# Hurd v. City of New York

> District Court, E.D. New York · September 26, 2019

URL: https://www.frixlaw.com/law-library/cases/10303151

## Case

- **Court:** District Court, E.D. New York
- **Decided:** September 26, 2019
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10303151

## How later opinions describe it (automated extraction)

- 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”
- noting the substantive due process clause, for the most part, protects “matters relating to marriage, family, procreation, and the right to bodily integrity”

## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10303151. Public record. Not legal advice.