The opinion of the court was delivered by: Sidney H. Stein, U.S. District Judge
This Court's Order dated April 2, 2010, (Dkt. # 16), directed plaintiffs to show cause why the complaint in this action should not be dismissed in light of the Court's Opinions and Orders dated March 31, 2010 in Hardy v. Fischer. In response, plaintiffs move (1) for reconsideration of this Court's Hardy Opinion and Order granting qualified immunity and dismissing the Hardy complaint and (2) for leave to file an amended complaint.
The plaintiffs in Hardy have also moved for reconsideration of the March 31, 2010 Opinion and Order dismissing their complaint. That motion was denied by this Court in an Opinion and Order dated November 3, 2010.
II. LEAVE TO AMEND THE COMPLAINT SHOULD BE DENIED
Plaintiffs seek leave to file an amended complaint to add new parties and expressly request disgorgement as an equitable remedy. "The court should freely give leave [to amend a pleading] when justice so requires." Fed. R. Civ. P. 15(a). Nevertheless, the futility of the proposed amendment is a valid basis on which to deny leave to amend. See Mackensworth v. S.S. Am. Merch., 28 F.3d 246, 251 (2d Cir. 1994) (citing Foman v. Davis, 371 U.S. 178, 182 (1962)).
B. Addition of New Parties
Plaintiffs seek to add new representative plaintiffs "upon whom DOCS [i.e., the Department of Correctional Services] administratively imposed PRS [i.e., post-release supervision] for the first time after the Second Circuit decided Earley v. Murray, 451 F.3d 71 (2d Cir. 2006), in June 2006." (Notice of Mot. dated May 19, 2010, Dkt # 19.) Because the Hardy plaintiffs' complaint-which this Court has dismissed-alleged that the DOCS employees named as defendants imposed PRS on each plaintiff prior to the Earley decision, this Court did not previously determine whether the right to have PRS imposed by a judge was clearly established for purposes of defendants' qualified immunity after Earley. The issue, now, is whether defendants would still be entitled to qualified immunity for the alleged constitutional violations against the proposed new plaintiffs. If the defendants' conduct post-Earley remains protected by qualified immunity, then plaintiffs' amendment to add new plaintiffs seeking damages would be futile.
The doctrine of 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.'" Pearson v. Callahan, 129 S.Ct. 808, 815 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). To determine whether a right is "clearly established," courts in this Circuit assess whether: "(1) the law is defined with reasonable clarity, (2) the Supreme Court or the Second Circuit has recognized the right, and (3) a reasonable defendant would have understood from the existing law that his conduct was unlawful." Anderson v. Recore, 317 F.3d 194, 197 (2d Cir. 2003) (internal quotations and citations omitted). Qualified immunity applies regardless of whether an official's error is "a mistake of law, a mistake of fact, or a mistake based on mixed questions of law and fact." Pearson, 129 S.Ct. at 815. Moreover, whether the law was clearly established must be evaluated at the time of the conduct at issue. See Harhay v. Town of Ellington Bd. of Educ., 323 F.3d 206, 211 (2d Cir. 2003).
In June 2006, the United States Court of Appeals for the Second Circuit held that the administrative imposition of extra-judicial sentences of PRS violated federal law. Earley, 451 F.3d at 76 ("The imposition of a sentence is a judicial act; only a judge can do it. The penalty [of PRS] administratively added by the Department of Corrections was, quite simply, never a part of the sentence."). However, the Court's inquiry does not stop there. A right is not clearly established for the purposes of qualified immunity unless a reasonable defendant "would have understood from the existing law that his conduct was unlawful," Anderson, 317 F.3d at 197, "at the time of the conduct at issue," Harhay, 323 F.3d at 211.
Following Earley, there was considerable confusion in New York State courts as to the applicability of the Second Circuit's decision. Two of New York's Appellate Divisions continued to uphold the lawfulness of administratively imposed PRS. See Garner v. New York State Dep't of Corr. Servs., 39 A.D.3d 1019, 831 N.Y.S.2d 923 (3d Dep't 2007); People v. Thomas, 35 A.D.3d 192, 826 N.Y.S.2d 36 (1st Dep't 2006). It was not until April 2008 that the New York Court of Appeals struck down the administrative imposition of PRS. See Garner v. New York State Department of Correctional Services, 10 N.Y.3d 358, 362, 859 N.Y.S.2d 590, 889 N.E.2d 467 (2008) and People v. Sparber, 10 N.Y.3d 457, 859 N.Y.S.2d 582, 889 N.E.2d 459 (2008).
In Scott v. Fisher, the Second Circuit recently considered whether Earley itself clearly established the "unconstitutionality of administratively imposed PRS for a reasonable New York State correctional official." 616 F.3d at 107(2d Cir. 2010). The Second Circuit took into consideration the conflicting state court decisions regarding PRS and concluded that "[i]n circumstances of such apparent judicial confusion as to the constitutional propriety of a statutory mandate, qualified immunity might well continue to shield state officials acting pursuant to that statute." Id. at 107-08 (citing Wilson v. Layne, 526 U.S. 603, 617 (1999) (holding that state officials "cannot have been expected to predict the future course of constitutional law" (internal quotation marks omitted)); Wilson, 526 U.S. at 618 ("If judges thus disagree on a constitutional question, it is unfair to subject police to money damages for picking the losing side of a controversy."); Vives v. City of New York, 405 F.3d 115, 118 (2d Cir. 2005) (refusing to find the law clearly established where "several courts have specifically declined to find [it] unconstitutional")); see also Ruffins v. Dep't of Corr. Servs., 701 F. Supp. 2d 385, 389 (E.D.N.Y. 2010) ("It was objectively reasonable for the defendants to believe, given the murky legal landscape that followed Earley, that they were not violating plaintiff's rights in 2007 by continuing to enforce his PRS.").
Accordingly, this Court now finds that the unlawfulness of administratively imposed PRS was not clearly established from the standpoint of a reasonable DOCS officer in the period after Earley and before the New York Court of Appeals' decisions in Garner and Sparber. Here, plaintiffs seek leave to amend their complaint to add new plaintiffs who had PRS imposed on them "for the first time" after Earley. The two individuals that plaintiffs have specifically proposed-Wayne Jefferson and Stephen Iorio-allegedly had PRS imposed on them by defendants in July 2006 and January 2007, respectively. These dates are shortly after Earley yet prior to the 2008 opinions in Garner and Sparber. Because the defendants are entitled to qualified immunity for the actions allegedly taken against the ...