17-1970- cv
Reyes v. Fischer

                    UNITED STATES COURT OF APPEALS

                           FOR THE SECOND CIRCUIT

                    ____________________________________

                              August Term, 2017

              Argued: May 9, 2018           Decided: August 9, 2019

                            Docket No. 17‐1970‐cv

                    ____________________________________

                       CIARA REYES, AKA SHEILA RIVERA,

                               Plaintiff–Appellee,

                                    —v.—

  BRIAN FISCHER, FORMER COMMISSIONER OF NEW YORK STATE DEPARTMENT OF
  CORRECTIONAL SERVICES, IN HIS INDIVIDUAL CAPACITY, ANTHONY J. ANNUCCI,
 ACTING COMMISSIONER OF THE NEW YORK STATE DEPARTMENT OF CORRECTIONS
   AND COMMUNITY SUPERVISION, FORMER EXECUTIVE DEPUTY COMMISSIONER,
  DEPUTY COMMISSIONER, AND COUNSEL OF NEW YORK STATE DEPARTMENT OF
CORRECTIONAL SERVICES, IN HIS INDIVIDUAL CAPACITY, TERRENCE X. TRACY, CHIEF
COUNSEL FOR NEW YORK STATE DIVISION OF PAROLE, IN HIS INDIVIDUAL CAPACITY,

                             Defendants‐Appellants,

  UNITED STATES MARSHALS SERVICE, NEW YORK STATE DIVISION OF PAROLE, ONI
      PENZARVIS, COMMISSIONER OF THE NEW YORK STATE DEPARTMENT OF
  CORRECTIONAL SERVICES, MRS. WILLIAMS, SUPERINTENDENT, OF BEDFORD HILLS
   CORRECTIONAL FACILITY FOR WOMEN, JOHN AND JANE DOES 1‐20, NEW YORK
  STATE DEPARTMENT OF CORRECTIONAL SERVICES SUPERVISORY, TRAINING, AND
    POLICY PERSONNEL; NEW YORK STATE DIVISION OF PAROLE SUPERVISORY,
       TRAINING, AND POLICY PERSONNEL; NEW YORK STATE BOARD OF PAROLE
    SUPERVISORY, TRAINING, AND POLICY PERSONNEL, IN THEIR INDIVIDUAL CAPACITY,

                                          Defendants.

                         __________________________________

        Before: HALL AND CARNEY, Circuit Judges, and KOELTL, District Judge.*

         The defendants appeal from an order of the United States District Court

for the Eastern District of New York (Donnelly, J.) finding that the defendants

violated the constitutional right of the plaintiff, Ciara Reyes, to due process by

administratively imposing a period of post‐release supervision (“PRS”) and that

the defendants were not entitled to qualified immunity.

         As to the period of PRS that Reyes served from the expiration of her

determinate sentences on November 27, 2008, until her judicial resentencing on

December 5, 2008, we agree with the district court that the defendants deprived

Reyes of her clearly established due process right to be free from

administratively imposed PRS and that the defendants are not entitled to

qualified immunity for that period. Accordingly, we AFFIRM the district court’s

order for that time period.



*Judge John G. Koeltl, of the United States District Court for the Southern District of New York,
sitting by designation.


                                                2
      As to the period of PRS that Reyes served from her initial release from

prison on October 5, 2007, until her determinate sentences expired on November

27, 2008, there are material issues of fact as to whether that period of PRS was

more onerous than the period of conditional release Reyes would have been

subjected to without PRS and consequently whether Reyes was deprived of a

liberty interest during that period. We therefore lack jurisdiction to determine

whether the defendants are entitled to qualified immunity for their roles in

subjecting Reyes to PRS during that period. Accordingly, with respect to the

period of PRS imposed on Reyes from October 5, 2007, until November 27, 2008,

we DISMISS the appeal for lack of jurisdiction and REMAND for further

proceedings.

      Judge Hall concurs in part and dissents in part in a separate opinion.

___________

THOMAS ROSS HOOPER, (Andrew S. Jacobson on the brief), Seward & Kissel LLP,
New York, N.Y. for plaintiffs‐appellants.

ERIC DEL POZO, Assistant Solicitor General, (Barbara D. Underwood, Solicitor
General, Steven C. Wu, Deputy Solicitor General, on the brief), New York, N.Y.,
for Letitia James, Attorney General of the State of New York.

___________




                                         3
John G. Koeltl, District Judge:

      Plaintiff‐appellee Ciara Reyes brought this action under 42 U.S.C. § 1983

alleging that her constitutional right to due process was violated when the

defendants required her to serve an administratively imposed term of post‐

release supervision (“PRS”) following her release from imprisonment after

serving six‐sevenths of two concurrent eight‐year determinate sentences. The

defendants‐appellants Brian Fischer, the former Commissioner of the New York

State Department of Correctional Services (“DOCS”); Anthony J. Annucci, the

former Deputy Commissioner of DOCS; and Terrence X. Tracy, the former Chief

Counsel for the New York State Division of Parole (“DOP”), bring this

interlocutory appeal from the district court’s order denying the defendants’

motion for summary judgment on qualified immunity grounds and finding the

defendants liable for violating Reyes’s constitutional due process rights.

      This appeal requires us to consider whether the defendants are entitled to

qualified immunity for administratively imposing PRS prior to a judicial

imposition of such supervision. More specifically, the appeal addresses whether

the defendants are entitled to qualified immunity for two periods: the period of

PRS before the conclusion of a determinate sentence when a plaintiff would

otherwise be on conditional release, and the period following the end of a

                                         4
determinate sentence before a judicially imposed period of PRS when a plaintiff

would not otherwise have been under supervision.

                                     BACKGROUND

                                              A.

       In 1998, the New York State legislature enacted Penal Law § 70.45, which

eliminated the parole system and provided that “[e]ach determinate sentence

also includes, as a part therefor, an additional period of post‐release

supervision.” Penal Law § 70.45(1) (McKinney 2005), amended by 2008 N.Y.

Laws Ch. 141, § 3 (codified at N.Y. Penal Law § 70.45(1) (2009)). Under that

provision, the period of PRS to follow most offenses was five years. Id. § 70.45(2).

Although § 70.45 required that PRS terms follow determinate prison sentences, in

the years after the statute’s enactment, “many judges did not include PRS as part

of the sentence imposed.” Betances v. Fischer, 304 F.R.D. 416, 423 (S.D.N.Y. 2015).

Between the years 1998 and 2008, when offenders did not receive a judicially

pronounced term of PRS, DOCS unilaterally calculated and imposed PRS terms

without consulting the sentencing judge.1 Id.




1For a detailed history of DOCS’s practice of administratively imposing PRS terms, see Betances
v. Fischer, 837 F.3d 162, 164‐71 (2d Cir. 2016).


                                              5
      This Court first addressed the constitutionality of administratively

imposed PRS terms in Earley v. Murray, 451 F.3d 71 (2d Cir. 2006) (“Earley I”),

reh’g denied, 462 F.3d 147 (2d Cir. 2006) (“Earley II”). Earley I involved a

prisoner who, while serving his sentence, learned that DOCS had added a period

of PRS to his judicially pronounced determinate sentence. Id. at 73. Earley I held

that administratively imposing PRS terms that were not judicially pronounced

violates due process. Id. at 76 & n.1. This Court held that in cases where a PRS

term was not judicially pronounced, the defendants had two options: “either to

have [the offenders] resentenced by the court for the imposition of PRS terms in a

constitutional manner or to excise the PRS conditions from their records and

relieve [the offenders] of those conditions.” Vincent v. Yelich, 718 F.3d 157, 172

(2d Cir. 2013).

      The defendants have appeared before this Court many times regarding

their imposition of PRS, and their deliberate refusal to follow Earley I’s holding is

well documented. See, e.g., Hassell v. Fischer, 879 F.3d 41, 49 & n.15 (2d Cir.

2018) (noting that Fischer, Annucci, and Tracy understood Earley I’s holding but

decided not to follow it for many months); Betances v. Fischer, 837 F.3d 162, 167‐

68 (2d Cir. 2016) (same); Vincent, 718 F.3d at 168‐69 (discussing Annucci).



                                         6
Defendants Fischer, Annucci, and Tracy each understood the holding of Earley I,

and that it “applied to their departments” “but deliberately refused to” comply.

Betances, 837 F.3d at 167‐68. The defendants waited “to implement Earley I for

many months after that decision was rendered.” Hassell, 879 F.3d at 49.

      In June 2008, the New York State Legislature passed Correction Law § 601‐

d to address the problem of DOCS’s imposition of PRS terms that had not been

pronounced by the sentencing judge. Section 601‐d requires DOCS to notify the

sentencing court of cases where the commitment order does not contain a term of

PRS ‐‐ a signal to DOCS that PRS likely had not been judicially pronounced. N.Y.

Correct. Law § 601‐d(1), (2). When the sentencing court receives such notice from

DOCS, § 601‐d allows the court to hold a new hearing and impose a term of PRS,

although it is not required to do so. See § 601‐d(5).

                                         B.

      In 2001, Reyes was convicted of a violent assault and robbery, for which

she received two concurrent eight‐year determinate prison sentences. The

sentencing judge pronounced Reyes’s determinate sentences orally. The

sentencing judge did not pronounce a term of PRS, nor was a term of PRS

included in Reyes’s Sentence and Order of Commitment.



                                          7
      In September 2007, DOCS calculated a five‐year term of PRS and

unilaterally imposed that term on Reyes. Reyes signed a DOP form entitled

“Certificate of Release to Parole Supervision, Determinate ‐ Post Release

Supervision” which stated that Reyes was subject to a PRS term to commence on

October 5, 2007, and to end on October 5, 2012.

      Reyes’s determinate prison sentences expired on November 27, 2008.

However, New York law provides that an offender who serves six‐sevenths of a

determinate sentence and has earned sufficient good‐time credit shall be released

from prison early on conditional release, “if he or she so requests.” N.Y. Penal

Law § 70.40(1)(b); N.Y. Correct. Law § 803(c). A person released early on

conditional release “shall be under the supervision of the state department of

corrections and community supervision for a period equal to the unserved

portion of the term.” N.Y. Penal Law § 70.40(1)(b). Reyes met these conditions

and was released from prison early on October 5, 2007 ‐‐ the date upon which

she had completed six‐sevenths of her determinate sentences. Her

administratively imposed PRS sentence began that day.

      On October 14, 2008, defendant Tracy referred the plaintiff to a state court

judge as a “designated person” who may require resentencing pursuant to



                                         8
Correction Law § 601‐d. On November 6, 2008, the plaintiff was taken into

custody and incarcerated for a violation of the conditions of the five‐year PRS

term. While in custody for the PRS violation, the maximum expiration date of

Reyes’s determinate sentences expired on November 27, 2008. On December 5,

2008 ‐‐ one week after her determinate sentences expired ‐‐ a state court judge

resentenced Reyes under Correction Law § 601‐d to two concurrent two‐and‐

one‐half year terms of PRS.2

       Reyes brought this action under 42 U.S.C. § 1983 seeking money damages

for alleged due process and double jeopardy3 violations arising from the

administratively imposed PRS term. This appeal focuses on two time periods:

first, the time that elapsed from Reyes’s release from prison on October 5, 2007,



2The sentencing judge imposed these two‐and‐one‐half year terms of PRS to follow the eight‐
year prison terms, and the judge made these sentences retroactive to May 22, 2001, the date that
Reyes’s determinate sentences began. The court‐imposed release date was therefore April 5,
2010, rather than the original administratively imposed release date of October 5, 2012. The
parties have made no arguments with respect to the retroactive nature of the judicially imposed
PRS term. That the judicially pronounced term of PRS was imposed nunc pro tunc has no effect
on this Court’s consideration of the period of PRS that elapsed from Reyes’s initial prison
release on October 5, 2007, until her resentencing on December 5, 2008, because that time period
elapsed before a judge imposed PRS.

3 Reyes’s double jeopardy claim pertained to the period of PRS imposed by a judge on
December 5, 2008, and was dismissed on a previous motion because Reyes did not “adequately
allege the personal involvement of the[] defendants in the asserted double jeopardy violation.”
Rivera v. Annucci, No. 13cv1239, 2015 WL 590185, at *5 (E.D.N.Y. Feb. 11, 2015). The double
jeopardy claim is not at issue on this appeal.


                                               9
until her determinate sentences expired on November 27, 2008; and second, the

following week of PRS that ensued after her determinate sentences expired on

November 27, 2008, until she was resentenced to PRS by a judge on December 5,

2008.

        The defendants moved for summary judgment, arguing that (1) Reyes’s

constitutional rights were not violated, (2) the defendants are entitled to qualified

immunity, and (3) Reyes had not established that the defendants were personally

involved in the alleged constitutional deprivation. Reyes v. Fischer, No.

13cv1239, 2017 WL 4350440, at *2, *8, *10‐11 (E.D.N.Y. Mar. 16, 2017). Reyes also

moved for summary judgment, arguing that the defendants violated her right to

due process and that the defendants were not entitled to qualified immunity. Id.

at *8. The district court found that the defendants violated Reyes’s due process

rights and were not entitled to qualified immunity. Id. at *12. The district court

did not rule on the issue of damages because the parties had further discovery to

conduct regarding the extent of Reyes’s injuries. Id. The defendants moved for

reconsideration, which the district court denied. Reyes v. Fischer, No. 13cv1239,

2017 WL 4350415, at *2 (E.D.N.Y. May 25, 2017). The defendants timely appealed




                                         10
from the denial of their motions for summary judgment on qualified immunity

grounds.

                                   DISCUSSION

                                         A.

       The rule that “[a]n order denying a motion for summary judgment is

generally not a final decision within the meaning of [28 U.S.C.] § 1291 and is thus

generally not immediately appealable” is inapplicable to denials of summary

judgment based on a claim of qualified immunity. Plumhoff v. Rickard, 572 U.S.

765, 771 (2014). Qualified immunity “is an immunity from suit rather than a mere

defense to liability,” and therefore its denial is immediately appealable under the

collateral order doctrine. Mitchell v. Forsyth, 472 U.S. 511, 526 (1985). This “Court

has jurisdiction over interlocutory appeals based on qualified immunity when

the defense can be decided based on questions of law,” but this Court lacks

jurisdiction over “the resolution of factual issues.” Brown v. Halpin, 885 F.3d 111,

117 (2d Cir. 2018) (per curiam).

      This Court reviews an order on a motion for summary judgment “de novo,

construing all evidence in the light most favorable to the non‐moving party.”

Betances, 837 F.3d at 171 (quoting Hubbs v. Suffolk Cty. Sheriff’s Dep’t, 788 F.3d



                                         11
54, 59 (2d Cir. 2015)). “We deny qualified immunity to government officials on

summary judgment if (1) the facts . . . taken in the light most favorable to the

officials establish a violation of a constitutional right; and (2) the officials’ actions

violated clearly established statutory or constitutional rights of which a

reasonable person would have known.” Id. (alteration in original) (internal

quotation marks omitted).

      Government officials performing discretionary functions generally are

afforded qualified immunity, and are therefore “shielded from liability for civil

damages” when “their conduct does not violate clearly established statutory or

constitutional rights of which a reasonable person would have known.” Harlow

v. Fitzgerald, 457 U.S. 800, 818 (1982). “A right is ‘clearly established’ when ‘[t]he

contours of the right [are] sufficiently clear that a reasonable official would

understand that what he is doing violates that right.’” Jackler v. Byrne, 658 F.3d

225, 242‐43 (2d Cir. 2011) (alterations in original) (quoting Anderson v.

Creighton, 483 U.S. 635, 640 (1987)).

      Therefore, the questions on this appeal are twofold. First, we must decide

whether the district court correctly found that the defendants violated Reyes’s

constitutional due process rights. Second, we must decide whether those rights



                                           12
were clearly established at the time of the defendants’ conduct. We may consider

these questions in any order. See Pearson v. Callahan, 555 U.S. 223, 236 (2009).

The answers to these questions differ based on the relevant time period of

Reyes’s sentences. We first address the administratively imposed PRS Reyes

served after her determinate sentences expired on November 27, 2008, until she

was resentenced by a judge on December 5, 2008. Then, we address the

administratively imposed PRS Reyes served after her initial release from

imprisonment on October 5, 2007, until the expiration of her determinate

sentences on November 27, 2008.

                                        B.

      In their reply brief, the defendants concede that they are not entitled to

qualified immunity for the period between the end of Reyes’s determinate

sentences on November 27, 2008, and December 5, 2008 ‐‐ the date on which

Reyes was resentenced to PRS by a judge. The concession is plainly correct.

      “Earley I ruled that the federal‐law principle that punishment for a crime

could not properly be imposed administratively but could only be imposed by

the court had been clearly established by the United States Supreme Court . . . .”

Vincent, 718 F.3d at 167. Earley I, which was issued on June 9, 2006, “clearly



                                        13
established that where the court has not included PRS in a defendant’s sentence,

DOCS may not add that term without violating federal law.” Id. at 168; see also

Hassell, 879 F.3d at 48.

      The defendants initially argued in this case that they took reasonable steps

to comply with Earley I and therefore are entitled to qualified immunity.

However, this Court’s recent holding in Hassell v. Fischer forecloses the

argument that the defendants’ response to Earley I was reasonable. 879 F.3d at

51. The defendants in that case ‐‐ Fischer, Annucci, and Tracy ‐‐ are the same

defendants in this appeal. Id. at 49. In Hassell, this Court held that the

defendants’ delay in complying with Earley I was unreasonable, and therefore

any steps the defendants took to comply with Earley I did not shield them from

liability. Id. at 51; see Betances, 837 F.3d at 172 (“That the defendants [Fischer,

Annucci, and Tracy] eventually took reasonable steps to comply with Earley I

cannot excuse their unreasonable delay in doing so.”).

      Indeed, the defendants did not seek resentencing of Reyes under

Correction Law § 601‐d until October 14, 2008 ‐‐ more than two years after this

Court decided Earley I and more than one year after October 5, 2007, when Reyes

was released from prison and began serving her administratively imposed term



                                          14
of PRS. Because the right to be free from administratively imposed PRS was

clearly established by Earley I and its progeny, and because the defendants did

not take reasonable steps to comply with Earley I, the defendants are not entitled

to qualified immunity for the week between the end of Reyes’s determinate

sentences on November 27, 2008, and the beginning of her PRS term that was

pronounced by a judge on December 5, 2008. The parties originally disputed this

point, but in light of this Court’s decision in Hassell, the defendants now concede

that they are not entitled to qualified immunity for that period.

                                        C.

      The defendants contend that because Reyes would have been subjected to

conditional release if she had not been subjected to a term of PRS, Reyes cannot

show that her due process rights were violated from her initial release on

October 5, 2007, until her determinate sentences expired on November 27, 2008.

      Reyes’s right to be free from administratively imposed PRS following the

expiration of her determinate sentences on November 27, 2008, until her

resentencing on December 5, 2008, was clearly established at the time of the

defendants’ conduct. However, whether Reyes’s constitutional rights were

violated during the period of administratively imposed PRS that she served after



                                        15
her release from imprisonment on October 5, 2007, and before her determinate

sentences ended on November 27, 2008, was an issue of first impression in this

Circuit until this Court decided Hassell ‐‐ a decision that had not yet issued

when the district court issued its order on the motions for summary judgment.

879 F.3d 41. As the district court correctly observed, “[t]he narrow question of

whether a plaintiff, subjected to administratively‐imposed PRS before the

maximum expiration date of her determinate sentence, suffered a cognizable

deprivation of liberty does not appear to have been addressed in this Circuit.”

Reyes, 2017 WL 4350440, at *8 n.10 (emphasis added). The plaintiffs in Betances,

for example, were members of a class that was certified only for members “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.” 304 F.R.D. at 427 (emphasis

added) (internal quotation marks omitted) (certifying class). Similarly, Vincent

involved plaintiffs who were subjected to PRS after being released from serving

their prison sentences, 718 F.3d at 160‐61, and Earley I involved a habeas

petitioner who contested the “addition” of an administratively imposed PRS

term to his judicially pronounced sentence, 451 F.3d at 72.



                                         16
      While this Court has confronted the question of administratively imposed

PRS a number of times, Hassell was the first of these appeals in which a

judgment had been entered awarding damages to a prisoner. 879 F.3d at 44.

Hassell was also the first appeal that presented the question of whether PRS that

is administratively imposed prior to the expiration of a determinate sentence

violates due process. Id. at 51‐52.

      The facts of Hassell closely correspond to the facts in this case. Hassell

involved the same defendants as this case, and presented a situation where the

plaintiff, Hassell, was released from prison after serving six‐sevenths of his

determinate sentence because he had earned sufficient good‐time credit to be

released early. Id. at 45. Like Reyes, Hassell began serving an administratively

imposed PRS term upon his early release from prison. Id.

      Under New York law, when an offender earns sufficient good‐time credit,

that offender may be released on what is called “conditional release” and serve

the remainder of his or her determinate sentence in the community. See N.Y.

Correct. Law § 803(c); N.Y. Penal Law § 70.40(1)(b). The defendants state that if

Reyes had not been released on PRS, then she would have been subjected to

supervision under conditional release until the expiration of her determinate



                                         17
sentences. The same was true in Hassell; had Hassell not been subjected to a term

of PRS, he would have been supervised under conditional release until the

expiration of his determinate sentence. 879 F.3d at 45. The district court in

Hassell found the defendants liable for violating Hassell’s due process rights and

awarded nominal damages of $600 plus attorney’s fees. A portion of the nominal

damage award pertained to the time period before Hassell’s determinate

sentence ended, during which he would otherwise have been subjected to

conditional release, and a portion represented the time period between the

expiration of Hassell’s determinate sentence and his resentencing by a judge. Id.

at 44.

         On appeal, this Court vacated the portion of the nominal damages that

pertained to the period of PRS that elapsed before Hassell’s determinate sentence

ended ‐‐ that is, when he would have otherwise been supervised under

conditional release. This Court explained that for the period after Hassell was

released from custody because of good‐time credits, until the date on which his

sentence terminated six months later, Hassell

               would have been subject to conditional release during
               this time period had a PRS term not been imposed.
               Hassell has made no showing that the conditions of his
               PRS term were in any respect more onerous than those

                                         18
             of conditional release would have been. Without any
             showing of an adverse consequence during [this period],
             Hassell has not suffered a denial of his due process rights
             during that period.

Id. at 52. This Court therefore vacated the portion of the nominal damages award

attributable to that period. Id.

      Hassell teaches that, to prevail in her suit for a due process violation, a

plaintiff subjected to administratively imposed PRS must show that, for the

period of time that the plaintiff would otherwise have been subjected to

conditional release, the conditions of administratively imposed PRS were “more

onerous.” Id. This follows from the basic requirement that a plaintiff claiming a

violation of due process must show a deprivation of liberty or property. See

Swarthout v. Cooke, 562 U.S. 216, 219 (2011) (explaining that “standard analysis

under [the Due Process Clause] proceeds in two steps: We first ask whether there

exists a liberty or property interest of which a person has been deprived, and if

so we ask whether the procedures followed by the State were constitutionally

sufficient”); Albright v. Oliver, 510 U.S. 266, 275 (1994) (Scalia, J., concurring)

(stating that the Due Process Clause of the Fourteenth Amendment “guarantees

certain procedures as a prerequisite to deprivation of liberty”). It is only after

determining that such a deprivation occurred that courts consider whether the

                                          19
procedure at issue “offends some principle of justice so rooted in the traditions

and conscience of our people as to be ranked as fundamental.” Medina v.

California, 505 U.S. 437, 445 (1992) (internal quotation marks omitted).

      Because Hassell had failed to show that the conditions of administratively

imposed PRS were any more onerous than the deprivations Hassell would have

encountered under conditional release, he failed to show any deprivation of

liberty. Therefore, Hassell had not shown a constitutional violation and was not

entitled to an award of even nominal damages for that period. Cf. Memphis

Cmty. Sch. Dist. v. Stachura, 477 U.S. 299, 308 n.11 (1986) (explaining that

“nominal damages . . . are the appropriate means of ‘vindicating’ rights whose

deprivation has not caused actual, provable injury”); Patterson v. Coughlin, 905

F.2d 564, 568 (2d Cir. 1990) (“It is clear that where there has been a denial of due

process, the victim is entitled at least to nominal damages.”).

      In this case, there are unresolved factual questions as to whether the

conditions of administratively imposed PRS are more onerous than those of

conditional release. In Hassell, this Court found that the plaintiff had not

presented any evidence that the conditions of administratively imposed PRS




                                         20
were in fact more onerous than the conditions of conditional release. And in this

case, the defendants contend that the conditions are no more onerous.

      Unlike in Hassell, the parties have not yet conducted discovery with

respect to the question of whether Reyes’s PRS conditions were in fact more

onerous than the conditions of conditional release would have been. Reyes, 2017

WL 4350440, at *11‐12. The district court framed that question only as one of

damages, rather than one of liability, and in that regard, the district court’s order

is inconsistent with Hassell, which made clear that the “more onerous” standard

is not only a question of damages, but also one of liability. 879 F.3d at 52

(“Without any showing of an adverse consequence . . . [the plaintiff] has not

suffered a denial of his due process rights during that period.”). Whether the two

forms of supervision are equivalent is a question of fact that this Court lacks

jurisdiction to decide on an interlocutory appeal. Brown, 885 F.3d at 117.

      Factual questions that are crucial to the disposition of the defendants’

qualified immunity defense remain ‐‐ specifically how the conditions of Reyes’s

PRS compare to those that would have been imposed under conditional release.

We therefore must dismiss, for lack of jurisdiction, that part of the appeal that




                                         21
concerns the period of time during which Reyes would have been subject to

conditional release.

                                  CONCLUSION

      We have considered all of the arguments of the parties. To the extent not

discussed above, the arguments are either moot or without merit. For the reasons

explained above, we AFFIRM the district court’s order denying qualified

immunity to the defendants for the week of administratively imposed PRS after

the plaintiff’s determinate sentences had expired. We DISMISS the appeal for

lack of jurisdiction over the district court’s denial of qualified immunity for the

period between October 5, 2007, and November 27, 2008, when the plaintiff

would otherwise have been subject to conditional release. We REMAND to the

district court for further proceedings consistent with this opinion.




                                         22
HALL, Circuit Judge, concurring in part and dissenting in part:

      This case will proceed in the district court on remand: a result with which I

concur for the reasons articulated below. I respectfully dissent, however, from the

analysis by which the majority arrived at its decision to remand. Unlike the

majority, I would hold that we have appellate jurisdiction to decide the

defendants’ interlocutory appeal from the district court’s determination that they

are not entitled to qualified immunity. I would then affirm that determination in

toto and thus return the case to the district court for further proceedings. I part

company with the majority when it concludes that factual issues concerning

whether the conditions of Reyes’s post‐release supervision (“PRS”) were more

onerous than the conditions to which she would have otherwise been subjected on

conditional release preclude interlocutory appellate jurisdiction.

                                       ***

      At issue here are two periods during which Reyes was subjected to PRS:

(1) the period between her October 5, 2007 release from prison and the November

27, 2008 expiration of her determinate sentences and (2) the period between that

expiration and her judicial resentencing on December 5, 2008. As to the latter

period, the majority concludes that the defendants were “plainly” not entitled to



                                         1
qualified immunity. See Slip Op. at 12–14. I fully agree. I disagree, however, that

we are without jurisdiction to review whether the defendants were entitled to

qualified immunity for the former period, and to that extent, I dissent.

      We have previously “held that [(1)] the New York State Department of

Correctional Services’s (‘DOCS’) practice of administratively adding a term of

[PRS] to sentences in which PRS had not been imposed by the sentencing judge

and [(2)] the New York State Division of Parole’s (‘DOP’) practice of enforcing the

administratively added PRS terms violated the Constitution.” Betances v. Fischer,

837 F.3d 162, 164 (2d Cir. 2016). Despite Reyes’s having not been judicially

sentenced to a term of PRS, DOCS unilaterally imposed a term of PRS on her.

Second, Reyes was released on October 5, 2007, after which that DOCS‐imposed

term of PRS was enforced. See People v. Williams, 19 N.Y.3d 100, 104 (2012) (“Such

a defendant who is conditionally released immediately commences serving the

imposed term of PRS and the remaining term of incarceration is ‘held in abeyance’

during this period.” (quoting N.Y. Penal Law § 70.45(5))). Based on those two

facts, this would be the end of the story for this interlocutory appeal for me, and I

would affirm the determination that the defendants were not entitled to qualified

immunity.



                                         2
      The wrinkle here, which causes the divergence between the majority and

me, is that absent the unlawfully imposed PRS term, Reyes would still have been

subjected to a term of conditional release until the November 27, 2008 expiration

of her determinate sentences. The majority reads this to raise issues of material

fact concerning whether the conditions of Reyes’s PRS were more onerous than

those of conditional release would have been. See Slip Op. at 19. Relying on our

decision in Hassell v. Fischer, 879 F.3d 41 (2d Cir. 2018), the majority has determined

that these issues deprive us of jurisdiction to answer the qualified‐immunity

question because, in the majority’s view, only if the conditions of PRS were harsher

than those of conditional release would Reyes suffer a cognizable due process

violation.1

      I do not disagree that factual issues here persist. In my view, however, those

issues go to whether Reyes can demonstrate damages as a result of the due process


1As the majority correctly notes, our jurisdiction over this interlocutory appeal is
circumscribed in that we cannot resolve issues of fact. See, e.g., Bolmer v. Oliveira,
594 F.3d 134, 140–41 (2d Cir. 2010). Thus, if the majority is correct that having been
subjected to more onerous conditions while on PRS is an element of a PRS due
process claim, then disputed factual issues pertaining to the conditions of Reyes’s
release would indeed deprive us of jurisdiction to answer the qualified‐immunity
question with respect to the period during which Reyes would have otherwise
been subjected to conditional release. That is, our jurisdiction depends on
whether, accepting her version of the facts, Reyes has adequately established a
cognizable deprivation of due process.
                                          3
violation already inflicted, not to whether she has suffered a deprivation of due

process in the first instance. “Because the right to procedural due process is

‘absolute’ in the sense that it does not depend upon the merits of a claimant’s

substantive assertions, and because of the importance to organized society that

procedural due process be observed, . . . the denial of due process should be

actionable for nominal damages without proof of actual injury.” See Carey v.

Piphus, 435 U.S. 247, 266 (1978).2

      The majority sidesteps these principles by relying on language from our

recent decision in Hassell, in which we addressed, among other things, these same

defendants’ qualified immunity for the period between Hassell’s release and the

expiration of his determinate sentence. To be sure, there we said that “Hassell has

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

onerous than those of conditional release would have been. Without any showing


2Accord Kerman v. City of New York, 374 F.3d 93, 123 (2d Cir. 2004) (“For example,
when a defendant has deprived the plaintiff of liberty or property without
affording him a hearing as required by the Due Process Clause, but the defendant
proves that the adverse action would have been taken even if a proper and timely
hearing had been held, the plaintiff has not proved compensable injury and is
entitled only to nominal damages.”); Robinson v. Cattaraugus Cty., 147 F.3d 153, 162
(2d Cir. 1998) (“If a jury finds that a constitutional violation has been proven but
that the plaintiff has not shown injury sufficient to warrant an award of
compensatory damages, the plaintiff is entitled to an award of at least nominal
damages as a matter of law.”).
                                         4
of an adverse consequence during [the relevant period], Hassell has not suffered

a denial of his due process rights during that period.” Hassell, 879 F.3d at 52 (citing

United States v. Ray, 578 F.3d 184, 200 (2d Cir. 2009)). The majority reads this

language as having imposed a “more onerous” requirement on claims for

deprivation of due process related to PRS imposed and enforced before the

expiration of a term of imprisonment. Hassell admittedly is susceptible to the

reading attributed to it by the majority. But Hassell sends mixed signals.

      On the one hand, the language quoted above does indeed lead one to believe

that an element of a PRS due process claim is that the conditions imposed by PRS

must be more onerous than those to which a prisoner would have otherwise been

subjected. There is also the fact that Hassell vacated even the district court’s grant

of nominal damages awarded for imposition of PRS during the relevant period,

further suggesting that Hassell had not suffered a cognizable deprivation of due

process. See Carey, 435 U.S. at 266.

      On the other hand, the quoted language from the text of Hassell comes after

the opinion’s conclusion that the defendants were not entitled to qualified

immunity during the relevant period, see Hassell, 879 F.3d at 50–51, a conclusion

that necessarily entails findings both that the defendants did violate Hassell’s



                                          5
constitutional rights and that those rights were clearly established, see, e.g., Jones v.

Parmley, 465 F.3d 46, 55 (2d Cir. 2006). And as the Supreme Court has already told

us, the denial of due process is the denial of an “absolute” right, entitling the

plaintiff to at least nominal damages. See Carey, 435 U.S. at 266.

      What is more, Hassell can be read to present its supposed “more onerous”

requirement as an afterthought; it presents no rationale as to why an individual’s

liberty interest in being free from the administrative (non‐judicial) imposition of

PRS in the first instance, see Betances, 837 F.3d at 164, might become non‐existent

when, as here, that individual would otherwise be subjected to conditional

release.3 This is perhaps unsurprising given the briefing in that case: Hassell

argued that he suffered a deprivation of due process only after the expiration of

his determinate sentence, not during the period between his release on PRS and

the expiration of his sentence. See Brief of Plaintiff‐Appellant‐Cross Appellee at

22–26, Hassell, 879 F.3d 41 (Nos. 16‐2835 (L), 16‐3641 (XAP)). Said differently,

Hassell did not even argue that he was deprived of due process by being subjected


3 By contrast, in the context of due process required for prison discipline, this Court
and the Supreme Court have made clear that “[a] prisoner’s liberty interest is
implicated by prison discipline, such as SHU confinement, only if the discipline
‘imposes [an] atypical and significant hardship on the inmate in relation to the
ordinary incidents of prison life.’” See Palmer v. Richards, 364 F.3d 60, 64 (2d Cir.
2004) (quoting Sandin v. Conner, 515 U.S. 472, 484 (1995)).
                                           6
to administratively imposed PRS when he otherwise would have been subjected

to conditional release, and the Court in Hassell thus did not have the benefit of full

adversarial briefing on this issue.

      These conflicting signals do create some uncertainty as to the contours of a

due process claim arising from administratively imposed PRS, uncertainty that the

majority does not directly acknowledge. While the majority’s holding is certainly

a reasonable resolution of this uncertainty, I would not resolve the issue in this

manner without facing it head on. And facing it head on, I see no support in our

precedent for imposing this new requirement: Hassell does not purport to add

anything new, and without a much clearer indication than it presents, I would not

assume it did so. Further, because the reading the majority gives Hassell is

fundamentally at odds with Hassell’s reasoning and structure, I must conclude that

Hassell in fact did not intend to impose any “more onerous” requirement on PSR

claims like the one at issue here.4       The admittedly persisting factual issues




4 To the extent my reading of Hassell is arguably inconsistent with some of the
opinion’s language, were I writing for the majority, I would invoke this Court’s
“mini en banc” process to issue an opinion clarifying that, one, Hassell did not
impose an additional “more onerous” requirement for claims in circumstances
such as these and, two, that Hassell’s vacatur of nominal damages was error. See,
e.g., Shipping Corp. of India Ltd. v. Jaldhi Overseas Pte Ltd., 585 F.3d 58, 67 & n.9 (2d
Cir. 2009) (describing mini en banc process); see also Jon O. Newman, The Second
                                           7
identified by the majority go to Reyes’s ability to demonstrate damages, not to

whether her claim is cognizable on appeal of a qualified‐immunity challenge and

not to whether we thus lack appellate jurisdiction to review that challenge.

Determining that we do have jurisdiction to consider that challenge on appeal, I,

would affirm in full the district court’s denial of qualified immunity.

      Functionally, the result reached by the majority is the same here: this case

will proceed. But I would ensure that a future case does not stumble needlessly,

and perhaps with a more deleterious result, over this issue. I concur in part and

dissent in part.




Circuit Review—1987–1988 Term: Foreword: In Banc Practice in the Second Circuit,
1984–1988, 55 BROOK. L. REV. 355, 367–68 (1989).
                                         8
