Hurd v. City of New York

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

----------------------------------X

DEVAR HURD,

Plaintiff,

MEMORANDUM & ORDER

-against-

18-CV-3704(KAM)(JO)

CITY OF NEW YORK, et al.,

Defendants.

----------------------------------X

MATSUMOTO, United States District Judge:

Plaintiff Devar Hurd (“Hurd” or “plaintiff”) brought

this action pursuant to 42 U.S.C. § 1983 by filing a complaint

on June 26, 2018, naming as defendants the City of New York,

Salathia Mixon, and Stacey Fredenburgh (“Fredenburgh” or

“defendant”). (See ECF No. 1, Compl.) The Complaint alleges

Mixon, Fredenburgh, and the City deprived plaintiff of his

constitutional rights under the Eighth and Fourteenth Amendments

due to an error in his sentencing calculations that caused

plaintiff to be imprisoned past his conditional release date.

(Id. at 1.) Plaintiff filed an amended complaint on November 2,

2018, bringing largely the same claims but dropping state law

claims against defendant Fredenburgh. (See ECF No. 23, Am.

Compl.). On June 7, 2019, the City of New York and Mixon

reached a settlement agreement with Hurd, and were subsequently

dismissed from this action. (See ECF No. 53, Settlement

Agreement; ECF No. 54, Order Dismissing Parties.) Plaintiff

seeks monetary damages due to his alleged wrongful imprisonment

in violation of the Due Process Clause of the Fourteenth

Amendment and of the Cruel and Unusual Punishment Clause of the

Eighth Amendment.

Fredenburgh, the only remaining defendant, now moves

this court to dismiss plaintiff’s amended complaint pursuant to

Federal Rule of Civil Procedure 12(b)(6) (“Rule 12(b)(6)”) for

failure to state a claim. (See ECF No. 33, Mot. to Dismiss; ECF

No. 34, Def.’s Mem. (“DM”); ECF No. 35, Pl.’s Opp. (“Opp.”); ECF

No. 36, Def.’s Reply (“Reply”).) For the reasons discussed

below, the court GRANTS defendant’s motion and finds that

plaintiff’s Fourteenth Amendment due process claim fails because

he did not plead a substantive due process right, that plaintiff

fails to plead a violation of his Eighth Amendment rights

because he was released prior to the date his maximum sentence

expired, and that regardless of those deficiencies, defendant is

entitled to qualified immunity.

BACKGROUND

The following facts are drawn exclusively from

plaintiff’s Amended Complaint. Hurd was arrested on July 23,

2013, and charged under Indictment No. 3134-2013 (the

“Indictment”), (Am. Compl. 3), and was held in the custody of

New York City’s Department of Correction (“NYCDOC”), (id. at 6).

On October 8, 2015, after a second trial on the Indictment, Hurd

was convicted on nine of ten counts submitted to the jury; the

court declared a mistrial as to the tenth count. (Id. at 4.)

The nine counts of conviction were all misdemeanors,1 and on

October 23, 2015, Hurd received consecutive one-year definite

sentences for each of the seven counts of criminal contempt in

the second degree; a 90-day definite sentence for the count of

stalking in the fourth degree; and a 90-day definite sentence

for the count of harassment in the first degree. (Id.) By

operation of law, however, the maximum term of incarceration

Hurd could serve for these consecutive, definite sentences was

two years. (Id.); see N.Y. Penal Law § 70.30(2)(b).

On March 18, 2016, after a third trial on the

Indictment, a jury convicted Hurd of the remaining count,

stalking in the second degree, a felony (the “Felony Count”).

(Id.); see N.Y. Penal Law § 120.55(2). On March 31, 2016, Hurd

received an indeterminate prison sentence, with a minimum of

one-and-one-third years, and a maximum of four years, to be

served in the custody of New York State’s Department of

Corrections and Community Supervision (“DOCCS”), and that was

required to run concurrently with his sentence on the

misdemeanor counts. (Am. Compl. 5.) By operation of law,

1 The misdemeanor counts consisted of seven counts of criminal contempt

in the second degree, N.Y. Penal Law § 215.50(3); one count of stalking in

the fourth degree, id. § 120.45(1); and one count of harassment in the first

degree, id. § 240.25. (Am. Compl. 4.)

Hurd’s indeterminate sentence on the Felony Count merged with

the definite sentences on the misdemeanor counts and,

accordingly, Hurd’s maximum term of imprisonment for the ten

counts of conviction was four years. (Id.)

On or about April 14, 2016, Hurd was transferred from

NYCDOC custody to DOCCS custody at Ulster Correctional Facility.

(Id. at 6.) Accordingly, NYCDOC officials issued a “Jail Time

Certification” (“JTC”) certifying that Hurd was entitled to 996

days of jail-time credit under N.Y. Penal Law § 70.30(3), for

time served in City custody while awaiting trial and sentencing.

(Id. at 5-6.) Concurrently, Hurd alleges, DOCCS officials

produced a “Legal Date Computation” indicating that Hurd was

eligible for good-time credit of up to one year and four months

pursuant to N.Y. Penal Law §§ 70.30(4)(a), 70.40(1)(b), and N.Y.

Correct. Law § 803(1)(a)-(b). (Id. at 6-7.) Plaintiff’s Legal

Date Computation also indicated he was entitled to jail-time

credit of two years, eight months, and 26 days. (Id. at 7.)

Based on these two credits, the Legal Date Computation further

indicated that Hurd’s conditional release date, assuming his

good-time credit was approved, was March 17, 2016, i.e., nearly

a month prior to the date he was actually transferred to state

custody. (Id.) On April 19, 2016, DOCCS awarded Hurd the full

one year and four months of good-time credit for which he was

eligible. (Id.)

Hurd alleges that his jail-time credit was erroneously

reduced and that, as a result, he was wrongfully kept in prison

past his conditional release date. (Id. at 8.) When Hurd was

not immediately released upon the April 19, 2016 approval of his

good-time credit, he repeatedly complained to unidentified

prison officials about his alleged wrongful imprisonment. (Id.)

According to Hurd, NYCDOC employee Edwin Felicien had spoken

with defendant Fredenburgh, and the two agreed to reduce Hurd’s

jail-time credit so that he would not be released. (Id.)

The Amended Complaint further alleges that on May 4,

2016, defendant Fredenburgh asked Mixon for her assistance in

obtaining an amended JTC to reduce Hurd’s jail-time credit so

that DOCCS could continue to imprison him. (Id.) Over the next

few days, Mixon told Fredenburgh multiple times that Hurd was

entitled to all 996 days of jail-time credit that NYCDOC

officials had certified in Hurd’s original JTC, and that Mixon

even “called sentencing review” to confirm that Hurd’s original

JTC was correct. (Id.)

On May 6, 2016, Felicien emailed Fredenburgh an

amended JTC, indicating Hurd was entitled to 507 days jail-time

credit. Later that day, Felicien emailed Fredenburgh a second

amended JTC, which reduced Hurd’s eligible jail-time credit to

469 days. (Id. at 9.) Fredenburgh and Mixon reviewed the JTCs

but neither took any action to correct these JTCs. (Id.)

Around May 13, 2016, Hurd wrote grievance letters to defendant

Fredenburgh and other DOCCS officials at Ulster Correctional

Facility demanding that they release him in accordance with the

original, accurate JTC. (Id. at 10.) On May 24 and 25,

Fredenburgh responded to Hurd in writing that she could do

nothing to address his concerns and that he must instead contact

“Rikers Island.” (Id.) On June 9, Felicien issued a third

amended JTC, crediting Hurd with 524 days of jail-time credit.

(Id.) Once again, on June 13, 2016, Felicien issued a fourth

amended JTC crediting Hurd with 508 days of jail-time credit.

(Id.)

In late June 2016, Hurd was eventually transferred to

Riverview Correctional Facility. (Id.) There he pursued the

official grievance process to the DOCCS Central Office Review

Committee, filed two Notices of Claim, and wrote letters to

various Riverview officials and the DOCCS’ Office of Sentencing

Review. (Id.) DOCCS officials, however, “refused to

intervene.” (Id.)

Then, on March 23, 2017, NYCDOC Assistant General Counsel

Justin Kramer instructed Mixon to notify DOCCS that Hurd was

entitled to all the jail-time credit he had originally been

entitled to. (Id. at 11.) That same day, Mixon prepared an

amended JTC which certified that Hurd was entitled to 996 days

of jail-time credit. (Id.) Mixon emailed this amended JTC to

an unidentified inmate records coordinator at Riverview

Correctional Facility. (Id.) This coordinator then verified

that Hurd was still entitled to all the good-time credit for

which he had been eligible when he was first transferred to

DOCCS custody, and DOCCS accordingly conditionally released

Hurd on March 30, 2017. (Id.)

LEGAL STANDARD

I. Sufficiency of the Pleadings

A plaintiff must plead facts that, if accepted as

true, “state a claim to relief that is plausible on its face.”

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A

complaint is facially plausible when the “plaintiff pleads

factual content that allows the court to draw the reasonable

inference that the defendant is liable for the misconduct

alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A

complaint need not contain detailed factual allegations, but

must contain more than mere “labels and conclusions” or a

“formulaic recitation of the elements of a cause of action” or

“naked assertions” devoid of “further factual enhancement.” Id.

For motions under Rule 12(b)(6), the court assumes the truth of

all facts asserted in the operative complaint and draws all

reasonable inferences from those facts in favor of the non-

moving plaintiff. Global Network Commc'ns, Inc. v. City of New

York, 458 F.3d 150, 154 (2d Cir. 2006).

DISCUSSION

Defendant moves to dismiss the Amended Complaint

pursuant to Federal Rule of Civil Procedure 12(b)(6), for

failure to state a claim upon which relief may be granted.

Defendant first argues that plaintiff’s due process rights were

not violated because he did not, and cannot, establish that he

has a liberty interest in conditional release, and that

plaintiff had adequate post-deprivation remedies in the form of

an Article 78 or state habeas proceeding, that satisfy due

process. (DM 5-6.) Defendant thus contends that plaintiff’s

Fourteenth Amendment claim fails. As to plaintiff’s Eighth

Amendment claim that he was subjected to cruel and unusual

punishment, defendant argues first that plaintiff has not pled

the requisite mental culpability and deliberate indifference,

and second, that plaintiff was not held beyond his maximum

release date as a result of defendant’s alleged conduct. (Id.

at 7-9.) Alternatively, defendant argues that she is entitled

to qualified immunity as there is no clearly established law

that proscribed defendant’s conduct.2 (Id. at 9-11.)

2 For the first time on reply, defendant appears to argue that

plaintiff’s claims under 42 U.S.C. § 1983 are barred by Heck v. Humphrey, 512

U.S. 477 (1994), which held that prisoner § 1983 claims that necessarily

challenge the validity of a conviction or sentence are not cognizable unless

the underlying conviction or sentence has been overturned. (Reply 5.)

Applying Heck would require this court to consider whether plaintiff’s § 1983

claims necessarily challenges the validity of his conviction or sentence,

including its length. However, “[i]t is well-established that ‘arguments may

not be made for the first time in a reply brief.’” Zirogiannis v. Seterus,

Plaintiff responds that the Second Circuit has held

prisoners possess a liberty interest in earned good-time credit

and that New York’s parole system creates a legitimate

expectancy of release. (Opp. 12.) Plaintiff also responds that

defendant’s alleged deliberate indifference, supports a finding

that defendant’s conduct “shocked the conscience,” thus

establishing a sustainable substantive due process claim. (Opp.

10-12.)

As to his Eighth Amendment claim, plaintiff relies on

his factual allegations that Fredenburgh knew of Hurd’s plight

and refused to rectify the error, thus supporting an inference

she acted with deliberate indifference. (Id. at 6-8.) He also

argues that prolonged confinement is measured not from a

prisoner’s maximum release date, but whether he was “detained

after he should have been released.” (Id. at 6.) Thus,

plaintiff argues, his confinement beyond his originally

Inc., 221 F. Supp. 3d 292, 298 (E.D.N.Y. 2016) (quoting Knipe v. Skinner, 999

F.2d 708, 711 (2d Cir. 1993)). The court, therefore, will not consider

“[n]ew arguments first raised in reply papers in support of [the] motion.”

Domino Media, Inc. v. Kranis, 9 F. Supp. 2d 374, 387 (S.D.N.Y. 1998). It is

worth noting, however, that Heck does not pose an absolute bar to prisoner

§ 1983 claims in this Circuit, and Heck’s application to such claims brought

by former prisoners is an open question. See generally Opperisano v. P.O.

Jones, 286 F. Supp. 3d 450, 457 (E.D.N.Y. 2018); see also Green v.

Montgomery, 219 F.3d 52, 61 n.3 (2d Cir. 2000) (“Heck acts only to bar § 1983

suits when the plaintiff has a habeas corpus remedy available to him (i.e.,

when he is in state custody). Because it does not appear that [the claimant

is] presently in state custody his § 1983 action is not barred by Heck.”

(citations omitted)). In any event, the court need not rule on whether Heck

applies to the instant case, and is reluctant to do so in light of the

parties’ failure to submit fulsome briefing on the question.

calculated conditional release date makes out an Eighth

Amendment claim for cruel and unusual punishment.

Finally, responding to defendant’s assertion of

qualified immunity, plaintiff argues that defendant’s subjective

belief requires factual development and is not suitable for

disposition on a motion to dismiss. (Id. at 17.) Second, he

argues that the law was clearly established through Second

Circuit precedent or that, in the alternative, it was not

objectively reasonable for defendant to believe she could not

alter Hurd’s JTC certificates because she had in fact procured

changes in the first place. (Id.)

I. Substantive Due Process

Plaintiff alleges that being held some 996 days beyond

his conditional release date violated a substantive due process

right conferred to him by New York State Law. (Am. Compl. 11.)

Defendant moves to dismiss this claim. She argues that

plaintiff fails to plead a substantive due process claim because

he cannot establish a liberty interest in his conditional

release and, in any event, that he was afforded due process.

(DM 5-7.) This latter argument, however, appears to contemplate

a procedural due process claim, challenging whether plaintiff

was afforded the process he was due for the deprivation he

suffered. Substantive due process claims, on the other hand,

generally require the court to consider whether the government

could affect such a deprivation, “regardless of the fairness of

the procedures used to implement them.” Daniels v. Williams,

474 U.S. 327, 331 (1986). For his part, plaintiff expressly

denies that he brings a procedural due process claim, (Opp. 12

n.2), and the Amended Complaint clearly states that plaintiff’s

first cause of action is for a violation of his substantive due

process rights, (Am. Compl. 12). He thus argues that the

Amended Complaint satisfies the substantive due process pleading

standard of “egregious” or “conscience-shocking” conduct. (Opp.

10 (citing Lombardi v. Whitman, 485 F.3d 73, 79 (2d Cir. 2007)

and Pena v. DePrisco, 432 F.3d 98, 112 (2d Cir. 2005)).)

Yet, in support of plaintiff’s argument, he relies

heavily on cases in the Second Circuit, and other Circuits,

clearly addressing procedural due process claims. (See id.

(citing Zurak v. Regan, 550 F.2d 86, 92-93 (2d Cir. 1977)

(affirming district court’s order directing implementation of

procedures at Riker’s Island for timely disposing of conditional

release applications)).) Taken together, plaintiff’s disavowal

of a procedural due process claim, coupled with his citation to,

and reliance on, procedural due process cases, obscures the

nature of the due process claim plaintiff asserts and defendant

seeks to dismiss.

Nevertheless, the court will take plaintiff at his

word and analyze his pleading as asserting a substantive due

process claim. Due Process claims must plead two elements: (1)

that “the plaintiff had an actual interest protected by the

Fifth Amendment—life, liberty or property—at stake;” and (2)

that “[d]efendants infringed on that interest in a manner that

was ‘so egregious, so outrageous, that it may fairly be said to

shock the contemporary conscience.’” Southerland v. City of New

York, 680 F.3d 127, 142 (2d Cir. 2012) (quoting County of

Sacramento v. Lewis, 523 U.S. 833, 847 n.8 (1998)); see also

Leder v. Am. Traffic Sols., Inc., 630 F. App’x 61, 62 (2d Cir.

2015) (“A substantive due process claim under 42 U.S.C. § 1983

requires plaintiff to show (1) a fundamental liberty interest,

(2) the deprivation of which was arbitrary in the constitutional

sense.”). The “[s]ubstantive due process analysis must begin

with a careful description of the asserted right, for the

doctrine of judicial self-restraint requires [the court] to

exercise the utmost care whenever [the court is] asked to break

new ground in this field.” Reno v. Flores, 507 U.S. 292, 302

(1993). Thus, plaintiff must first establish that “he possessed

a liberty or property interest of which [Fredenburgh] deprived

him.” Sutera v. Transp. Sec. Admin., 708 F. Supp. 2d 304, 313

(E.D.N.Y. 2010). This he cannot do.

The substantive component of the “Due Process Clause

protects only those fundamental rights and liberties which are,

objectively, deeply rooted in this Nation's history and

tradition, as well as implicit in the concept of ordered

liberty, such that neither liberty nor justice would exist if

they were sacrificed.” United States v. Windsor, 570 U.S. 744,

808 (2013) (Roberts, C.J., dissenting); see also Albright v.

Oliver, 510 U.S. 266, 272 (1994) (noting the substantive due

process clause, for the most part, protects “matters relating to

marriage, family, procreation, and the right to bodily

integrity”). “Recognized fundamental rights include those

created by the Constitution, most rights enumerated in the Bill

of Rights, and certain enumerated rights, such as the right to

privacy.” St. Francis Hosp. v. Sebelius, 34 F. Supp. 3d 234,

246 (E.D.N.Y. 2014). While certain state-created rights are

entitled to protections of procedural due process, Sandin v.

Conner, 515 U.S. 472, 483-84 (1995), “substantive due process

right[s] are created only by the Constitution.” Regents of

Univ. of Mich. v. Ewing, 474 U.S. 214, 229 (1985) (Powell, J.,

concurring)(emphasis added); see also Greenholtz v. Neb. Penal

Inmates, 442 U.S. 1, 7 (1979); Local 342, Long Island Pub. Serv.

Emps., UMD, ILA, AFL–CIO v. Town Bd. of Town of Huntington, 31

F.3d 1191, 1196 (2d Cir. 1994); Barna v. Travis, 239 F.3d 169,

170 (2d Cir. 2001).

Thus, “a government or state-created right is not a

fundamental right implicating substantive due process,” St.

Francis Hosp., 34 F. Supp. 3d at 246, and the court must look to

the Federal Constitution or other sources of protected interests

“implicit in the concept of ordered liberty,” Palko v.

Connecticut, 302 U.S. 319, 325 (1937). The Supreme Court,

however, has held that “[t]here is no right under the Federal

Constitution to be conditionally released before the expiration

of a valid sentence.” Swarthout v. Cooke, 562 U.S. 216, 220

(2011); see also Conn. Bd. of Pardons v. Dumschat, 452 U.S. 458,

464 (1981). Even if substantive due process could reach state-

created rights, “the Second Circuit has declined to opine on

whether New York recognizes a liberty interest in conditional

release.” Hayes v. Annucci, No. 14-CV-8845, 2016 WL 1746109, at

*3 (S.D.N.Y. Apr. 28, 2016) (citing Doe v. Simon, 221 F.3d 137,

139 (2d Cir. 2000)); cf. Graziano v. Pataki, 689 F.3d 110, 114–

15 (2d Cir. 2012) (“We have squarely held that because the New

York parole scheme is not one that creates a legitimate

expectancy of release, ‘[prisoners] have no liberty interest in

parole, and the protections of the Due Process Clause are

inapplicable.’”).

Plaintiff alleges he was deprived of his timely

conditional release from state custody. This is clearly a

state-created right, as the Supreme Court has held that

conditional release is not protected by the Constitution.

Therefore, plaintiff has no substantive due process right to

conditional release, and arguably no procedural due process

right, either. Although the court finds that, if true,

plaintiff’s allegations that Fredenburgh intentionally took

actions to keep plaintiff imprisoned without justification might

shock the judicial conscience, plaintiff has failed to satisfy

the first pleading requirement for a substantive due process

claim. The court therefore GRANTS defendant’s motion to dismiss

as to plaintiff’s substantive due process claim.

Were the court to construe plaintiff’s claim as one

for procedural due process violations, encompassing state-

created rights, his claim similarly would fail. First, “there

is no procedural due process violation ‘when a state employee

intentionally deprives an individual of property or liberty

[through random, unauthorized acts by the state employee], so

long as the State provides a meaningful post

[-]deprivation remedy.’” Sharp v. Inc. Vill. of Farmingdale,

No. 16-CV-2994, 2018 WL 4404075, at *6 (E.D.N.Y. Sept. 14, 2018)

(quoting Hellenic Am. Neighborhood Action Comm. v. City of New

York, 101 F.3d 877, 880 (2d Cir. 1996)). Plaintiff does not

allege that there were no post-deprivation remedies available to

him or that they were inadequate. Even still, it is well-

settled that “an Article 78 proceeding is a perfectly adequate

post[-]deprivation remedy.” Grillo v. N.Y.C. Transit Auth., 291

F.3d 231, 234 (2d Cir. 2002); see also Peterson v. Tomaselli,

469 F. Supp. 2d 146, 165 (S.D.N.Y. 2007)(assuming without

deciding New York created legitimate expectation for inmates in

conditional release and nevertheless concluding the plaintiff

was afforded adequate due process in the form of Article 78 or

state habeas proceeding).

Finally, the court finds that, even if plaintiff

adequately pleaded either a substantive or procedural due

process violation, defendant Fredenburgh would be entitled to

qualified immunity. “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, 555 U.S. 223, 231

(2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).

Courts are free to consider either prong first, that is, whether

the constitutional violation occurred, or was sufficiently

alleged, or whether the constitutional right was clearly

established at the time of the alleged conduct. Id. at 235-36

(holding that district courts “should . . . decide[] which of

the two prongs of the qualified immunity analysis should be

addressed first”).

First, plaintiff’s argument that defendant’s state of

mind requires factual development is unavailing. The Supreme

Court has made quite clear that the “defense of qualified

immunity may not be rebutted by evidence that the defendant's

conduct was . . . improperly motivated.” Crawford–El v.

Britton, 523 U.S. 574, 588 (1998). Evidence of subjective

intent, therefore, “is simply irrelevant to [the] defense.”

Doninger v. Niehoff, 642 F.3d 334, 349 (2d Cir. 2011) (quoting

Crawford-El, 523 U.S. at 588).

Furthermore, the law is not so clearly established

that prisoners maintain a fundamental liberty interest, or even

a state-created liberty interest protected by the procedural due

process clause. See D’Angelo v. Annucci, No. 16-CV-6459, 2017

WL 6514692, at *9 (S.D.N.Y. Dec. 19, 2017). As discussed above,

“neither the Supreme Court nor the Second Circuit has held that

the Fourteenth Amendment guarantee of freedom from incarceration

without due process includes the right to early release prior to

the expiration of an individual’s sentence.” McMillan v. Perez,

No. 14-CV-3854, 2016 WL 4926202, at *6 (S.D.N.Y. Sept. 14, 2016)

(citing Greenholtz, 442 U.S. at 7); see also Abed v. Armstrong,

209 F.3d 63, 66–67 (2d Cir. 2000). In fact, district courts in

the Second Circuit have indicated the opposite. See McMillan,

2016 WL 4926202, at *6 (collecting cases). It cannot be said

that the case law clearly foreshadows finding such a right in

the context of substantive due process.

Plaintiff’s two cited authorities, Zurak and Abed, are

inapposite. Though the court in Zurak may have found that

inmates have a liberty interest for conditional release worthy

of procedural due process protections, that proposition has

since been clearly refuted by the Second Circuit. Graziano, 689

F.3d at 114–15. Furthermore, Zurak did not address liberty

interests in the context of substantive due process. And the

court in Abed discusses a state-created liberty interest in

earned good-time credits. Here, plaintiff does not claim that

he was deprived of good-time credits without due process, but

instead claims that his release was delayed by the erroneously

amended JTCs. Neither case, therefore, clearly establishes that

prolonging detention past an inmate’s conditional release date

is a constitutional violation, or that inmates have a protected

interest in earned jail-time credits for the purposes of

conditional release.

Plaintiff argues that even if there was not clearly

established law on the issue, “this is one of the rare cases

where the unlawfulness of the defendants’ conduct was so clear

that qualified immunity would be inappropriate” because her

conduct was “outrageous and patently unconstitutional.” (Opp.

17-18.) But, as discussed above, defendant’s intent is

irrelevant for the purposes of the court’s qualified immunity

determination. Thus, defendant Fredenburgh is alternatively

entitled to qualified immunity as to plaintiff’s substantive due

process claims. For this and the foregoing reasons, defendant’s

motion to dismiss plaintiff’s substantive due process claim is

GRANTED.

II. Cruel and Unusual Punishment

Plaintiff brings a second claim under § 1983, alleging

a violation of his Eighth Amendment right to be free from cruel

and unusual punishment. (Am. Compl. 13-14.) Specifically, he

alleges that Fredenburgh knew or should have known plaintiff

would have remained in prison if he did not receive the full

jail-time credit to which he was entitled. (Id. ¶ 106-08.)

Defendant also moves to dismiss this claim. She

argues that plaintiff fails to plead both the required intent

and constitutional harm because he was not imprisoned past his

maximum sentence. (DM. 7.) Eighth Amendment claims require two

well-pleaded elements, one subjective and one objective.

“First, the prisoner must allege that the defendant acted with a

subjectively ‘sufficiently culpable state of mind.’” Crawford

v. Cuomo, 796 F.3d 252, 256 (2d Cir. 2015) (quoting Hudson v.

McMillian, 503 U.S. 1, 8 (1992)). “Second, he must allege that

the conduct was objectively ‘harmful enough’ or ‘sufficiently

serious’ to reach constitutional dimensions.” Id. (quoting

Hudson, 503 U.S at 8, 20). What constitutes objectively

harmful or sufficiently serious conduct is “context specific,”

Hogan v. Fischer, 738 F.3d 509, 515 (2d Cir. 2013), and “depends

upon the claim at issue,” Hudson, 503 U.S. at 8. In the context

of prolonged detention, a defendant’s “sufficiently culpable

state of mind” must meet, at a minimum, deliberate indifference.

Calhoun v. N.Y. State Div. of Parole Officers, 999 F.2d 647, 654

(2d Cir. 1993).

The parties dispute whether plaintiff’s allegations

rise to deliberate indifference on the part of Fredenburgh. For

her part, defendant Fredenburgh appears to overlook that

plaintiff alleges her intentional conduct, not just that she

ignored a known risk. See Brims v. Burdi, No. 03-CV-3159, 2004

WL 1403281, at *2 (S.D.N.Y. June 23, 2004) (finding complaint

alleged deliberate indifference where “defendants knew, but

ignored, the fact that [plaintiff’s] . . . release date was

imminent”). Whether or not these allegations are susceptible to

proof, the court must accept them as true. As noted above,

Fredenburgh’s alleged conduct is troublesome and would certainly

satisfy deliberate indifference if not willfulness, as plaintiff

alleges Fredenburgh agreed with Felicien to keep plaintiff

incarcerated past his conditional release date. Nevertheless,

the court finds that plaintiff has not satisfied the objective

pleading requirement of a harm rising to constitutional

dimensions.

Courts have found that detention prolonged beyond

conditional release does not satisfy the objective harm

requirement for Eighth Amendment claims. D’Angelo, 2017 WL

6514692, at *10 (collecting cases). In coming to this

conclusion, courts rely on the several cases in the Second

Circuit which found that detention prolonged days beyond a

maximum sentence did not violate the Eighth Amendment. See,

e.g., Calhoun, 999 F.2d at 653 (holding that five days of

incarceration beyond the plaintiff’s maximum sentence “did not

inflict a harm of a magnitude that violates a person’s Eighth

amendment rights”); Brims v. Burdi, No. 03-CV-3159, 2014 WL

1403281, at *2 (S.D.N.Y June 23, 2004) (finding detention six

days beyond maximum sentence “not a harm of sufficient magnitude

to implicate the Eighth Amendment”); Lozada v. Warden Downstate

Corr. Facility, No. 10-CV-8425, 2012 WL 2402069, at *2 (S.D.N.Y.

June 26, 2012) (finding detention seven days beyond maximum

sentence insufficient to bring Eighth Amendment claim). Given

this backdrop, at least two courts in this Circuit have granted

motions to dismiss a prisoner’s complaint bringing Eighth

Amendment claims where the complaint alleged detention prolonged

beyond a conditional release date, and not a maximum release

date. See Hayes v. Annucci, No. 14-CV-8846, 2016 WL 1746109, at

*5 (S.D.N.Y. April 28, 2016); D’Angelo, 2017 WL 6514692, at *10.

Because plaintiff was released prior to the expiration

date of his maximum sentence, he was not exposed to any

additional punishment than permitted by the Constitution, let

alone cruel and unusual punishment. Therefore, plaintiff has

not sufficiently pleaded an Eighth Amendment claim, and

defendant’s motion to dismiss this claim is GRANTED.

Even if the court were to find that plaintiff has

adequately pleaded an Eighth Amendment violation, defendant

would be entitled to qualified immunity. Plaintiff argues that

Zurak and Abed, among others, clearly establish that Hurd had a

liberty interest in conditional release, and that any unlawful

prolonged imprisonment violates the Eighth Amendment. (Opp.

17.) Defendant argues that caselaw within the Second Circuit

notes uncertainty around whether the detention of an inmate past

a conditional release date, but not beyond his maximum sentence,

violates any constitutional right. (DM 10.) The court agrees

with defendant; the relevant case law does not clearly establish

or foreshadow that prolonging a prisoner’s detention beyond his

conditional release date constitutes cruel and unusual

punishment. Therefore, and in the alternative, defendant would

be entitled to qualified immunity for plaintiff’s Eighth

Amendment claim.

CONCLUSION

For the foregoing reasons, defendant’s motion to

dismiss is GRANTED, and plaintiff’s Amended Complaint is

dismissed in its entirety. The Clerk of Court is respectfully

directed to dismiss the Amended Complaint, enter judgment, and

close the case.

SO ORDERED.

Dated: September 26, 2019

Brooklyn, New York

/s/

Kiyo A. Matsumoto

United States District Judge