Betances v. Fischer

DUCUMENT

ELECTRONICALLY FILED

UNITED STATES DISTRICT COURT I nacccmiameccee

SOUTHERN DISTRICT OF NEW YORK DATE FILED: 3/23/2023

PAUL BETANCES, et al.,

11-CV-3200 (RWL)

Plaintiffs, :

DECISION AND ORDER:

- against - MITIGATION

BRIAN FISCHER, in his capacity as

Commissioner of the New York State

Department of Correctional Services (DOCS), :

and in his individual capacity, et al., :

Defendants.

ROBERT W. LEHRBURGER, United States Magistrate Judge.

This is a civil rights class action brought by named Plaintiffs Paul Betances, Lloyd

A. Barnes, and Gabriel Velez against Defendants Brian Fischer, Anthony J. Annucci, and

Terence Tracy. The Court previously certified the class and found Defendants personally

liable; the Second Circuit affirmed and remanded the case to determine the appropriate

remedies. In advance of trial, Defendants twice moved to decertify the class, contesting

the propriety of determining damages on a class-wide basis. The Court denied the

motions, holding that the class should be maintained for purposes of trial to determine

general damages for loss of liberty and that other damages could be addressed

individually following decertification.

Now before the Court is Defendants’ latest attempt to derail the class from

proceeding to trial, which is scheduled to start on May 9, 2023. Specifically, Defendants

contend that class determination of damages is no longer viable because of Defendants’

defense that Plaintiffs failed to mitigate their damages. For the reasons set forth below,

Defendants’ motion is DENIED.1

Background

The facts and history of this case have been summarized as set forth in several

prior opinions, including those denying Defendants’ earlier motions to decertify the class.2

The Court assumes the parties’ familiarity with the history of this case and provides here

only a very brief description of relevant background facts.

Plaintiffs were convicted of felonies in New York State courts, sentenced to varying

periods of incarceration, and, after serving their sentences, subjected to unlawfully

imposed post-release supervision (“PRS”). Although state law required imposition of PRS

following incarceration, the sentencing courts for Plaintiffs and the class failed to include

any term of PRS when sentencing them. Even so, during Plaintiffs’ incarceration, the

1 On March 23, 2023, the day this decision and order is being issued, the Second Circuit

issued a decision in Vincent v. Annucci addressing determination of the onset date for

assessing compensatory damages for reincarceration after unconstitutionally imposed

administrative PRS. No. 21-22, slip op. (March 23, 2023). That decision did not address

the issue presented here, which concerns mitigation.

2 See Bentley v. Dennison, 852 F. Supp.2d 379 (S.D.N.Y. 2012) (denying Defendants’

motion to dismiss based on qualified immunity in both this class action and a related

action with individual plaintiffs), aff’d sub nom, Betances v. Fischer, 519 F. App’x 39 (2d

Cir. 2013) (“Betances I”); Betances v. Fischer, 304 F.R.D. 416 (S.D.N.Y. 2015)

(“Betances Class Opinion.”); Betances v. Fischer, 144 F. Supp.3d 441 (S.D.N.Y. 2015)

(“Betances II”) (summary judgment finding Defendants personally liable for violating

Plaintiffs’ constitutional rights); Betances v. Fischer, 837 F.3d 162 (2d Cir. 2016)

(“Betances III”) (affirming Betances II and remanding for appropriate remedies); Betances

v. Fischer, 403 F. Supp.3d 212 (S.D.N.Y. 2019) (“Betances IV”) (granting Defendants’

summary judgment limiting certain class members to nominal damages but denying the

motion in all other respects, including as to class decertification); and Betances v. Fischer,

2022 WL 765963 (S.D.N.Y. March 14, 2022) (“Betances V”) (denying Defendants’ motion

for class decertification).

administrators responsible for incarceration and parole imposed PRS terms. On June 9,

2006, the Second Circuit held that administrative imposition of PRS was unconstitutional.

Earley v. Murray, 451 F.3d 71 (2d Cir. 2006) (“Earley”), reh’g denied, 462 F.3d 147 (2d

Cir. 2006), cert. denied, Burhlre v. Earley, 551 U.S. 1159, 127 S. Ct 3014 (2007). As the

Second Circuit succinctly stated, administratively imposed PRS was a “nullity.” Id. at 76.

Following their release from prison, each of the named Plaintiffs committed

additional crimes and were reincarcerated for violating the terms of their unconstitutional

PRS. Plaintiffs served their time of incarceration for the underlying crimes they committed

while on PRS. Instead of being released at the end of that time, however, Plaintiffs were

subjected to an additional term of incarceration or other loss of liberty for having violated

the terms of their unconstitutionally imposed PRS. Defendants are the three individuals

remaining in the case who failed to timely take reasonable steps to discontinue

enforcement of wrongfully imposed PRS, despite their awareness that such conduct was

unconstitutional.

Defendants already have been held liable to Plaintiffs on summary judgment. See

Betances II, 144 F. Supp.3d at 453-55; see also Betances III, 837 F.3d at 174 (affirming

absence of qualified immunity because “we agree with the district court that the

defendants did not make an objectively reasonably effort to relieve plaintiffs of the

burdens of those unlawfully imposed terms after they knew it had been ruled that the

imposition violated federal law”) (internal quotation marks and modification omitted). The

only remaining issue is damages. Plaintiffs seek damages for the additional time they

were wrongfully subject to the restrictions of PRS and incarcerated based on PRS

violations, including the commission of new crimes. They do not seek damages for the

time they were incarcerated for the underlying crimes that led to their being newly arrested

and incarcerated.

Defendants opposed class certification in part based on the argument that

individualized damages issues predominate over common issues. The Court rejected

that argument, finding that general damages for loss of liberty may be determined at trial

on a class-wide basis but that any additional individualized damages, such as

psychological or physical pain and suffering, can be determined following decertification

of the class. See Betances Class Opinion, 304 F.R.D. at 430-32. The Court similarly

rejected Defendants’ multiple attempts, following summary judgment on liability, to

decertify the class premised on the same or similar arguments. See Betances IV, 403 F.

Supp.3d at 237-38; Betances V, 2022 WL 765963 at *12-13.

As the case heads to trial, the parties have briefed several pre-trial issues.

Following a hearing on pre-trial issues, the Court requested further briefing on

Defendants’ mitigation defense and potential implications of that defense for maintaining

class certification. (Dkt. 364.) With briefing completed (Dkts. 367-370), the Court now

resolves the issue.

Discussion

Defendants contend that they are entitled to assert a defense that Plaintiffs failed

to mitigate their damages, and that, as a result, individualized issues will predominate

even at trial of general damages, thus warranting decertification of the class. The Court

agrees that Defendants may assert mitigation of damages as a defense at trial of

individualized damages. Mitigation of damages is not, however, relevant to class-wide

trial of general damages for loss of liberty. Defendants’ assertion of the mitigation defense

therefore does not warrant decertification at this juncture.

The principle of mitigation requires that victims of torts or other legal wrongs make

reasonable efforts to reduce their damages once they have been injured. See, e.g., APL

Co. PTE Ltd. v. Blue Water Shipping U.S. Inc., 592 F.3d 108, 111 (2d Cir. 2010) (party

claiming injury due to breach of contract “bears an obligation to make reasonable efforts

to mitigate its damages and failure to do so may cause a court to lessen the recovery”);

Hawkins v. 1115 Legal Service Care, 163 F.3d 684, 696 (2d Cir. 1998) (“An employee

discharged in violation of Title VII has an obligation to attempt to mitigate her damages

by using reasonable diligence in finding other suitable employment”) (internal quotation

marks omitted). Defendants correctly note that mitigation is an available defense in

§ 1983 claims. See Rich v. Miller, No. 21-CV-3835, 2022 WL 7748176, at *6 (S.D.N.Y.

Oct. 4, 2022) (“Courts have held that the duty to mitigate damages applies to plaintiffs in

§ 1983 actions”) (quoting Alvarez v. Haywood, No. 06-CV-745, 2011 WL 13130851, at *4

(N.D.N.Y. Aug. 29, 2011)).

The problem with Defendants’ instant argument is that they misapprehend the

relevant point of injury. “There can be no duty to mitigate damages until the injury causing

those damages actually occurs.” Miller v. Lovett, 879 F.2d 1066, 1071 (2d Cir. 1989)

(rejecting notion that plaintiff had duty to mitigate injuries incurred during arrest by not

getting arrested in the first place and noting “[i]f a plaintiff’s duty to mitigate damages were

to include the duty to avoid the underlying injury, few arrestees could recover damages

under § 1983 since most could have ‘avoided’ engaging in the conduct that precipitated

the arrest”), partially abrogated on other grounds by Graham v. Connor, 490 U.S. 386,

109 S. Ct. 1865 (1989). Plaintiffs were victims of a constitutional wrong when PRS was

administratively imposed on them without a judge having done so. But Plaintiffs did not

incur any actual injury giving rise to damages until Defendants enforced, or failed to take

reasonable actions to prevent enforcement of, the unconstitutionally imposed PRS.

Plaintiffs assert, and the Court agrees, that there are two distinct points of injury at

issue. The first occurred when a Plaintiff began to serve wrongfully imposed PRS and

adhered to its restrictions, such as curfew, limits on travel, obligation to report, etc.

Indeed, some class members are “PRS-only” plaintiffs who were subject to the strictures

of wrongfully imposed PRS but were not reincarcerated. A second point of injury was

when a Plaintiff served extended prison time for violation of wrongfully imposed PRS.

Defendants err by focusing on the time that PRS was first unconstitutionally added

to Plaintiffs’ sentences.3 As Defendants would have it, Plaintiffs failed to mitigate their

damages – from wrongfully imposed PRS – by engaging in conduct that violated the terms

of that PRS. But Defendants ignore both the nature of their liability and the relevant point

of injury. Defendants were held liable for failing to act to stop enforcement of wrongfully

imposed PRS. Plaintiffs incurred a separate and distinct injury from Defendants’

continuing failure when they were reincarcerated, or had their incarceration extended, for

violating the unconstitutional PRS conditions.

This follows from both the Second Circuit’s decision in Earley and Judge

Scheindlin’s earlier decisions in the instant case. The Earley Court held that

3 For this reason, none of the cases cited by Defendants as examples of failure to mitigate,

primarily in the physical injury and employment context, are apt. Nor is Defendants’

misguided suggestion that Plaintiffs are somehow benefitting from their own misconduct.

administratively imposed PRS was a “nullity.” 451 F.3d at 76. As such, there could be

no relevant injury until enforcement of, or failure to provide relief from, that nullity. To

similar effect, Judge Scheindlin held that no liability attached to Defendants until after

Earley as it was Earley that provided the definitive legal holding that administratively

imposed PRS was unconstitutional. Betances Class Opinion, 304 F.R.D. at 429.

Plaintiffs had already had administrative PRS added to their sentences before Earley.

But no wrongful conduct causing injury occurred until Defendants failed to act within a

reasonable time after Earley issued and instead prolonged enforcement of wrongfully

imposed PRS.

Judge Scheindlin thus consistently identified the relevant wrongful conduct to be

the continued enforcement of administrative PRS, not its initial ministerial recording,

which, as noted, was a nullity. For example, in denying Defendants’ motion to dismiss,

Judge Scheindlin found that “it was objectively unreasonable of defendants to continue

enforcing administrative PRS without seeking resentencing for two years after Earley…”

Betances I, 852 F. Supp.2d at 398 (emphasis added); see also id. at 393 (describing “the

clear, core constitutional holding in Earley” as “that administratively-imposed PRS was

unlawful and that if the state wished to enforce such PRS, resentencing by a judge

was required”) (emphasis added).

Similarly, Judge Scheindlin found that Plaintiffs’ injuries arose only from the

continued enforcement of administratively imposed PRS. In granting class certification –

and recognizing that general damages may be calculated on a class-wide basis – Judge

Scheindlin explained that “plaintiffs' injuries stem from a single practice: the

enforcement of administratively-imposed PRS after the Second Circuit clearly

established that the practice was unconstitutional.” Betances Class Opinion, 304 F.R.D.

at 427 (emphasis added); see also id. at 428 (“Lead plaintiffs have suffered injuries from

the enforcement of administratively-imposed PRS”); id. at 431 (“any damages awarded

for the different injuries identified by plaintiffs are linked to the enforcement of

administratively-imposed PRS by the defendants”) (emphasis added); id. (discussing “the

injuries resulting from the defendants’ enforcement of administratively-imposed

PRS”) (emphasis added).

The general damages for loss of liberty being determined at the upcoming trial are

damages for injury sustained from continued enforcement of unconstitutionally imposed

PRS. Mitigation is not relevant to that trial. Mitigation may come into play on any ensuing

trials of individualized damages. For example, a plaintiff who was physically injured while

wrongfully incarcerated potentially could be subject to a mitigation defense if he did not

cooperate in seeking treatment for the injury. Similarly, a plaintiff who committed

infractions during wrongful incarceration might be subject to a mitigation defense as to

any additional incarceration incurred as a result of those infractions. Cf. Jeanty v.

Cerminaro, No. 16-CV-0966, 2021 WL 2778572, at *6 (N.D.N.Y. July 2, 2021) (excluding

plaintiff’s prison disciplinary record from trial of wrongful arrest and incarceration because

nothing in the record tended to show that the plaintiff’s period of incarceration was

extended as a result of disciplinary infractions). But Defendants have not put forward any

such evidence here, and, in any event, those theoretical scenarios, which focus on the

point after injury, do not take away from the predominance of common issues in the

upcoming trial for general damages due to lost liberty.

Conclusion

For the foregoing reasons, Defendants’ pre-trial motion to decertify the class based

on a mitigation-of-damages defense is DENIED. To the extent not discussed above, the

Court has considered the Defendants’ arguments and finds them to be without merit.

SO ORDERED.

ROBERT W. LEHRBURGER

UNITED STATES MAGISTRATE JUDGE

Dated: March 23, 2023

New York, New York

Copies transmitted this date to all counsel of record.