18-3240
Garcia v. Falk et al.

                           UNITED STATES COURT OF APPEALS
                               FOR THE SECOND CIRCUIT

                                      SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED
BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE
NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A
COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

        At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the
18th day of October, two thousand nineteen.

Present:
            PIERRE N. LEVAL,
            DEBRA ANN LIVINGSTON,
            RAYMOND J. LOHIER, JR.,
                   Circuit Judges.
_____________________________________

ROBERT E. GARCIA,
                        Plaintiff-Appellant,

                  v.                                               18-3240

MICHAEL FALK, Area Supervisor, Queens III Parole,
VICTOR SUERO, Parole Officer, CANDACE
BENJAMIN, Sr. Parole Officer,

                        Defendants-Appellees,

DIVISION OF PAROLE, EXECUTIVE DEPARTMENT,
NEW YORK STATE DEPARTMENT OF CORRECTIONS,
AMES, Parole Officer, R. CHONG, Sr. Parole Officer,

                  Defendants.
_____________________________________

For Plaintiff-Appellant:                       ANDREW R. BEATTY, CHRISTOPHER R. FREDMONSKI &
                                               ALEXANDER C. HADEN, Skadden, Arps, Slate,
                                               Meagher & Flom LLP, New York, NY.

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For Defendants-Appellees:                  DAVID S. FRANKEL, Assistant Solicitor General
                                           (Barbara D. Underwood, Solicitor General, Steven C.
                                           Wu, Deputy Solicitor General, on the brief), for Letitia
                                           James, Attorney General, New York, NY.

       Appeal from a judgment of the United States District Court for the Eastern District of

New York (Hall, J.).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED.

       Plaintiff-Appellant Robert E. Garcia (“Garcia”) appeals from a September 26, 2018

decision and order granting Defendants-Appellees’ cross-motion for summary judgment and

dismissing Garcia’s 42 U.S.C. § 1983 claim on the grounds that, under the rule of Hassell v.

Fischer, 879 F.3d 41 (2d Cir. 2018), Garcia failed to establish a due process violation stemming

from Defendants-Appellees’ enforcement of his post-release supervision.

       We review a district court’s grant of summary judgment de novo, “resolv[ing] all

ambiguities and draw[ing] all inferences against the moving party.” Garcia v. Hartford Police

Dep’t, 706 F.3d 120, 127 (2d Cir. 2013) (per curiam). “Summary judgment is proper only when,

construing the evidence in the light most favorable to the non-movant, ‘there is no genuine dispute

as to any material fact and the movant is entitled to judgment as a matter of law.’” Doninger v.

Niehoff, 642 F.3d 334, 344 (2d Cir. 2011) (quoting Fed. R. Civ. P. 56(a)). We assume the parties’

familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.

       Garcia is one of many individuals affected by the New York State Department of

Correctional Service’s (“DOCS”) 1 policy of administratively adding terms of post-release


1
  The New York State Department of Correctional Services (“DOCS”) and the Division of Parole
(“DOP”) merged in 2011 to become the New York State Department of Corrections and Community
Supervision (“DOCCS”). For all relevant years in this appeal, however, the agencies operated
separately.


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supervision (“PRS”) to the determinate sentences of defendants in the New York state court

system.     This practice began in the wake of a sentencing reform statute passed by the New York

State legislature in 1998, which required determinate sentences to be followed by a period of

PRS, but did not require state court judges to pronounce the PRS term at sentencing. See N.Y.

Penal Law § 70.45(1).      DOCS subsequently began unilaterally calculating and imposing PRS

terms without consulting the sentencing judge in cases where the sentencing judge had not

imposed the statutorily required term of PRS.    In 2006, the Second Circuit deemed this practice

unconstitutional. See Earley v. Murray, 451 F.3d 71, 75–77, 76 n.1 (2d Cir. 2006), reh’g

denied, 463 F.3d 147 (2d Cir. 2006).

       Beginning in 1992, Garcia received numerous intersecting sentences in the New York

state courts which ultimately resulted in his serving, inter alia, a period of PRS between January

17, 2008 and September 5, 2008.      As relevant here, he was sentenced on March 14, 2000 to a

determinate term of 3.5 years for attempted robbery (the “2000 Sentence”).        The sentencing

judge did not orally pronounce a PRS term at the sentencing hearing. DOCS subsequently

added a five-year term of PRS to the 2000 Sentence in accordance with New York Penal Law §

70.45(2). Garcia entered custody in May 2000.       On November 27, 2001, he was conditionally

released to DOP to begin serving his term of PRS.

       In May 2004, Garcia was found delinquent by the DOP and charged in connection with

two burglaries, causing his remaining PRS term to be held in abeyance.      On July 19 and July

28, 2005, he was sentenced to two indeterminate terms of two-to-four years for burglary in the

third degree, to run concurrently. The maximum expiration date for that sentence was August

21, 2009.    He reentered DOCS custody on August 15, 2005 and was conditionally released to

resume the PRS term from the 2000 Sentence on January 17, 2008, while his numerous other


                                                3
sentences were held in abeyance. Garcia continued serving PRS until September 5, 2008, at

which point he was declared delinquent by DOP, thereby interrupting his period of PRS.

       Had Garcia not been subject to administratively imposed PRS from the 2000 Sentence

between January 17, 2008 and September 5, 2008, it is undisputed that he would have instead

been subject to conditional release, because August 21, 2009—the maximum expiration date of

his judicially pronounced sentences—had not yet passed. Furthermore, it is undisputed that the

terms and conditions of that conditional release would have been indistinguishable from the

terms and conditions of his supervision under PRS.

       In light of these characteristics of the term of PRS served by Garcia, the district court

concluded that Garcia’s claim must fail under Hassell v. Fischer.     In Hassell, this Court vacated

an award of nominal damages for administratively imposed PRS served during a period when the

plaintiff would have otherwise been subject to conditional release because the plaintiff had

“made no showing that the conditions of his PRS term were in any respect more onerous than

those of conditional release would have been.” Hassell, 879 F.3d at 52. Absent that “showing

of an adverse consequence,” the plaintiff in that case had “not suffered a denial of his due

process rights during that period.” Id.    The district court determined that Hassell was factually

indistinguishable from this case and squarely foreclosed liability.

       We agree. Hassell made clear that in order to demonstrate a denial of due process rights

for a period of administratively imposed PRS that is served prior to the expiration of a

determinate sentence, a plaintiff must show that the conditions of PRS are in some respect “more

onerous” than those to which the plaintiff would otherwise have been subject under conditional

release. Id. This reading of Hassell was confirmed by this Court’s recent decision in Reyes v.

Fischer, 934 F.3d 97 (2d Cir. 2019), which found that “unresolved factual questions as to


                                                 4
whether the conditions of administratively imposed PRS [were] more onerous than the

conditions of conditional release” were “crucial to the disposition” of the case because

“Hassell . . . made clear that the ‘more onerous’ standard is not only a question of damages, but

also one of liability,” id. at 106. Here, unlike in Reyes, no further factual development is

necessary, as discovery is complete and the parties agree that Garcia adduced no facts showing

that the conditions of his PRS were “more onerous” than those of conditional release.      In light

of the two recent precedential decisions of this Court establishing that a “more onerous” showing

is necessary in order to establish a due process violation in these circumstances, we conclude that

summary judgment in Defendants-Appellees’ favor was appropriate.

       We have considered Garcia’s remaining arguments and find them to be without merit.

Accordingly, we AFFIRM the judgment of the district court.

                                                     FOR THE COURT:
                                                     Catherine O’Hagan Wolfe, Clerk




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