Vincent v. Annucci

21-22
Vincent v. Annucci

In the
United States Court of Appeals
For the Second Circuit
________

AUGUST TERM 2021

ARGUED: JANUARY 20, 2022
DECIDED: MARCH 23, 2023

No. 21-22

SHAWN MICHAEL VINCENT,
Plaintiff-Appellee,

v.

ANTHONY J. ANNUCCI,
Defendant-Appellant,

BRUCE S. YELICH, Superintendent, Bare Hill Correctional Facility;
BRIAN S. FISCHER, Commissioner, New York State Department of
Corrections and Community Supervision; RICHARD DESIMONE;
LUCIEN J. LECLAIRE, JR.; GLENN S. GOORD; HENRY LEMONS, JR.;
GEORGE B. ALEXANDER; ROBERT DENNISON; BRION D. TRAVIS; JOHN
DOE; and JANE DOE,
Defendants.
________

Appeal from the United States District Court
for the Western District of New York.
________
2 No. 21-22

Before: KEARSE, WALKER, and SULLIVAN, Circuit Judges.
________

Shawn Michael Vincent brought this action under 42 U.S.C.
§ 1983, seeking compensatory damages for the 686 days that he was
unlawfully incarcerated after this court clearly established in Earley v.
Murray, 451 F.3d 71 (2d Cir.) (Earley I), reh’g denied, 462 F.3d 147 (2d
Cir. 2006) (Earley II), that only a court could lawfully impose post-
release supervision (PRS). Vincent served this time for violating the
terms of his PRS that the New York Department of Correctional
Services (DOCS)—not his sentencing judge—had imposed. He sued
various New York state officials including Anthony Annucci, then-
Deputy Commissioner and legal counsel for DOCS, for the unlawful
deprivation of his liberty under the Due Process Clause of the 14th
Amendment of the Constitution.

On appeal, Annucci challenges the district court’s award of
compensatory damages to Vincent and revives his claim of qualified
immunity which was previously unsuccessful. We previously held
in Vincent v. Yelich, 718 F.3d 157 (2d Cir. 2013), that the
unconstitutionality of administratively imposed terms of PRS was
clearly established by Earley I. And we later held in Betances v. Fischer,
837 F.3d 162 (2d Cir. 2016), that because Annucci failed to make
objectively reasonable efforts to comply with federal law that was
clearly established by Earley I, he was not entitled to qualified
immunity. Annucci offers no compelling argument for us to
reconsider these prior holdings. We thus conclude that the district
court (Larimer, J.) did not err in applying our prior precedents to deny
him qualified immunity.
3 No. 21-22

We remand solely for the district court to reconsider the issue
of damages. While Earley gave the state the option of either (1)
arranging for defendants subject to null and void PRS terms to be
appropriately resentenced or (2) excising their PRS terms, we did not
decide which defendants were eligible for resentencing. We now
hold that the resentencing option was not available for defendants
like Vincent, who had completed their judicially imposed sentences
and were incarcerated solely for violating their administratively
imposed PRS terms. We remand for the district court to determine
the steps that were available to Annucci, to conduct any additional
fact finding that may be necessary in that regard, and to reconsider,
in light of these findings and determinations, whether Vincent
established his entitlement to compensatory damages.

For the reasons that follow, we affirm in part and vacate in part the
district court’s decision, and remand for proceedings consistent with
this opinion.

In a separate opinion, Judge Kearse dissents in part and concurs in
part.

________

JON P. GETZ, Law Office of Jon Getz, Rochester, NY
(K. Wade Eaton, The Eaton Law Firm, Pittsford,
NY, on the brief), for Shawn Michael Vincent.

BRIAN D. GINSBERG, Assistant Solicitor General of
Counsel (Andrea Oser, Deputy Solicitor General,
on the brief), for Barbara D. Underwood, Solicitor
General and Letitia James, Attorney General of the
4 No. 21-22

State of New York, Albany, NY, for Anthony J.
Annucci.
Matthew D. Brinckerhoff, Emery Celli
Brinckerhoff Abady Ward & Maazel LLP, New
York, NY, for amici curiae the Plaintiff Class in
Betances v. Fischer.
________

JOHN M. WALKER, JR., Circuit Judge:

Shawn Michael Vincent brought this action under 42 U.S.C.
§ 1983, seeking compensatory damages for the 686 days he was
unlawfully incarcerated after this court had clearly established in
Earley v. Murray, 451 F.3d 71 (2d Cir.) (Earley I), reh’g denied, 462 F.3d
147 (2d Cir. 2006) (Earley II), that only a court could lawfully impose
post-release supervision (PRS). Vincent served this time for violating
the terms of his PRS that the New York Department of Correctional
Services 1—not his sentencing judge—had imposed. He sued various
New York state officials including Anthony Annucci, then-Deputy
Commissioner and legal counsel for the New York Department of
Correctional Services, for the unlawful deprivation of his liberty
under the Due Process Clause of the 14th Amendment of the
Constitution.

On appeal, Annucci challenges the district court’s award of
compensatory damages to Vincent and revives his claim of qualified

1 The New York State Department of Correctional Services is
currently named the New York State Department of Corrections and
Community Supervision. Consistent with our prior decisions, we will
continue to use the previous name.
5 No. 21-22

immunity which was previously unsuccessful. We previously held
in Vincent v. Yelich, 718 F.3d 157 (2d Cir. 2013), that the
unconstitutionality of administratively imposed terms of PRS was
clearly established by Earley I. And we later held in Betances v. Fischer,
837 F.3d 162 (2d Cir. 2016), that because Annucci failed to make
objectively reasonable efforts to comply with federal law that was
clearly established by Earley I, he was not entitled to qualified
immunity. Annucci offers no compelling argument for us to
reconsider these prior holdings. We thus conclude that the district
court (Larimer, J.) did not err in applying our prior precedents to deny
him qualified immunity.

We remand solely for the district court to reconsider the issue
of damages. While Earley gave the state the option of either (1)
arranging for defendants subject to null and void PRS terms to be
appropriately resentenced or (2) excising their PRS terms, we did not
decide which defendants were eligible for resentencing. We now
hold that the resentencing option was not available for defendants
like Vincent, who had completed their judicially imposed sentences
and were incarcerated solely for violating their administratively
imposed PRS terms. We remand for the district court to determine
the steps that were available to Annucci, to conduct any additional
fact finding that may be necessary in that regard, and to reconsider,
in light of these findings and determinations, whether Vincent
established his entitlement to compensatory damages.

For the reasons that follow, we affirm in part and vacate in part
the district court’s decision, and remand for proceedings consistent
with this opinion.
6 No. 21-22

BACKGROUND

This appeal is the second in this case but part of a decades-long
series of litigations over DOCS’s unconstitutional imposition of PRS
and re-incarceration of felons who violated the terms and conditions
of their unlawful PRS. Accordingly, some familiarity with this court’s
sequence of decisions is presumed.

Vincent’s Incarceration

We draw the following undisputed facts from the district
court’s summary judgment decision in favor of Vincent. In 2001,
Vincent pled guilty and was sentenced to five years’ imprisonment.
At the time, New York law required that every determinate sentence 2
for a repeat violent felony offender, like Vincent, be followed by a
five-year term of PRS. 3 The state court did not impose PRS at
Vincent’s sentencing. Vincent’s imposed sentence expired on October
4, 2005, but he was conditionally released on January 15, 2005 for good
conduct. Following his conditional release, DOCS unilaterally
imposed a five-year PRS term. On October 14, 2005, ten days after his
judicially imposed determinate sentence ended, Vincent was arrested
for possessing a credit card, which was a violation of a condition of
his PRS, and taken into custody. Nearly a year later, on August 29,
2006, while Vincent was in custody, a state judge determined that he
had violated the terms of the administratively imposed PRS. He was

2 N.Y. Penal Law § 70.45(1). In New York, determinate sentences are
fixed terms that are given to persons convicted, among other things, of
violent felonies. N.Y. Penal Law § 70.02(2)(a)–(c) (McKinney 2011). These
defendants are eligible for conditional release based on good time conduct.
N.Y. Penal Law § 70.40(2).
3 N.Y. Penal Law § 70.45(2).
7 No. 21-22

released on March 21, 2007 after completing this sentence. Two weeks
later, on April 5, Vincent was again arrested for violating his PRS, this
time because he failed to report an address change. He was
immediately reincarcerated and sentenced to an additional two years.

While Vincent was in custody awaiting adjudication of his first
PRS violation, this court held in Earley v. Murray that PRS terms that
are not imposed by a judge are unconstitutional and are thus null and
void. 4 In March 2008, while serving the sentence for his second PRS
violation, Vincent filed a state habeas petition asserting that his
incarceration for the PRS violations was unconstitutional, which was
granted. Vincent was released in July 2008.

Separately, by form letter dated June 1, 2008—nearly two years
after we decided Earley—Annucci, DOCS’s legal counsel, advised
Vincent’s sentencing judge that he had not imposed a PRS term in
2001 and requested that the judge either hold a hearing to determine
whether to resentence Vincent or direct DOCS to release him. The
state sentencing judge never resentenced Vincent; nor did that judge
ever issue an order in response to Annucci’s letter.

Procedural History

Vincent was incarcerated for 686 days for violating the terms of
his PRS after the Second Circuit’s August 31, 2006 decision in Earley
II denying rehearing of Earley I. 5 He brought the instant civil action
under § 1983, seeking damages from Annucci and others for DOCS’s

4 Earley v. Murray, 451 F.3d 71 (2d Cir.) (“Earley I”), reh’g denied, 462
F.3d 147 (2d Cir. 2006) (“Earley II”).
5 Although Vincent served a total of 1,006 days for violating PRS, 686

days postdate our decision in Earley II.
8 No. 21-22

unlawful imposition and enforcement of PRS, including Vincent’s
arrests and incarceration.

The district court initially granted Annucci’s motion to dismiss,
ruling that Annucci was entitled to qualified immunity. 6 This court
reversed and remanded, holding that Earley “clearly established that
DOCS violated federal law in adding PRS terms to the sentences of
prisoners who had not received such terms from the court.” 7 As for
Annucci’s personal involvement, the record in Vincent I established
Annucci’s “relevant responsibilities,” including his position as “chief
legal advisor” for DOCS and his acknowledged responsibility “for all
of the legal services” in his “capacity as the head of counsel’s office.” 8
The Vincent I panel also acknowledged Annucci’s testimony in
another case that he was “aware” of Earley shortly after its issuance in
2006, but that he “did not agree with that decision” and that he “did
not begin a resentencing initiative” “at that time.” 9 The Vincent I
panel remanded for the district court to develop further the factual
record to determine “the objective reasonableness of Annucci’s efforts
to relieve [plaintiffs] of the burdens of those unlawfully imposed
terms after he knew it had been ruled that the imposition violated
federal law.” 10

Independently, after Vincent’s case was remanded to the
district court, a § 1983 suit on behalf of a class of individuals subjected
to administratively imposed PRS was filed against Annucci and other

6 Vincent v. Yelich, 812 F. Supp. 2d 276 (W.D.N.Y. 2011).
7 Vincent I, 718 F.3d at 173-74.
8 Id. at 172.

9 Id. at 173 (citing State v. Myers, No. 4834-08, Sup. Ct. Albany Cnty.,

N.Y., Hr’g Tr., June 6, 2008, at 104).
10 Id. at 177.
9 No. 21-22

DOCS officials. 11 Annucci again asserted a qualified-immunity
defense in that case, Betances v. Fischer. 12 On appeal, a panel of this
court in Betances held that Annucci’s entitlement to qualified
immunity extended only to August 31, 2006—when the Earley court
denied the petition for rehearing—after which it was clearly
established that administratively imposed PRS violated federal due
process guarantees. 13 The court also held that for 19 months after
August 31, 2006, Annucci failed to take objectively reasonable steps
to comply with Earley. 14 Annucci acknowledged that he understood
that Earley required him to change DOCS’s policies and customs to
conform with federal law, that “nothing prevented” him from doing
so, and that he “affirmatively decided not to do so” for over a year
and a half. 15 The court rejected Annucci’s attempt to shift blame to
the state courts, which he argued resisted implementing Earley’s
holding. 16 Their conduct did not bear on whether Annucci took
objectively reasonable steps after it was clearly established that
DOCS-imposed PRS terms violated federal law.17

11 The plaintiff class filed an amicus brief in this case in support of
Vincent and affirming the judgment below.
12 Bentley v. Dennison, 852 F. Supp. 2d 379 (S.D.N.Y. 2012), aff’d sub

nom. Betances v. Fischer, 519 F. App’x 39 (2d Cir. 2013). While Vincent meets
the eligibility requirements of the class definition—and represented to the
district court that he was a member—he confirmed to this court that he has
elected to exclude himself from the class and to proceed with his earlier-
filed individual lawsuit. See Doc. No. 79.
13 Betances v. Fischer, 837 F.3d 162, 171-72 (2d Cir. 2016).

14 Id. at 172.

15 Id. at 172-73.

16 Id. at 174.

17 Id. at 173-74; see also Vincent I, 718 F.3d at 177.
10 No. 21-22

With the benefit of the Betances decision, Vincent and Annucci
each moved for summary judgment in this case. Vincent moved for
a finding that Annucci violated his constitutional rights, and that he
was entitled to compensatory damages. Annucci again moved to
dismiss the complaint as barred by qualified immunity. In the
alternative, Annucci sought to limit Vincent’s recovery to nominal
damages. According to Annucci, Vincent was at most “deprived of
his due process right to have a judge pronounce his PRS term” and
would have remained incarcerated anyway, so he suffered no actual
injury for which he could be compensated. 18

Relying on controlling circuit case law, the district court denied
Annucci’s claim to qualified immunity. The district court also
rejected Annucci’s alternative nominal-damages argument and
granted Vincent’s motion for compensatory damages as a matter of
law. It concluded that “but for Annucci’s failure to promptly excise
Vincent’s PRS or to refer him for curative resentencing,” Vincent
might have been spared some part of the 686 days he was
incarcerated. 19 That was sufficient for the district court to find that
Vincent was injured without it engaging in what it deemed “baseless
speculation” as to what might have happened to Vincent had Annucci
complied with Earley. 20

The district court then held a hearing on the amount of
damages and, based on the parties’ submissions, awarded Vincent
$175,000. Annucci timely appealed.

18 Joint App’x 298.
19 Special App’x 16.
20 Special App’x 15.
11 No. 21-22

DISCUSSION

Annucci appeals the district court’s grant of summary
judgment as to Vincent’s entitlement to compensatory damages. He
also reiterates that he is entitled to qualified immunity.

I. Qualified Immunity

As noted earlier, we have previously heard and rejected
Annucci’s qualified-immunity argument. Generally, we review a
denial of qualified immunity de novo. 21 But Annucci concedes—as he
must—that this “panel is bound by this Court’s decision in Vincent [I]
denying [him] qualified immunity.” 22 We are also bound by our
related decision in Betances, which held that Annucci’s unexcused
delay in complying with Earley was objectively unreasonable. 23

In his brief, Annucci claims that the Vincent I court “erroneously
focused only on federal case law” to hold that the unconstitutionality
of administratively imposed PRS terms was “clearly established.”24
In Vincent I, however, we made it clear that “[f]or a right to be ‘clearly
established’ for purposes of qualified immunity, it is sufficient if
decisions of the Supreme Court or of the appropriate circuit have
defined the contours of the right with reasonable specificity.” 25
Vincent I appropriately relied on Earley’s “explicit ruling” that “New

21 Arlio v. Lively, 474 F.3d 46, 51 (2d Cir. 2007).
22 Appellant’s Br. 22.
23 See United States v. Jass, 569 F.3d 47, 58 (2d Cir. 2009) (We are

“bound by prior decisions of this court unless and until the precedents
established therein are reversed en banc or by the Supreme Court.”).
24 Appellant’s Br. 22-23.

25 Vincent I, 718 F.3d at 169 (emphasis and internal quotation marks

omitted).
12 No. 21-22

York’s Department of Correctional Services has no . . . power to alter
a sentence.” 26 Annucci’s suggestion that, because certain lower state
court decisions initially rejected Earley’s logic, the law was not clearly
established has no merit. While we may “look to state court decisions
to determine if a federal right has been clearly established,” 27 we had
no need to do so in Vincent I. Earley was a decision that this court had
issued. Under the Supremacy Clause of the Constitution, it was
binding on state courts and state officials, regardless of their
willingness to accept it.

II. Vincent’s Entitlement to Compensatory Damages

A § 1983 plaintiff must establish that a person acting under the
color of state law deprived him of a right guaranteed by the
Constitution or the laws of the United States. 28 The burden is
“normally on the plaintiff to prove each element of a § 1983 claim,
including those elements relating to damages.” 29 “The cardinal
principle of damages in Anglo-American law is that of compensation
for the injury caused to plaintiff by defendant’s breach of duty.” 30 For
that reason, a plaintiff seeking compensatory damages in a § 1983 suit
must prove more than just a deprivation of his rights; he must also
establish that the “deprivation caused him some actual injury.” 31 If

Id. (quoting Earley I, 451 F.3d at 76).
26

Sloley v. VanBramer, 945 F.3d 30, 43 (2d Cir. 2019).
27

28 Rodriguez v. Phillips, 66 F.3d 470, 473 (2d Cir. 1995).

29 Miner v. City of Glens Falls, 999 F.2d 655, 660 (2d Cir. 1993). In “truly

extraordinary circumstances,” such as when the defendant has prevented
the plaintiff from accessing evidence needed to prove causation, we
recognize a “limited exception” and shift the burden to the defendant to
disprove causation. Id. Nothing like that happened here.
30 Carey v. Piphus, 435 U.S. 247, 254-55 (1978).

31 McCann v. Coughlin, 698 F.2d 112, 126 (2d Cir. 1983).
13 No. 21-22

he cannot marshal that proof, he is at most entitled to collect nominal
damages. Similarly, “[w]hen a defendant has deprived the plaintiff
of liberty, but the adverse action would have been taken even in the
absence of the wrongful conduct, the plaintiff is entitled only to
nominal damages.” 32 This sort of analysis requires the court to
reconstruct what would have “occurred had proper procedure been
observed.” 33

As we have previously explained, Annucci’s liability “arose
from [his] unreasonable delay in acting to comply with Earley I for
many months after that decision,” 34 not from the initial pre-Earley
imposition of PRS. 35 The sole issue before us now is the question of
damages that resulted from Annucci’s liability. The dispositive issue
is whether, in moving for summary judgment, Vincent established
that he suffered an injury as a result of Annucci’s failure to follow our
directive in Earley that would not have occurred otherwise.

The district court relied on the undisputed facts that Annucci
did not promptly refer Vincent for a resentencing following Earley

32 Rentas v. Ruffin, 816 F.3d 214, 223 (2d Cir. 2016) (cleaned up); see
also Miner, 999 F.2d at 660 (citing Carey, 435 U.S. at 266).
33 Patterson v. City of Utica, 370 F.3d 322, 338 (2d Cir. 2004) (quoting

Miner, 999 F.2d at 660).
34 Hassell v. Fischer, 879 F.3d 41, 51 (2d Cir. 2018); see also Betances, 837

F.3d at 171-72 (noting that “liability may not be imposed for the failure to
take action before [August 31, 2006]”). At least one court has since held that
Annucci should have acted to notify the state court within 45 days of a
defendant being subject to administratively imposed PRS. Hassell v. Fischer,
No. 13-CV-1992 (AKH), 2016 WL 10920013, at *2 (S.D.N.Y. July 18,
2016), aff’d in part, vacated in part, remanded, 879 F.3d 41 (2d Cir. 2018). We
had no need to reach this holding and therefore did not disturb it on appeal.
35 Vincent I, 718 F.3d at 171 (noting Vincent’s complaint was flawed

insofar as it challenged “the pre-Earley I adoption of the DOCS policy”).
14 No. 21-22

and that Vincent was not released until nearly two years after that
decision. Rather than address what might have happened to Vincent
had Annucci acted responsively to Earley, the court simply declared
it would instead “forever remain a mystery.” 36 In so doing, the court
improperly declined to consider what steps were feasibly and legally
available to Annucci, did not discuss Vincent’s burden of proving
damages, and did not determine whether Vincent had met that
burden. The district court’s cursory treatment of damages causation
does not comport with our precedent and thus warrants remand and
reconsideration.

As the district court proceeds on remand, it should be mindful
of the following. Earley held that the practice of administratively
imposing PRS was unconstitutional, rendering any such PRS null and
void. As we explained in Vincent I, Earley did not absolve New York
of its unconstitutional conduct and announce a prospective rule that
would affect only future defendants. 37 It was incumbent on the state
to rectify the constitutional violations that were ongoing. As to those
affected persons, the state “was required” to arrange for people to be
“resentenced by the court for the imposition of PRS terms in a
constitutional manner or . . . excise the PRS conditions from their
records and relieve them of those conditions.” 38 While we indicated
in Earley that our ruling was “not intended to preclude the state from
moving in the New York courts to modify [the defendant’s] sentence
to include the mandatory PRS term,” 39 we expressed no opinion then
as to which defendants were constitutionally eligible for resentencing.

36 Special App’x 16.
37 Vincent I, 718 F.3d at 172-73.
38 Id. at 172 (emphasis added).

39 Earley I, 451 F.3d at 77.
15 No. 21-22

Since Earley, we have held that there is no constitutional bar to
resentencing defendants who were incarcerated and serving
determinate sentences without a judicially imposed PRS term. 40 “[S]o
long as the defendant properly remains imprisoned, he can have no
legitimate expectation of finality in a sentence that, illegally, does not
provide for his post-release supervision . . . .” 41

But the same cannot be said for those defendants, like Vincent,
who had served their judicially imposed determinate sentences and
who had been released from custody, only to be re-incarcerated for
violating the terms of their administratively imposed PRS. Annucci
acknowledges that the New York Court of Appeals held in 2010 that
resentencing after a defendant completed the lawful portion of his
sentence and had been released from custody violates the Double
Jeopardy Clause of the federal constitution. 42 But he insists that, at
the time Vincent could have been resentenced, it was not clearly
established that principles of double jeopardy prohibited obtaining
resentencing for defendants who had been released. 43

Therefore, Annucci asserts that, had he promptly referred
Vincent for judicial resentencing after Earley, the state court would
have likely imposed PRS nunc pro tunc. This assertion is without
merit. Any hypothetical referral and resentencing would have taken

40 See Smith v. Wenderlich, 826 F.3d 641, 651 (2d Cir. 2016).
41 Id.; see also People v. Brinson, 972 N.Y.S.2d 182 (2013) (same).
42 People v. Williams, 14 N.Y.3d 198, 217 (2010); People v. Lingle, 16

N.Y.3d 621, 629-30 (2010).
43 Appellant’s Supp. Br. 4-6; see also King v. Cuomo, 465 F. App’x 42,

45 (2012) (summary order).
16 No. 21-22

place after DOCS had imprisoned Vincent for a PRS violation. 44
Implicit in Annucci’s argument is the assumption that a court could
retroactively ratify an incarceration that was based upon a null and
void act by DOCS. For defendants like Vincent, resentencing was not
an available corrective measure for the simple reason that their
incarceration was a consequence of an unconstitutional sentence that
DOCS, not the court, had imposed.

While courts have inherent authority to correct their own
errors, 45 the error here was not made by a court, but by DOCS.
Because only courts can impose a valid sentence, the unconstitutional
PRS term that Annucci imposed on Vincent was a “nullity” from its
inception. 46 Earley was clear that “any additional penalty added to
th[e] sentence by another authority is invalid, regardless of its source,
origin, or authority until the judge personally amends the sentence.”47
So, the consequences that flowed from the administratively imposed
PRS—including Vincent’s PRS-based incarceration—were likewise
unauthorized and without legal effect.

Put differently, a defendant, like Vincent, who was incarcerated
for violating the terms of an administratively imposed PRS could not
have been resentenced nunc pro tunc for the simple reason that courts
do not have the power to substantively rewrite history or backdate

44 Recall that Vincent was already incarcerated based on a violation
of a condition of PRS when this court clearly established that
administratively imposed terms were null and void.
45 N.Y. Crim. Proc. Law § 440.40; see Campbell v. Pesce, 60 N.Y.2d 165,

168 (1983).
46 Earley I, 451 F.3d at 76.

47 Earley II, 462 F.3d at 149.
17 No. 21-22

events. 48 “Incantation of Latin phrases does not bestow such an
Orwellian power.” 49 Nunc pro tunc orders serve the limited purpose
of correcting clerical errors in the record. 50 But Vincent’s record
contained no such error; it correctly reflected that no PRS was
imposed by a court—the only body that could legally impose it.
Resentencing “for the imposition of PRS terms” 51 connotes amending
the sentence to add PRS in the first instance. Once a defendant serves
his original sentence, however, a court cannot reverse the “error” and
retroactively validate DOCS’s ultra vires and unlawful imposition of
PRS. 52

Although resentencing may have been an option for certain
defendants, it was not—as we clarify today—a viable avenue with
respect to Vincent. 53 The remaining option, as we outlined in Earley,

Our decision in Hassell v. Fischer, 879 F.3d 41 (2d. Cir. 2018), is not
48

incompatible with our observations about the unavailability of
resentencing nunc pro tunc for defendants like Vincent, since Hassell was
resentenced by the court and was not incarcerated for violating his
administratively imposed PRS. For that reason, we do not read Hassell to
have addressed the implications of resentencing a person in Vincent’s
position.
49 Kusay v. United States, 62 F.3d 192, 193 (7th Cir. 1995) (Easterbrook,

J.).
50 See Gletzer v. Harris, 12 N.Y.3d 468, 476 (2009) (“[N]unc pro tunc

treatment, in general, is reserved for correcting irregularities in the entry of
judicial mandates or like procedural errors.” (internal quotation marks
omitted)).
51 Vincent I, 718 F.3d at 172.

52 Cf. Patterson, 370 F.3d at 338 (acknowledging that applying proper

procedures “at the present time” would be “unlikely” to “reverse any ill
effects suffered by [the] plaintiff” in the interim).
53 We express no opinion as to whether resentencing would have

been possible for defendants who were conditionally released for good time
18 No. 21-22

was to excise the terms of the null and void administratively imposed
PRS and relieve Vincent of the conditions associated with it. 54 The
only open question is whether DOCS needed court approval to
eliminate the PRS term that it alone had imposed. At a minimum,
Annucci was obligated to “at least attempt to cease [DOCS’s]
administrative and custodial operations that had been held to violate
federal law.” 55 And, as a state official, Annucci was not permitted to
flout the Constitution or federal law, even if there were state laws to
the contrary. 56 On the record before us, it is not clear whether there
was any impediment, legal or otherwise, to Annucci’s simply and
unilaterally releasing Vincent. 57 Accordingly, on remand, we direct
the district court to clarify that question, bearing in mind that the
burden rests upon the plaintiff to establish the onset date for
calculating any compensatory damages to which he may be entitled.
If no such impediment existed, the plaintiff will have satisfied his
burden upon the existing record. If an impediment is claimed, the

conduct but were still within the term of their judicially imposed
determinate sentences or for defendants who had finished their
determinate sentences and were serving administratively imposed PRS but
were not incarcerated for violating PRS. We leave that determination for
cases presenting those facts.
54 Vincent I, 718 F.3d at 172.

55 Id. at 172-73.

56 U.S. Const. art. VI, cl. 2; see Cooper v. Aaron, 358 U.S. 1, 18 (1958).

57 Annucci acknowledges that he “would have satisfied his

obligation if he had somehow arranged the outright release of affected
individuals.” Appellant’s Reply Br. 11 n.4. Ultimately, Annucci in June
2008 did request the sentencing judge to either resentence Vincent or to
order his release. On remand, the district court should consider whether
the release option in this case (if appropriate and whenever exercised)
needed to be exercised through the state court, given that Vincent was being
held in custody by DOCS based upon a PRS imposed by DOCS.
19 No. 21-22

district court must determine its validity and effect, if any, upon the
length of Vincent’s unlawful incarceration. 58 The district court should
conduct any additional fact-finding as may be required. Only then
can the district court properly determine whether Vincent has carried
his burden of proving the extent to which he is entitled to
compensatory damages.

CONCLUSION

For the foregoing reasons, we affirm in part and vacate in part
the district court’s decision, and remand for proceedings consistent
with this opinion. The Clerk of Court is directed to refer this case to
this panel in the event of any future appeal.

58 We disagree with the dissent’s assertion that “there was no
genuine issue as to the lack of an impediment . . . . to Annucci’s simply and
unilaterally releasing Vincent.” Diss. Op. at 7. Contrary to the dissent’s
reading of the record, Annucci never stipulated that he had the absolute
discretion to immediately effectuate Vincent’s release. Because there
remains the possibility that Vincent would have been incarcerated for some
period despite Annucci’s best efforts to secure his release, there remains a
question as to what harm Annucci’s inaction caused Vincent. This question
must be answered on remand.
21-0022
Vincent v. Annucci

KEARSE, Circuit Judge, dissenting:

I respectfully dissent from so much of the majority opinion as vacates the

district court's award of compensatory damages to plaintiff Shawn Michael Vincent

from defendant Anthony Annucci for unreasonably prolonging Vincent's

unconstitutional reincarceration, in defiance of this Court's ruling in Earley v. Murray,

451 F.3d 71 (2d Cir.), ("Earley I" or "Earley"), rehearing denied, 462 F.3d 147 (2d Cir.

2006), that the administrative process that was the foundation for reincarceration was

constitutionally unauthorized, null, and void. Vincent, after serving the entire

sentence that was lawfully imposed on him by a state court, was arrested and

reimprisoned twice for violations of postrelease supervision conditions ("PRS") that

had been administratively imposed on him by the Department of Correctional

Services ("DOCS") in violation of the United States Constitution. For those PRS

violations--consisting of noncriminal conduct, i.e., changing his address without

informing his PRS parole officer in advance and possessing a credit card--he was

imprisoned for a total of nearly two years. The district court found that 686 of those
days fell after Earley had been decided and become final; that it was appropriate to

allow a 90-day period for Annucci to take action to comply with Earley; and that

Vincent should therefore be compensated for a total of 596 days of his

unconstitutional imprisonment.

Although we are unanimous in rejecting Annucci's renewed contention

that he is entitled to qualified immunity from paying money damages for such

violations--a contention definitively rejected in Betances v. Fischer, 837 F.3d 162 (2d Cir.

2016) ("Betances")--I am unable, for the reasons set out in Part A below, to see that the

majority's decision to remand to the district court to determine whether there was

"any impediment, legal or otherwise, to Annucci's simply and unilaterally releasing

Vincent," Majority Opinion ante at 18, is reconcilable with the record in this case. As

documented in Parts A and B below, the record includes Annucci's deposition

admissions that whether "to either take action or not take action" to comply with

Earley was his decision; that Annucci "deci[ded] not to follow [Earley's] holding" and

instructed DOCS personnel "not [to] follow [Earley]"; that Vincent spent 687 days

imprisoned "[a]s the result of the unlawful imposition of post release supervision";

and that "Annucci acknowledged that . . . 'nothing prevented' him from" "chang[ing]

DOCS's policies and customs to conform with federal law," Majority Opinion ante at 9

-2-
(quoting Betances, 837 F.3d at 172 (emphasis mine)). The majority's suggestion that

there may have been "any impediment" is contrary both to Annucci's

acknowledgement that there was "nothing," and to his formal pleading in this action

that his alleged conduct was within his "official . . . discretionary authority".

We are also unanimous that as a matter of law, Vincent could not

constitutionally have been kept imprisoned after Earley by having him resentenced to

PSR. See Majority Opinion ante at 5, 15-17. Thus, under Earley, DOCS was required

to release Vincent from his unconstitutional reimprisonment. Given Annucci's claim

that he had "discretion[]" to make the decisions he did and to follow the course of

inaction he chose in disregard of Earley for some 14-19 months, and his

acknowledgement that "nothing prevented" him from complying with Earley, the

majority's remand--suggesting that Annucci may be excused from paying

compensatory damages if it is determined that "Vincent would have been

incarcerated for some period despite Annucci's best efforts to secure his release," Majority

Opinion ante at 19 n.58 (emphasis added)--makes no sense to me. Any suggestion

that Annucci used his best efforts to secure the release of any unconstitutionally

imprisoned PRS violators is foreclosed by the ruling in Betances, 837 F.3d at 173, that

Annucci's delay was "objectively unreasonable."

-3-
A. Annucci's Liability

I am in agreement with most of the majority opinion describing prior

liability-related rulings of this Court as to DOCS's unconstitutional policy and

practice of administratively imposing PRS on certain prisoners whose judicially-

imposed sentences did not include PRS, including Earley I, 451 F.3d 71 (holding that

DOCS practice unconstitutional); Vincent v. Yelich, 718 F.3d 157 (2d Cir. 2013)--the

original name of the present case--(hereafter "Vincent I"); and Betances, 837 F.3d 162.

Annucci "[a]t all times relevant to this matter" was DOCS's "Deputy Commissioner

and Counsel," and "was responsible for DOCS legal services." (Joint Stipulations

dated November 23, 2020, Facts Not in Dispute ("Stipulated Facts") ¶¶ 2-3.) In

Vincent I we, inter alia, reversed a pretrial ruling that Annucci was entitled to qualified

immunity as a matter of law. In Betances, in which Annucci was one of three

defendants, we held, inter alia, that "because Annucci failed to make objectively

reasonable efforts to comply with federal law that was clearly established by Earley I,"

he as a matter of law is "not entitled to qualified immunity," see Majority Opinion ante

at 5 (citing Betances), and that partial summary judgment was properly granted

against all three defendants on the issue of liability.

-4-
 In the present case, there is no question that PRS was imposed on Vincent

only by DOCS, not by a court; that after completing the entire five-year sentence that

had been judicially imposed on him, Vincent was reincarcerated twice for "non-

criminal violation[s] of the administratively imposed PRS" (Stipulated Facts ¶¶ 9, 13);

that the total length of those reincarcerations totaled more than 1,000 days; and that

most of those days were after Earley I had ruled DOCS's administrative impositions

of PRS were null and void. The district court awarded Vincent compensatory

damages after finding that Vincent's post-Earley reincarceration was prolonged by at

least 596 days because of Annucci's refusal--for nearly two years after Earley, a

deliberate delay we found objectively unreasonable, see Betances, 837 F.3d at 172-74--to

take any action to remedy the effects of DOCS's unconstitutional impositions of PRS,

including reincarcerations for violations of administratively imposed PRS. The

majority vacates that award, holding that in order to be awarded compensatory,

rather than nominal, damages against Annucci, Vincent needed to establish that there

was no "impediment, legal or otherwise" to Annucci's compliance with the

requirements of Earley. In my view, the record in this case does not show a genuine

issue as to the existence of any such impediment.

-5-
 As the majority indicates, Earley required that DOCS-imposed PRS be

"'excise[d]'" and the affected persons be "'relieve[d] . . . of those conditions,'" but it left

room for the state instead, if a procedure was available, to seek to have those persons

"'resentenced by the court for the imposition of PRS terms in a constitutional manner.'"

Majority Opinion ante at 14 (quoting Vincent I, 718 F.3d at 172 (discussing Earley)

(emphasis in Majority Opinion)); see Earley I, 451 F.3d at 76-77 (DOCS's administrative

impositions of PRS were "a nullity"). However, only the excision alternative could

properly be used for Vincent, because he had completed service of his judicially

imposed sentence in 2005. As indicated in the Majority Opinion ante at 5, 15-17,

resentencing Vincent thereafter to impose PRS would have been barred by principles

of double jeopardy. See, e.g., Hudson v. United States, 522 U.S. 93, 99 (1997) (the Double

Jeopardy Clause of the United States Constitution protects against "the imposition of

multiple criminal punishments for the same offense" in successive proceedings

(emphasis in original)). Accordingly, to remedy its unconstitutional reincarceration

of Vincent, DOCS was required to excise PRS from his record, relieve him of PRS

conditions, and end his reincarceration.

A claimant has the burden of proving all elements of his claim, including

causation. The majority holds that in order to show that the prolongation of his

-6-
unconstitutional reincarceration was caused by Annucci's delay in complying with

Earley, Vincent was required to show that there was no "impediment, legal or

otherwise, to Annucci's simply and unilaterally releasing Vincent." Majority Opinion

ante at 18. I regard the record as to Annucci's actions and inactions after Earley, and

Annucci's admissions concerning DOCS's practice and policy with respect to its

administrative imposition of PRS as sufficient to show that there was no such

impediment and that there was no genuine issue as to the lack of an impediment.

In affirming partial summary judgment against the three defendants in

Betances, we noted that Annucci, who was at all relevant times responsible for DOCS's

legal affairs, and defendant Brian Fischer, who became DOCS's Commissioner in

January 2007, were the DOCS officials "who were responsible for designing and

implementing their department['s] response to Earley I." Betances, 837 F.3d at 167.

There was no lack of knowledge on their part--or on the part of the third defendant

Terence Tracy, chief counsel for the New York State Division of Parole ("DOP") in

1996-2011, see, e.g., id. at 168--as to the import of Earley's holding that DOCS's

administrative imposition of PRS was unconstitutional. "All three [defendants]

confirmed that . . . they understood that Earley I required them to change their

-7-
practices"; they admitted that they "affirmatively decided not to do so," and that "their

noncompliance was not the result of oversight or confusion." Id. at 172.

For example, as we noted in Vincent I, Annucci had admitted in another

case that he knew of, but simply disagreed with, Earley I:

Q You were aware of the Second Circuit's decision in Earley v.
Murray at the time it came out in 2006. Correct?

A Correct.

Q I would assume you did not agree with that decision?

A I think that is a safe assumption.

....

Q And you were aware that the Second Circuit indicated that
DOCS did not have the authority to add a period of post-release
supervision, if it was not included by the sentencing judge?

A That is correct.

Vincent I, 718 F.3d at 168-69 (internal quotation marks omitted (emphases in

Vincent I)). In the same case, "Annucci testified that, 'at that time in 2006' he 'did not

begin a resentencing initiative.'" Id. at 173 (emphasis Vincent I). "Annucci

immediately understood Earley I's holding but deliberately refused to change DOCS

procedures to bring them into compliance." Betances, 837 F.3d at 167.

-8-
 Instead, "[i]n August 2006, Annucci emailed DOCS personnel to inform

them that Earley I conflicted with New York state law and that DOCS would not follow

its holding." Id. (emphasis added). He testified as follows in his deposition in Betances:

Q: You[] read [Earley I], you made decisions about policy
for DOCS based on that opinion, right?

A: I didn't make any decisions to change policy.

Q: Right, you made a decision to either take action or not take
action after Earley, right?

A: Correct.

Q: You made the decision to take action in notifying the
courts to deal with the problem prospectively?

A: Correct.

Q: You made the decision not to take any action retroactively
until further notice, right?

A: Correct.

Q: And you made the decision to take no action prospectively . . .
to conform DOCS policy and conduct to the holding of Earley as well,
right?

....

A: Correct.

Id. at 167 (quoting Annucci Dep. 87:11-88:7 (emphases mine)).

-9-
 Fischer, who became DOCS's Commissioner several months after

Annucci made those decisions, testified that he too "understood Earley I's holding,"

and that he "agreed with Annucci's decision not to follow its holding." Betances, 837 F.3d

at 167 (emphasis added). He testified that "'the decision to continue basically

enforcing th[e] policy [of administratively adding PRS to inmates' sentences]

notwithstanding Earley'" was "'an operational decision,'" and that

it "was our position" "that inmates would continue to get post-release
supervision, be subjected to it upon release, be reincarcerated for
violating post-release supervision going forward, notwithstanding the
fact that the Second Circuit Court of Appeals had made it clear
that that violated the federal constitutional right to due process."

Betances, 837 F.3d at 167 (quoting Fischer Dep. 40:12-41:14 (emphases mine)).

And indeed DOCS did continue to reincarcerate people for violating

conditions of DOCS-imposed PRS. Vincent in April 2007, nearly a year after Earley I's

June 2006 ruling that such impositions of PRS were null and void, was reincarcerated

for violating a term of PRS, to wit, for moving to a new address without informing his

parole officer beforehand. See also Vincent I, 718 F.3d at 175-76 (noting that other

plaintiffs in this action or in consolidated appeals complained of being reincarcerated

for PRS violations in June 2007, July 2007, October 2007, and June 2008).

- 10 -
 In April 2008, the New York Court of Appeals held that if PRS is to be

imposed, New York State law requires that it be pronounced orally by the judge at

sentencing. That Court "did not address whether the Constitution required

sentencing judges to pronounce PRS terms, as we had held in Earley I." Betances, 837

F.3d at 166. Thereafter, DOCS took its first significant steps toward compliance with

Earley I. It reviewed files that it had collected earlier but had "d[one] nothing with,"

id. at 169, and concluded that there were approximately 8,100 inmates on whom

DOCS had administratively imposed PRS, some 6,300 of whom were still

incarcerated.

In June 2008, "DOCS and DOP filed a declaratory judgment action in

state court seeking judicial approval of a plan that would permit state agencies,

district attorneys, and state courts to systematically identify and refer improperly

sentenced inmates back to the sentencing courts to be resentenced. The state court,

however, did not grant the injunctive relief sought by DOCS and DOP." Id. at 170

(emphasis added). Also in June 2008, DOCS sent a form letter to the judge who had

sentenced Vincent in 2001, advising the judge that DOCS records did not show that

the court had imposed a PRS term. DOCS requested that the judge either hold a

hearing to determine whether to resentence Vincent to PRS or direct DOCS to release

- 11 -
him. In my view, that suggestion that Vincent be resentenced to a term of PRS did

not comply with Earley. As the majority agrees, a resentencing for Vincent, who had

completed service of the sentence judicially imposed in 2001, was not constitutionally

available. Thus, resentencing Vincent as Annucci suggested would merely have

converted his reincarceration from a due process violation to a double jeopardy

violation.

And indeed, the judge who had sentenced Vincent neither sought to

resentence him nor took any other action. He sent a letter stating that his records

confirmed that he had not imposed a PRS term; he sent his letter only to Vincent; and

it ended by saying, "I hope this letter assists you in your efforts." (JA.107.) But DOCS

did not take any action to excise PRS from Vincent's record and release him. He

remained reincarcerated for his 2007 violation of DOCS-imposed PRS until a state

court granted his petition for habeas corpus in July 2008.

The majority, while concluding that Vincent could not be resentenced to

PRS, speculates that even if Annucci had not unreasonably delayed in taking action

to have DOCS comply with Earley, Vincent might have remained reincarcerated

because of some "legal or other[]" impediment to Annucci's ordering that DOCS

excise the PRS and ordering that Vincent be released. It vacates the award of

- 12 -
compensatory damages to Vincent, ruling that he is entitled only to nominal damages

unless he shows that there was no "impediment, legal or otherwise, to Annucci's

simply and unilaterally releasing" him, Majority Opinion ante at 18. But as I read the

record, the absence of any such impediment is not genuinely disputed.

B. The Lack of a Genuine Issue as to Annucci's Authority

First, I note the lack of a dispute as to the unconstitutionality of Vincent's

reincarceration. Paragraph 19 of Vincent's Rule 56.1 statement in support of his

motion for summary judgment asserted that

[a]s the result of the unlawful imposition of post release supervision,
[Vincent] spent a total of 1,015 days deprivation of his liberty,

and Annucci's response was:

Response: Admit in part that Mr. Vincent was discharged on July
31, 2008 however, dispute the number of days of DOCS incarceration,
to wit: August 29, 2006 through March 21, 2007 (204 days) and
April 5, 2007 through July 31, 2008 (483 days).

(JA.312 (citations omitted) (emphases added).) Thus, Annucci disputed only the

number of days Vincent was reincarcerated. He did not dispute that--for the

admitted total--Vincent's reincarceration for those days was "the result of the

unlawful imposition of" PRS.

- 13 -
 Second, in this action seeking, inter alia, compensatory damages for

Annucci's unconstitutionally prolonging Vincent's imprisonment, Annucci asserted

he acted in accordance with his own official discretion. This was not a casual

statement by Annucci in an informal setting, or an argument suggesting that Vincent

needed to present evidence that Annucci could have released him earlier. Annucci--

represented by the Attorney General of the State of New York--stated in his Answer

to the operative complaint that his "alleged conduct was properly within the

discretionary authority committed to [him] to perform his official functions," and that

"the relief prayed for would constitute an improper intrusion into said discretionary

authority." (Annucci Answer, Fourth Affirmative Defense (emphases added).) A

party's assertion of fact in a pleading is a judicial admission by which he normally is

bound throughout the course of the proceeding. See, e.g., Bellefonte Re Insurance Co.

v. Argonaut Insurance Co., 757 F.2d 523, 528 (2d Cir. 1985).

And consistent with Annucci's judicial admission that prolonging

Vincent's reincarceration was "within [his] discretionary authority," the majority notes

that "Annucci acknowledged that he understood that Earley required him to change

DOCS's policies and customs to conform with federal law[ and] that 'nothing

- 14 -
prevented' him from doing so," Majority Opinion ante at 9 (quoting Betances, 837 F.3d

at 172 (emphasis mine)).

In sum, I cannot agree that the record is consistent with the majority's

remand suggesting "the possibility" that Annucci could be excused from paying

compensatory damages on the hypothesis that he exercised his "best efforts" to have

Vincent released earlier, Majority Opinion ante at 19 n.58. Annucci delayed 14-19

months before taking any action required by Earley to relieve anyone of

reimprisonment for violations of PRS that DOCS had unconstitutionally imposed; he

acknowledged that "nothing prevented" him from acting to comply with Earley

earlier; he pleaded unqualifiedly that he had "discretion[]" to act as he did; and we

held in Betances that his delay was "objectively unreasonable."

Accordingly, I dissent from the remand.

- 15 -