09-4532-cv
Rivers v. Fischer

                              UNITED STATES COURT OF APPEALS
                                  FOR THE SECOND CIRCUIT

                                        SUMMARY ORDER

RULINGS BY SUMM ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUM M ARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED
BY THIS COURT’S LOCAL RULE 32.1.1 AND FEDERAL RULE OF APPELLATE PROCEDURE 32.1.
W HEN CITING A SUM M ARY ORDER IN A DOCUM ENT FILED W ITH THIS COURT, A PARTY
M UST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (W ITH THE
NOTATION “SUM M ARY ORDER”). A PARTY CITING A SUM M ARY 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
Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York,
on the 13th day of August, two thousand and ten.

Present:            ROSEMARY S. POOLER,
                    ROBERT D. SACK,
                    REENA RAGGI,
                               Circuit Judges.


_____________________________________________________

DERRICK RIVERS,

                                                       Plaintiff-Appellant,

                            -v-                                       (09-4532-cv)

BRIAN FISCHER, individually and as Commissioner of the New York State Department of
Correctional Services, RICHARD H. HARDING, individually and as acting Superintendent of
the Mohawk Correctional Facility, GEORGE E. ALEXANDER, individual and as Chairman of
the New York State Division of Parole and JOHN DOE 1-10,

                                                       Defendants-Appellees.


Appearing for Appellant:          Michael Colihan, Law Office of Michael Colihan, Brooklyn, NY.

Appearing for Appellees:          Cecilia C. Chang, Assistant Solicitor General, for Andrew Cuomo,
                                  Attorney General of the State of New York, New York, NY.

        Appeal from the United States District Court for the Southern District of New York
(Batts, J.).
     ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of said District Court be and it hereby is AFFIRMED.

        Plaintiff-Appellant Derrick Rivers appeals a September 28, 2009 decision and order of
the United States District Court for the Southern District of New York (Batts, J.) granting
defendants-appellees’ motion to dismiss Rivers’s suit on qualified immunity grounds. We
assume the parties’ familiarity with the underlying facts, procedural history, and specification of
issues for review.

         A government official is entitled to qualified immunity for his actions unless his conduct
violates a clearly established constitutional or statutory right of which a reasonable person would
have known. Pearson v. Callahan, 129 S. Ct. 808, 815 (2009). The Second Circuit has held that
a right is “clearly established” for qualified immunity purposes if “(1) the law is defined with
reasonable clarity, (2) the Supreme Court or the Second Circuit has recognized the right, and (3)
‘a reasonable defendant would have understood from the existing law that his conduct was
unlawful.’” Anderson v. Recore, 317 F.3d 194, 197 (2d Cir. 2003) (quoting Young v. County of
Fulton, 160 F.3d 889, 903 (2d Cir. 1998)).

        After the Second Circuit’s decision in Earley v. Murray, 451 F.3d 71 (2d Cir. 2006),
there is no doubt that Rivers’s constitutional rights were violated when the Department of
Corrections administratively imposed a 5-year term of supervised release that was not orally
pronounced by the sentencing judge. However, that right was not clearly established in 1999,
when Rivers was originally sentenced; in 2003, when Rivers began serving his term of
supervised release; or in 2004, when he was sentenced to an additional 4 years’ imprisonment for
violating the terms of his supervised release. See Scott v. Fischer, No. 09-1451-cv, 2010 WL
2991085, at *6 (2d Cir. Aug. 2, 2010) (right to have mandatory term of supervised release
pronounced by sentencing judge not clearly established until at least 2006). Therefore,
defendants-appellees are entitled to qualified immunity for those actions.

        Rivers also argues that defendants-appellees violated his constitutional rights by failing
to release him immediately after Earley was decided. Even after Earley, however, it was not
clearly established that Rivers had the right to be immediately released from custody. See
Earley, 451 F.3d at 77. (“Our ruling is not intended to preclude the state from moving in the
New York courts to modify Earley's sentence to include the mandatory [supervised release]
term.”). In April 2008, the New York Court of Appeals held that the failure of the sentencing
judge to orally pronounce a term of supervised release was a procedural error that could be
corrected through resentencing. People v. Sparber, 10 N.Y.3d 457 (2008). The New York
Legislature provided a mechanism for such resentencing in June 2008. See N.Y. Correct. Law
§ 601-d.1 Rivers was brought before a judge and released less than two months later. Given the
ambiguity in the law between Earley and the time of Rivers’s release, defendants-appellees are
entitled to qualified immunity on this claim as well.



       1
         A new mechanism was needed because, in many cases, the one-year statute of
limitations for motions to correct/amend a sentence had expired. See N.Y. Crim. Proc. Law
§ 440.40.

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Accordingly, the judgment of the district court hereby is AFFIRMED.


                                          FOR THE COURT:
                                          Catherine O’Hagan Wolfe, Clerk




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