Betances v. Fischer

• Decision Date: 06 August 2015
• Docket Number: No. 11–cv–3200 (SAS).,11–cv–3200 (SAS).
• Citation: 144 F.Supp.3d 441
• Parties: Paul BETANCES, Lloyd A. Barnes, Gabriel Velez a/k/a Gabriel Belize, individually and on behalf of all others similarly situated, Plaintiffs, v. Brian FISCHER, in his capacity as Commissioner of the New York State Department of Correctional Services (Docs), and in his individual capacity; Anthony J. Annucci, in his capacity as Deputy Commissioner and Counsel for Docs, and in his individual capacity; Lucien J. LeClaire, JR., former Acting Commissioner of DOCS, in his individual capacity; Glenn S. Goord, former Commissioner of DOCS, in his individual capacity; John/Jane Does 1–25 (Docs Supervisory, Training, and Policy Personnel); Andrea W. Evans, in her capacity as Chair and Chief Executive Officer of the New York State Division of Parole (DOP), and in her individual capacity; Mark Mantei, in his capacity as Executive Director of DOP, and in his individual capacity; Terence Tracy, in his capacity as Chief Counsel for DOP, and in his individual capacity; Robert J. Dennison, former Chair of DOP, in his individual capacity; Anthony G. Ellis II, former Executive Director of DOP, in his individual capacity; George B. Alexander, former Chair and Chief Executive Officer of DOP, in his individual capacity; and John/Jane Does 26–50 (DOP Supervisory, Training, and Policy Personnel), Defendants.
• Court: U.S. District Court — Southern District of New York

144 F.Supp.3d 441

Paul BETANCES, Lloyd A. Barnes, Gabriel Velez a/k/a Gabriel Belize, individually and on behalf of all others similarly situated, Plaintiffs,

v.Brian FISCHER, in his capacity as Commissioner of the New York State Department of Correctional Services (Docs), and in his individual capacity; Anthony J. Annucci, in his capacity as Deputy Commissioner and Counsel for Docs, and in his individual capacity; Lucien J. LeClaire, JR., former Acting Commissioner of DOCS, in his individual capacity; Glenn S. Goord, former Commissioner of DOCS, in his individual capacity; John/Jane Does 1–25 (Docs Supervisory, Training, and Policy Personnel); Andrea W. Evans, in her capacity as Chair and Chief Executive Officer of the New York State Division of Parole (DOP), and in her individual capacity; Mark Mantei, in his capacity as Executive Director of DOP, and in his individual capacity; Terence Tracy, in his capacity as Chief Counsel for DOP, and in his individual capacity; Robert J. Dennison, former Chair of DOP, in his individual capacity; Anthony G. Ellis II, former Executive Director of DOP, in his individual capacity; George B. Alexander, former Chair and Chief Executive Officer of DOP, in his individual capacity; and John/Jane Does 26–50 (DOP Supervisory, Training, and Policy Personnel), Defendants.

No. 11–cv–3200 (SAS).

United States District Court, S.D. New York.

Signed Aug. 6, 2015.

Matthew D. Brinckerhoff, Esq., Hayley Horowitz, Esq., Emery Celli Brinckerhoff & Abady, LLP, New York, NY, for Plaintiffs.

Michael J. Keane, Anna Hehenberger, Christina Chinwe Okereke, James Brennan Cooney, Assistant Attorneys General, State of New York, New York, NY, for Defendants.

OPINION AND ORDER

SHIRA A. SCHEINDLIN

, District Judge.

I. INTRODUCTION

Beginning in 1998, New York mandated that certain violent felonies be punished by a determinate prison sentence followed by a mandatory term of parole, known as post-release supervision (“PRS”).¹ The governing statute did not require that the term of PRS be announced by the judge at sentencing. In thousands of cases where the judge did not impose a term of PRS at sentencing, the New York State Department of Correctional Services (“DOCS”) imposed PRS on convicted felons either before or as they were released from prison and the Department of Parole (“DOP”) then enforced those terms.

On June 9, 2006, in Earley v. Murray,² the United States Court of Appeals for the Second Circuit held that the administrative imposition of PRS by DOCS violates the federal constitutional right to due process. Lead plaintiffs brought claims pursuant to section 1983 of Title 42 of the United States Code

against current and former high-ranking officials at DOCS and DOP on behalf of all persons who were sentenced to prison in New York State for a fixed term that did not include a term of PRS, but who were nevertheless subjected to PRS after the maximum expiration dates of their determinate sentences and after June 9, 2006. Defendants moved to dismiss the Complaint on the grounds that because plaintiffs' constitutional rights were not “clearly established” at the time that those rights were allegedly violated, state officials were entitled to qualified immunity for their actions. On February 10, 2012, I held that defendants were not entitled to qualified immunity. Defendants appealed this ruling, and the Second Circuit affirmed.³ Plaintiffs subsequently moved for, and this Court granted, class certification.⁴

Defendants now move for summary judgment, asserting (for the third time) that they are entitled to qualified immunity, as well as other arguments. Plaintiffs oppose the motion and move for partial summary judgment. For the following reasons, defendants' motion is granted in part and denied in part, and plaintiffs' motion is granted.

II. BACKGROUND⁵

A. Administrative Imposition of PRS

In 1998, the New York Legislature enacted Penal Law § 70.45

, also known as Jenna's Law, which mandated PRS terms for individuals convicted of violent felonies.⁶ However, judges did not always pronounce PRS terms when sentencing defendants covered by the statute or include PRS terms on their sentence and commitment orders.⁷ In these circumstances, DOCS calculated terms of PRS and included those terms on inmates' records.⁸ These records were provided to the Department of Parole (“DOP”).⁹ DOP enforced the PRS terms as calculated by DOCS.¹⁰

On June 9, 2006, the Second Circuit held in Earley that the administrative imposition of PRS by DOCS violates the federal constitutional right to due process.¹¹ Earley held that a sentence is “never anything other than” the sentence imposed by the judge at the sentencing hearing and recorded in the order of commitment.¹² “The additional provision for post-release supervision added by DOCS is a ity.... The penalty administratively added by the Department of Corrections was, quite simply, never a part of the sentence.”¹³ Defendants in Earley had argued that section 70.45

mandated a period of PRS and therefore was necessarily a part of the sentence—that is, any sentence without a term of PRS was illegal.¹⁴ The Second Circuit disagreed that the term of PRS was automatic, and stated that, rather than administratively imposing PRS, New York law provided a remedy to correct any “illegal sentence[:] the state may move to have the offending sentence vacated and the defendant resentenced by a judge,” consistent with New York Criminal Procedure Law Section 440.40.¹⁵

B. Initial Response to Earley

Anthony Annucci served as DOCS's counsel until October 1, 2007, when he became executive deputy commissioner and counsel. In December 2008, he retired as counsel but remained executive deputy counsel of DOCS until April 2011, when he became executive deputy commissioner of the Department of Corrections and Community Supervision (“DOCCS”), a new entity formed by the merger of DOCS and DOP.¹⁶ As counsel for DOCS, one of Annucci's duties was to implement judicial decisions with apparent impact on DOCS's calculation of sentences.¹⁷

On July 20, 2009, Annucci sent an email to John Amodeo, counsel to the New York State Office of Court Administration (“OCA”).¹⁸ In that email, Annucci summarized the holding of Earley and anticipated that “numerous inmates [would] file court actions seeking to eradicate their terms of PRS.”¹⁹ He recommended that an instructional reminder be sent to all sitting criminal term judges, stating that “[r]ecent case law provides that [PRS] can only be imposed on the record by the sentencing judge at the time sentence is pronounced, and cannot subsequently be added by a clerical staff person employed either with the court system or the correctional system.”²⁰ In August 2006, Annucci directed all DOCS Inmate Records Coordinators to inform inmates who questioned their PRS terms that DOCS officials would not follow Earley's holding.²¹

Brian Fischer was the commissioner of DOCS, and then commissioner of DOCCS, from January 1, 2007 until April 2013.²² Fischer was aware of Earley, and, as commissioner of DOCS, had the authority to decide whether to change DOCS's policy relating to the imposition of PRS.²³ Fischer decided to maintain DOCS's policy of administratively imposing PRS and await further guidance from the legislature and the courts.²⁴

Terrence Tracy was the chief counsel for DOP from December 1996 through March 2011,²⁵ Tracy was aware of Earley in 2006 and understood that it could have an impact on the population under DOP's jurisdiction.²⁶ Tracy was aware of DOCS's practice of adding PRS to inmates' sentence calculations where the sentence and commitment orders were silent, and knew that there were individuals under DOP supervision who had not been judicially sentenced to PRS.²⁷ Tracy did not review any files after Earley to determine which parolees were under supervision but had not been judicially sentenced to PRS.²⁸

C. Resentencing Efforts

In early 2007, DOCS—at Annucci's order as authorized by Fischer—began to review inmate files to identify those whose sentence and commitment orders did not indicate PRS, but who nevertheless had PRS added to their sentences.²⁹ Over four to six weeks, DOCS created a database to indicate whether PRS was indicated on the commitment order, and kept this database updated as new inmates entered DOCS's custody.³⁰ DOCS identified approximately 8,100 individuals whose sentence and commitment orders were silent regarding PRS but whose terms of PRS had been calculated and added by DOCS.³¹

In April 2008, the New York Court of Appeals decided Garner v. New York State Department of Correctional Services,³² and People v. Sparber,³³ which held that New York's procedural law required judicial pronouncement of PRS. DOCS, along with other agencies, including DOP, immediately launched the “Post–Release Supervision Resentencing Initiatives,” which sought to resentence individuals in DOCS custody who had not been judicially sentenced to PRS.³⁴ From June 16 through June 20, 2008, DOP reviewed its records to determine which individuals in its custody were being supervised without PRS terms in their sentence and commitment orders.³⁵

On June 30, 2008, the New York State Legislature passed legislation codifying the procedures proposed by DOCS and DOP to remedy PRS problems.³⁶

III. LEGAL STANDARD

Summary judgment is appropriate “only where, construing all the evidence in the light most favorable to the non-movant and drawing all reasonable inferences in that party's favor, there is ‘no genuine issue as to any material fact and ... the movant is entitled to judgment as a matter of law.’ ”³⁷ “A fact is material if it might affect the outcome of the suit under the governing law, and an issue of fact is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.”³⁸

“[T]he moving party has the burden of showing that no genuine issue of material fact exists and that the undisputed facts entitle [it] to judgment as a matter of law.”³⁹ To defeat a ...