The plaintiffs, offenders who had been subject to PRS in violation of 17
Earley I, sued the defendants for the actions they took in violation of 18
Earley I and moved for summary judgment. The district court 19
(Scheindlin, J.) granted the motion. The defendants appeal the grant 20
of summary judgment and also argue that the district court erred in 21
granting plaintiffs’ motion to deem the appeal frivolous so that the 22
district court could retain jurisdiction and proceed with a trial on 23
damages. We AFFIRM. 24
25

-- 2 of 29 --

3 No. 15‐2836‐cv
________ 1
2
H AYLEY H OROWITZ (Matthew D. Brinckerhoff, 3
Alanna Small, on the brief), Emery Celli 4
Brinckerhoff & Abady LLP, New York, NY, for 5
Plaintiffs‐Appellees. 6
S TEVEN C. WU, Deputy Solicitor General (Barbara 7
D. Underwood, Solicitor General; Claude S. 8
Platton, Senior Assistant Solicitor General, on the 9
brief), for Eric T. Schneiderman, Attorney General 10
of the State of New York, for Defendants‐ 11
Appellants. 12
________ 13
14
JOHN M. WALKER , JR ., Circuit Judge: 15
In Earley v. Murray, 451 F.3d 71 (2d Cir. 2006) (“Earley I”), we 16
held that the New York State Department of Correctional Services’s 17
(“DOCS”) practice of administratively adding a term of post‐release 18
supervision (“PRS”) to sentences in which PRS had not been 19
imposed by the sentencing judge and the New York State Division 20
of Parole’s (“DOP”) practice of enforcing the administratively added 21
PRS terms violated the Constitution. Notwithstanding their 22
awareness of our holding, defendants DOCS officials Anthony J. 23
Annucci and Brian Fischer and DOP official Terence Tracy decided 24
not to follow it and only did so after the New York Court of Appeals 25
invalidated the administrative practice more than 22 months later. 26
The plaintiffs, offenders who had been subject to PRS in violation of 27

-- 3 of 29 --

4 No. 15‐2836‐cv
Earley I, sued the defendants for the actions they took in violation of 1
Earley I and moved for summary judgment. The district court 2
(Scheindlin, J.) granted the motion. The defendants appeal the grant 3
of summary judgment and also argue that the district court erred in 4
granting plaintiffs’ motion to deem the appeal frivolous so that the 5
district court could retain jurisdiction and proceed with a trial on 6
damages. We AFFIRM. 7
BACKGROUND 8
I. Determinate Sentencing and Post‐Release Supervision 9
in New York 10
In 1998, the New York State Legislature amended the 11
sentencing scheme for violent felons to require that every 12
determinate sentence of imprisonment for a violent felony be 13
followed by a PRS term. N.Y. Penal Law § 70.45(1). The statute fixes 14
the length of PRS terms for certain crimes and provides a range of 15
permissible lengths for others, leaving the ultimate determination to 16
the sentencing judge. Id. § 70.45(2), (2‐a). During the time period 17
relevant to this case, the Division of Parole (“DOP”) and Board of 18
Parole (“BOP”) established and enforced the conditions of PRS 19
terms and the Department of Correctional Services (“DOCS”) 20
reincarcerated felons who violated these conditions. Id. § 70.45(3).1 21
1 In 2011, after the events giving rise to this lawsuit, DOCS and DOP
merged to create the Department of Corrections and Community

-- 4 of 29 --

5 No. 15‐2836‐cv
Although § 70.45(1) requires sentencing courts to “state not 1
only the term of imprisonment, but also an additional period of 2
post‐release supervision,” some judges did not pronounce PRS 3
terms during sentencing proceedings. As a result, certain inmates 4
entered DOCS custody with sentence and commitment orders that 5
informed DOCS employees of the term and conditions of the 6
inmate’s sentence, but failed to include PRS terms required by 7
§ 70.45. Instead of bringing the failure to the attention of the 8
sentencing court, DOCS simply added the PRS term 9
administratively. 10
When DOCS first took custody of an inmate, it received the 11
inmate’s sentence and commitment order. DOCS employees 12
routinely entered information about the inmate’s sentence from this 13
document into the DOCS computer system. If a sentence and 14
commitment order did not include the PRS term that § 70.45 15
required, DOCS employees, following guidelines issued by DOCS, 16
entered for the inmate the shortest PRS term permitted by § 70.45. 17
Upon their release from prison, the inmates began to serve 18
their PRS terms under DOP supervision. Approximately 45 days 19
before an inmate left prison, DOCS employees calculated the specific 20
Supervision (“DOCCS”). Under the current version of § 70.45, DOCCS
has the role formerly assigned to DOCS and DOP, and the Board of Parole
(“BOP”) remains an independent body that sets PRS conditions.

-- 5 of 29 --

6 No. 15‐2836‐cv
dates on which that inmate’s PRS would begin and end and 1
furnished these dates to DOP employees. Before beginning 2
supervision of an inmate, a DOP parole officer would meet with the 3
inmate to discuss the inmate’s plans for his release and the 4
conditions of his PRS. At the same time DOP provided the inmate 5
with a document containing information about the inmate’s crime 6
and sentence, including his release date and the date on which any 7
PRS would expire. DOCS and DOP were authorized to reincarcerate 8
an offender who, after a hearing, was found to have violated the 9
conditions of his release. 10
II. Our Decision in Earley v. Murray 11
On June 9, 2006, we decided Earley v. Murray, 451 F.3d 71 12
(2d Cir.) (“Earley I”), reh’g denied, 462 F.3d 147 (2d Cir. 2006) (“Earley 13
II”), in which we addressed for the first time the constitutionality of 14
DOCS’s practice of adding a PRS term to a sentence in cases where 15
§ 70.45 required it but the sentencing judge had not imposed it. 16
Earley pleaded guilty to attempted burglary and was sentenced to 17
six years in prison. Earley I, 451 F.3d at 73. The sentencing judge 18
failed to include PRS in the sentence he pronounced in court and 19
neither the written judgment nor the written order of commitment 20
indicated that PRS was to be a part of Earley’s sentence, 21
notwithstanding the requirement under § 70.45 that he serve a term 22
of PRS upon the conclusion of his term of imprisonment. Id. While 23

-- 6 of 29 --

7 No. 15‐2836‐cv
he was incarcerated, Earley became aware that DOCS had 1
administratively added a five‐year PRS term to his sentence. Id. 2
After exhausting his state court remedies, Earley filed a habeas 3
petition in federal court arguing that DOCS’s administrative 4
imposition of PRS violated his due process rights. Id. 5
We agreed with Earley that the Constitution forbids DOCS 6
from modifying a sentence imposed by a judge, even though § 70.45 7
required that PRS be a part of his sentence. Id. at 74‐76. Because 8
Earley’s PRS term had not been imposed by the judge, PRS was 9
never part of his sentence and the PRS term was a “nullity.” Id. at 10
76. We remanded the case to the district court for a determination of 11
whether Earley had timely filed his habeas petition; if so, the district 12
court was “to issue a writ of habeas corpus excising the term of post‐ 13
release supervision from Earley’s sentence and relieving him of any 14
subsequent penalty or other consequence of its imposition.” Id. at 15
76‐77. We also noted that “[o]ur ruling is not intended to preclude 16
the state from moving in the New York courts to modify Earley’s 17
sentence to include the mandatory PRS term,” although we left it to 18
the state courts to determine if such a motion would be timely. Id. at 19
77 & n.2. On August 31, 2006, we denied the defendants’ motion for 20
rehearing in Earley II. 21

-- 7 of 29 --

8 No. 15‐2836‐cv
III. The General Response to Earley I 1
The holding in Earley I was met with resistance at the state 2
level. Certain district attorneys expressed their disagreement with 3
our holding. Officials in the Office of Court Administration 4
(“OCA”), the administrative division of the New York state court 5
system, took the position that the opinion in Earley I was not binding 6
on state courts and issued a memorandum to judges expressing this 7
view. OCA nevertheless urged courts to pronounce PRS terms 8
going forward until the New York Court of Appeals had the 9
opportunity to weigh in. 10
New York courts were inconsistent in adhering to Earley I’s 11
holding. The Second and Fourth Departments applied Earley I from 12
the outset. See People v. Smith, 37 A.D.3d 499, 499, 829 N.Y.S.2d 226 13
(2d App. Div. 2007); People ex rel. Burch v. Goord, 48 A.D.3d 1306, 14
1307, 853 N.Y.S.2d 756 (4th App. Div. 2008). The First and Third 15
Departments did not apply Earley I’s holding when it was first 16
decided but later did. Compare People v. Thomas, 35 A.D.3d 192, 826 17
N.Y.S.2d 36 (1st App. Div. 2006) (analyzing unpronounced PRS with 18
reference to Earley I but without applying its holding), affʹd as 19
modified and remanded sub nom. People v. Sparber, 10 N.Y.3d 457, 889 20
N.E.2d 459 (2008), and Garner v. N.Y.S. Depʹt of Corr. Servs., 39 A.D.3d 21
1019, 831 N.Y.S.2d 923 (3d App. Div. 2007) (analyzing 22
unpronounced PRS without reference to Earley I), revʹd, 10 N.Y.3d 23

-- 8 of 29 --

9 No. 15‐2836‐cv
358, 889 N.E.2d 467 (2008), abrogated by Dreher v. Goord, 46 A.D.3d 1
1261, 848 N.Y.S.2d 758 (2007), with People v. Figueroa, 45 A.D.3d 297, 2
298, 846 N.Y.S.2d 87 (1st App. Div. 2007) (applying Earley I’s 3
holding, though without reference to Earley I), and Dreher v. Goord, 46 4
A.D.3d 1261, 1262, 848 N.Y.S.2d 758 (3d App. Div. 2007) (applying 5
Earley I). See also Scott v. Fischer, 616 F.3d 100, 107 (2d Cir. 2010) 6
(describing how the First and Third Departments’ initial failure to 7
apply Earley I “reflect[ed] oversight rather than defiance”). 8
On April 29, 2008, the New York Court of Appeals weighed in 9
on the question whether it was permissible for DOCS to add PRS to 10
sentences after the sentencing judge had failed to pronounce a PRS 11
term in People v. Sparber, 10 N.Y.3d 457, 889 N.E.2d 459 (2008), and 12
Garner v. New York State Department of Corrections Services, 10 N.Y.3d 13
358, 889 N.E.2d 467 (2008). The Court held that New York state law 14
required the judge to pronounce the term of PRS orally at sentencing 15
if it was to be included in an inmate’s sentence, but it did not 16
address whether the Constitution required sentencing judges to 17
pronounce PRS terms, as we had held in Earley I. Sparber, 889 18
N.E.2d at 469‐70; Garner, 889 N.E.2d at 362‐63. 19
IV. The Actions of the Defendants after Earley I 20
The three defendants in this case were officials with DOCS 21
(Annucci and Fischer) and DOP (Tracy) who were responsible for 22
designing and implementing their departments’ response to Earley I. 23

-- 9 of 29 --

10 No. 15‐2836‐cv
A. Anthony J. Annucci 1
Anthony J. Annucci was DOCS’s counsel from September 2
1989 until October 2007, when he became executive deputy 3
commissioner and counsel, a position he filled until December 2008. 4
Annucci immediately understood Earley I’s holding but 5
deliberately refused to change DOCS procedures to bring them into 6
compliance. In July 2006, soon after Earley I was decided, Annucci 7
emailed OCA’s counsel to inform him of Earley I’s holding and to 8
urge that the New York courts follow Earley I prospectively. He also 9
cautioned OCA that inmates would probably file individual suits to 10
relieve them from their administratively imposed PRS terms. 11
In August 2006, Annucci emailed DOCS personnel to inform 12
them that Earley I conflicted with New York state law and that 13
DOCS would not follow its holding. Annucci confirmed his 14
decision not to follow Earley I at his deposition: 15
Q: You’ve read [Earley I], you made decisions 16
about policy for DOCS based on that opinion, right? 17
A: I didn’t make any decisions to change policy. 18
Q: Right, you made a decision to either take 19
action or not take action after Earley, right? 20
A: Correct. 21
Q: You made the decision to take action in 22
notifying the courts to deal with the problem 23
prospectively? 24
A: Correct. 25
Q: You made the decision not to take any action 26
retroactively until further notice, right? 27
A: Correct. 28

-- 10 of 29 --

11 No. 15‐2836‐cv
Q: And you made the decision to take no action 1
prospectively . . . to conform DOCS policy and conduct 2
to the holding of Earley as well, right? 3
. . . 4
A: Correct. 5
Annucci Dep. 87:11‐88:7; J.A. 197. 6
B. Brian Fischer 7
Brian Fischer was the commissioner of DOCS from January 8
2007 to April 2011 (when DOCS merged with DOP to form DOCCS). 9
He understood Earley I’s holding and agreed with Annucci’s 10
decision not to follow its holding: 11
Q: But the decision to continue basically 12
enforcing that policy [of administratively adding PRS to 13
inmates’ sentences] notwithstanding Earley, is it fair to 14
characterize that as an operational decision? 15
A: Yes. 16
Q: And that was a decision you took early on in 17
your tenure as commissioner, right, to continue that 18
policy? 19
A: That’s correct. 20
Q: And when you made that decision I assume 21
you understood that what that meant was that inmates 22
would continue to get post‐release supervision, be 23
subjected to it upon release, be reincarcerated for 24
violating post‐release supervision going forward, 25
notwithstanding the fact that the Second Circuit Court 26
of Appeals had made it clear that that violated the 27
federal constitutional right to due process? 28
. . . 29
A: That was our position. 30
Q: That was your position? 31
A: We continued, correct. 32

-- 11 of 29 --

12 No. 15‐2836‐cv
Q: And that was a decision that you felt 1
comfortable making, right? 2
A: Yes. 3
Fischer Dep. 40:12‐41:14; J.A. 224. 4
C. Terence Tracy 5
Terence Tracy was the chief counsel of DOP from December 6
1996 until March 2011. Like the other defendants, Tracy testified 7
that he understood what Earley meant for DOCS and DOP and 8
decided not to follow its holding. Tracy testified that he did not 9
review any DOP files to determine whether DOP was supervising 10
any inmates whose PRS terms had been administratively added by 11
DOCS because he believed that reviewing the files was the 12
responsibility of DOCS. Tracy Dep. 17:5‐19:11; J.A. 249‐50. But he 13
never conveyed this belief to anyone at DOCS or had any 14
conversations with anyone at DOCS about Earley I. Tracy Dep. 15
19:12‐23; 24:2‐10; J.A. 250‐51. Even without reviewing DOP files or 16
discussing Earley I with DOCS employees, Tracy testified that he 17
knew that DOCS was adding PRS terms to sentences, that this had 18
implications for DOP, and that after weighing the alternatives he 19
affirmatively decided to continue DOP’s former approach in 20
contravention of Earley I: 21
Q: . . . [W]hen you first read the Earley versus 22
Murray decision from the Second Circuit Court of 23
Appeals, I take it from your testimony you were aware 24
of the way DOCS was entering post‐release supervision 25

-- 12 of 29 --

13 No. 15‐2836‐cv
terms into their system as you’ve testified to earlier 1
today; right? 2
A: Correct. 3
Q: And as I understand your testimony, you 4
recognize when you read Earley that there was a need to 5
go back and look at these sentence and commitment 6
orders to determine who amongst the inmate 7
population and the people under Department of Parole 8
had had post‐release supervision entered into the 9
system even though it did not appear on their sentence 10
and commitment orders; right? 11
. . . 12
A: All I know from reading that decision is that 13
this decision could have an impact upon our 14
population. Because I did know at the time that there 15
were individuals coming into state custody and then 16
coming under our jurisdiction for supervision purposes 17
who had no period of post‐release supervision stated on 18
their sentence and commitment order. 19
Tracy Dep. 40:25‐42:2; J.A. 253‐54. 20
Q: But I am correct, am I not, that in weighing 21
these two competing interests concern for people who 22
you would be continuing to incarcerate or supervise 23
without authority and/or freeing or lifting the 24
supervision of individuals who may turn out to actually 25
have a constitutionally imposed sentence of post‐ 26
release[] supervision, your determination was to err on 27
the side of continuing supervision and continuing 28
incarceration until you could get those people back 29
before courts; right? 30
. . . 31
A: Yes. That’s the decision that the agency arrived 32
at, yes. 33
Q: Okay. And was that consistent with your own 34
view as well? 35

-- 13 of 29 --

14 No. 15‐2836‐cv
A: Yes, that was consistent with my own view as 1
well. 2
Tracy Dep. 69:9‐70:2; J.A. 258‐59. 3
In short, the three defendants decided not to comply with 4
Earley I although they understood the meaning of its holding and 5
that its holding applied to their departments. As a result, after our 6
decision in Earley I, DOCS continued to violate its holding 7
prospectively, by entering statutorily‐required PRS terms when 8
sentence and commitment orders were silent, and both DOCS and 9
DOP continued to violate it retrospectively, by taking no steps to 10
cease enforcing PRS terms that had been added to sentences by 11
DOCS employees. 12
V. The Defendants’ Actions after New York State Court 13
Decisions on Administratively Adding PRS Terms 14
The defendants’ later responses to the subsequent state court 15
decisions holding that a judge must pronounce PRS for it to be a part 16
of an inmate’s sentence contrasted starkly with their inaction 17
following Earley I. 18
In either February or March 2007, shortly after the Second 19
Department decided Smith, 37 A.D.3d 499, 829 N.Y.S.2d 226, the first 20
Appellate Division case applying the holding of Earley I, DOCS 21
began to review its files to identify inmates whose sentences 22
included PRS terms added by DOCS employees. The reviewers 23
began by examining the sentence and commitment orders that are 24

-- 14 of 29 --

15 No. 15‐2836‐cv
included in every inmate’s file. These documents allowed the 1
reviewers to infer whether a judge had pronounced a PRS term at 2
sentencing. If the sentence and commitment order did not mention 3
PRS, the reviewers would attempt to examine sentencing transcripts, 4
which were missing from the majority of inmate files. The reviewers 5
created a new “PRS” data field in the DOCS computer system. This 6
field indicated whether or not the inmate’s sentence and 7
commitment order contained PRS as part of the sentence. For 8
inmates who had already been released from custody, the “PRS” 9
field indicated that the inmate’s file was no longer in DOCS’s 10
possession. 11
In April 2007, DOCS employees completed their initial review, 12
which included over 40,000 inmate files; however, they did nothing 13
with this information. At the same time, DOCS continued to 14
administratively update the “PRS” data field for new inmates 15
entering the system. As of January 2008, DOCS employees had 16
made 49,300 entries in the “PRS” data field. Of these, 41,000 17
reflected sentence and commitment orders that included PRS terms 18
as part of the sentence, while 8,100 indicated that the sentence and 19
commitment order was silent as to PRS, leading to the conclusion 20
that DOCS had added the terms to these inmates’ sentences. Of the 21
8,100, 6,300 were in DOCS custody and 1,800 had been released to 22
the supervision of DOP. 23

-- 15 of 29 --

16 No. 15‐2836‐cv
The New York Court of Appeals decisions in Garner and 1
Sparber on April 29, 2008—more than 22 full months after Earley I 2
and 19 months after we denied reconsideration in Earley II— 3
prompted DOP to take its first steps and DOCS to take its first 4
significant steps toward compliance with Earley I. 5
DOP promptly reviewed its records to determine which 6
inmates under its supervision were subject to DOCS‐imposed PRS 7
terms, a process that took less than a week. 8
By the middle of May 2008, DOCS launched a “Post‐Release 9
Supervision Resentencing Initiative” to obtain resentencing of 10
individuals in its custody whose sentencing judges had not 11
pronounced PRS terms required by § 70.45. In this undertaking, 12
DOCS relied on the data collected during its earlier review of inmate 13
files that identified inmates whose sentence and commitment orders 14
were silent about PRS. The initiative required an additional 15
investigative step—DOCS had to obtain the sentencing minutes for 16
all 8,100 inmates with silent sentence and commitment orders, the 17
majority of whose files lacked minutes. Thereafter, as DOCS 18
identified specific inmates who needed to be resentenced or whose 19
sentencing minutes were missing, DOCS employees emailed the 20
information to district attorneys and sent formal notifications, 21
including the sentence and commitment orders and available 22

-- 16 of 29 --

17 No. 15‐2836‐cv
sentencing minutes, to both the relevant sentencing courts and 1
district attorneys. 2
Finally, on June 4, 2008, DOCS and DOP filed a declaratory 3
judgment action in state court seeking judicial approval of a plan 4
that would permit state agencies, district attorneys, and state courts 5
to systematically identify and refer improperly sentenced inmates 6
back to the sentencing courts to be resentenced. The state court, 7
however, did not grant the injunctive relief sought by DOCS and 8
DOP. 9
The defendants all testified that immediately after Earley I and 10
II were decided in 2006 they could have undertaken the remedial 11
measures that they later took when prompted by Smith, Garner and 12
Sparber in the spring of 2008. Annucci Dep. 81:10‐82:9; Fischer Dep. 13
60:23‐61:21; Tracy Dep. 85:12‐20; J.A. 195, 226, 260. 14
VI. The Legislative Response to Earley I 15
In June 2008, the New York legislature passed New York 16
Correction Law § 601‐d, which codified a process for resentencing 17
individuals with unpronounced PRS terms. Section 601‐d required 18
DOCS and DOP to notify courts if they had custody of or 19
supervision over a defendant with an administratively imposed PRS 20
term and permitted the sentencing court either to resentence the 21
defendant to a sentence that included a PRS term or, with the district 22
attorney’s consent, to decline to resentence, resulting in no PRS 23

-- 17 of 29 --

18 No. 15‐2836‐cv
term. The latter course would not upset guilty pleas that were not 1
premised on the inclusion of a PRS term in the sentence. 2
VII. Procedural History 3
The plaintiffs are offenders who were subject to mandatory 4
PRS terms and who allege that DOCS, rather than their sentencing 5
judge, imposed these terms. Their action seeks compensatory 6
damages based upon administratively imposed PRS terms that 7
continued or were imposed after June 9, 2006, the date Earley I was 8
decided. 9
The defendants filed a Rule 12(b)(6) motion to dismiss on the 10
basis of qualified immunity. We affirmed the district court’s denial 11
of the motion in Betances v. Fischer, 519 F. App’x 39, 41 (2d Cir. 2013) 12
(summary order) (“Betances I”). Betances I was decided on the same 13
day as Vincent v. Yelich, 718 F.3d 157, 168 (2d Cir. 2013), in which we 14
held that “Earley I itself clearly established that where the court has 15
not included PRS in a defendant’s sentence, DOCS may not add that 16
term without violating federal law.” In Betances I, our remand 17
directed the district court to develop the record “as to the objective 18
reasonableness of [defendants’] efforts to relieve [plaintiffs] of the 19
burdens of those unlawfully imposed [PRS] after [defendants] knew 20
it had been ruled that the imposition violated federal law.” Vincent, 21
718 F.3d at 177. 22

-- 18 of 29 --

19 No. 15‐2836‐cv
On remand, the district court granted plaintiffs’ motion to 1
certify the case as a class action and, after the parties had cross‐ 2
moved for summary judgment, denied defendants’ cross‐motion for 3
summary judgment on the basis of qualified immunity and granted 4
plaintiffs’ cross‐motion for summary judgment holding defendants 5
personally liable. 6
After defendants noticed their appeal but before their brief 7
was filed, the district court granted plaintiffs’ motion to deem the 8
appeal frivolous, which would have enabled the district court to 9
retain jurisdiction and proceed with a trial on damages 10
notwithstanding the appeal. Upon defendants’ motion, we stayed 11
the proceedings in the district court pending appeal. 12
DISCUSSION 13
I. Qualified Immunity 14
The defendants first challenge the district court’s denial of 15
their motion for summary judgment and grant of the plaintiffs’ 16
motion for summary judgment on the questions of whether the 17
defendants were entitled to qualified immunity and thus whether 18
they can be held personally liable for the injuries inflicted on 19
plaintiffs by their decision not to comply with Earley I. 20
We review a “grant of summary judgment de novo, 21
construing all evidence in the light most favorable to the non‐ 22
moving party, and affirming only where there is no genuine issue as 23

-- 19 of 29 --

20 No. 15‐2836‐cv
to any material fact and the movant is entitled to judgment as a 1
matter of law.” Hubbs v. Suffolk Cty. Sheriff’s Dep’t, 788 F.3d 54, 59 2
(2d Cir. 2015) (internal citation and quotation marks omitted). 3
We deny qualified immunity to government officials on 4
summary judgment if (1) “the facts . . . taken in the light most 5
favorable to the” officials establish “a violation of a constitutional 6
right”; and (2) “the officials’ actions violated clearly established 7
statutory or constitutional rights of which a reasonable person 8
would have known.” See Jones v. Parmley, 465 F.3d 46, 55 (2d Cir. 9
2006) (internal quotation marks omitted). 10
A. The Questions on Appeal 11
The questions we must resolve in this appeal are narrow. Our 12
court has already concluded “that Earley I itself clearly established 13
that where the [sentencing] court has not included PRS in a 14
defendant’s sentence, DOCS may not add that term without 15
violating federal law.” Vincent, 718 F.3d at 168. The court also 16
deemed “clear” DOCS’s constitutional “obligation to at least attempt 17
to cease its administrative and custodial” enforcement of PRS terms 18
that had been held unlawful under Earley I. Id. at 172‐73. 19
Accordingly, Vincent remanded for development of the record “as to 20
the objective reasonableness of [defendants’] efforts to relieve 21
[plaintiffs] of the burdens of those unlawfully imposed terms after 22
[defendants] knew it had been ruled that the imposition violated 23

-- 20 of 29 --

21 No. 15‐2836‐cv
federal law.” Id. at 177. This panel is bound by Vincent’s rulings as 1
to what was clearly established by Earley I. Therefore, the only 2
questions for us to resolve are (1) at what point in time would the 3
defendants have reasonably known that DOCS’s and DOP’s actions 4
violated federal law and (2) whether, after the defendants 5
reasonably would have known that their conduct violated federal 6
law, they made an objectively reasonable effort to comply with the 7
holding of Earley I. 8
B. When Defendants Realized Their Conduct Violated 9
Federal Law 10
The three defendants became aware of the implications of 11
Earley I’s holding at different times. Annucci understood the 12
implications of Earley I at least by June 20, 2006, when he emailed 13
OCA’s counsel and explained Earley I’s holding to him. Tracy 14
testified that he became aware of and understood Earley I in late 15
2006 but he could not recall the precise date. Fischer also was 16
unable to give a precise date upon which he became aware of and 17
understood Earley I, but this probably took place no later than 18
January 2007, soon after he became commissioner of DOCS. 19
Considering the dates in the light most favorable to the 20
defendants, we assume that Tracy understood the holding of Earley I 21
by December 31, 2006, and Fischer by January 31, 2007. As for 22
Annucci, although he indisputably understood Earley I as of June 20, 23

-- 21 of 29 --

22 No. 15‐2836‐cv
2006, we conclude that he could reasonably have waited to take 1
action until after August 31, 2006, the date on which we issued 2
Earley II, denying the motion for rehearing. We note that the district 3
court must engage in factfinding on remand to determine with more 4
specificity the dates that Tracy and Fischer understood the holding 5
of Earley I, but should the district court determine that either 6
defendant became aware of Earley I before August 31, 2006, liability 7
may not be imposed for the failure to take action before that date. 8
C. Defendants’ Efforts to Comply with Earley I 9
The defendants did not take objectively reasonable steps to 10
comply with Earley I because, even viewing the evidence in the light 11
most favorable to them, it took Annucci 19 months, Tracy 15 12
months, and Fischer 14 months to take the first meaningful steps to 13
bring their departments into compliance with Earley I. 14
All three confirmed that their noncompliance was not the 15
result of oversight or confusion; they understood that Earley I 16
required them to change their practices but affirmatively decided 17
not to do so. 18
It was only after the Second Department decided Smith, 37 19
A.D.3d 499, 829 N.Y.S.2d 226, the first Appellate Division case 20
applying Earley I, on February 6, 2007, that Annucci and Fischer took 21
any action at all. In six weeks, DOCS employees reviewed inmate 22
files to determine who had PRS terms that had been added by DOCS 23

-- 22 of 29 --

23 No. 15‐2836‐cv
employees rather than imposed by a judge. But while this review 1
would be essential to any remediation of retrospective violations of 2
Earley I, the step was insufficient on its own. DOCS employees 3
simply sat on the information they had collected. Moreover, they 4
continued to violate Earley I prospectively, by persisting in 5
administratively adding PRS terms to the sentences of inmates 6
whose sentence and commitment orders did not include them. 7
Throughout this period, Tracy took no steps to bring DOP into 8
compliance. He did not discuss Earley I with anyone at DOCS, 9
although he knew that DOCS was disregarding its holding and 10
continuing to administratively impose PRS terms. 11
Finally, prompted by the New York Court of Appeals’ 12
decisions in Garner and Sparber, the defendants in late April and 13
early May 2008 took their first meaningful steps to remediate 14
DOCS’s and DOP’s PRS practices. It was at this point that (1) DOCS 15
launched a “Post‐Release Resentencing Initiative,” which notified 16
courts and district attorneys of inmates who might need to be 17
resentenced; (2) DOP reviewed its files to determine who under their 18
supervision had PRS terms added by DOCS; and (3) DOCS and DOP 19
together filed a declaratory judgment action seeking judicial 20
approval of a mass‐resentencing plan. These actions were 21
reasonable steps towards bringing DOCS and DOP into compliance 22
with Earley I, but they had been unreasonably delayed. Between 14 23

-- 23 of 29 --

24 No. 15‐2836‐cv
and 19 months had elapsed from when the defendants understood 1
that Earley I required them to act. And all three defendants have 2
admitted that nothing prevented them from taking these same 3
actions when they first understood the requirements of Earley I. 4
That the defendants eventually took reasonable steps to comply with 5
Earley I cannot excuse their unreasonable delay in doing so. 6
The defendants’ refusal to bring DOCS and DOP into 7
conformity with Earley I until the New York state court rulings 8
causes us to question whether, absent these later rulings, any 9
compliance would have been forthcoming. DOCS only began its 10
initial review of its files directly after the Appellate Division first 11
applied Earley I, and the defendants conceded that Sparber and 12
Garner, not Earley I, prompted the efforts they undertook in the 13
spring of 2008. While defendants appear to have chosen to ignore 14
our ruling until New York state courts directed them to change their 15
conduct, this fact does not affect our analysis. Even assuming that 16
their actions in the spring of 2008 were motivated by a belated desire 17
to comply with Earley I, the unexcused delay of 14 to 19 months 18
between Earley II and their first significant remedial efforts was 19
objectively unreasonable. 20
D. Defendants’ Counterarguments 21
The arguments advanced by the defendants are unpersuasive. 22
Their principal arguments are that (1) their only responsibility was 23

-- 24 of 29 --

25 No. 15‐2836‐cv
to prepare for individual resentencings; (2) resentencing the affected 1
offenders presented significant practical difficulties; and (3) New 2
York state judges and district attorneys were resistant to Earley I and 3
this prevented the prompt implementation of its holding. We 4
address each in turn. 5
1. The Scope of Defendants’ Responsibilities 6
The defendants seek to diminish the scope of their obligations 7
under Earley I by arguing that they reasonably believed that their 8
only responsibility was to prepare for individual resentencings 9
when requested by the defendants. 10
This argument makes no sense when applied to the subset of 11
offenders who suffered prospective PRS violations—that is, those 12
whom DOCS took into custody after we denied rehearing of Earley I. 13
The appropriate remedy for these offenders was not to 14
administratively add the PRS term and then prepare for 15
resentencing if and when requested. DOCS’s duty was to enter the 16
sentence imposed by the judge, and that sentence only, without the 17
PRS term required by § 70.45, and then to ensure that, by the time 18
the inmate left the custody of DOCS to begin serving any PRS term, 19
the term had been pronounced by a judge. 20
The argument is more plausible, but still unsuccessful, when 21
applied to the offenders who suffered retrospective PRS violations: 22
those in the custody of DOCS when Earley II was decided who had 23

-- 25 of 29 --

26 No. 15‐2836‐cv
yet to start serving their unpronounced PRS terms; those serving 1
unpronounced PRS terms when Earley II was decided; and those 2
reincarcerated for violations of such terms after Earley II. It is true 3
that when Earley I was decided there was no formal remedy for 4
addressing the problem of unpronounced PRS terms. However, 5
defendants’ launching of the resentencing initiative in 2008 coupled 6
with their filing of the declaratory judgment action undercuts their 7
claim that their only role was to passively wait for inmates to file 8
their individual lawsuits. When they saw fit to remediate the 9
situation they showed that they could take prompt and reasonable 10
steps to do so. 11
2. The Practical Difficulties of Resentencing 12
To be sure, resentencing all the violent felons with 13
unpronounced PRS terms presented practical difficulties and 14
required DOCS and DOP to devote significant resources to the 15
undertaking. There are two reasons, however, why these difficulties 16
do not persuade us that the defendants made objectively reasonable 17
efforts to comply with Earley I. 18
First, the defendants overstate what compliance with Earley I 19
would have required. Earley I did not require them to “conven[e] 20
resentencing hearings for thousands of violent‐felony offenders . . . 21
on [their] own,” Appellant’s Br. 51, nor would it have required them 22
to “notify[] state courts or prosecutors of each of the eight thousand 23

-- 26 of 29 --

27 No. 15‐2836‐cv
individuals they had identified as potentially requiring 1
resentencing,” id. at 55, all at once, thereby overwhelming the court 2
system. Instead, they simply had to undertake “objective[ly] 3
reasonable[]” efforts to comply with Earley I, which we have 4
previously characterized as “at least attempt[ing] to cease [their] 5
administrative and custodial operations that had been held to 6
violate federal law.” Vincent, 718 F.3d at 172‐73, 177. Contrary to 7
what the defendants assert, therefore, making “objective[ly] 8
reasonable[]” efforts to comply with Earley I was well within their 9
power and did not require them to do the impossible or even the 10
unreasonable. 11
The second answer to defendants’ argument based on the 12
logistical difficulties of resentencing is that the same supposed 13
difficulties did not prevent them from taking appropriate actions 14
after they decided to do so 14 to 19 months after we decided Earley 15
II. Each defendant testified that nothing prevented him from taking 16
these steps back in 2006, and the logistical difficulties did not 17
decrease in the interim. 18
3. The Resistance of Other Parties to Earley I 19
We accept the defendants’ claim that other state actors with 20
responsibility for resentencing, such as judges and district attorneys, 21
were resistant to Earley I’s holding, although we note that the Second 22
and Fourth Departments of the Appellate Division applied Earley I 23

-- 27 of 29 --

28 No. 15‐2836‐cv
prospectively without resistance. See Smith, 37 A.D.3d 499, 499, 829 1
N.Y.S.2d 226; Goord, 48 A.D.3d 1306, 1307, 853 N.Y.S.2d 756. 2
However, even if all other actors in the state sentencing system were 3
entirely resistant to Earley I, we must still answer the question 4
whether defendants themselves undertook “objective[ly] 5
reasonable[] . . . efforts to relieve [plaintiffs] of the burdens of those 6
unlawfully imposed terms after [defendants] knew it had been ruled 7
that the imposition violated federal law.” Vincent, 718 F.3d at 177. 8
The efforts made, or not made, by other parties are beside the point 9
for the purposes of determining qualified immunity.2 10
As the steps taken by defendants in the wake of Garner and 11
Sparber demonstrate, they could act in compliance with Earley I 12
without the cooperation of state judges and district attorneys. The 13
filing of a declaratory judgment action seeking approval of a 14
resentencing plan did not require the approval or cooperation of 15
other state officials. Similarly, the decision to review their records 16
and notify state judges and district attorneys about defendants who 17
needed to be resentenced required no cooperation from others. If 18
the district attorneys and judges ultimately rejected compliance, the 19
resentencings would not have taken place, but the defendants would 20
2 We have no occasion on this appeal to consider how, if at all, the
actions of others might inform any assessment of causation for specific
injuries claimed by plaintiffs against these defendants. Such matters can
be pursued as warranted on remand.

-- 28 of 29 --

29 No. 15‐2836‐cv
have satisfied their obligation, which was to make an “objective[ly] 1
reasonable[]” effort, Vincent, 718 F.3d at 177, to comply with Earley I. 2
In sum, we agree with the district court that the defendants 3
did not make an objectively reasonably effort “to relieve [plaintiffs] 4
of the burdens of those unlawfully imposed terms after [they] knew 5
it had been ruled that the imposition violated federal law.” Id. 6
II. Motion to Deem the Appeal Frivolous 7
The defendants attack the district court’s decision to grant 8
plaintiffs’ motion to deem the appeal frivolous so that the district 9
court could retain jurisdiction and proceed with a trial on damages 10
while the appeal was pending. This issue is moot because the 11
defendants obtained a stay of further proceedings in the district 12
court and thus there is no need to consider it. 13
We have considered the parties’ remaining arguments and 14
find them without merit. 15
CONCLUSION 16
For the reasons stated above, we AFFIRM the judgment of the 17
district court and REMAND for further proceedings consistent with 18
this opinion. 19

-- 29 of 29 --