     09-1451-cv
     Scott v. Superintendent

1                         UNITED STATES COURT OF APPEALS

2                              FOR THE SECOND CIRCUIT

3                                August Term, 2009

4    (Argued :    March 25, 2010                   Decided:   August 2, 2010)

5                              Docket No. 09-1451-cv

6                    -------------------------------------

7                                  CHOICE SCOTT,

8                               Plaintiff-Appellant,

9                                      - v -

10     SUPERINTENDENT BRIAN FISCHER, GLENN GOORD, RICHARD DE SIMONE,
11    AUDREY THOMPSON, JOHN DOES, Nos. 1-10 (members of the New York
12       State Department of Correctional Services whose names are
13                    presently unknown to plaintiff),

14                             Defendants-Appellees.

15                   -------------------------------------

16   Before:     SACK, RAGGI, and HALL, Circuit Judges.

17               Appeal from a judgment of the United States District

18   Court for the Southern District of New York (Naomi Reice

19   Buchwald, Judge) granting the defendants' motion to dismiss

20   plaintiff Choice Scott's action brought pursuant to 42 U.S.C.

21   § 1983 and the Fourteenth Amendment.      Scott alleges that the

22   defendants deprived her of liberty without due process of law

23   both by placing her on mandatory post-release supervision without

24   a proper judicial sentence and by failing to take action to

25   remove the supervision before or after she was rearrested for

26   violating the terms thereof.      The district court granted the

27   defendants' motion to dismiss on the ground that all of the
1    defendants are entitled to qualified immunity.   We agree that the

2    defendants are entitled to qualified immunity for all actions

3    they took prior to our decision in Earley v. Murray, 451 F.3d 71

4    (2d Cir. 2006), and further conclude that the plaintiff has not

5    pleaded sufficient facts to state a claim upon which relief can

6    be granted for any actions the defendants took thereafter.

7               Affirmed.

8                              ROBERT THOMAS PERRY, Brooklyn, NY, for
9                              Plaintiff-Appellant.

10                             LAURA R. JOHNSON, Assistant Solicitor
11                             General (Barbara D. Underwood, Richard
12                             Dearing, of counsel), for Andrew M.
13                             Cuomo, Attorney General of the State of
14                             New York, New York, NY, for Defendants-
15                             Appellees.

16   SACK, Circuit Judge:

17              Shortly before her release from prison, having served

18   all but a few days of her three-year sentence by a New York State

19   court for armed robbery, the plaintiff Choice Scott was informed

20   by the New York Department of Corrections that she would be

21   subject to a five-year period of post-release supervision

22   ("PRS").   PRS had neither been mentioned in her plea agreement

23   nor imposed by a judge, at sentencing or otherwise.   It was

24   prescribed administratively, instead, by the Department of

25   Corrections, acting pursuant to N.Y. Penal Law § 70.45, a New

26   York State statute that required that sentences for specified

27   violent felonies be accompanied by a mandatory term of PRS.

28              This is an appeal from a judgment of the United States

29   District Court for the Southern District of New York (Naomi Reice

                                      2
1    Buchwald, Judge) granting the defendants' motion to dismiss an

2    action brought by Scott pursuant to 42 U.S.C. § 1983 and the

3    Fourteenth Amendment.   Scott seeks compensatory and punitive

4    damages for being given a term of PRS that was not imposed by

5    judicial sentence, and for her subsequent arrest and

6    incarceration for non-compliance with the PRS.

7              The district court granted the defendants' motion to

8    dismiss on the ground that each defendant is entitled to

9    qualified immunity because the right that Scott asserts was

10   violated was not clearly established at the time of the alleged

11   violation.

12             It is now indeed clearly established that such an

13   administrative imposition of PRS is unconstitutional.    The

14   questions presented by this appeal are therefore whether that was

15   so at the time the Department of Corrections defendant-employees

16   administratively imposed PRS on Scott, and whether, following her

17   arrest and re-incarceration for violation of that PRS, Scott has

18   pleaded sufficient facts to set forth a viable claim that the

19   defendants violated clearly established constitutional law by

20   failing to take action to remove her administratively-imposed PRS

21   or to release her from custody.   We conclude in the negative as

22   to both questions and therefore affirm.

23                               BACKGROUND

24             On August 6, 1998, the New York State Legislature

25   enacted what is known as "Jenna's Law," N.Y. Penal Law



                                       3
1    § 70.45(1).   Under the law, certain violent felonies that had

2    theretofore been punished by the imposition of indeterminate

3    sentences1 were to be punished with a combination of a

4    determinate sentence and a mandatory term of PRS.2   Although PRS

5    was mandatory at all times relevant to this appeal, the statute

6    that so provided contained no requirement that a sentencing judge

7    impose the PRS or announce it, at sentencing or otherwise.3

8              Scott pleaded guilty to armed robbery in the second

9    degree on July 12, 1999.   In accordance with a plea agreement,

10   she was sentenced to a determinate sentence of three years, with

11   no mention by the sentencing judge at the time of sentencing,

12   either orally or in writing, of a term of PRS.   Not until July 1,

13   2002, a few days prior to her release from prison, did the

14   Department of Corrections inform Scott that she would be subject

15   upon release to a five-year period of PRS.




          1
            A law enacted in 1995 had abolished indeterminate
     sentences for certain felony offenses, but did not require PRS.
     Act of June 10, 1995, ch. 3, 1995 McKinney's N.Y. Laws 107, 108.
          2
            The terms and conditions of mandatory PRS can include
     curfews, travel restrictions, substance-abuse testing and
     treatment, and placement in residential facilities. People v.
     Catu, 4 N.Y.3d 242, 245, 825 N.E.2d 1081, 1082, 792 N.Y.S.2d 887,
     888 (2005). Violations of PRS can result in re-incarceration for
     five years or the remaining period of PRS, whichever is less.
     N.Y. Penal Law § 70.45(1).
          3
            Section 70.45(1) was subsequently amended in 2008 to
     require that a sentencing court "shall in each case state not
     only the term of imprisonment, but also an additional period of
     post-release supervision determined pursuant to this article."
     N.Y. Penal Law § 70.45(1) (2008).

                                      4
1               On March 12, 2004, after Scott failed to comply with

2    the terms of her PRS, defendant Thompson, a parole officer,

3    recommended the issuance of a parole violation warrant for her

4    arrest.    In October 2006, Scott was arrested in New Jersey

5    pursuant to that warrant, and extradited to New York.     Following

6    a parole revocation hearing held on January 16, 2007, Scott was

7    sentenced to an 18-month term of imprisonment for violation of

8    her PRS.

9               Scott filed a petition for a writ of habeas corpus in

10   state court to challenge her parole revocation.     On August 7,

11   2007, after she had been incarcerated at Rikers Island

12   Correctional Facility for some ten months, the writ was granted.

13   Scott was released shortly thereafter.     She then brought the

14   instant action pursuant to 42 U.S.C. § 1983 alleging that her

15   ten-month incarceration for violation of her PRS constituted a

16   deprivation of her liberty in violation of the Due Process Clause

17   of the Fourteenth Amendment.    She named as defendants Audrey

18   Thompson, the parole officer who requested the arrest warrant for

19   violation of the PRS; Brian Fischer, then-Commissioner of the New

20   York State Department of Correctional Services ("DOC"); Glenn

21   Goord, the former Commissioner of DOC; Richard de Simone, the

22   Associate Counsel in Charge of the Office of Sentencing Review at

23   DOC; and John Does Nos. 1-10, described as agents, employees,

24   officers and servants of DOC who actively participated in the

25   actions alleged in the complaint.     The allegations against

26   defendant Thompson were based on Thompson's procurement of the

                                       5
1    arrest warrant against Scott, while those against the DOC

2    officials were premised on their role in adopting, approving, or

3    ratifying the policy of administrative imposition of PRS pursuant

4    to which individuals such as Scott were administratively

5    sentenced.

6               The defendants moved to dismiss the complaint on four

7    grounds: (1) that abstention was appropriate under the Younger,

8    Pullman, and Colorado River abstention doctrines; (2) that Scott

9    failed to exhaust her state remedies, as required by Heck v.

10   Humphrey, 512 U.S. 477 (1994); (3) that Scott's claims were

11   barred by the statute of limitations; and (4) that the defendants

12   were entitled to qualified immunity.

13              The District Court Decision

14              The district court rejected the first three of the

15   defendants' arguments.   First, the court found abstention

16   inappropriate because, Scott having completed her sentence by the

17   time she filed the complaint, there was no possible State

18   resentencing proceeding from which to abstain.   Next, the court

19   rejected the defendants' exhaustion arguments because Scott's

20   conviction had been vacated and the time to resentence had

21   passed, so there were no more actions to be taken in her criminal

22   case.   Finally, the court rejected the defendants' statute of

23   limitations argument both because the statute of limitations was

24   tolled under Heck, supra, and because, even if it had not been,

25   the statute of limitations did not begin to run until Scott's PRS

26   was vacated in 2007.

                                      6
1                The district court nevertheless granted the defendants'

2    motion to dismiss because it concluded that all of the defendants

3    were entitled to qualified immunity.    The court based that

4    conclusion on the ground that the law governing administrative

5    imposition of PRS was not clearly established until this Court

6    decided Earley v. Murray, 451 F.3d 71 (2d Cir. 2006), cert.

7    denied, 551 U.S. 1159 (2007), noting that, prior to that time,

8    New York state courts had repeatedly ratified administrative

9    imposition of PRS.    The defendants were therefore entitled to

10   qualified immunity for all actions taken prior to the Earley

11   decision.

12               The district court decided that defendant Thompson was

13   entitled to qualified immunity because the issuance of the parole

14   violation warrant in 2004 occurred before Earley was decided and,

15   even had it occurred afterwards, it would have been reasonable

16   for Thompson to rely on government computer records to determine

17   that Scott was on and had violated the terms of her PRS, and to

18   procure an arrest warrant.    According to the court, defendants

19   Fischer, Goord, and de Simone, all then-current or former

20   officials of DOC, were entitled to qualified immunity because the

21   DOC policy of imposing administrative PRS that was applied to

22   Scott was implemented prior to 2002, and therefore prior to

23   Earley, and because Scott had not alleged personal involvement by

24   these defendants in any claimed constitutional violation after

25   Earley was decided.



                                       7
1              Scott appeals from the district court's judgment with

2    respect to the DOC defendants, although she does not challenge

3    the court's grant of qualified immunity to defendant Thompson.

4    She makes two principal arguments.    First, she contends that it

5    was error for the district court to conclude that the

6    administrative imposition of PRS was not clearly established to

7    be unconstitutional until Earley was decided.   Rather, Scott

8    argues, the law has been clearly established since the Supreme

9    Court's 1936 decision in Hill v. United States ex rel. Wampler,

10   298 U.S. 460, 464 (1936), and therefore the defendants are not

11   entitled to qualified immunity with respect to any of the actions

12   alleged in the complaint.   In the alternative, she argues that

13   her complaint alleges sufficient personal involvement in the

14   post-Earley period by defendants Fischer, Goord, De Simone, and

15   other high-level DOC officials, that dismissal was inappropriate

16   in any event.4

17                                DISCUSSION

18             I.     Standard of Review

19             We review a district court's grant, on qualified

20   immunity grounds, of a motion to dismiss made pursuant to Federal

21   Rule of Civil Procedure 12(b)(6) de novo, accepting as true all


          4
             Neither Scott nor the defendants ask us to review the
     district court's ruling as to the Younger, Pullman, and Colorado
     River abstention doctrines, exhaustion of her state remedies, or
     the application of the statute of limitations. Accordingly, we
     deem any such arguments waived and do not address those issues
     further below. See Norton v. Sam's Club, 145 F.3d 114, 117 (2d
     Cir. 1998).

                                       8
1    material allegations of the complaint and drawing all reasonable

2    inferences in favor of the plaintiff.    See Pena v. DePrisco, 432

3    F.3d 98, 107 (2d Cir. 2005); see also Slayton v. Am. Express Co.,

4    604 F.3d 758, 766 (2d Cir. 2010).     We may affirm a district

5    court's dismissal of a complaint on any basis supported by the

6    record.   Thyroff v. Nationwide Mut. Ins. Co., 460 F.3d 400, 405

7    (2d Cir. 2006); see also Leecan v. Lopes, 893 F.2d 1434, 1439 (2d

8    Cir. 1990) ("[W]e are free to affirm an appealed decision on any

9    ground which finds support in the record, regardless of the

10   ground upon which the trial court relied."), cert. denied, 496

11   U.S. 929 (1990).

12              II.   Qualified Immunity

13              "[G]overnment officials performing discretionary

14   functions generally are shielded from liability for civil damages

15   insofar as their conduct does not violate clearly established

16   statutory or constitutional rights of which a reasonable person

17   would have known."   Harlow v. Fitzgerald, 457 U.S. 800, 818

18   (1982); accord Pearson v. Callahan, 129 S.Ct. 808, 815 (2009).

19   To determine whether a right is clearly established, we look to

20   (1) whether the right was defined with reasonable specificity;

21   (2) whether Supreme Court or court of appeals case law supports

22   the existence of the right in question, and (3) whether under

23   preexisting law a reasonable defendant would have understood that

24   his or her acts were unlawful.   See Shechter v. Comptroller of

25   City of N.Y., 79 F.3d 265, 271 (2d Cir. 1996).    Even if this or


                                       9
1    other circuit courts have not explicitly held a law or course of

2    conduct to be unconstitutional, the unconstitutionality of that

3    law or course of conduct will nonetheless be treated as clearly

4    established if decisions by this or other courts "clearly

5    foreshadow a particular ruling on the issue," Varrone v. Bilotti,

6    123 F.3d 75, 79 (2d Cir. 1997) (internal quotation marks

7    omitted), even if those decisions come from courts in other

8    circuits, see, e.g., id.; Weber v. Dell, 804 F.2d 796, 801 n.6,

9    803-04 (2d Cir. 1986) (relying on decisions by seven other

10   circuits finding similar searches unconstitutional, even though

11   this Circuit had not yet reached the issue, in concluding that

12   the defendant was not entitled to immunity), cert. denied, 483

13   U.S. 1020 (1987).

14   A. When the Law Governing Administrative
15      PRS Became Clearly Established

16             1.   "Clearly Established" Law Prior to Earley.   In

17   Earley, we held that if a sentencing court does not explicitly

18   impose a term of PRS on a criminal defendant, it is

19   unconstitutional for DOC subsequently to impose one, irrespective

20   of whether DOC is acting pursuant to a statute that makes such

21   PRS a mandatory part of the sentence of the crime for which that

22   defendant has been convicted.   Earley, 451 F.3d at 76.

23             Before Earley was decided, New York State courts had

24   routinely upheld the administrative imposition of mandatory PRS

25   under Jenna's Law.   See, e.g., Deal v. Goord, 8 A.D.3d 769, 769-

26   70, 778 N.Y.S.2d 319, 320 (3d Dep't 2004); People v. Crump, 302


                                     10
1    A.D.2d 901, 902, 753 N.Y.S.2d 793, 793 (4th Dep't 2003); People

2    v. Lindsey, 302 A.D.2d 128, 129, 755 N.Y.S.2d 118, 119 (3d Dep't

3    2003).   The New York Court of Appeals, though, cast some doubt on

4    the practice in its 2005 decision in People v. Catu, 4 N.Y.3d

5    242, 244-45, 792 N.Y.S.2d 887, 888-89 (2005).    There it held that

6    a defendant who was not informed by the court of his PRS

7    obligation at the time of his plea was entitled to have his plea

8    vacated.   However, because its decision rested on the

9    constitutional obligation of the courts to inform a defendant of

10   the direct consequences of a plea, of which it held PRS was one,

11   the Catu court did not directly address the question of whether

12   the administrative imposition of PRS was itself unconstitutional.

13              Scott argues that the law was clearly established, more

14   than 70 years prior to Earley, by the Supreme Court's decision in

15   Hill v. United States ex rel. Wampler, 298 U.S. 460, 464 (1936)

16   (Cardozo, J.).    She relies on the Court's observation there that

17   "[t]he only sentence known to law is the sentence or judgment

18   entered upon the records of the court."    We are not persuaded.

19              In Earley, we did indeed rely on Wampler and the quoted

20   passage to decide that administrative sentencing to PRS is

21   unconstitutional.   Earley, 451 F.3d at 75-76 & n.1.   We said that

22   "[t]he state court's determination that the addition to Earley's

23   sentence by DOCS was permissible is [] contrary to clearly

24   established federal law as determined by the United States

25   Supreme Court."   Id. at 76.   And in denying a motion for

26   rehearing by the panel, we further noted that "Wampler undeniably

                                      11
1    stands for the proposition that the only valid terms of a

2    defendant's sentence are the terms imposed by the judge."    Earley

3    v. Murray, 462 F.3d 147, 149 (2d Cir. 2006) (denying petition for

4    panel rehearing).

5              But Earley was a habeas proceeding governed by the

6    Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA").

7    And "[u]nder AEDPA, an application for a writ of habeas corpus

8    may not be granted unless the state court's adjudication of the

9    claim was 'contrary to, or involved an unreasonable application

10   of, clearly established Federal law, as determined by the Supreme

11   Court of the United States.'"   Earley, 451 F.3d at 74 (emphasis

12   added) (quoting 28 U.S.C. § 2254(d)(1)).   The conclusion, in the

13   course of such a section 2254 review, that a legal proposition

14   was "clearly established" for purposes of its application by

15   professional state court judges does not require a conclusion

16   that it was "clearly established" in the qualified immunity

17   context, which governs the conduct of government officials who

18   are likely neither lawyers nor legal scholars.   See Williams v.

19   Taylor, 529 U.S. 362, 380 n.12 (2000) ("We are not persuaded by

20   the argument that because Congress used the words 'clearly

21   established law' . . . it meant in [AEDPA] to codify an aspect of

22   the the doctrine of executive qualified immunity. . . .");

23   Walczyk v. Rio, 496 F.3d 139, 154 n.16 (2d Cir. 2006) (noting

24   that "considerations informing limitations on habeas review are

25   sufficiently distinct from those prompting recognition of

26   qualified immunity to preclude easy analogy"); see also

                                     12
1    McCullough v. Wyandanch Union Free Sch. Dist., 187 F.3d 272, 278

2    (2d Cir. 1999) ("The question [for qualified immunity purposes]

3    is not what a lawyer would learn or intuit from researching case

4    law, but what a reasonable person in the defendant's position

5    should know about the constitutionality of the conduct.").

6              Moreover, Wampler involved the non-judicial imposition

7    of a sentence that was ordinarily reserved to the discretion of

8    the sentencing judge but that the sentencing judge had not in

9    that case imposed, not the imposition of a mandatory term of

10   supervision that was explicitly required by statute.   See Earley,

11   451 F.3d at 74 ("recogniz[ing] differences between the facts of

12   Wampler and those before us [in this case]," viz., that Wampler

13   involved a sentencing decision that was "by law, within the

14   discretion of the sentencing judge").   A reasonable state

15   official could therefore conclude, as did many New York courts in

16   the pre-Earley decisions cited above, that inasmuch as the

17   sentences were mandated by law rather than being in the

18   discretion of the courts to impose, it was not unconstitutional

19   under Wampler to impose such sentences administratively.     Cf.

20   Richardson v. Selsky, 5 F.3d 616, 623 (2d Cir. 1993) ("If the

21   district judges in the Southern District of New York, who are

22   charged with ascertaining and applying the law, could not

23   determine the state of the law with reasonable certainty, it

24   seems unwarranted to hold prison officials to a standard that was

25   not even clear to the judges, especially since prescience on the



                                    13
1    part of prison officials is not required with respect to the

2    future course of constitutional law.").

3              Jenna's Law made PRS a mandatory part of sentences for

4    specified crimes of violence.   See N.Y. Penal Law § 70.45.   There

5    is a well-established "general principle that, absent contrary

6    direction, state officials and those with whom they deal are

7    entitled to rely on a presumptively valid state statute, enacted

8    in good faith and by no means plainly unlawful."   Lemon v.

9    Kurtzman, 411 U.S. 192, 208-09 (1973); accord Vives v. City of

10   N.Y., 405 F.3d 115, 117 (2d Cir. 2005).   In the presence of a

11   statute that requires all sentences for certain crimes to be

12   accompanied by mandatory PRS, and New York cases that routinely

13   upheld the administrative imposition of that PRS, we conclude

14   that it was not clearly established for qualified immunity

15   purposes prior to Earley that the administrative imposition of

16   PRS violates the Due Process Clause.

17             2.   "Clearly Established" Law after Earley.   Whether

18   Earley itself sufficed clearly to establish the

19   unconstitutionality of administratively imposed PRS for a

20   reasonable New York State correctional official may be open to

21   question inasmuch as two Departments of the New York Appellate

22   Division thereafter continued to find the practice

23   constitutional, conclusions that appear to reflect oversight

24   rather than defiance of Earley.    See Garner v. N.Y. State Dep't

25   of Corr. Servs., 39 A.D.3d 1019, 831 N.Y.S.2d 923 (3d Dep't

26   2007); People v. Thomas, 35 A.D.3d 192, 826 N.Y.S.2d 36 (1st

                                       14
1    Dep't 2006).   It was not until 2008 that the New York Court of

2    Appeals held that administrative imposition of PRS by DOC

3    violated the Due Process Clause.     See Garner v. N.Y. State Dep't

4    of Corr. Servs., 10 N.Y.3d 358, 859 N.Y.S.2d 590 (2008); People

5    v. Sparber, 10 N.Y.3d 457, 859 N.Y.S.2d 582 (2008).    In

6    circumstances of such apparent judicial confusion as to the

7    constitutional propriety of a statutory mandate, qualified

8    immunity might well continue to shield state officials acting

9    pursuant to that statute.   See generally Wilson v. Layne, 526

10   U.S. 603, 617 (1999) (holding that state officials "cannot have

11   been expected to predict the future course of constitutional

12   law." (internal quotation marks omitted)); see also id. at 618

13   ("If judges thus disagree on a constitutional question, it is

14   unfair to subject police to money damages for picking the losing

15   side of a controversy."); Vives, 405 F.3d at 118 (refusing to

16   find the law clearly established where "several courts have

17   specifically declined to find [it] unconstitutional").5

18             To resolve this appeal, however, we need not and

19   therefore do not decide precisely when it became clearly

20   established that the administrative imposition of PRS, even when

21   statutorily mandated, is unconstitutional.    It suffices for us to



          5
            It was two months after Garner and Sparber were decided
     that the New York State Legislature created a statewide statutory
     "framework" for resentencing or otherwise handling the cases of
     inmates who had received administrative imposition of PRS,
     thereby imposing an affirmative duty on the part of government
     officials to resentence or release such inmates. N.Y. Corr. Law.
     § 601-d (2008).

                                     15
1    conclude, as we do, that the law was not clearly established

2    before our decision in Earley, the period during which PRS was

3    imposed by DOC on Scott.

4    B. When Defendants' Allegedly Unconstitutional Conduct Took Place

5              On appeal, Scott advances two separate theories as to

6    when the defendants' allegedly unconstitutional conduct took

7    place, only one of which appears to have been asserted in her

8    complaint.   First, she argues that in 2002, four years before

9    Earley, the DOC defendants violated her constitutional rights by

10   taking part in the administrative imposition of her PRS,

11   presumably through their role in the creation or ratification of

12   DOC policies governing PRS.   For the reasons we have already

13   rehearsed, because any conduct on the defendants' part that led

14   to the imposition of Scott's PRS occurred some four years before

15   Earley, the law as to the unconstitutionality of such acts was

16   not clearly established when they took place and the defendants

17   are therefore entitled to qualified immunity.

18             Scott argues further, however, that even after Earley,

19   the DOC defendants violated her constitutional rights (1) by not

20   seeking to remove her PRS or quash her warrant in light of

21   Earley, (2) by revoking her PRS and sentencing her to ten months'

22   incarceration, and (3) by not releasing her while she remained in

23   custody or seeking to have her resentenced in light of Earley.

24             The only allegation contained in the complaint that

25   addresses the DOC defendants' purportedly unconstitutional

26   actions with respect to Scott's PRS is that they "adopted,

                                     16
1    approved, and/or ratified the imposition of mandatory [PRS] on

2    individuals such as plaintiff sentenced to determinate terms of

3    imprisonment in New York State courts but not sentenced to

4    mandatory [PRS]."   Compl. ¶ 16.    This allegation does not appear

5    to include Scott's second, tripartite argument advanced on appeal

6    concerning actions taken after our decision in Earley.    Reading

7    the allegation in the complaint liberally, as we are required to

8    do when reviewing the grant of a motion to dismiss, the challenge

9    is directed at the administrative imposition of PRS, not the

10   failure to take action to remove it after it was imposed.

11             Nevertheless, because we recognize that "[a]

12   supervisory official may be liable [under section 1983 not only]

13   because he or she created a policy or custom under which

14   unconstitutional practices occurred, [but also because he or she]

15   allowed such a policy or custom to continue," Williams v. Smith,

16   781 F.2d 319, 323 (2d Cir. 1986), we consider Scott's claims to

17   the extent that she is arguing that the defendants

18   unconstitutionally allowed her administrative PRS to continue

19   after the practice was clearly established to be

20   unconstitutional.

21             We conclude that the facts pleaded are insufficient to

22   make out such a claim.   None of Scott's allegations with respect

23   to the DOC defendants include assertions that affirmative actions

24   taken by these defendants after Earley violated her rights; they

25   refer only to the DOC defendants' failure to act.    And Scott has

26   not pleaded facts giving rise to a clearly established

                                        17
1    affirmative legal obligation on the part of the DOC defendants to

2    take any of the actions that Scott alleges they failed to take.

3    A claim for failure to act is cognizable only in the presence of

4    a corresponding duty to have acted.   See, e.g., Benzman v.

5    Whitman, 523 F.3d 119, 132 (2d Cir. 2008) (finding no violation

6    of law where Environmental Protection Agency allegedly failed to

7    consider certain factors pertaining to air quality after the 9/11

8    attacks because "there is no allegation of any failure to carry

9    out a mandatory duty to take a discrete action required by the

10   [National Contingency Plan]"); cf. Musso v. Hourigan, 836 F.2d

11   736, 743 (2d Cir. 1988) ("As a general rule, a government

12   official is not liable for failing to prevent another from

13   violating a person's constitutional rights, unless the official

14   is charged with an affirmative duty to act.").   In the absence of

15   such an allegation, this claim must fail.

16              1. Failure to Seek to Remove Scott's PRS or Quash Her

17   Warrant after Earley.   Scott asserts in her brief that the DOC

18   defendants violated her due process rights by failing to take

19   action to remove her PRS and quash her warrant after Earley was

20   decided.   See, e.g., Appellant's Br. at 19 (noting that "DOC[]

21   did not seek to have any criminal defendants re-sentenced to PRS

22   until July 2008").   Thus the argument seems to be that after

23   Earley was decided but before Scott was arrested by the New York

24   State Division of Parole, DOC should have searched its records

25   for people who had PRS imposed administratively and purged the



                                     18
1    PRS.       But this argument fails because no facts are alleged in the

2    complaint that would support a finding that DOC had the power,

3    through its employees, unilaterally to revoke Scott's PRS despite

4    the conceded fact that DOC had imposed it.

5                   Indeed, it was not until June 2008, some ten months

6    after Scott's release from her parole violation sentence, that

7    the New York State Legislature provided a statutory method by

8    which government officials could seek to resentence or otherwise

9    handle the cases of inmates who had received administrative

10   imposition of PRS, also thereby imposing an affirmative duty on

11   the part of such officials to do so.       See N.Y. Corr. Law § 601-d

12   (2008).       And Scott herself concedes that "New York law prohibits

13   DOC[] from unilaterally correcting sentences -- even illegal

14   ones."       Appellant's Br. at 16 (citing Murray v. Goord, 298 A.D.2d

15   94, 97, 747 N.Y.S.2d 492 (1st Dep't. 2002)).

16                  Even if there were a basis for a conclusion that DOC

17   officials had the power unilaterally to revoke her PRS, moreover,

18   there is no pleaded basis on which to conclude that DOC would

19   have been obligated under Earley to do so.       Scott provides no

20   authority for the proposition asserted on appeal that DOC, as

21   opposed to the District Attorney, the sentencing court, the

22   Division of Parole, or any other state actor with

23   responsibilities with respect to criminal sentencing,6 had such



            6
             Earley explicitly recognized the right of the state
     officials to seek resentencing for persons serving terms of
     administratively-imposed PRS. Earley, 451 F.3d at 77.

                                         19
1    an affirmative legal duty at the time, much less a clearly

2    established one.       See Mitchell v. Forsyth, 472 U.S. 511, 526

3    (1985) ("Unless the plaintiff's allegations state a claim of

4    violation of clearly established law, a defendant pleading

5    qualified immunity is entitled to dismissal."); accord Pearson,

6    129 S.Ct. at 815.

7                   2. Revocation of Scott's PRS.   Scott also asserts, in

8    her brief if not in her complaint, that the DOC defendants

9    violated her constitutional rights in connection with her parole

10   violation hearing after her arrest for non-compliance with her

11   PRS.       But that hearing was conducted entirely by and before the

12   New York State Division of Parole.       See Appellant's Br. at 19

13   (arguing that DOC "allowed perhaps thousands of criminal

14   defendants, including appellant, to be arrested and re-

15   incarcerated for violating their administratively-imposed PRS").

16   Scott does not plead facts that, if proven, could establish that

17   the DOC defendants were aware of, let alone participated in, the

18   hearing.7      To the contrary, Scott herself asserts that "appellees

19   may not have known of appellant's arrest or participated in

20   appellant's parole revocation hearing."        Appellant's Br. at 25.

21   This lack of alleged personal involvement or knowledge bars any

22   claim that the DOC defendants can be held liable for what

23   occurred at the hearing.       See McKinnon v. Patterson, 568 F.2d

            7
            There is no evidence in the record that the DOC defendants
     had any contact at all with Scott during this period. Quite to
     the contrary, it appears that Scott was being held at Riker's
     Island, a non-DOC facility.

                                         20
1    930, 934 (2d Cir. 1977) ("In this Circuit personal involvement of

2    defendants in alleged constitutional deprivations is a

3    prerequisite to an award of damages under [section] 1983."),

4    cert. denied, 434 U.S. 1087 (1978); accord Colon v. Coughlin, 58

5    F.3d 865, 873-74 (2d Cir. 1995).         To be sure, "[t]he personal

6    involvement of a supervisory defendant may be shown by evidence

7    that: . . . the defendant created a policy or custom under which

8    unconstitutional practices occurred, or allowed the continuance

9    of such a policy or custom," Colon, 58 F.3d at 873, but the

10   practice of re-incarcerating persons who violated their

11   administratively-imposed PRS was a practice of the Division of

12   Parole, and not of DOC, and was not a practice over which Scott

13   has alleged the DOC defendants had any knowledge or control.

14                  3. Failure To Release Scott from Incarceration or To

15   Move to Have Her Resentenced.       Finally, Scott asserts that the

16   DOC defendants violated her Due Process rights by not taking

17   action to release her from custody after she was sentenced to

18   eighteen months' incarceration for violating the terms of her

19   PRS.       See, e.g., Appellant's Br. at 26 (arguing that "appellees

20   could have rescinded appellant's administratively-imposed PRS and

21   requested parole officials to issue any necessary release

22   orders").       But there is no allegation of a failure to release or

23   failure to seek resentencing in her complaint,8 nor indeed does



            8
            Scott did, however, appear to make an argument to this
     effect in her opposition to defendants' motion to dismiss. See
     Appellant's Reply Br. at 8.

                                         21
1    the complaint assert that the DOC defendants themselves knew

2    whether her PRS had been imposed administratively or judicially.

3    There is nothing in the complaint, then, that would support a

4    conclusion that the defendants were deliberately indifferent to

5    known violations of Scott's rights.    See Colon, 58 F.3d at 873-

6    74.

7              And again, Scott has failed to point to any clearly

8    established affirmative duty on the part of the DOC defendants to

9    make a motion to correct her sentence.    Mitchell, 472 U.S. at

10   526; Pearson, 129 S.Ct. at 815.    Under New York law, DOC was not

11   obligated affirmatively to seek resentencing for defendants with

12   administratively-imposed PRS until 2008, when New York Correction

13   Law § 601-d became effective, N.Y. Corr. Law § 601-d(1),(2)

14   (2008), but after Scott's incarceration had ended.

15             Scott would in any event have had doubtful standing to

16   pursue this claim because of the absence of any pleaded injury-

17   in-fact to her arising from the DOC defendants' failure to act in

18   this regard.    See Lujan v. Defenders of Wildlife, 504 U.S. 555,

19   560 (1992) (requiring, as an "irreducible constitutional minimum

20   of standing," that "the plaintiff must have suffered an 'injury

21   in fact'").    If, as Scott has conceded, DOC could not have

22   unilaterally released her from custody after the Administrative

23   Law Judge or the Division of Parole had issued an order revoking

24   her parole, the only injury Scott could be alleging arises from

25   the DOC defendants' failure to make a motion for her release.

26   But Scott herself made that motion -- successfully -- through her

                                       22
1    habeas petition and was thereupon released.   Her complaint does

2    not allege that she would have been released earlier had DOC made

3    the motion, and, even had such an argument been made, we are

4    skeptical of the viability of an argument that a DOC motion for

5    release in light of Earley would result in an earlier release

6    date than a defendant-initiated motion.   Absent an allegation

7    that the failure to make the motion for her release resulted in

8    increased time spent incarcerated, we fail to understand how

9    injury in fact has been pleaded in this regard.

10                              CONCLUSION

11             For the foregoing reasons, we affirm the judgment of

12   the district court.




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