The opinion of the court was delivered by: John Gleeson, United States District Judge
William Joyner-El-Quwi-Bey brings this action pursuant to 42 U.S.C. § 1983. He claims that his constitutional rights were violated when, after serving four years in prison for attempted robbery, he was subjected to a term of post-release supervision that was imposed not by a judge, but instead by officials at the New York State Department of Correctional Services. The defendants, current and former officials of the Department of Correctional Services and the New York State Division of Parole, assert qualified immunity and move to dismiss the complaint for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6), among other grounds. For the reasons discussed below, the motion is granted.
On February 26, 2003, a judge of the New York Supreme Court, New York County, sentenced William Joyner-El-Quwi-Bey to a four-year determinate prison term for attempted robbery in the second degree. Although the judge was required by New York law to impose an additional term of post-release supervision because Joyner-El-Quwi-Bey was convicted of a violent felony, she neglected to do so.*fn1
Nevertheless, the New York State Department of Correctional Services, acting according to its policy, administratively imposed a five-year term of post-release supervision on Joyner-El-Quwi-Bey on some date no later than April 6, 2006, as he was nearing the end of his prison term. After he was released from prison some time in 2006, he violated at least one of the conditions of his supervised release and was reincarcerated for two years in Franklin Correctional Facility.*fn2 He was released some time in 2008, when he again violated at least one of the conditions of his supervised release and was reincarcerated for sixteen months in Arthur Kill Correctional Facility.*fn3
Either before or while Joyner-El-Quwi-Bey was serving his sentence for his second violation, the New York Court of Appeals ruled that only judges had the power to sentence and that the Department of Correctional Services had acted unlawfully when it administratively imposed supervision terms. See People v. Sparber, 10 N.Y.3d 457, 469-70 (2008); Garner v. New York State Dep't of Correctional Servs., 10 N.Y.3d 358, 362 (2008).Consequently, on June 30, 2008, the New York legislature passed Correction Law § 601-d, which required the Department of Correctional Services to identify defendants subjected to administratively imposed terms of post-release supervision and created a procedure by which the courts that originally sentenced those defendants would decide whether resentencing was appropriate. On April 29, 2009, in a proceeding pursuant to Correction Law § 601-d, the judge who had sentenced Joyner-El-Quwi-Bey issued an order affirming the sentence she had originally imposed, which had included no term of post-release supervision. The district attorney for New York County consented to the order. See N.Y. Penal Law § 70.85.
Joyner-El-Quwi-Bey brought this action on March 23, 2009 against Raul Russi, a former chairman of the Division of the Parole,*fn4 Brian Fischer, the Commissioner of the New York State Department of Correctional Services, Dennis Breslin, the superintendent of Arthur Kill Correctional Facility, and Franklin Correctional Facility. He claims that the defendants violated his constitutional rights by administratively imposing and enforcing a term of post-release supervision, and he seeks damages for the period during which he was unlawfully subject to supervision.
When deciding a motion to dismiss pursuant to Rule 12(b)(6), a court must accept all factual allegations in the complaint as true and draw all reasonable inferences in the plaintiff's favor. See Shomo v. City of New York, 579 F.3d 176, 183 (2d Cir. 2009)."To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009). A claim is facially plausible only if the pleaded facts permit a court to reasonably infer that the defendant is liable for the alleged misconduct. Id.
Qualified immunity "protects government officials '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.'" Farid v. Ellen, 593 F.3d 233, 244 (2d Cir. 2010) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). For an official's action to violate a clearly established right, "'in the light of pre-existing law [its] unlawfulness must be apparent.'" Okin v. Village of Cornwall-on-Hudson Police Dep't, 577 F.3d 415, 433 (2d Cir. 2009) (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)); see Hope v. Pelzer, 536 U.S. 730, 741 (2002) ("[T]he salient question... is whether the state of the law... gave [defendants] fair warning that their alleged treatment of [the plaintiff] was unconstitutional.").
Defendants acknowledge that state and federal courts in New York now agree that the Department of Correctional Services may not lawfully impose a term of post-release supervision, even one that is statutorily required, on a defendant. See Earley v. Murray, 451 F.3d 71, 76 (2d Cir. 2006) (administrative imposition of supervision term violated federal law); Garner v. New York State Dep't of Correctional Servs., 10 N.Y.3d 358, 363 (2008) (administrative imposition of supervision term violated state statutory law). They argue that they are entitled to qualified immunity because, at the time they ...