The opinion of the court was delivered by: John Gleeson, United States District Judge
Anthony Carnell brings this pro se action under 42 U.S.C. § 1983, seeking damages for confinement past his release date in violation of the Eighth Amendment. He has sued Senior Parole Officer Raquel Welch and Parole Area Seprvisor Martin Arroyo of the Division of Parole, as well as two employees of the New York State Department of Correctional Services ("DOCS"), Paul W. Annetts, the superintendent of Downstate Correctional Facility, and Deborah Wolfe, former inmate records coordinator at Downstate. The defendants move to dismiss. For the reasons stated below, the motion is granted in part and denied in part.
Carnell, currently incarcerated in Fishkill Correctional Facility due to an unrelated crime, challenges the defendants' execution of his sentence for a September 1999 burglary conviction in New York Supreme Court, Kings County.
Carnell's sentence for this burglary charge was imposed on January 11, 2000. The minutes of the sentencing reflect the imposition of an indeterminate term of imprisonment of three and one-half to five years, but the sentence and commitment order issued that day reflects the imposition of a determinate term of three and one-half years. DOCS treated the determinate term as controlling. Although not reflected on the commitment order, under prevailing law at the time, a five-year term of post-release supervision was imposed by operation of law.*fn1
Carnell was released to post-release supervision on January 31, 2002. On several occasions over the next three years, each time shortly after his release, Carnell violated post-release supervision and was re-incarcerated. The following description is taken in part from declarations submitted by the defendants. As the defendants have not moved for summary judgment or provided the notice to Carnell which would allow me to convert the defendants' motion into one for summary judgment, I may not consider the contents of these documents.*fn2
Accordingly, for the purposes of deciding this motion, I consider only the facts contained in public documents, as well as Carnell's claims and facts as to which there is no dispute. Although I do not consider the following allegations in deciding the motion, I provide this summary of DOCS's calculations merely by way of background. As relevant to this case, Carnell was declared delinquent on January 26, 2005 for reasons not apparent from the record. Accordingly, his post-release supervision time stopped running on that date, at which point he was determined to have two years, six months and 19 days of post-release supervision left to serve. On March 16, 2005, while still in that delinquent status, Carnell was arrested and incarcerated in the custody of the New York City Department of Corrections ("NYCDOC"). Carnell remained in the NYCDOC's custody until March 31, 2006.
During Carnell's custody, it is undisputed that several events occurred. He served three misdemeanor sentences for offenses committed both before and after his delinquency. Carnell also filed a state court collateral attack on his 2000 burglary conviction, which resulted in a resentencing for that conviction. At the resentencing on December 16, 2005, the Supreme Court, Queens County, imposed the same sentence with the exception that Carnell's five-year period of post-release supervision was reduced by two years and six months.
The defendants claim that as Carnell was previously deemed to have only two years, six months, and 19 days of post-release supervision left to serve, as of December 16, 2005, he was determined to have only 19 days of post-release supervision left to serve. They further claim that, due to two errors in the computation of Carnell's sentence discovered during the course of this litigation, Carnell in fact had only 18 days of post-release supervision left to serve. The first error related to the calculation of Carnell's initial term of incarceration on his burglary conviction. At the time of his burglary arrest, he still had 63 days of outstanding post-release supervision to serve on a 1996 conviction; he had been delinquent up until his burglary arrest, and under New York law the first 63 days of his incarceration following his burglary arrest should have been credited not to Carnell's burglary sentence but to his previous 1996 sentence. Thus, according to DOCS, Carnell's release date should have been 63 days later than it actually was. Carnell does not dispute this claim.
However, the government claims that this error was almost exactly cancelled out by the second computation error DOCS describes. During his year of incarceration beginning in March of 2005, Carnell spent most of his time serving sentences for his three misdemeanor convictions. However, while DOCS had initially believed that Carnell spent 34 days incarcerated beyond the total terms of his misdemeanor convictions, review of the records in connection with this litigation revealed that he actually spent a total of 98 days incarcerated beyond the total terms of his misdemeanor convictions. Fifty of those days of extra incarceration were spent between the end of his first misdemeanor sentence and the commencement of his third misdemeanor sentence,*fn3 while 48 of those days of extra incarceration were spent after the end of his third misdemeanor sentence. Since the 98 days Carnell actually spent incarcerated beyond the total of his misdemeanor terms is 64 days longer than the 34 days of extra incarceration he had previously been deemed to have suffered, Carnell's post-release supervision should have expired 64 days earlier. This 64-day error cancels out the 63-day error completely and means that Carnell was entitled to release one day sooner. Thus, on the defendants' calculation, after Carnell's resentencing he only had 18, not 19, days of post-release supervision to serve. In connection with the time Carnell still had left to serve on his misdemeanor sentences, after canceling out the errors DOCS made, Carnell was entitled to be released on March 15, 2006. He was in fact released on April 6, 2006 from DOCS custody into NYCDOC custody, where he claims he spent four additional days prior to his ultimate release on April 10, 2006.
On March 15, 2006, the day the defendants argue Carnell should have been released from custody, he was still in the custody of NYCDOC. The state DOCS did not gain custody of Carnell until Friday, March 31, 2006. Although the defendants now claim there was no reason for Carnell to be in custody at that point, DOCS erroneously took Carnell's December 16, 2005 resentencing to be an entirely new sentence, and processed Carnell under a new department identification number, including subjecting him to the medical tests required for newly incarcerated inmates. It was only on April 6, 2006 that DOCS finally released Carnell. Carnell argues that DOCS released him to NYCDOC in order to serve what he claims were four more days of his six-month sentence for his third misdemeanor, and that therefore he should have received credit for part or all of the six-month period of NYCDOC incarceration from August 10, 2005 to February 10, 2006, which DOCS attributes to this six-month third misdemeanor sentence. Pl.'s Mem. Opp. Mot. Dismiss ¶ 6. On this calculation, assuming that the defendants could be held accountable for the time Carnell spent in NYCDOC custody, Carnell would have been held in custody beyond the expiration of his sentence from March 15, 2006 to April 10, 2006, a period of 26 days.
However, Carnell has made an admission which undermines his claim. The defendants deemed Carnell to have spent 50 days of excess incarceration between the end of his first misdemeanor sentence (on June 20, 2005) and the commencement of his third misdemeanor sentence (which they deem to have occurred on August 10, 2005). Although Carnell's 30-day second misdemeanor sentence, which was imposed on September 15, 2005, ran consecutively to Carnell's third misdemeanor sentence, the defendants, in this litigation, did not seek to toll Carnell's period of post-release supervision for this 30-day sentence, as they believed that this sentence ran from September 15, 2005 to October 15, 2005 (during which time they also deemed Carnell to be serving his six-month third misdemeanor sentence). They thus effectively deemed the second sentence to run concurrently with the third sentence for the purpose of calculating when Carnell's period of post-release supervision expired, even though the two sentences were in fact imposed consecutively.
However, Carnell asserted at oral argument that his second misdemeanor sentence did not commence on September 15, 2005, but rather during the time he had previously been in custody after his first misdemeanor sentence. That is, on Carnell's own account, his second misdemeanor sentence was served from June 21, 2005 to July 21, 2005. This concession is consistent with the transcript of Carnell's second misdemeanor sentencing, where his attorney stated on the record prior to the court's acceptance of Carnell's guilty plea, and to no objection, that he had informed Carnell that Carnell would "get credit for the time he has been in jail," Sent'g Tr. 2, Sept. 15, 2005. If this second misdemeanor sentence ran from June 21, 2005 to July 21, 2005, then Carnell would not have spent 50 days in custody beyond the maximum terms of his sentences between June 20, 2005 and August 10, 2005, but only 20 days (between July 21, 2005 and August 10, 2005). Assuming that the defendants are accountable for time Carnell spent in the custody of NYCDOC, and that Carnell's six-month third misdemeanor sentence did not run concurrently with his period of post-release supervision, the 30-day term of Carnell's second misdemeanor sentence, if not run concurrently with his six-month third misdemeanor sentence, cancels out the 26-day period of excess incarceration Carnell claims.
On September 18, 2006, approximately five months after his release, Carnell committed an unrelated crime, for ...