The opinion of the court was delivered by: Andrew T. Baxter, United States Magistrate Judge
This matter was referred by United States District Judge Gary L. Sharpe, for Report and Recommendation pursuant to 28 U.S.C. § 636(b) and Local Rules N.D.N.Y. 72.3(c).
In this amended civil rights complaint, plaintiff alleges that defendants miscalculated his sentence, causing him to be detained long past his maximum expiration date. (Dkt. No. 11). Plaintiff seeks substantial monetary relief for the time that he was allegedly illegally detained. Plaintiff and defendants have cross-moved for summary judgment pursuant to Fed. R. Civ. P. 56. (Dkt. Nos. 47, 49). Plaintiff has filed a response in opposition to defendants' motion. (Dkt. No. 52). For the following reasons, this court finds that even assuming that plaintiff's claim is properly before the court, his sentence was calculated correctly, and his complaint may be dismissed in its entirety.
The court will outline a brief procedural history of this action for
clarity. On September 18, 2003, plaintiff filed a petition for writ of
habeas corpus, challenging the erroneous calculation of his sentence
and requesting release from confinement. See Robinson v. Connell, No.
9:03-CV-1151 (LEK/VEB*fn1 ). On November 15, 2005,
plaintiff filed this action seeking substantial monetary relief under
section 1983 for the allegedly "unauthorized detention," resulting
from same erroneous calculation. (Dkt. No. 1 at 18-19). Although
plaintiff was allowed two attempts to amend the complaint in this
case, (Dkt. Nos. 8, 11), on June 6, 2006, Judge Sharpe dismissed the
action sua sponte for failure to state a claim pursuant to 28 U.S.C. §
1915(e)(2)(B) and Rule 5.4(a) of the Local Rules of the Northern District of New York. (Dkt.
Nos. 9, 12). Judge Sharpe based his orders substantially*fn2
on Heck v. Humphrey, 512 U.S. 477, 486-87 (1994), which holds that plaintiff may not bring an action
under section 1983, challenging the propriety of his ongoing
detention, unless plaintiff can also prove that the sentence has been
reversed on direct appeal, expunged by executive order, declared
invalid by a state tribunal authorized to make such a determination,
or called into question by a federal court's issuance of a writ of
habeas corpus. (Dkt. No.9 at 2; Dkt. No. 12 at 1). At the time of Judge Sharpe's orders,
plaintiff's petition for habeas corpus, 9:03-CV-1151, was still
pending, and his second amended complaint in this action "set forth .
. . allegations and claims relating solely to his contention that his
sentence has been improperly calculated and that he is being illegally
detained." (Dkt. No. 12 at 2). Because the habeas petition had not
been resolved, and plaintiff's sentence calculation had not been
invalidated, Judge Sharpe held, based on Heck v. Humphrey, that
plaintiff's second amended complaint in this action failed to state a
claim upon which relief could be granted and dismissed the action. Id.
Judgment was entered for defendants. (Dkt. No. 13).
Plaintiff was conditionally released from confinement on December 4, 2006. (Dkt. No. 48 in 9:03-CV-1151) (Bianchini, M.J.) (Report-Recommendation). On September 28, 2007, Magistrate Judge Bianchini recommended dismissing plaintiff's habeas corpus petition as moot, based on the lack of collateral consequences resulting from the alleged miscalculation of his sentence, and therefore, the lack of an ongoing "case or controversy."*fn3 Id. at 2-4. The Honorable Lawrence E. Kahn approved and adopted the Report-Recommendation on March 31, 2008, dismissing the petition for habeas corpus. (Dkt. Nos. 49, 50 in 9:03-CV-1151).
On February 28, 2008, plaintiff moved to vacate the judgment in this action pursuant to Fed. R. Civ. P. 60(b). (Dkt. No. 14). At the same time, plaintiff moved to consolidate this action with his application for habeas corpus relief.*fn4 Id. The basis of plaintiff's motion to vacate was "newly discovered evidence" that his sentence had been miscalculated. Id. The newly discovered evidence consisted of plaintiff's allegedly successful "motion to vacate" his criminal sentence before New York State Supreme Court Justice Deborah Dowling. Id.
On March 20, 2008, Judge Sharpe denied plaintiff's motion because, under Rule 60(c)(1), a motion to vacate pursuant to Rule 60(b)(1)-(3) must be made no more than one year after the entry of judgment, and plaintiff had failed to meet the one year deadline. (Dkt. No. 17 at 4). Judge Sharpe also stated that plaintiff's "new evidence" did not show that plaintiff's sentence had been reversed in any of the required ways under Heck. Id. Thus, Judge Sharpe denied the motion to vacate the judgment and plaintiff's request to consolidate 9:03-CV-1151 with 9:05-CV-1428. Id. at 4-5.
Plaintiff appealed Judge Sharpe's order to the Second Circuit. (Dkt. No. 18). On September 21, 2009, the Second Circuit vacated Judge Sharpe's order denying plaintiff relief under Rule 60(b) and remanded the case to the District Court for consideration of whether Heck v. Humphrey still applied to bar the plaintiff's claims in view of his release from confinement and the Second Circuit's decision in Huang v. Johnson, 251 F.3d 65, 73-75 (2d Cir. 2001). In Huang, the Second Circuit held that section 1983 is the remedy that a former prisoner may use after his release from confinement if he claims that his release date was improperly calculated. Id. TheSecond Circuit also held that the District Court should consider whether to construe plaintiff's Rule 60(b) motion as arising under Rule 60(b)(5) or 60(b)(6), which would not be subject to the one-year time limitation. Id.
On February 9, 2010, Judge Sharpe issued an order based on the Second Circuit mandate. (Dkt. No. 29). After reviewing the procedural history of this action, Judge Sharpe construed plaintiff's Rule 60(b) motion as arising under Rule 60(b)(5) and (6). Id. at 4. Based upon this construction, Judge Sharpe granted plaintiff's motion to vacate his earlier judgment and reopened "this matter for the sole purpose of addressing plaintiff's claim that his release date was erroneously calculated resulting in a period of unlawful detention." Id. at 4-5 (citing Huang v. Johnson, 251 F.3d at 73-75).
On May 12, 2010, plaintiff moved for summary judgment. (Dkt. No. 47). Defendants cross-moved for summary judgment on May 20, 2010. (Dkt. No. 49). Plaintiff filed his response to defendants' motion on May 28, 2010. For the following reasons, this court recommends that plaintiff's motion be denied, that defendants' cross-motion be granted, and that the complaint be dismissed in its entirety.
II. Facts and Contentions
Defendants have filed a various exhibits in support of their summary judgment motion, outlining the plaintiff's incarceration/release history. (Dkt. Nos. 49, 50). Defendants have included as Exhibit A, the affirmation of Richard de Simone, Esq., Associate Counsel, Office of Sentencing Review for DOCS. (Dkt. No. 49-2; Defs.' Ex. A). Plaintiff's relevant incarceration history began when he was sentenced by the Supreme Court, Kings County on January 4, 1991 to a concurrent terms of 1 to three years confinement for Criminal Possession of Stolen Property, Third Degree and Grand Larceny, Third Degree. (Defs.' Ex. A; Dkt. No. 49-2 at 2; de Simone Aff.). On January 17, 1991, plaintiff was received by the New York State Department of Correctional Services (DOCS). Id. When he entered DOCS, he was given a total of 359 days of jail-time credit. Id.
On May 1, 1991, plaintiff was sentenced by the Supreme Court in New York County to an additional concurrent term of imprisonment of 2 to 4 years for Criminal Possession of Stolen Property, Third Degree. Id. Plaintiff was released to parole supervision on February 7, 1992, but was declared delinquent on June 9, 1992. Id. On December 17, 1992, plaintiff was sentenced in Supreme Court, New York County to a term of 3 1/2 to 7 years imprisonment for Grand Larceny, Second Degree, to run consecutively to plaintiff's prior sentences by operation of N.Y. PENAL LAW § 70.25
(2-a). Id. at 3. Plaintiff was returned to DOCS on January 7, 1993 and received 213 days of jail-time credit on his sentence. Id. On April 4, 1995, plaintiff failed to return to Edgecombe Correctional Facility from a work release program, but was returned to DOCS several days later on April 18, 1995. Id.
Plaintiff was released on parole for the second time on April 22, 1997, but was declared delinquent less than on month later on May 8, 1997. Id. On October 10, 1997, plaintiff was restored to parole supervision and was credited with 129 days of jail time. Id. On January 4, 1999, plaintiff was declared delinquent and was returned to DOCS on June 21, 1999, credited with 145 days of jail time. Id. Plaintiff was paroled again on September 16, 1999, but was declared delinquent on November 16, 1999. Id. On February 3, 2000, plaintiff was returned to DOCS as a parole violator and credited with 76 days of jail time. Id. On April 28, 2000, plaintiff was sentenced in Supreme Court Kings County to a term of 3 to 6 years for Grand Larceny, Second Degree. The court imposed the sentence to run concurrently to the "sentence currently serving." Id.
Plaintiff was paroled again on July 5, 2000, but was declared delinquent the next day. Id. On July 28, 2000, plaintiff was returned to DOCS as a parole violator and was credited with 22 days of jail time. Id. at 4. He was paroled again on October 19, 2000, but was declared delinquent on November 15, 2000. Id. On January 3, 2001, plaintiff was returned to DOCS as a parole violator and credited with 49 days of jail time. Id. On May 9, 2002, plaintiff was sentenced by the Supreme Court, Kings County to a term of 11/2 to 3 years for Criminal Possession of a Controlled Substance, Fourth Degree. Id. Plaintiff was received by DOCS on May 29, 2002, with 272 days jail-time credit. Id.
On April 4, 2005, an amended commitment was issued for the 2000 sentence (case no. 9130-99). The new commitment stated that the "Judge recommends that this sentence runs concurrently with time owed to parole, non [sic] pro tunc to 4/4/00, the date of sentence." Id. On September 22, 2006, another amended commitment was issued for the 2000 sentence. This amendment stated that the sentence was to run "concurrently with the sentences imposed on New York County case no. 3091-01 and 'any other time owed to parole.'" Id. The new commitment also stated that "this sentence shall run concurrently with all outstanding sentences." Id.
Plaintiff was conditionally released on December 4, 2006 and declared delinquent on April 4, 2007. Id. at 5. A release violation warrant was issued by the Division of Parole on May 13, 2007, and a final revocation hearing was held by the Division of Parole on July 9, 2007, after which plaintiff received a four month time assessment. Id. On July 21, 2007, plaintiff was discharged by the Division of Parole upon the maximum expiration of his sentence. Id.
Plaintiff believes that, as of February 3, 2000, all his prior criminal convictions "had a max out date of 3/12/01 . . . ." (Pl.'s Reply, "Statement of Material Facts"; Dkt. No. 52 at 9). Plaintiff states that his 3 to 6 sentence from 2000 (Indictment # 9130-99) was made to run "concurrent with IND # 5681-92 with time left on parole . . . ." Id. Plaintiff seems to claim that, because his 2000 sentence was made to run concurrent to his 1992 sentence, both sentences were completed prior to his 2001 conviction for which he was sentenced to 1 to 3 years. Plaintiff claims ...