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Date: 11-13-2019

Case Style:

Byran Francis v. Kimberly Fiacco, a/k/a Kimberly Davidson, Richard DeSimone, Diane Holford, and Kristina Lennon

Case Number: 18-1011-cv

Judge: Debra Ann Livingston

Court: United States Court of Appeals for the Second Circuit on appeal from the Northern District of New York (Albany County)

Plaintiff's Attorney: Brian M. Quinn

Defendant's Attorney: Laura Etlinger

Description: This case concerns the liability of state prison officials attempting to
implement a prisoner’s state sentence in relation to a subsequently imposed
federal sentence on another charge. In 2006, Byran Francis pleaded guilty to two
separate charges in two separate jurisdictions: a drug charge in New York state
court and a gun possession charge in federal court. Francis’s state sentencing
occurred first. The state court sentenced Francis to a three‐year maximum term
of imprisonment and directed that his state and federal sentences run
concurrently. Under New York law, however, state courts lack the authority to
direct that a prisoner’s state sentence run concurrently with a sentence from
another jurisdiction unless that latter sentence has already been imposed. See
N.Y. Penal Law § 70.30(2‐a). Consistent with that statutory scheme, officials of
New York State’s Department of Corrections and Community Supervision
(“DOCCS”) did not implement the state court’s directive of concurrency, instead
taking Francis into state custody upon completion of his ten‐year federal sentence
so that he could begin serving his state sentence. Francis then served about four
months of his state sentence in DOCCS custody, before the state court’s adjustment
of the sentence ultimately brought about his release.
Upon his release from state custody, Francis brought suit pursuant to 42
U.S.C. § 1983 against four DOCCS officials: Kimberly Fiacco, Richard de Simone,
Diane Holford, and Kristina Lennon (collectively, the “State Defendants”).
Francis alleged that the State Defendants had violated his rights under the Eighth
and Fourteenth Amendments by holding him in state custody rather than
releasing him upon expiration of his federal sentence. The United States District
Court for the Northern District of New York (D’Agostino, J.) denied the State
Defendants’ motion for summary judgment. The district court agreed with
Francis that the State Defendants’ conduct had violated the Eighth and Fourteenth
Amendments and rejected the State Defendants’ claim of qualified immunity.
We reach the merits of only one of Francis’s constitutional claims, holding that
pursuant to Mathews v. Eldridge, 424 U.S. 319 (1976), the State Defendants violated
the Due Process Clause by implementing Francis’s sentence in the manner they
did without providing adequate notice to the state sentencing court and the
attorneys present at Francis’s state sentencing. Nevertheless, we conclude that
the State Defendants are entitled to qualified immunity from all of Francis’s
constitutional claims under the circumstances of this case. We therefore
REVERSE the order of the district court and REMAND the case with instructions
to grant the State Defendants’ motion for summary judgment on qualified
immunity grounds.
The story of this appeal begins with two guilty pleas and their resulting
sentences. Francis first faced sentencing in state court. Francis was also subject
to federal charges at that time but had not yet undergone sentencing by a federal
court. Before the Supreme Court of the State of New York, County of Erie,
Francis pleaded guilty to attempted criminal possession of marihuana in the
second degree, a class D felony in violation of N.Y. Penal Law § 221.25. On
September 8, 2006, the Honorable Penny M. Wolfgang sentenced Francis to a
minimum term of imprisonment of one and a half years and a maximum term of
three years, indicating that the term should run concurrently with Francis’s
“federal sentence sched[uled] to be imposed soon.” J.A. 75.
Francis was in custody both before and after his state sentencing, but the
record reflects some confusion over which governmental authority had custody of
him at that time. On Francis’s commitment order, the state court checked a box
indicating that Francis was “presently in the custody of [DOCCS]” and directing
2 The factual background presented here is derived from undisputed facts
contained within the parties’ submissions at summary judgment.
that he “remain in the custody of [DOCCS].” Id. However, DOCCS records
state that Francis was only first received by DOCCS authorities on April 15, 2013,
after completion of his federal sentence. Furthermore, Francis stated in his
deposition that he was being held at a local jail, the Erie County Holding Center,
from the time of his arrest until the time “they took my bail” in June 2006, as well
as at the time of his state court sentencing and “until two weeks after I got
sentenced.” J.A. 111.3
In any event, soon after his sentencing before the state court, Francis was
transferred to federal custody for his second round of sentencing. In the United
States District Court for the Western District of New York, Francis pleaded guilty
to the federal crime of possession of a firearm in furtherance of a drug trafficking
crime, in violation of 18 U.S.C. § 924(c)(1). On November 27, 2006, Francis was
sentenced by the Honorable William M. Skretny to a term of imprisonment of 120
months and a term of supervised release of five years.
The district court did not direct that Francis’s federal sentence run
concurrently with the previously imposed state sentence, and thus his federal
3 Court records confirm that Francis subsequently received “jail time credit”—a
credit against his state sentence for time previously served in local custody—from April
27 to June 27, 2006, and from September 5 until September 14, 2006, confirming his
deposition testimony that he was held in local custody at (roughly) those times.
sentence was deemed to run consecutively to the state sentence as a matter of
federal law. See 18 U.S.C. § 3584(a) (“Multiple terms of imprisonment imposed
at different times run consecutively unless the court orders that the terms are to
run concurrently.”). Accordingly, the United States Bureau of Prisons (“BOP”)
did not direct that Francis serve his federal sentence in state custody, as the BOP
is statutorily authorized to do when implementing a federal sentencing court’s
directive of concurrency. See 18 U.S.C. § 3621(b). Francis was therefore
remanded to the custody of the United States Marshal to begin serving his federal
sentence in federal prison.
As Francis began serving his federal sentence, the State Defendants faced a
predicament in determining how to implement his state sentence. The state
sentencing court had directed that Francis’s state sentence should run
concurrently with his federal sentence. But at the time of Francis’s state court
sentencing, that federal sentence had not yet materialized.
New York law does not authorize its judges to issue such forward‐looking
directives of concurrency. To the contrary, New York sentencing courts may
only direct that a defendant’s state sentence run concurrently with a sentence from
another jurisdiction that has already been imposed. Specifically, under New
York Penal Law § 70.30(2‐a):
Where a person who is subject to an undischarged term of
imprisonment imposed at a previous time by a court of another
jurisdiction is sentenced to an additional term or terms of
imprisonment by a court of this state, to run concurrently with such
undischarged term, such additional term or terms shall be deemed to
commence when the said person is returned to the custody of the
appropriate official of such other jurisdiction where the undischarged
term of imprisonment is being served.
In other words, time served by Francis on his federal sentence while in federal
custody could count against his state sentence too, provided that (1) the state
sentencing court had directed that the state sentence would “run concurrently
with” his federal sentence; (2) the federal sentence was “undischarged,” or not yet
completed, at the time the state sentence was imposed; and (3) the federal sentence
had been “imposed at a previous time” to the state sentence. Absent a state
sentence satisfying these three requirements, New York law contains a general
rule that the prisoner’s sentence “commences when the prisoner is received in an
institution under the jurisdiction of the state department of corrections and
community supervision.” N.Y. Penal Law § 70.30(1).4
4 In the typical circumstance where a prisoner is held in local custody prior to trial
or sentencing on state charges or a state conviction, the prisoner’s state sentence does not
commence until the prisoner is received into a state facility operated by DOCCS, but the
The sentence that the state court imposed on Francis failed the third
requirement described above. At the time the state court sentenced Francis, his
federal sentence had not been previously imposed; indeed, the state court’s decree
specifically instructed that Francis’s state sentence run concurrently with the
“federal sentence sched[uled] to be imposed soon.” J.A. 75 (emphasis added).
Consistent with the statutory scheme described above, New York courts have
recognized that sentencing courts lack authority under New York law to direct
that a prisoner’s state sentence run concurrently with a not‐yet‐imposed sentence
from another jurisdiction. See Matter of Oquendo v. Quinones, 291 A.D.2d 593, 594
(3d Dep’t 2002) (“[T]he law did not permit the sentence imposed . . . to run
concurrently with a subsequently imposed federal sentence.”); People v. Brown, 193
A.D.2d 750, 750 (2d Dep’t 1993) (holding that sentencing court “lacked the
authority” to “promise that the sentence it imposed upon the defendant would
run concurrently with a sentence which had yet to be imposed upon the defendant
by a Federal court”); see also People v. Alexander, 213 A.D.2d 227, 228 (1st Dep’t 1995)
(recognizing that sentencing court “was powerless to provide that [defendant’s]
prisoner also receives jail time credit against his state sentence for the time served in local
sentence be concurrent to some future sentence which might eventually be
Hence the predicament: the state court had directed that Francis’s state
sentence run concurrently with his federal sentence, but New York law did not
authorize that directive under the circumstances of Francis’s case. Instead, New
York law instructed that Francis’s state sentence not begin to run until after Francis
was received by New York State prison authorities. And the State Defendants
had (at a minimum) reasonable grounds to conclude that Francis had not yet been
received by those authorities.5
The State Defendants thus found themselves between the rock of the state
court’s sentencing order and the hard place of the New York statutory scheme
denying the state court the authority to sentence Francis in the manner it
5 See supra at 6 & n.3. In addition to the evidence described above suggesting that
Francis was held in local (rather than state) custody prior to his state sentencing, the
customary practice of New York authorities suggests the same. Criminal defendants in
New York are typically held at local jails from the time of their arrest through trial and
sentencing (absent release on bail or recognizance), and until their transfer to state or
federal prison authorities to begin serving their sentences. See N.Y. Correct. Law § 500‐
a(1)(b) (“Each county jail shall be used . . . [f]or the detention of persons charged with
crime[] and committed for trial”); N.Y. Crim. Proc. Law § 510.10 (providing that when a
defendant “initially comes under the control of a court, such court must . . . either release
him on his own recognizance, fix bail or commit him to the custody of the sheriff”); N.Y.
Correct. Law § 500‐c(1) (“[T]he sheriff of each county shall have custody of the county jail
of such county.”).
purported to do. The State Defendants therefore commenced some brief
deliberations as they sought to determine the proper course of action. Fiacco,
whose position gave her the principal responsibility for implementing Francis’s
sentence, stated in her declaration that while she had “no independent recollection
of receiving or processing Sentence and Commitment papers for [Francis],” J.A.
42, “DOCCS’s records appear to indicate that [she] sought direction from and
confirmed with the Office of Sentencing Review that [Francis’s] sentence had to
run consecutive to his federal sentence by operation of [New York’s] Penal Law,”
J.A. 43–44. Holford’s declaration corroborates Fiacco’s account, noting the
presence in DOCCS records of “a handwritten note from [Fiacco] . . . apparently
showing that [Fiacco] and [Holford] discussed [Francis’s] sentence on or about
May 4, 2007, . . . [and that Holford] advised [Fiacco] that [Francis’s] NYS sentence
had to run consecutive to his federal sentence unless the federal sentence was
imposed prior to the NYS sentence.” J.A. 56; see also J.A. 62. Finally, all four of
the State Defendants noted their shared understanding that, pursuant to New
York statutes, “where an individual’s NYS sentence is imposed before the federal
sentence is imposed, the individual’s NYS sentence could only commence upon
his transfer to DOCCS after his release from federal custody.” J.A. 43 (Fiacco); see
also J.A. 53 (Lennon) (same); J.A. 56 (Holford) (same); J.A. 71 (de Simone) (same).
Given that shared understanding of the law, the State Defendants elected to
implement Francis’s sentence as the New York statutory scheme ostensibly
required rather than attempt to effectuate the state court’s intended result that
Francis’s two sentences run concurrently. Accordingly, on May 4, 2007, Fiacco
composed a letter to the federal prison where Francis was then serving his federal
sentence, enclosing a “certified copy of the consecutive New York State
commitment of [Francis]” and asking the federal authorities to “lodge [Francis’s
commitment papers] as a detainer” against his release. J.A. 49. 6 Fiacco’s
declaration explains that as Coordinator of Inmate Movement, she was typically
responsible for lodging such detainers on DOCCS’s behalf. Her declaration also
notes that such detainers were intended to ensure that “upon [his or her] release .
. . the individual would be delivered to the custody of DOCCS to serve the NYS
sentence which would commence upon his/her arrival to DOCCS’s custody.”
J.A. 42. Finally, Fiacco’s May 2007 letter to federal authorities also requested that
6 “A detainer is a request ‘to an imprisoning jurisdiction to detain a person upon
his release so that another jurisdiction may prosecute or incarcerate him.’” Weeks v.
Quinlan, 838 F.2d 41, 42 (2d Cir. 1988) (quoting Pitts v. North Carolina, 395 F.2d 182, 187
(4th Cir. 1968)).
the authorities notify the Erie County Sheriff at least thirty days prior to Francis’s
release in order to coordinate his return to New York.
Later that month, Francis learned from an employee of the federal prison
where he was being held that DOCCS had filed the consecutive detainer against
his release. Francis initially wrote to Fiacco, asking her to remove the detainer,
but received no response. Francis’s sentence then proceeded apace until two
years later, when he decided to raise the issue with the state sentencing court
directly. On May 31, 2009, Francis wrote to the state court, informing it that “Ms.
Kimberly Fiacco has dropped a Detainer [sic] on me” and asking it to “look into
this matter and correct this error for me in order to afford me the proper relief.”
J.A. 829. The state court’s principal attorney responded on July 9, informing
Francis that “[t]he court is not able to assist you presently in the absence of a formal
motion or petition seeking specific relief,”7 and that “upon [Francis’s] release from
7 As with the state court’s initial sentencing of Francis, this letter apparently
reflected an erroneous understanding of New York law, which in fact vests sentencing
courts with the “inherent power to correct an illegal sentence” sua sponte. People v.
Williams, 87 N.Y.2d 1014, 1015 (1996). No formal motion or petition from Francis was
the federal institution,” he could “challenge [his] detention in the appropriate
court.” J.A. 830.
Thus rebuffed, Francis returned to the State Defendants to seek their
assistance once again. On June 22, 2010, Francis composed a second letter to
Fiacco, asking her to “review this matter . . . and have these people lift the detainer
for me.” J.A. 832. Francis enclosed his sentencing transcript along with his
prior correspondence with the sentencing court. On July 1, on behalf of DOCCS
in her capacity as Inmate Records Coordinator, Lennon responded to Francis’s
entreaty by sending him a letter reiterating the department’s policy to run
sentences consecutively under the circumstances present in cases like his.
Lennon’s letter stated, in relevant part:
The Penal Law does not allow a sentence to run concurrently with a
term of imprisonment that has not yet been imposed. Your state
sentence will not commence until you are received by [DOCCS];
please see Penal Law § 70.30(1).
J.A. 833. Lennon subsequently verified to federal authorities, in September 2011,
that the detainer lodged against Francis was consecutive rather than concurrent.
Following his receipt of Lennon’s letter, Francis reengaged the state court.
On August 16, 2012, Francis moved to set aside his state sentence under New York
Criminal Procedure Law § 440.20(1), which allows a sentencing court to “set aside
[a] sentence upon the ground that it was unauthorized, illegally imposed or
otherwise invalid as a matter of law.” On January 9, 2013, the state court denied
his motion, reasoning that Francis had failed to allege that the sentence was illegal
or unauthorized by law. The state court declared that “the relief the defendant is
seeking is not available pursuant to CPL § 440.20” and that “[h]is remedy is to seek
relief against DOCCS pursuant to Article 70 or Article 78 of the Civil Practice Law
and Rules if he is returned to the state on the detainer and is not immediately
released.” J.A. 210–11. A subsequent letter from the state court’s principal
attorney in May 2013 similarly informed Francis that he might “wish to commence
an action pursuant to Article 70 or Article 78 of [New York’s] Civil Practice Law
and Rules challenging [his] detention.” J.A. 838. Francis sent two additional
letters to Fiacco during this period, one of which noted that he had considered the
option of an Article 78 action but “wish[ed] not to pursue that method of
resolution” and that he was still “seeking to have [the detainer] quashed in the . .
. interest of justice.” J.A. 835. The record contains no response, from Fiacco or
any other DOCCS official, to either of these letters.
Meanwhile, Francis had become eligible in September 2012 for release from
federal prison to a residential reentry center, or halfway house. As Francis
explained in his declaration, halfway houses “provide much greater liberty than
prisons,” and his release to a halfway house “would have provided [him] with
reentry preparation, including job training and drug treatment,” as well as “a place
to stay upon [his] release” from custody. J.A. 813. The BOP declined to
recommend a halfway house placement for Francis, however, due to the presence
of the detainer filed by DOCCS and Francis’s impending obligation to serve his
state sentence with state authorities. Francis repeatedly noted this consequence
of the detainer when corresponding with the State Defendants. See J.A. 832
(“[T]he [d]etainer that you lodged against me[] is playing a major roll[] [sic] for me
not getting my half‐way house date.”); J.A. 835 (“[M]y acceptance into an
approved institutional program is ‘on hold’ because of this detainer.”).
On March 28, 2013, Francis was released from federal custody into the
custody of the Erie County Sheriff’s Department. Approximately two weeks
later, Francis was received at a DOCCS‐managed facility; DOCCS records list
April 15, 2013 as the date of Francis’s initial receipt into DOCCS custody. Upon
Francis’s arrival, DOCCS calculated his maximum expiration date as November
26, 2015 and his conditional release date as November 26, 2014, basing those dates
on the term of Francis’s state sentence, the date he was received by DOCCS, the
jail time credit he had received from time previously served in local custody, and
possible good time credit that he might later receive.
Upon his release from federal custody, Francis promptly sought
resentencing from the state court—this time with the assistance of counsel. On
July 18, 2013, the state court resentenced Francis for the crime of attempted
criminal possession of marihuana in the second degree. The court acknowledged
that its original directive of concurrency was not authorized by law, explaining
that “by operation of law, [Francis] did not receive the credit the Court intended.”
J.A. 89. The state court then reimposed its original sentence: a minimum term of
imprisonment of one and a half years, with a maximum term of imprisonment of
three years, such term to run concurrently with Francis’s federal sentence on the
gun possession charge. This time, though, the state court imposed the sentence
nunc pro tunc to November 29, 2006, a date by which Francis’s federal sentence had
already been imposed.8 Because the effective date of Francis’s federal sentence
now preceded the effective date of his state sentence, the state court’s order now
directed the state sentence to run concurrently with another sentence “imposed at
8 As de Simone explained, “[a] nunc pro tunc order is effectuated by commencing
the sentence retroactively as of the date specified by the Court.” J.A. 73 (italics added).
a previous time by a court of another jurisdiction.” N.Y. Penal Law § 70.30(2‐a).
This allowed DOCCS officials to run those sentences concurrently without
running afoul of New York law. DOCCS immediately recalculated Francis’s
maximum expiration date as July 29, 2009—a date that had expired almost four
years prior. Accordingly, on July 23, 2013, after a brief period of administrative
processing, Francis left DOCCS custody and reentered civilian life.
On January 13, 2014, Francis brought suit under 42 U.S.C. § 1983 in the
United States District Court for the Southern District of New York, naming as
defendants the State of New York, DOCCS, and ten “John Doe” employees of
DOCCS, individually and in their official capacities. Francis’s complaint alleged
that as a result of these defendants’ actions his “liberty was restricted for an
extended period of time . . . without justification and in violation of his
constitutionally protected rights.” ECF No. 1 at 5 (Dist. Ct.). The complaint
asserted claims under the Fourth, Eighth, and Fourteenth Amendments, as well as
several pendent state law claims. Francis sought compensatory and punitive
damages, along with attorneys’ fees pursuant to 42 U.S.C. § 1988.
After the filing of an amended complaint and the transfer of the lawsuit to
the United States District Court for the Northern District of New York, Fiacco
moved to dismiss the complaint pursuant to Federal Rule of Civil Procedure
12(b)(6). On June 20, 2016, the district court (D’Agostino, J.) granted Fiacco’s
motion to dismiss with respect to Francis’s state law claims as well as his claims
against her in her official capacity. But the court denied Fiacco’s motion with
respect to Francis’s constitutional claims against her in her individual capacity,
finding that Francis’s complaint stated plausible claims for relief under the Fourth,
Eighth, and Fourteenth Amendments. The court also concluded that it could not
decide the issue of Fiacco’s qualified immunity without further development of
the record, postponing its ruling on that issue to a later stage of the litigation.
On January 31, 2017, Francis filed his Second Amended Complaint before
the district court. The Second Amended Complaint named the four State
Defendants—Fiacco, Lennon, de Simone, and Holford—now present before us on
appeal. The complaint alleged, inter alia, that (1) Fiacco had issued the detainer
wrongly certifying his detention as consecutive rather than concurrent; (2) Lennon
had refused to remove that detainer upon his request; and (3) de Simone and
Holford had supervised Fiacco and Lennon and developed the policies that
resulted in his allegedly unlawful detention. The State Defendants answered,
asserting qualified immunity as a defense and contending that the complaint
failed to state a cause of action. The parties then conducted discovery, producing
declarations and deposition testimony from Francis and each of the four State
Defendants, as well as numerous items of documentary evidence. The State
Defendants moved for summary judgment pursuant to Federal Rule of Civil
Procedure 56. Francis opposed.
On March 16, 2018, the district court granted the State Defendants’ motion
in part and denied it in part. The court granted the motion with respect to
Francis’s Fourth Amendment claim, reasoning that Francis’s allegations of false
imprisonment pertained to the lawfulness of his post‐conviction detention and
therefore fell outside the scope of the Fourth Amendment. But the court denied
the motion with respect to Francis’s other claims. Regarding the Fourteenth
Amendment claim, the district court first noted that Francis had a “protected
liberty interest in being released upon the expiration of his maximum term of
imprisonment.” S.A. 13. The court then applied the three‐factor balancing test
from Mathews v. Eldridge, 424 U.S. 319 (1976), to “determine whether the
procedures attendant upon th[e] deprivation [of that interest] were
constitutionally sufficient.” S.A. 13. The district court identified several
additional procedural protections that the State Defendants should have provided.
Among other things, the court noted that DOCCS has sometimes “sought
clarification from a sentencing judge after being alerted . . . that [a prisoner’s]
sentence was intended to run concurrently with a prior undischarged term of
imprisonment,” S.A. 17, and questioned why the “irregularity [in Francis’s
sentence] was not immediately brought to the state court’s attention” in this case,
S.A. 18. With regard to the Eighth Amendment, the district court concluded that
Francis’s allegedly “unlawful[] incarcerat[ion] from September 28, 2012 until July
19, 2013” was sufficiently objectively serious to implicate the Amendment’s Cruel
and Unusual Punishments Clause. S.A. 21. The court further held that Francis’s
allegations described “officials who knew of a substantial risk that [Francis] would
be incarcerated beyond his sentence expiration yet failed to act under
circumstances exuding a deliberate indifference to [Francis’s] plight.” S.A. 27.
The district court largely rejected the State Defendants’ qualified immunity
defense, holding that Hill v. United States ex rel. Wampler, 298 U.S. 460 (1936), and
Earley v. Murray, 451 F.3d 71 (2d Cir. 2006), had clearly established the principle
that “a criminal defendant had the right not to be imprisoned for a significant
period of time after he or she should have been released pursuant to the terms of
[his or her] sentence.” S.A. 34.9 The district court reasoned that “[u]nder Earley
and its progeny, [the State Defendants’] only permissible course was to release
[Francis] or bring the issue to the attention of the district attorney, [Francis’s]
criminal counsel, and/or the state court.” S.A. 35. The court did not undertake
a separate qualified immunity analysis with respect to Francis’s Eighth
Amendment claim. Instead, it simply reiterated the conclusion that “Defendants
were required to abide by the judgment of the [state sentencing] court because, as
discussed, it is well settled that a jailor’s authority to confine a prisoner begins and
ends with the sentence pronounced by the judge.” S.A. 36.
The State Defendants timely appealed the district court’s decision.
The State Defendants appeal from the district court’s decision denying their
motion for summary judgment and rejecting their claim to qualified immunity.
9 The district court held that the State Defendants were entitled to qualified
immunity for conduct that took place “in late 2006 through when the detainer was lodged
in May of 2007,” S.A. 33, citing “judicial confusion surrounding” the constitutional
principle contained in Earley in the immediate aftermath of that case, S.A. 34. But the
court held that the Earley principle had become clearly established “[b]y 2009, and
absolutely no later than 2010,” preventing the State Defendants from claiming qualified
immunity “for their later conduct.” S.A. 34.
This Court has jurisdiction to review an interlocutory order denying qualified
immunity so long as defendants pursue the appeal “on stipulated facts, or on the
facts that the plaintiff alleges are true, or on the facts favorable to the plaintiff that
the trial judge concluded the jury might find.” Soto v. Gaudett, 862 F.3d 148, 158
(2d Cir. 2017) (internal quotation marks and citation omitted). Taking the
plaintiff’s version of the facts as true, this Court will then “review de novo a
decision by a district court to deny summary judgment on the basis that a public
official is not entitled to qualified immunity.” Golodner v. Berliner, 770 F.3d 196,
201 (2d Cir. 2014).
Because Francis has sued the State Defendants under 42 U.S.C. § 1983 for
actions taken in the course of their official duties, his lawsuit must overcome the
qualified immunity that shields executive officials from such liability. The
doctrine of qualified immunity protects “government officials performing
discretionary functions” from “liability for civil damages insofar as 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). The purpose of the doctrine is to avoid “the expenses of litigation, the
diversion of official energy from pressing public issues, and the deterrence of able
citizens from acceptance of public office.” Id. at 814; see also Gregoire v. Biddle, 177
F.2d 579, 581 (2d Cir. 1949) (Hand, J.) (“[T]o submit all officials, the innocent as
well as the guilty, to the burden of a trial and to the inevitable danger of its
outcome, would dampen the ardor of all but the most resolute, or the most
irresponsible, in the unflinching discharge of their duties.”).
The Supreme Court has articulated, and this Court has adopted, a two‐step
analysis to determine whether qualified immunity bars a plaintiff’s claim.
Pursuant to that analysis, “[q]ualified immunity shields federal and state officials
from money damages unless [the] plaintiff pleads facts showing (1) that the official
violated a statutory or constitutional right, and (2) that the right was ‘clearly
established’ at the time of the challenged conduct.” Ricciuti v. Gyzenis, 834 F.3d
162, 167 (2d Cir. 2016) (quoting Ashcroft v. al‐Kidd, 563 U.S. 731, 735 (2011)).
The history of this two‐step test reveals an ambiguity about how courts
should apply it. The Supreme Court at one time required lower courts to
undertake both steps of the analysis in every qualified immunity case, reasoning
that the elaboration of constitutional doctrine might suffer if lower courts began
“simply to skip ahead to the question whether the law clearly established that the
officer’s conduct was unlawful in the circumstances of the case.” Saucier v. Katz,
533 U.S. 194, 201 (2001). But Saucier’s “rigid order of battle” quickly encountered
widespread criticism. E.g., Brosseau v. Haugen, 543 U.S. 194, 201–02 (2004)
(Breyer, J., joined by Scalia and Ginsburg, JJ., concurring) (explaining that Saucier
“requires courts unnecessarily to decide difficult constitutional questions when
there is available an easier basis for the decision (e.g., qualified immunity) that will
satisfactorily resolve the case before the court”); Pierre N. Leval, Judging Under the
Constitution: Dicta About Dicta, 81 N.Y.U. L. Rev. 1249, 1275 (2006) (calling Saucier’s
two‐step protocol a “puzzling misadventure in constitutional dictum”).
Accordingly, in Pearson v. Callahan, 555 U.S. 223 (2009), the Court discarded
Saucier’s mandate and held that lower courts should “exercise their sound
discretion in deciding which of the two prongs of the qualified immunity analysis
should be addressed first in light of the circumstances in the particular case at
hand.” Id. at 236. Since Pearson, lower courts have had the option to proceed
directly to step two of the analysis and, if they find that qualified immunity
applies, avoid the “[u]nnecessary litigation of constitutional issues” at step one.
Id. at 237.
This case implicates the “sound discretion” that Pearson authorized.
Because we ultimately resolve this appeal in favor of the State Defendants on
qualified immunity grounds, we must also decide whether to reach the merits of
Francis’s constitutional claims along the way. We recognize compelling
arguments against doing so. As the Supreme Court noted in Pearson, addressing
constitutional arguments where qualified immunity applies “sometimes results in
a substantial expenditure of scarce judicial resources on difficult questions that
have no effect on the outcome of the case.” Pearson, 555 U.S. at 236–37.
Standard principles of constitutional avoidance also weigh against the practice.
See, e.g., Lyng v. Nw. Indian Cemetery Protective Ass’n, 485 U.S. 439, 445 (1988) (“A
fundamental and longstanding principle of judicial restraint requires that courts
avoid reaching constitutional questions in advance of the necessity of deciding
them.”). Moreover, we acknowledge the Court’s latest pronouncement on this
issue: that “courts should think hard, and then think hard again, before turning
small cases into large ones.” Camreta v. Greene, 563 U.S. 692, 707 (2011); see also id.
at 714 (Scalia, J., concurring) (suggesting a willingness to “end the extraordinary
practice of ruling upon constitutional questions unnecessarily when the defendant
possesses qualified immunity”); id. at 727 (Kennedy, J., dissenting) (same).
Nevertheless, there remains a role for courts to rule on constitutional
questions even in cases where qualified immunity ultimately determines the
result. As the Court explained in Camreta, such rulings “have a significant future
effect on the conduct of public officials . . . and the policies of the government units
to which they belong . . . by establishing controlling law and preventing
invocations of immunity in later cases.” Id. at 704–05 (majority opinion). For
instance, Camreta invoked the hypothetical scenario of a court repeatedly rejecting
a novel constitutional claim on qualified immunity grounds, adhering to
traditional principles of constitutional avoidance but potentially licensing a
government official’s unconstitutional conduct in perpetuity. Courts taking that
approach “fail to clarify uncertain questions, fail to address novel claims, fail to
give guidance to officials about how to comply with legal requirements.” Id. at
706. And an exclusive focus on qualified immunity in such contexts “may
frustrate ‘the development of constitutional precedent’ and the promotion of lawabiding
behavior.” Id. (quoting Pearson, 555 U.S. at 237).
Under the circumstances of this case, we think the arguments weigh in favor
of considering the merits of one of Francis’s constitutional claims, notwithstanding
the ultimate qualified immunity bar. For the reasons explained below, while the
law was not clearly established on this point, we conclude that the State
Defendants failed to provide Francis with procedural protections that the Due
Process Clause required. Were we to proceed directly to the qualified immunity
question, and confine our entire analysis to that subject, the State Defendants could
continue to withhold those procedural protections—and thus continue to violate
the Constitution—ad infinitum. What’s more, the State Defendants have
represented that in the absence of a constitutional holding, they will do exactly
that. See Oral Arg. Recording at 16:28 (Jacobs, J.: “Unless we rule against you,
this . . . arrangement is going to continue?”); id. at 16:35 (Counsel to State
Defendants: “Yes.”).10 Therefore, having thought hard and then thought hard
again, we now exercise our Pearson‐conferred discretion in proceeding to resolve
one of Francis’s constitutional claims, before ultimately concluding that the State
Defendants are entitled to qualified immunity from all of them.
Francis claims that the State Defendants violated his rights under the Due
Process Clause of the Fourteenth Amendment. That provision prohibits the
10 Given our resolution of Francis’s due process claim on the merits, we need not
similarly address his Eighth Amendment claim at this time.
states from “depriv[ing] any person of life, liberty, or property, without due
process of law.” U.S. Const. amend. XIV, § 1. Federal courts “examine
procedural due process questions in two steps: the first asks whether there exists
a liberty or property interest which has been interfered with by the State; the
second examines whether the procedures attendant upon that deprivation were
constitutionally sufficient.” Ky. Dep’t of Corr. v. Thompson, 490 U.S. 454, 460 (1989)
(citations omitted); see also Bedoya v. Coughlin, 91 F.3d 349, 351–52 (2d Cir. 1996).
Accordingly, in considering the merits of Francis’s procedural due process claim,
we take the two steps of the inquiry in turn.
We must first identify the specific liberty interest for which Francis seeks
protection. “A liberty interest may arise from the Constitution itself, by reason
of guarantees implicit in the word ‘liberty,’ or it may arise from an expectation or
interest created by state laws or policies.” Wilkinson v. Austin, 545 U.S. 209, 221
(2005) (citations omitted). The liberty interest at stake in this case falls into the
former category. At the most basic level, Francis’s “liberty interest is that in
avoiding future incarceration.” United States v. Vizcaino, 870 F.2d 52, 56 (2d Cir.
1989). The general liberty interest in freedom from detention is perhaps the most
fundamental interest that the Due Process Clause protects. See, e.g., Foucha v.
Louisiana, 504 U.S. 71, 80 (1992) (“Freedom from bodily restraint has always been
at the core of the liberty protected by the Due Process Clause from arbitrary
governmental action.”); Parham v. J.R., 442 U.S. 584, 600 (1979) (recognizing a
“substantial liberty interest in not being confined unnecessarily”).
We recognize that, “given a valid conviction, the criminal defendant has
been constitutionally deprived of his liberty” such that “the State may confine him
and subject him to the rules of its prison system.” Meachum v. Fano, 427 U.S. 215,
224 (1976). But conviction at trial does not extinguish a prisoner’s liberty interest
in freedom from detention altogether. For one thing, “the sentencing process, as
well as the trial itself, must satisfy the requirements of the Due Process Clause.”
Gardner v. Florida, 430 U.S. 349, 358 (1977); see also id. (“The defendant has a
legitimate interest in the character of the procedure which leads to the imposition
of sentence even if he may have no right to object to a particular result of the
sentencing process.”). We have also recognized that “an inmate has a liberty
interest in being released upon the expiration of his maximum term of
imprisonment.” Calhoun v. N.Y. State Div. of Parole Officers, 999 F.2d 647, 653 (2d
Cir. 1993). Thus, while a valid conviction subjects a defendant to a constitutional
deprivation of his liberty, the determination of his sentence, and the state’s
compliance therewith, remain subject to due process protections.
It follows naturally that a prisoner’s liberty interest in freedom from
detention implicates the Due Process Clause not only when a jury convicts him or
when a court initially sentences him, but also when prison officials interpret and
implement the sentence that the trial court has imposed. In the typical case,
implementation of the prisoner’s sentence follows straightforwardly from the
sentencing court’s commitment order. But Francis’s was not the typical case.
The sentencing court issued a directive that Francis’s state sentence should run
concurrently with a future sentence from a different jurisdiction. The State
Defendants, however, concluded that New York law did not authorize the
sentencing court to issue that directive and that they therefore could not follow it.
As a result, Francis’s sentence as implemented by the State Defendants diverged
from the sentence originally pronounced by the sentencing court.
Regardless of whether the State Defendants’ course of conduct was legally
justified (or perhaps even legally required), their decision to implement Francis’s
sentence in a manner that diverged from the sentence pronounced by the
sentencing court implicated a liberty interest of the highest order. Therefore,
when the State Defendants declined to implement the sentencing court’s directive
of concurrency, filed the consecutive detainer with the BOP, and retained custody
of Francis upon expiration of his federal sentence, the Due Process Clause required
them to provide certain procedural protections to safeguard Francis’s liberty
interest in avoiding future incarceration. We turn now to consider what exactly
the Due Process Clause required under those circumstances.
Having identified the liberty interest at stake, we now consider whether the
procedures that the State Defendants followed in implementing Francis’s sentence
sufficiently protected that interest. In determining “what process is due,” we
recognize that “due process is flexible and calls for such procedural protections as
the particular situation demands.” Morrisey v. Brewer, 408 U.S. 471, 481 (1972).
To assess whether the government’s procedures meet that flexible standard under
a given set of circumstances, this Court applies the three‐factor analysis from
Mathews v. Eldridge, 424 U.S. 319 (1976), considering (1) “the private interest that
will be affected by the official action;” (2) “the risk of an erroneous deprivation of
such interest through the procedures used, and the probable value, if any, of
additional or substitute procedural safeguards;” and (3) “the Government’s
interest, including the function involved and the fiscal and administrative burdens
that the additional or substitute procedural requirement would entail.” Id. at 335.
We first consider “the private interest . . . affected by the official action.” Id.
The private interest at stake in this case was Francis’s interest in his timely release
from prison. As the Supreme Court has stated, “the interest in being free from
physical detention by one’s own government” is “the most elemental of liberty
interests.” Hamdi v. Rumsfeld, 542 U.S. 507, 529 (2004). The importance of the
private interest at stake here requires no further elaboration. Francis’s interest in
freedom from detention was an interest of the highest order.
Second, we consider “the risk of an erroneous deprivation of such interest
through the procedures used, and the probable value, if any, of additional or
substitute procedural safeguards.” Mathews, 424 U.S. at 335. Assessing first
“the risk of an erroneous deprivation” of Francis’s liberty under “the procedures
used” here, id., we conclude that the risk was unacceptably high. As this case
demonstrates, New York has enacted a complex statutory scheme governing the
imposition and implementation of criminal sentences. The sentence‐calculation
procedures on display here involved a coterie of non‐lawyers interpreting that
statutory scheme and then privileging their understanding of the law above the
sentence pronounced by the sentencing court. Under these circumstances, the
risk that Francis would be detained beyond his maximum term of imprisonment
was unacceptably high. We cannot countenance a system whereby prison
officials implement a sentence in a manner that deviates from the sentence
pronounced by the sentencing court on the basis of unchecked conclusions about
the legality of that pronouncement.
The State Defendants argue that their procedures sufficiently safeguarded
Francis’s liberty because “[Francis] was notified that defendants could not
implement the sentencing court’s directive of concurrency” and “[Francis] acted
on that notice . . . by contacting the sentencing court.” Defs.‐Apps. Br. 55. But
as the facts recounted above make clear, the mere provision of notice to a prisoner
is grossly inadequate to safeguard his liberty under these circumstances. Francis
did contact the sentencing court, but instead of carefully reviewing Francis’s
circumstances and complaint, the state court responded to his pro se submissions
by erecting a Kafkaesque sequence of roadblocks and prerequisites to
consideration of his claim. First, the state court inaccurately informed Francis
that it could not give him any relief absent a formal motion; second, when Francis
actually made that motion, the state court rejected it on technical grounds; and
finally, the state court referred him to a state Article 78 proceeding that Francis
could not have initiated until after he had sustained the deprivation of liberty he
was seeking to prevent. Contrary to the State Defendants’ argument, merely
notifying a prisoner that his liberty might be in jeopardy and then placing upon
him the burden of navigating the legal system, from his prison cell and without
counsel, does not satisfy the requirements of the Due Process Clause.
The “probable value” of “additional or substitute procedural safeguards,”
Mathews, 424 U.S. at 335, meanwhile, is quite high. The district court noted that
the State Defendants should have “[brought] any sentencing irregularities to the
attention of the sentencing court so that the defendant [could] be resentenced to
comply with the law.” S.A. 18. We add that the State Defendants should also
have notified the attorneys who appeared on behalf of each of the parties at
Francis’s sentencing. Finally, they should have done so promptly upon
discovering the irregularity in Francis’s state sentence (whether before or after the
filing of the detainer).
Prompt notice to the sentencing court and both parties’ attorneys of the
perceived error in the prisoner’s original sentence as initially pronounced will in
many circumstances abate the risk of an erroneous deprivation of a prisoner’s
liberty altogether. Francis’s is a case in point: upon his transfer to state custody,
Francis sought resentencing with the aid of counsel, and the sentencing court
immediately granted it, acknowledging that “by operation of law, [Francis] did
not receive the credit the Court intended.” J.A. 89. The ease of obtaining that
result suggests that previous formal contact with the sentencing court, either by
DOCCS or the parties’ attorneys, could have effectuated the same result before
Francis’s federal sentence expired. The sentencing court and the parties’
attorneys should have the opportunity to take steps, if necessary, to adjust a
prisoner’s sentence in order to avoid legal problems identified by prison officials.
Third and finally, we consider “the Government’s interest, including the
function involved and the fiscal and administrative burdens that the additional or
substitute procedural requirement would entail.” Mathews, 424 U.S. at 335. The
governmental “function involved” here, id.—prison officials’ implementation of
an inmate’s sentence—was essentially ministerial. Prison officials are charged
with effectuating the sentencing court’s sentence, filing a detainer if necessary,
arranging for transfers between various jurisdictions, and the like. The
ministerial nature of the role makes the addition of extra levels of procedure
particularly feasible. Moreover, the “fiscal and administrative burdens”
attendant upon the procedures contemplated above, id., would be minimal.
While Fiacco noted that “it was not wholly uncommon to receive a NYS Sentence
and Commitment that was illegal by operation by law,” J.A. 43, we suspect that
only a small minority of cases feature a sentencing court directive that squarely
contradicts New York law. Even in those few cases, the additional procedural
protections detailed above would impose almost no fiscal or administrative
burdens on the government at all. DOCCS need only promptly dispatch a letter
informing the sentencing court and the parties’ attorneys that prison officials
cannot, under the law, implement the court’s intended directive of concurrency.
Not only would the fiscal or administrative burdens attendant upon these
additional procedures be negligible, but state law already requires the government
to provide the protections we have described above under similar circumstances.
Pursuant to New York statute:
Whenever it shall appear to the satisfaction of [DOCCS] based on facts
submitted on behalf of a person sentenced and confined in a state
prison, that any such person has been erroneously sentenced, it shall
be the duty of the department to communicate with the sentencing
court, the inmate’s defense attorney and the district attorney of the
county in which such person was convicted.
N.Y. Correct. Law § 601‐a. The State Defendants represent that “[i]t is DOCCS’s
practice to provide detailed notice to sentencing courts regarding any errors in
sentencing and the potential effects of those errors on its calculations of prisoner
sentences.” Defs.‐Apps. Br. 54. (They concede, however, that “[w]hile such a
notice may have been provided in this case, there is no evidence to that effect in
the record.” Id.) Therefore, to the extent that DOCCS typically provides notice
under these circumstances, the procedural protections we have described impose
precisely no additional burden on the government. In short, the only effect of
today’s decision on the operations of the government is to clarify that, in this
context, obligations like those imposed by section 601‐a are of constitutional as
well as statutory dimension.
To review our Mathews analysis: The private interest at stake here is
Francis’s interest in freedom from detention, a liberty interest that sits at the very
heart of the Due Process Clause. The “risk of an erroneous deprivation” of that
interest under the procedures followed in this case is unacceptably high, and the
“probable value . . . of [the] additional or substitute procedural safeguards” we
have proposed is substantial. Mathews, 424 U.S. at 335. Finally, the fiscal or
administrative burdens that the government will sustain as a result of this
additional process are at most negligible; more likely, assuming future compliance
with state law, DOCCS will sustain no burden at all. We thus hold that prison
officials implementing a sentence that, as pronounced, appears to be in error under
applicable law must, at a minimum, promptly inform the prisoner, the sentencing
court and the attorneys for both parties of their determination that the sentence as
pronounced by the sentencing court cannot be lawfully implemented. The reasons
for this conclusion should also be provided. In the circumstances of Francis’s
case, the State Defendants violated the Due Process Clause by failing to provide
these basic procedural protections.
We now address the question whether, notwithstanding the constitutional
violation identified above, qualified immunity nonetheless protects the State
Defendants from Francis’s claims for damages. We note, once again, the relevant
legal standard: Qualified immunity applies to defeat a federal claim “unless a
plaintiff pleads facts showing (1) that the official violated a statutory or
constitutional right, and (2) that the right was ‘clearly established’ at the time of
the challenged conduct.” Ricciuti, 834 F.3d at 167 (quoting al‐Kidd, 563 U.S. at
735). We focus now on the second prong of the inquiry, which “protects officials
from liability for civil damages as long as their conduct does not violate clearly
established statutory or constitutional rights of which a reasonable person would
have known.” Taravella v. Town of Wolcott, 599 F.3d 129, 133 (2d Cir. 2010)
(internal quotation marks and citation omitted).
The Supreme Court has lately emphasized the breadth of qualified
immunity protection. See, e.g., City of Escondido v. Emmons, 139 S. Ct. 500, 503
(2019) (per curiam); Kisela v. Hughes, 138 S. Ct. 1148, 1152 (2018) (per curiam).
While the Court “does not require a case directly on point for a right to be clearly
established, existing precedent must have placed the statutory or constitutional
question beyond debate.” White v. Pauly, 137 S. Ct. 548, 551 (2017) (per curiam)
(internal quotation marks, citation, and brackets omitted). That precedent “must
be clear enough that every reasonable official would interpret it to establish the
particular rule the plaintiff seeks to apply.” District of Columbia v. Wesby, 138 S.
Ct. 577, 590 (2018). Moreover, the Supreme Court has “repeatedly told courts . .
. not to define clearly established law at a high level of generality,” City and County
of San Francisco v. Sheehan, 135 S. Ct. 1765, 1775–76 (2015) (quoting al‐Kidd, 563 U.S.
at 742), instead emphasizing that “clearly established law must be ‘particularized’
to the facts of the case,” White, 137 S. Ct. at 552 (quoting Anderson v. Creighton, 483
U.S. 635, 640 (1987)). In short, qualified immunity “gives government officials
breathing room to make reasonable but mistaken judgments about open legal
questions” and “protects ‘all but the plainly incompetent or those who knowingly
violate the law.’” al‐Kidd, 563 U.S. at 743 (quoting Malley v. Briggs, 475 U.S. 335,
341 (1986)). With that standard in hand, we now consider whether qualified
immunity protects the State Defendants from Francis’s constitutional claims.
We begin with Francis’s Fourteenth Amendment claim. We identify two
potential sources of “clearly established” law that might support this claim: first,
the principles articulated in Hill v. United States ex rel. Wampler, 298 U.S. 460 (1936),
and Earley v. Murray, 451 F.3d 71 (2d Cir. 2006); and second, the traditional
procedural due process balancing test from Mathews, which we have applied
above. We consider each of these potential sources in turn.
In rejecting the State Defendants’ claim of qualified immunity, the district
court relied heavily on Wampler and Earley. Those two cases, the court reasoned,
“clearly established [the principle] that a criminal defendant had the right not to
be imprisoned for a significant period of time after he or she should have been
released pursuant to the terms of the sentence.” S.A. 34. Given the holdings of
those two cases, the court concluded, the State Defendants’ “only permissible
course was to release [Francis] or bring the issue to the attention of the district
attorney, [Francis’s] criminal counsel, and/or the state court.” S.A. 35.
In Wampler, the sentencing court had imposed various fines and costs on
Wampler following his conviction for attempted tax evasion. The clerk of that
court, acting in accordance with court policy, had added to Wampler’s
commitment letter one further provision: that “in default of payment of said fines
and costs, [Wampler] stand further committed until the payment of said fines and
costs or until discharged by due process of law.” Wampler, 298 U.S. at 462. The
Supreme Court struck down this additional condition of Wampler’s federal
sentence because the clerk of court, rather than the sentencing court itself, had
imposed it. Without making any mention of the Constitution, the Court reasoned
that “[t]he choice of pains and penalties, when choice is committed to the
discretion of the court . . . must have expression in the sentence.” Id. at 464. It
also articulated the broad notion that “[t]he only sentence known to the law is the
sentence or judgment entered upon the records of the court.” Id.
In Earley, the sentencing court had sentenced Earley to six years’
incarceration pursuant to a plea agreement. DOCCS subsequently added a fiveyear
term of post‐release supervision to Earley’s sentence, as required by a then43
recent New York law. The sentencing court had made no mention of any term of
post‐release supervision in Earley’s written sentence or commitment order. In
considering Earley’s habeas corpus petition, the Second Circuit concluded that
Wampler had clearly established the principle that “[t]he judgment of the court
establishes a defendant’s sentence, and that sentence may not be increased by an
administrator’s amendment.” Earley, 451 F.3d at 75. As the Court explained,
Wampler stood for the broad proposition that “[t]he only cognizable sentence is the
one imposed by the judge,” and that “[a]ny alteration to that sentence, unless
made by a judge in a subsequent proceeding, is of no effect.” Id. The Court
therefore vacated the lower court’s denial of Earley’s habeas petition.
Wampler and Earley did not clearly establish the unconstitutionality of the
State Defendants’ conduct here. Two features of Francis’s case in particular
distinguish it from those precedents. First, Wampler and Earley concerned the
augmentation of a defendant’s sentence with additional conditions found
nowhere in the original commitment order. In Wampler, the clerk added a further
penalty: that Wampler would be detained until he had paid the fines and costs
that the court had imposed upon him. In Earley, DOCCS unilaterally imposed a
five‐year term of supervised release that the sentencing court had never
mentioned. Here, by contrast, the State Defendants did not augment Francis’s
sentence with any novel conditions; the state court imposed a three‐year
maximum term of imprisonment and DOCCS did not purport to add any further
penalties. Instead, the State Defendants merely declined to implement a directive
of concurrency contained in the original sentence because, as the sentencing court
itself later explained, the directive of concurrency was rendered invalid “by
operation of law.” J.A. 89. Thus, while Francis’s case clearly implicates the
broad dicta of Wampler and Earley, the nature of the official conduct in question—
declining to implement one aspect of a sentence on the ground that state law did
not authorize it—is different.
More significantly, the sentences in Wampler and Earley—and the unlawful
additions to those sentences—did not implicate the interaction between two
sentences imposed by different jurisdictions. A sentencing court’s directive that
a state sentence should run concurrently with a federal sentence alters the practical
impact of the both sentences. Such a directive may implicate sensitive issues of
federalism—for instance, if a state court indicates that the defendant’s two
sentences should run concurrently but the federal court directs them to run
consecutively. New York has an obvious interest in addressing such issues and
has apparently attempted to do so by providing for concurrent sentencing only
where the defendant being sentenced “is subject to an undischarged term of
imprisonment imposed at a previous time by a court of another jurisdiction.”
N.Y. Penal Law § 70.30(2‐a). The State Defendants faced a situation where that
legislative judgment seemingly conflicted with the state court’s attempt to run
Francis’s state sentence concurrently with his future federal sentence, and they
reasonably concluded that New York’s legislative scheme required them to follow
a certain course of action while coordinating the two sentences. Whatever
Wampler and Earley establish with respect to the administrative alteration of
sentences, they do not speak clearly to a situation like this one, which presented
DOCCS with complicated considerations not addressed in those prior cases.
Our decision in Sudler v. City of New York, 689 F.3d 159 (2d Cir. 2012), places
particular force behind this second distinction. In Sudler, we confronted a similar
lawsuit over DOCCS officials’ failure to implement a state court’s directive of
concurrency at sentencing. Sudler, the lead plaintiff, had pleaded guilty in state
court to petit larceny charges and the sentencing court had directed that his two
nine‐month sentences for those charges run concurrently with his preexisting
sentence on a separate state charge. Sudler served his petit larceny sentences in
the custody of New York City. When New York State retook custody of Sudler
so that he might resume serving his prior state sentence, however, DOCCS officials
refused to credit him for the time he had just served in City custody—contravening
the sentencing court’s explicit directive. By the time Sudler was finally
discharged from State custody, he had served six months more than he would
have if DOCCS had credited him for the time he had served in City custody.
As Francis did here, Sudler brought suit against the relevant DOCCS
officials pursuant to 42 U.S.C. § 1983, arguing that Wampler and Earley had clearly
established the illegality of the DOCCS officials’ conduct. We disagreed and held
that the officials were entitled to qualified immunity. The Court explicitly noted
that “[n]either Earley nor Wampler addresses a situation like the one at bar, . . .
involving not one sentence but the relationship between one sentence and another
sentenced imposed by a different judge in a separate proceeding.” Sudler, 689
F.3d at 171. With respect to Earley, we also reiterated that “[its] holding, by its
terms, does not instruct prison administrators as to the calculation of release dates
when multiple sentences are at issue—and, indeed, one sentencing judge’s
instructions may conflict with another’s.” Id. at 175. Accordingly, the Court
declined to “resolve the parties’ . . . disagreement as to the scope of Wampler and
Earley” and concluded that “the State Defendants [were] entitled to qualified
immunity on the [the plaintiffs’] claim.” Id. at 173.
While the facts of this case are not identical to those in Sudler, the same
analysis applies. Sudler expressly declined to resolve the question whether
Wampler and Earley “should apply not only with regard to a single sentence, but
also in the context of a sentencing judge’s pronouncement as to the relationship
between the sentence he is imposing and another sentence imposed in a separate
proceeding.” Id. Instead, the Court held that qualified immunity protected the
State Defendants because the answer to that question had not been clearly
established. Id. at 174–77. No case since Sudler has provided further guidance
on the extent of Wampler and Earley’s reach, so Defendants‐Appellants should
receive qualified immunity again here. As in Sudler, the facts “are sufficient to
convince us that the asserted unlawfulness of the State Defendants’ conduct in
calculating [the plaintiff’s] release date would not have been apparent to
reasonable prison officials.” Id. at 176.
In short, in light of the distinctions we have identified above, along with the
reasoning we applied in Sudler, we cannot say that “every reasonable official
would interpret [Wampler and Earley] to establish” the unconstitutionality of the
State Defendants’ conduct in this case. Wesby, 138 S. Ct. at 590.
We concluded above, without relying on Wampler and Earley, that the State
Defendants violated the Due Process Clause pursuant to the traditional threefactor
balancing test from Mathews v. Eldridge. See supra Part II. We held that
the Due Process Clause required the State Defendants to notify the sentencing
court, as well as the attorneys for both parties at sentencing, prior to implementing
Francis’s sentence in a manner that deviated from the sentencing court’s original
pronouncement. We now consider whether Mathews and its progeny had
“clearly established” those constitutional requirements at the time when the State
Defendants engaged in the course of conduct at issue here.
The Supreme Court has repeatedly emphasized that “‘due process,’ unlike
some legal rules, is not a technical conception with a fixed content unrelated to
time, place and circumstances.” Gilbert v. Homar, 520 U.S. 924, 930 (1997) (quoting
Cafeteria & Restaurant Workers v. McElroy, 367 U.S. 886, 895 (1961)). To the
contrary, “due process is flexible and calls for such procedural protections as the
particular situation demands.” Morrissey, 408 U.S. at 481. The traditional
Mathews balancing test embodies that flexibility, requiring courts to weigh three
highly fact‐bound considerations with respect to any potential procedural
innovation that the parties might propose. Given this flexible, contextdependent
approach, it will be a rare case in which prior precedents have
definitively resolved a novel claim of procedural due process. That makes
particularly fertile ground for qualified immunity, given that state officials can be
liable only for violations of rights that have been established “beyond debate” and
with “particular[ity]” by existing constitutional precedents. White, 137 S. Ct. at
With respect to this case in particular, precedent had not clearly established
the due process requirements we identified above at the time of the State
Defendants’ conduct. Indeed, no case of which we are aware has even hinted
that the Constitution might require the specific procedural protections we have
now prescribed. Once again, the most closely analogous precedent is Sudler,
where we affirmed a grant of qualified immunity to prison officials faced with a
similar claim. One of Sudler’s co‐defendants, relying partially on Earley, had
argued that the officials violated the Due Process Clause by failing to provide
additional procedural protections that a Mathews balancing test would have
required. We noted that Earley “does not employ the familiar three‐factor
analysis [from Mathews] . . . to delineate what process prison officials should
undertake to avoid impermissibly extending sentences in the context of
implementing them” and that “the State Defendants had little guidance in
weighing the three Mathews factors in the circumstances confronting them.”
Sudler, 689 F.3d at 175, 177; see also id. at 177 (“The State Defendants cannot be
expected to have divined answers to [those] questions at the time of their allegedly
illegal conduct.”). Once again, Sudler’s analysis applies here. No case before or
after Sudler has even considered whether prison officials implementing a state
sentence violate the Constitution by failing to provide notice to the sentencing
court and attorneys, let alone subjected such a claim to a Mathews analysis.
Accordingly, though we identify a constitutional violation pursuant to such an
analysis, we conclude that qualified immunity protects the State Defendants from
damages liability under the circumstances of this particular case.
We conclude with Francis’s Eighth Amendment claim. Francis claims that
the State Defendants violated his rights under the Eighth Amendment by
incarcerating him for longer than his duly imposed sentence. The Eighth
Amendment provides that “cruel and unusual punishments” shall not be
“inflicted.” U.S. Const. amend. VIII. A plaintiff asserting an Eighth
Amendment claim pursuant to 42 U.S.C. § 1983 must meet two requirements.
“First, the alleged deprivation must be, in objective terms, ‘sufficiently serious.’”
Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir. 1994) (quoting Wilson v. Seiter, 501 U.S.
294, 298 (1991)). Second, “the charged official must act with a sufficiently
culpable state of mind.” Id. (citing Wilson, 501 U.S. at 298).
No Supreme Court or Second Circuit caselaw has clearly established either
prong of the particular Eighth Amendment claim that Francis asserts here. With
respect to objective seriousness, Francis remained in prison for four months
beyond the expiration of his federal sentence as a result of the State Defendants’
actions. No case establishes that these four months of additional incarceration,
although of serious dimension, crossed the threshold of sufficient objective
seriousness to constitute “cruel and unusual punishment[]” under the Eighth
Amendment. Similarly, with respect to the State Defendants’ subjective mental
states, an Eighth Amendment violation typically requires “a state of mind that is
the equivalent of criminal recklessness.” Hathaway v. Coughlin, 99 F.3d 550, 553
(1996); see also Farmer v. Brennan, 511 U.S. 825, 837 (1994). “[T]his standard requires
that only the deliberate infliction of punishment, and not an ordinary lack of due
care for prisoner interests or safety, lead to liability.” Blyden v. Mancusi, 186 F.3d
252, 262 (2d Cir. 1999). No case has found this standard met under circumstances
like these, where the State Defendants weighed the proper course of action, acted
in accordance with a reasonable understanding of a complicated area of state law,
and relayed the legal basis for their actions to Francis in response to his subsequent
inquiries. Indeed, state officials such as these ought to strive to understand and
scrupulously adhere to state law, albeit while demonstrating proper consideration
for a sentencing court’s pronouncements and the need to seek clarification when
such pronouncements appear to conflict with state law.
The district court did not conduct any particularized qualified immunity
analysis with respect to Francis’s Eighth Amendment claim.11 In accepting the
merits of that Eighth Amendment claim, though, the district court relied on two
out‐of‐circuit cases: Haygood v. Younger, 769 F.2d 1350 (9th Cir. 1985) (en banc), and
Sample v. Diecks, 885 F.2d 1099 (3d Cir. 1989). Out‐of‐circuit caselaw is relevant
to the qualified immunity analysis only where the cases “clearly foreshadow a
11 As noted above, the district court’s qualified immunity analysis relied mainly
on Wampler and Earley, neither of which makes any reference to the Eighth Amendment,
cruel and unusual punishment, or any Eighth Amendment caselaw.
particular ruling on the issue.” Terebesi v. Torreso, 764 F.3d 217, 231 (2d Cir. 2014)
(internal quotation marks and citation omitted).
Neither Haygood nor Sample “clearly foreshadow[ed]” a favorable ruling for
Francis with respect to either prong of the Eighth Amendment analysis. Id. In
Haygood, the plaintiff served an additional five years in prison due to an admittedly
erroneous determination by prison officials as to the requirements of state law. 769
F.2d at 1352–53. Sample similarly concerned an erroneous calculation that led to
the plaintiff serving an additional nine months after all three of his sentences had
independently expired or been vacated. 885 F.2d at 1104–05. Here, Francis
served four months of his three‐year state sentence because the sentencing court’s
intended directive of concurrency was concededly void “by operation of law.”
J.A. 89. In addition, both Haygood and Sample involved prison officials who were
found to be “deliberately indifferent” to their own clerical errors on the basis of
their refusals to investigate well‐founded complaints regarding these errors.
Haygood, 769 F.2d at 1355; Sample, 885 F.2d at 1111. Here, the State Defendants
had nothing to investigate: they correctly determined that the sentencing court’s
directive was invalid under New York law. Francis argues that the Eighth
Amendment required these prison officials nonetheless to comply with the invalid
sentencing directive. But, with respect to both objective seriousness and
subjective culpability, Francis’s Eighth Amendment claim bears little comparison
with the out‐of‐circuit cases on which he relies. In sum, whatever we might think
of the merits of Francis’s claim, it is clear that “existing precedent” has not “placed
the . . . constitutional question beyond debate.” White, 137 S. Ct. at 551.
In short, we are aware of no precedent clearly establishing an Eighth
Amendment right that the State Defendants violated under the circumstances of
this case. We therefore hold, without addressing the merits of Francis’s Eighth
Amendment claim, that the claim must fail on qualified immunity grounds.

Outcome: We have considered all of Francis’s remaining arguments and deem them
either waived or without merit. For the reasons stated in this opinion, we
REVERSE the district court’s order and REMAND with instructions to grant the
State Defendants’ motion for summary judgment on qualified immunity grounds.

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