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Scott v. Fischer

August 2, 2010

CHOICE SCOTT, PLAINTIFF-APPELLANT,
v.
SUPERINTENDENT BRIAN FISCHER, GLENN GOORD, RICHARD DE SIMONE, AUDREY THOMPSON, JOHN DOES, NOS. 1-10 (MEMBERS OF THE NEW YORK STATE DEPARTMENT OF CORRECTIONAL SERVICES WHOSE NAMES ARE PRESENTLY UNKNOWN TO PLAINTIFF), DEFENDANTS-APPELLEES.



SYLLABUS BY THE COURT

Appeal from a judgment of the United States District Court for the Southern District of New York (Naomi Reice Buchwald, Judge) granting the defendants' motion to dismiss plaintiff Choice Scott's action brought pursuant to 42 U.S.C. § 1983 and the Fourteenth Amendment. Scott alleges that the defendants deprived her of liberty without due process of law both by placing her on mandatory post-release supervision without a proper judicial sentence and by failing to take action to remove the supervision before or after she was rearrested for violating the terms thereof. The district court granted the defendants' motion to dismiss on the ground that all of the defendants are entitled to qualified immunity. We agree that the defendants are entitled to qualified immunity for all actions they took prior to our decision in Earley v. Murray, 451 F.3d 71 (2d Cir. 2006), and further conclude that the plaintiff has not pleaded sufficient facts to state a claim upon which relief can be granted for any actions the defendants took thereafter.

Affirmed.

The opinion of the court was delivered by: Sack, Circuit Judge

Argued: March 25, 2010

Before: SACK, RAGGI, and HALL, Circuit Judges.

Shortly before her release from prison, having served all but a few days of her three-year sentence by a New York State court for armed robbery, the plaintiff Choice Scott was informed by the New York Department of Corrections that she would be subject to a five-year period of post-release supervision ("PRS"). PRS had neither been mentioned in her plea agreement nor imposed by a judge, at sentencing or otherwise. It was prescribed administratively, instead, by the Department of Corrections, acting pursuant to N.Y. Penal Law § 70.45, a New York State statute that required that sentences for specified violent felonies be accompanied by a mandatory term of PRS.

This is an appeal from a judgment of the United States District Court for the Southern District of New York (Naomi Reice Buchwald, Judge) granting the defendants' motion to dismiss an action brought by Scott pursuant to 42 U.S.C. § 1983 and the Fourteenth Amendment. Scott seeks compensatory and punitive damages for being given a term of PRS that was not imposed by judicial sentence, and for her subsequent arrest and incarceration for non-compliance with the PRS.

The district court granted the defendants' motion to dismiss on the ground that each defendant is entitled to qualified immunity because the right that Scott asserts was violated was not clearly established at the time of the alleged violation.

It is now indeed clearly established that such an administrative imposition of PRS is unconstitutional. The questions presented by this appeal are therefore whether that was so at the time the Department of Corrections defendant-employees administratively imposed PRS on Scott, and whether, following her arrest and re-incarceration for violation of that PRS, Scott has pleaded sufficient facts to set forth a viable claim that the defendants violated clearly established constitutional law by failing to take action to remove her administratively-imposed PRS or to release her from custody. We conclude in the negative as to both questions and therefore affirm.

BACKGROUND

On August 6, 1998, the New York State Legislature enacted what is known as "Jenna's Law," N.Y. Penal Law § 70.45(1). Under the law, certain violent felonies that had theretofore been punished by the imposition of indeterminate sentences*fn1 were to be punished with a combination of a determinate sentence and a mandatory term of PRS.*fn2 Although PRS was mandatory at all times relevant to this appeal, the statute that so provided contained no requirement that a sentencing judge impose the PRS or announce it, at sentencing or otherwise.*fn3

Scott pleaded guilty to armed robbery in the second degree on July 12, 1999. In accordance with a plea agreement, she was sentenced to a determinate sentence of three years, with no mention by the sentencing judge at the time of sentencing, either orally or in writing, of a term of PRS. Not until July 1, 2002, a few days prior to her release from prison, did the Department of Corrections inform Scott that she would be subject upon release to a five-year period of PRS.

On March 12, 2004, after Scott failed to comply with the terms of her PRS, defendant Thompson, a parole officer, recommended the issuance of a parole violation warrant for her arrest. In October 2006, Scott was arrested in New Jersey pursuant to that warrant, and extradited to New York. Following a parole revocation hearing held on January 16, 2007, Scott was sentenced to an 18-month term of imprisonment for violation of her PRS.

Scott filed a petition for a writ of habeas corpus in state court to challenge her parole revocation. On August 7, 2007, after she had been incarcerated at Rikers Island Correctional Facility for some ten months, the writ was granted. Scott was released shortly thereafter. She then brought the instant action pursuant to 42 U.S.C. § 1983 alleging that her ten-month incarceration for violation of her PRS constituted a deprivation of her liberty in violation of the Due Process Clause of the Fourteenth Amendment. She named as defendants Audrey Thompson, the parole officer who requested the arrest warrant for violation of the PRS; Brian Fischer, then-Commissioner of the New York State Department of Correctional Services ("DOC"); Glenn Goord, the former Commissioner of DOC; Richard de Simone, the Associate Counsel in Charge of the Office of Sentencing Review at DOC; and John Does Nos. 1-10, described as agents, employees, officers and servants of DOC who actively participated in the actions alleged in the complaint. The allegations against defendant Thompson were based on Thompson's procurement of the arrest warrant against Scott, while those against the DOC officials were premised on their role in adopting, approving, or ratifying the policy of administrative imposition of PRS pursuant to which individuals such as Scott were administratively sentenced.

The defendants moved to dismiss the complaint on four grounds: (1) that abstention was appropriate under the Younger, Pullman, and Colorado River abstention doctrines; (2) that Scott failed to exhaust her state remedies, as required by Heck v. Humphrey, 512 U.S. 477 (1994); (3) that Scott's claims were barred by the ...


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