18‐1011‐cv
Francis v. Fiacco, et al.


                            UNITED STATES COURT OF APPEALS
                                FOR THE SECOND CIRCUIT

                                       August Term 2018

                (Argued: June 27, 2019              Decided: November 12, 2019)

                                         No. 18‐1011‐cv

                            ––––––––––––––––––––––––––––––––––––

                                        BYRAN FRANCIS,

                                        Plaintiff‐Appellee,

                                               ‐v.‐

      KIMBERLY FIACCO, AKA Kimberly Davidson, RICHARD DE SIMONE, DIANE
                        HOLFORD, and KRISTINA LENNON,

                                    Defendants‐Appellants.1

                            ––––––––––––––––––––––––––––––––––––

Before:            JACOBS, LIVINGSTON, and CARNEY, Circuit Judges.

       Byran Francis brought this lawsuit pursuant to 42 U.S.C. § 1983 against four
officials of the New York State Department of Corrections and Community
Supervision (“DOCCS”): Kimberly Fiacco, Richard de Simone, Diane Holford, and
Kristina Lennon (collectively, the “State Defendants”). Francis alleged that the
State Defendants violated his rights under the Eighth and Fourteenth

         1   The Clerk of Court is respectfully instructed to amend the caption as set forth
above.


                                                1
Amendments by holding him in state custody for four months after the expiration
of his federal sentence, where the state sentencing court had originally directed
that Francis’s state and federal sentences should run concurrently. The State
Defendants justified their implementation of Francis’s sentence with reference to
New York statutory law that apparently rendered the state court’s directive of
concurrency invalid under the circumstances of Francis’s state sentencing. The
United States District Court for the Northern District of New York (D’Agostino, J.)
denied the State Defendants’ motion for summary judgment, holding that the State
Defendants’ conduct violated the Eighth and Fourteenth Amendments and
rejecting their qualified immunity defense. We reach the merits of only one of
Francis’s constitutional claims, holding that pursuant to Mathews v. Eldridge, 

(1976), the State Defendants violated the Due Process Clause by
implementing Francis’s sentence in the manner they did without providing
adequate notice to the state sentencing court and the attorneys present at Francis’s
state sentencing. Nevertheless, we further hold that the State Defendants were
entitled to qualified immunity from all of Francis’s constitutional claims under the
circumstances of this case. Accordingly, the order of the district court is
REVERSED and the case is REMANDED with instructions to grant the
Defendants’ motion for summary judgment on qualified immunity grounds.

FOR PLAINTIFF‐APPELLEE:               BRIAN M. QUINN, Tabner, Ryan & Keniry,
                                      LLP, Albany, NY, for Byran Francis.

FOR DEFENDANTS‐APPELLANTS:            LAURA ETLINGER, Assistant Solicitor
                                      General (Andrea Oser, Deputy Solicitor
                                      General, on the brief), for Barbara D.
                                      Underwood, Attorney General of the State
                                      of New York, Albany, NY, for Kimberly
                                      Fiacco, Richard de Simone, Diane Holford, and
                                      Kristina Lennon.

DEBRA ANN LIVINGSTON, Circuit Judge:

      This case concerns the liability of state prison officials attempting to

implement a prisoner’s state sentence in relation to a subsequently imposed


                                         2
federal sentence on another charge. In 2006, Byran Francis pleaded guilty to two

separate charges in two separate jurisdictions: a drug charge in New York state

court and a gun possession charge in federal court.     Francis’s state sentencing

occurred first. The state court sentenced Francis to a three‐year maximum term

of imprisonment and directed that his state and federal sentences run

concurrently. Under New York law, however, state courts lack the authority to

direct that a prisoner’s state sentence run concurrently with a sentence from

another jurisdiction unless that latter sentence has already been imposed.    See

N.Y. Penal Law § 70.30(2‐a). Consistent with that statutory scheme, officials of

New York State’s Department of Corrections and Community Supervision

(“DOCCS”) did not implement the state court’s directive of concurrency, instead

taking Francis into state custody upon completion of his ten‐year federal sentence

so that he could begin serving his state sentence. Francis then served about four

months of his state sentence in DOCCS custody, before the state court’s adjustment

of the sentence ultimately brought about his release.

      Upon his release from state custody, Francis brought suit pursuant to 42

U.S.C. § 1983 against four DOCCS officials: Kimberly Fiacco, Richard de Simone,

Diane Holford, and Kristina Lennon (collectively, the “State Defendants”).




                                        3
Francis alleged that the State Defendants had violated his rights under the Eighth

and Fourteenth Amendments by holding him in state custody rather than

releasing him upon expiration of his federal sentence. The United States District

Court for the Northern District of New York (D’Agostino, J.) denied the State

Defendants’ motion for summary judgment.          The district court agreed with

Francis that the State Defendants’ conduct had violated the Eighth and Fourteenth

Amendments and rejected the State Defendants’ claim of qualified immunity.

We reach the merits of only one of Francis’s constitutional claims, holding that

pursuant to Mathews v. Eldridge, 

(1976), the State Defendants violated

the Due Process Clause by implementing Francis’s sentence in the manner they

did without providing adequate notice to the state sentencing court and the

attorneys present at Francis’s state sentencing. Nevertheless, we conclude that

the State Defendants are entitled to qualified immunity from all of Francis’s

constitutional claims under the circumstances of this case.         We therefore

REVERSE the order of the district court and REMAND the case with instructions

to grant the State Defendants’ motion for summary judgment on qualified

immunity grounds.




                                        4
                                 BACKGROUND2

                                          I.

         The story of this appeal begins with two guilty pleas and their resulting

sentences. Francis first faced sentencing in state court. Francis was also subject

to federal charges at that time but had not yet undergone sentencing by a federal

court.       Before the Supreme Court of the State of New York, County of Erie,

Francis pleaded guilty to attempted criminal possession of marihuana in the

second degree, a class D felony in violation of N.Y. Penal Law § 221.25.       On

September 8, 2006, the Honorable Penny M. Wolfgang sentenced Francis to a

minimum term of imprisonment of one and a half years and a maximum term of

three years, indicating that the term should run concurrently with Francis’s

“federal sentence sched[uled] to be imposed soon.” J.A. 75.

         Francis was in custody both before and after his state sentencing, but the

record reflects some confusion over which governmental authority had custody of

him at that time. On Francis’s commitment order, the state court checked a box

indicating that Francis was “presently in the custody of [DOCCS]” and directing




        The factual background presented here is derived from undisputed facts
         2

contained within the parties’ submissions at summary judgment.


                                          5
that he “remain in the custody of [DOCCS].”          

records

state that Francis was only first received by DOCCS authorities on April 15, 2013,

after completion of his federal sentence.        Furthermore, Francis stated in his

deposition that he was being held at a local jail, the Erie County Holding Center,

from the time of his arrest until the time “they took my bail” in June 2006, as well

as at the time of his state court sentencing and “until two weeks after I got

sentenced.” J.A. 111.3

      In any event, soon after his sentencing before the state court, Francis was

transferred to federal custody for his second round of sentencing. In the United

States District Court for the Western District of New York, Francis pleaded guilty

to the federal crime of possession of a firearm in furtherance of a drug trafficking

crime, in violation of 18 U.S.C. § 924(c)(1). On November 27, 2006, Francis was

sentenced by the Honorable William M. Skretny to a term of imprisonment of 120

months and a term of supervised release of five years.

      The district court did not direct that Francis’s federal sentence run

concurrently with the previously imposed state sentence, and thus his federal


      3  Court records confirm that Francis subsequently received “jail time credit”—a
credit against his state sentence for time previously served in local custody—from April
27 to June 27, 2006, and from September 5 until September 14, 2006, confirming his
deposition testimony that he was held in local custody at (roughly) those times.


                                           6
sentence was deemed to run consecutively to the state sentence as a matter of

federal law. See 18 U.S.C. § 3584(a) (“Multiple terms of imprisonment imposed

at different times run consecutively unless the court orders that the terms are to

run concurrently.”). Accordingly, the United States Bureau of Prisons (“BOP”)

did not direct that Francis serve his federal sentence in state custody, as the BOP

is statutorily authorized to do when implementing a federal sentencing court’s

directive of concurrency.     See 18 U.S.C. § 3621(b).        Francis was therefore

remanded to the custody of the United States Marshal to begin serving his federal

sentence in federal prison.

                                        II.

      As Francis began serving his federal sentence, the State Defendants faced a

predicament in determining how to implement his state sentence.           The state

sentencing court had directed that Francis’s state sentence should run

concurrently with his federal sentence. But at the time of Francis’s state court

sentencing, that federal sentence had not yet materialized.

      New York law does not authorize its judges to issue such forward‐looking

directives of concurrency.    To the contrary, New York sentencing courts may

only direct that a defendant’s state sentence run concurrently with a sentence from




                                        7
another jurisdiction that has already been imposed.             Specifically, under New

York Penal Law § 70.30(2‐a):

       Where a person who is subject to an undischarged term of
       imprisonment imposed at a previous time by a court of another
       jurisdiction is sentenced to an additional term or terms of
       imprisonment by a court of this state, to run concurrently with such
       undischarged term, such additional term or terms shall be deemed to
       commence when the said person is returned to the custody of the
       appropriate official of such other jurisdiction where the undischarged
       term of imprisonment is being served.

In other words, time served by Francis on his federal sentence while in federal

custody could count against his state sentence too, provided that (1) the state

sentencing court had directed that the state sentence would “run concurrently

with” his federal sentence; (2) the federal sentence was “undischarged,” or not yet

completed, at the time the state sentence was imposed; and (3) the federal sentence

had been “imposed at a previous time” to the state sentence.                Absent a state

sentence satisfying these three requirements, New York law contains a general

rule that the prisoner’s sentence “commences when the prisoner is received in an

institution under the jurisdiction of the state department of corrections and

community supervision.” N.Y. Penal Law § 70.30(1).4



       4 In the typical circumstance where a prisoner is held in local custody prior to trial
or sentencing on state charges or a state conviction, the prisoner’s state sentence does not
commence until the prisoner is received into a state facility operated by DOCCS, but the

                                             8
       The sentence that the state court imposed on Francis failed the third

requirement described above. At the time the state court sentenced Francis, his

federal sentence had not been previously imposed; indeed, the state court’s decree

specifically instructed that Francis’s state sentence run concurrently with the

“federal sentence sched[uled] to be imposed soon.”             J.A. 75 (emphasis added).

Consistent with the statutory scheme described above, New York courts have

recognized that sentencing courts lack authority under New York law to direct

that a prisoner’s state sentence run concurrently with a not‐yet‐imposed sentence

from another jurisdiction. See Matter of Oquendo v. Quinones, 

, 594

(3d Dep’t 2002) (“[T]he law did not permit the sentence imposed . . . to run

concurrently with a subsequently imposed federal sentence.”); People v. Brown, 

, 750 (2d Dep’t 1993) (holding that sentencing court “lacked the

authority” to “promise that the sentence it imposed upon the defendant would

run concurrently with a sentence which had yet to be imposed upon the defendant

by a Federal court”); see also People v. Alexander, 

, 228 (1st Dep’t 1995)

(recognizing that sentencing court “was powerless to provide that [defendant’s]




prisoner also receives jail time credit against his state sentence for the time served in local
custody.


                                              9
sentence be concurrent to some future sentence which might eventually be

imposed”).

       Hence the predicament: the state court had directed that Francis’s state

sentence run concurrently with his federal sentence, but New York law did not

authorize that directive under the circumstances of Francis’s case. Instead, New

York law instructed that Francis’s state sentence not begin to run until after Francis

was received by New York State prison authorities. And the State Defendants

had (at a minimum) reasonable grounds to conclude that Francis had not yet been

received by those authorities.5

       The State Defendants thus found themselves between the rock of the state

court’s sentencing order and the hard place of the New York statutory scheme

denying the state court the authority to sentence Francis in the manner it



       5 See supra at 6 & n.3. In addition to the evidence described above suggesting that
Francis was held in local (rather than state) custody prior to his state sentencing, the
customary practice of New York authorities suggests the same. Criminal defendants in
New York are typically held at local jails from the time of their arrest through trial and
sentencing (absent release on bail or recognizance), and until their transfer to state or
federal prison authorities to begin serving their sentences. See N.Y. Correct. Law § 500‐
a(1)(b) (“Each county jail shall be used . . . [f]or the detention of persons charged with
crime[] and committed for trial”); N.Y. Crim. Proc. Law § 510.10 (providing that when a
defendant “initially comes under the control of a court, such court must . . . either release
him on his own recognizance, fix bail or commit him to the custody of the sheriff”); N.Y.
Correct. Law § 500‐c(1) (“[T]he sheriff of each county shall have custody of the county jail
of such county.”).


                                             10
purported to do.      The State Defendants therefore commenced some brief

deliberations as they sought to determine the proper course of action.      Fiacco,

whose position gave her the principal responsibility for implementing Francis’s

sentence, stated in her declaration that while she had “no independent recollection

of receiving or processing Sentence and Commitment papers for [Francis],” J.A.

42, “DOCCS’s records appear to indicate that [she] sought direction from and

confirmed with the Office of Sentencing Review that [Francis’s] sentence had to

run consecutive to his federal sentence by operation of [New York’s] Penal Law,”

J.A. 43–44.   Holford’s declaration corroborates Fiacco’s account, noting the

presence in DOCCS records of “a handwritten note from [Fiacco] . . . apparently

showing that [Fiacco] and [Holford] discussed [Francis’s] sentence on or about

May 4, 2007, . . . [and that Holford] advised [Fiacco] that [Francis’s] NYS sentence

had to run consecutive to his federal sentence unless the federal sentence was

imposed prior to the NYS sentence.” J.A. 56; see also J.A. 62. Finally, all four of

the State Defendants noted their shared understanding that, pursuant to New

York statutes, “where an individual’s NYS sentence is imposed before the federal

sentence is imposed, the individual’s NYS sentence could only commence upon




                                        11
his transfer to DOCCS after his release from federal custody.” J.A. 43 (Fiacco); see

also J.A. 53 (Lennon) (same); J.A. 56 (Holford) (same); J.A. 71 (de Simone) (same).

      Given that shared understanding of the law, the State Defendants elected to

implement Francis’s sentence as the New York statutory scheme ostensibly

required rather than attempt to effectuate the state court’s intended result that

Francis’s two sentences run concurrently. Accordingly, on May 4, 2007, Fiacco

composed a letter to the federal prison where Francis was then serving his federal

sentence, enclosing a “certified copy of the consecutive New York State

commitment of [Francis]” and asking the federal authorities to “lodge [Francis’s

commitment papers] as a detainer” against his release.               J.A. 49. 6   Fiacco’s

declaration explains that as Coordinator of Inmate Movement, she was typically

responsible for lodging such detainers on DOCCS’s behalf. Her declaration also

notes that such detainers were intended to ensure that “upon [his or her] release .

. . the individual would be delivered to the custody of DOCCS to serve the NYS

sentence which would commence upon his/her arrival to DOCCS’s custody.”

J.A. 42. Finally, Fiacco’s May 2007 letter to federal authorities also requested that


      6   “A detainer is a request ‘to an imprisoning jurisdiction to detain a person upon
his release so that another jurisdiction may prosecute or incarcerate him.’” Weeks v.
Quinlan, 

, 42 (2d Cir. 1988) (quoting Pitts v. North Carolina, 

, 187
(4th Cir. 1968)).


                                            12
the authorities notify the Erie County Sheriff at least thirty days prior to Francis’s

release in order to coordinate his return to New York.

                                            III.

      Later that month, Francis learned from an employee of the federal prison

where he was being held that DOCCS had filed the consecutive detainer against

his release. Francis initially wrote to Fiacco, asking her to remove the detainer,

but received no response.         Francis’s sentence then proceeded apace until two

years later, when he decided to raise the issue with the state sentencing court

directly. On May 31, 2009, Francis wrote to the state court, informing it that “Ms.

Kimberly Fiacco has dropped a Detainer [sic] on me” and asking it to “look into

this matter and correct this error for me in order to afford me the proper relief.”

J.A. 829.      The state court’s principal attorney responded on July 9, informing

Francis that “[t]he court is not able to assist you presently in the absence of a formal

motion or petition seeking specific relief,”7 and that “upon [Francis’s] release from




      7  As    with the state court’s initial sentencing of Francis, this letter apparently
reflected an   erroneous understanding of New York law, which in fact vests sentencing
courts with    the “inherent power to correct an illegal sentence” sua sponte. People v.
Williams, 

, 1015 (1996). No formal motion or petition from Francis was
required.


                                             13
the federal institution,” he could “challenge [his] detention in the appropriate

court.” J.A. 830.

      Thus rebuffed, Francis returned to the State Defendants to seek their

assistance once again.    On June 22, 2010, Francis composed a second letter to

Fiacco, asking her to “review this matter . . . and have these people lift the detainer

for me.”   J.A. 832.   Francis enclosed his sentencing transcript along with his

prior correspondence with the sentencing court. On July 1, on behalf of DOCCS

in her capacity as Inmate Records Coordinator, Lennon responded to Francis’s

entreaty by sending him a letter reiterating the department’s policy to run

sentences consecutively under the circumstances present in cases like his.

Lennon’s letter stated, in relevant part:

      The Penal Law does not allow a sentence to run concurrently with a
      term of imprisonment that has not yet been imposed. Your state
      sentence will not commence until you are received by [DOCCS];
      please see Penal Law § 70.30(1).

J.A. 833. Lennon subsequently verified to federal authorities, in September 2011,

that the detainer lodged against Francis was consecutive rather than concurrent.

      Following his receipt of Lennon’s letter, Francis reengaged the state court.

On August 16, 2012, Francis moved to set aside his state sentence under New York

Criminal Procedure Law § 440.20(1), which allows a sentencing court to “set aside



                                            14
[a] sentence upon the ground that it was unauthorized, illegally imposed or

otherwise invalid as a matter of law.” On January 9, 2013, the state court denied

his motion, reasoning that Francis had failed to allege that the sentence was illegal

or unauthorized by law. The state court declared that “the relief the defendant is

seeking is not available pursuant to CPL § 440.20” and that “[h]is remedy is to seek

relief against DOCCS pursuant to Article 70 or Article 78 of the Civil Practice Law

and Rules if he is returned to the state on the detainer and is not immediately

released.”   J.A. 210–11.   A subsequent letter from the state court’s principal

attorney in May 2013 similarly informed Francis that he might “wish to commence

an action pursuant to Article 70 or Article 78 of [New York’s] Civil Practice Law

and Rules challenging [his] detention.”       J.A. 838.   Francis sent two additional

letters to Fiacco during this period, one of which noted that he had considered the

option of an Article 78 action but “wish[ed] not to pursue that method of

resolution” and that he was still “seeking to have [the detainer] quashed in the . .

. interest of justice.” J.A. 835. The record contains no response, from Fiacco or

any other DOCCS official, to either of these letters.

      Meanwhile, Francis had become eligible in September 2012 for release from

federal prison to a residential reentry center, or halfway house.         As Francis




                                         15
explained in his declaration, halfway houses “provide much greater liberty than

prisons,” and his release to a halfway house “would have provided [him] with

reentry preparation, including job training and drug treatment,” as well as “a place

to stay upon [his] release” from custody.        J.A. 813.    The BOP declined to

recommend a halfway house placement for Francis, however, due to the presence

of the detainer filed by DOCCS and Francis’s impending obligation to serve his

state sentence with state authorities. Francis repeatedly noted this consequence

of the detainer when corresponding with the State Defendants.            See J.A. 832

(“[T]he [d]etainer that you lodged against me[] is playing a major roll[] [sic] for me

not getting my half‐way house date.”); J.A. 835 (“[M]y acceptance into an

approved institutional program is ‘on hold’ because of this detainer.”).

      On March 28, 2013, Francis was released from federal custody into the

custody of the Erie County Sheriff’s Department.         Approximately two weeks

later, Francis was received at a DOCCS‐managed facility; DOCCS records list

April 15, 2013 as the date of Francis’s initial receipt into DOCCS custody. Upon

Francis’s arrival, DOCCS calculated his maximum expiration date as November

26, 2015 and his conditional release date as November 26, 2014, basing those dates

on the term of Francis’s state sentence, the date he was received by DOCCS, the




                                         16
jail time credit he had received from time previously served in local custody, and

possible good time credit that he might later receive.

      Upon his release from federal custody, Francis promptly sought

resentencing from the state court—this time with the assistance of counsel. On

July 18, 2013, the state court resentenced Francis for the crime of attempted

criminal possession of marihuana in the second degree. The court acknowledged

that its original directive of concurrency was not authorized by law, explaining

that “by operation of law, [Francis] did not receive the credit the Court intended.”

J.A. 89. The state court then reimposed its original sentence: a minimum term of

imprisonment of one and a half years, with a maximum term of imprisonment of

three years, such term to run concurrently with Francis’s federal sentence on the

gun possession charge. This time, though, the state court imposed the sentence

nunc pro tunc to November 29, 2006, a date by which Francis’s federal sentence had

already been imposed.8 Because the effective date of Francis’s federal sentence

now preceded the effective date of his state sentence, the state court’s order now

directed the state sentence to run concurrently with another sentence “imposed at




      8  As de Simone explained, “[a] nunc pro tunc order is effectuated by commencing
the sentence retroactively as of the date specified by the Court.” J.A. 73 (italics added).


                                            17
a previous time by a court of another jurisdiction.” N.Y. Penal Law § 70.30(2‐a).

This allowed DOCCS officials to run those sentences concurrently without

running afoul of New York law.        DOCCS immediately recalculated Francis’s

maximum expiration date as July 29, 2009—a date that had expired almost four

years prior. Accordingly, on July 23, 2013, after a brief period of administrative

processing, Francis left DOCCS custody and reentered civilian life.

                                        IV.

      On January 13, 2014, Francis brought suit under 42 U.S.C. § 1983 in the

United States District Court for the Southern District of New York, naming as

defendants the State of New York, DOCCS, and ten “John Doe” employees of

DOCCS, individually and in their official capacities. Francis’s complaint alleged

that as a result of these defendants’ actions his “liberty was restricted for an

extended period of time . . . without justification and in violation of his

constitutionally protected rights.”   ECF No. 1 at 5 (Dist. Ct.).   The complaint

asserted claims under the Fourth, Eighth, and Fourteenth Amendments, as well as

several pendent state law claims.     Francis sought compensatory and punitive

damages, along with attorneys’ fees pursuant to 42 U.S.C. § 1988.




                                        18
      After the filing of an amended complaint and the transfer of the lawsuit to

the United States District Court for the Northern District of New York, Fiacco

moved to dismiss the complaint pursuant to Federal Rule of Civil Procedure

12(b)(6).   On June 20, 2016, the district court (D’Agostino, J.) granted Fiacco’s

motion to dismiss with respect to Francis’s state law claims as well as his claims

against her in her official capacity. But the court denied Fiacco’s motion with

respect to Francis’s constitutional claims against her in her individual capacity,

finding that Francis’s complaint stated plausible claims for relief under the Fourth,

Eighth, and Fourteenth Amendments. The court also concluded that it could not

decide the issue of Fiacco’s qualified immunity without further development of

the record, postponing its ruling on that issue to a later stage of the litigation.

      On January 31, 2017, Francis filed his Second Amended Complaint before

the district court.    The Second Amended Complaint named the four State

Defendants—Fiacco, Lennon, de Simone, and Holford—now present before us on

appeal. The complaint alleged, inter alia, that (1) Fiacco had issued the detainer

wrongly certifying his detention as consecutive rather than concurrent; (2) Lennon

had refused to remove that detainer upon his request; and (3) de Simone and

Holford had supervised Fiacco and Lennon and developed the policies that




                                          19
resulted in his allegedly unlawful detention.   The State Defendants answered,

asserting qualified immunity as a defense and contending that the complaint

failed to state a cause of action. The parties then conducted discovery, producing

declarations and deposition testimony from Francis and each of the four State

Defendants, as well as numerous items of documentary evidence.            The State

Defendants moved for summary judgment pursuant to Federal Rule of Civil

Procedure 56. Francis opposed.

      On March 16, 2018, the district court granted the State Defendants’ motion

in part and denied it in part.   The court granted the motion with respect to

Francis’s Fourth Amendment claim, reasoning that Francis’s allegations of false

imprisonment pertained to the lawfulness of his post‐conviction detention and

therefore fell outside the scope of the Fourth Amendment. But the court denied

the motion with respect to Francis’s other claims.     Regarding the Fourteenth

Amendment claim, the district court first noted that Francis had a “protected

liberty interest in being released upon the expiration of his maximum term of

imprisonment.” S.A. 13. The court then applied the three‐factor balancing test

from Mathews v. Eldridge, 

(1976), to “determine whether the

procedures   attendant   upon    th[e]   deprivation   [of   that   interest]   were




                                         20
constitutionally sufficient.”   S.A. 13.      The district court identified several

additional procedural protections that the State Defendants should have provided.

Among other things, the court noted that DOCCS has sometimes “sought

clarification from a sentencing judge after being alerted . . . that [a prisoner’s]

sentence was intended to run concurrently with a prior undischarged term of

imprisonment,” S.A. 17, and questioned why the “irregularity [in Francis’s

sentence] was not immediately brought to the state court’s attention” in this case,

S.A. 18. With regard to the Eighth Amendment, the district court concluded that

Francis’s allegedly “unlawful[] incarcerat[ion] from September 28, 2012 until July

19, 2013” was sufficiently objectively serious to implicate the Amendment’s Cruel

and Unusual Punishments Clause. S.A. 21. The court further held that Francis’s

allegations described “officials who knew of a substantial risk that [Francis] would

be incarcerated beyond his sentence expiration yet failed to act under

circumstances exuding a deliberate indifference to [Francis’s] plight.” S.A. 27.

      The district court largely rejected the State Defendants’ qualified immunity

defense, holding that Hill v. United States ex rel. Wampler, 

(1936), and

Earley v. Murray, 

(2d Cir. 2006), had clearly established the principle

that “a criminal defendant had the right not to be imprisoned for a significant




                                         21
period of time after he or she should have been released pursuant to the terms of

[his or her] sentence.” S.A. 34.9 The district court reasoned that “[u]nder Earley

and its progeny, [the State Defendants’] only permissible course was to release

[Francis] or bring the issue to the attention of the district attorney, [Francis’s]

criminal counsel, and/or the state court.” S.A. 35. The court did not undertake

a separate qualified immunity analysis with respect to Francis’s Eighth

Amendment claim. Instead, it simply reiterated the conclusion that “Defendants

were required to abide by the judgment of the [state sentencing] court because, as

discussed, it is well settled that a jailor’s authority to confine a prisoner begins and

ends with the sentence pronounced by the judge.” S.A. 36.

      The State Defendants timely appealed the district court’s decision.

                                   DISCUSSION

      The State Defendants appeal from the district court’s decision denying their

motion for summary judgment and rejecting their claim to qualified immunity.




      9  The district court held that the State Defendants were entitled to qualified
immunity for conduct that took place “in late 2006 through when the detainer was lodged
in May of 2007,” S.A. 33, citing “judicial confusion surrounding” the constitutional
principle contained in Earley in the immediate aftermath of that case, S.A. 34. But the
court held that the Earley principle had become clearly established “[b]y 2009, and
absolutely no later than 2010,” preventing the State Defendants from claiming qualified
immunity “for their later conduct.” S.A. 34.


                                          22
This Court has jurisdiction to review an interlocutory order denying qualified

immunity so long as defendants pursue the appeal “on stipulated facts, or on the

facts that the plaintiff alleges are true, or on the facts favorable to the plaintiff that

the trial judge concluded the jury might find.” Soto v. Gaudett, 

, 158

(2d Cir. 2017) (internal quotation marks and citation omitted).              Taking the

plaintiff’s version of the facts as true, this Court will then “review de novo a

decision by a district court to deny summary judgment on the basis that a public

official is not entitled to qualified immunity.” Golodner v. Berliner, 

,

201 (2d Cir. 2014).

                                            I.

      Because Francis has sued the State Defendants under 42 U.S.C. § 1983 for

actions taken in the course of their official duties, his lawsuit must overcome the

qualified immunity that shields executive officials from such liability.             The

doctrine of qualified immunity protects “government officials performing

discretionary functions” 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.” Harlow v. Fitzgerald, 

, 818

(1982). The purpose of the doctrine is to avoid “the expenses of litigation, the




                                           23
diversion of official energy from pressing public issues, and the deterrence of able

citizens from acceptance of public office.” 

see also Gregoire v. Biddle, 

, 581 (2d Cir. 1949) (Hand, J.) (“[T]o submit all officials, the innocent as

well as the guilty, to the burden of a trial and to the inevitable danger of its

outcome, would dampen the ardor of all but the most resolute, or the most

irresponsible, in the unflinching discharge of their duties.”).

      The Supreme Court has articulated, and this Court has adopted, a two‐step

analysis to determine whether qualified immunity bars a plaintiff’s claim.

Pursuant to that analysis, “[q]ualified immunity shields federal and state officials

from money damages unless [the] plaintiff pleads facts showing (1) that the official

violated a statutory or constitutional right, and (2) that the right was ‘clearly

established’ at the time of the challenged conduct.” Ricciuti v. Gyzenis, 

, 167 (2d Cir. 2016) (quoting Ashcroft v. al‐Kidd, 

, 735 (2011)).

      The history of this two‐step test reveals an ambiguity about how courts

should apply it.     The Supreme Court at one time required lower courts to

undertake both steps of the analysis in every qualified immunity case, reasoning

that the elaboration of constitutional doctrine might suffer if lower courts began

“simply to skip ahead to the question whether the law clearly established that the




                                          24
officer’s conduct was unlawful in the circumstances of the case.” Saucier v. Katz,

, 201 (2001). But Saucier’s “rigid order of battle” quickly encountered

widespread criticism.      E.g., Brosseau v. Haugen, 

, 201–02 (2004)

(Breyer, J., joined by Scalia and Ginsburg, JJ., concurring) (explaining that Saucier

“requires courts unnecessarily to decide difficult constitutional questions when

there is available an easier basis for the decision (e.g., qualified immunity) that will

satisfactorily resolve the case before the court”); Pierre N. Leval, Judging Under the

Constitution: Dicta About Dicta, 81 N.Y.U. L. Rev. 1249, 1275 (2006) (calling Saucier’s

two‐step protocol a “puzzling misadventure in constitutional dictum”).

Accordingly, in Pearson v. Callahan, 

(2009), the Court discarded

Saucier’s mandate and held that lower courts should “exercise their sound

discretion in deciding which of the two prongs of the qualified immunity analysis

should be addressed first in light of the circumstances in the particular case at

hand.”    

Since Pearson, lower courts have had the option to proceed

directly to step two of the analysis and, if they find that qualified immunity

applies, avoid the “[u]nnecessary litigation of constitutional issues” at step one.

                                          25
      This case implicates the “sound discretion” that Pearson authorized.

Because we ultimately resolve this appeal in favor of the State Defendants on

qualified immunity grounds, we must also decide whether to reach the merits of

Francis’s constitutional claims along the way.           We recognize compelling

arguments against doing so. As the Supreme Court noted in Pearson, addressing

constitutional arguments where qualified immunity applies “sometimes results in

a substantial expenditure of scarce judicial resources on difficult questions that

have no effect on the outcome of the case.”            

–37.

Standard principles of constitutional avoidance also weigh against the practice.

See, e.g., Lyng v. Nw. Indian Cemetery Protective Ass’n, 

, 445 (1988) (“A

fundamental and longstanding principle of judicial restraint requires that courts

avoid reaching constitutional questions in advance of the necessity of deciding

them.”). Moreover, we acknowledge the Court’s latest pronouncement on this

issue: that “courts should think hard, and then think hard again, before turning

small cases into large ones.” Camreta v. Greene, 

, 707 (2011); see also 

(Scalia, J., concurring) (suggesting a willingness to “end the extraordinary

practice of ruling upon constitutional questions unnecessarily when the defendant

possesses qualified immunity”); 

(Kennedy, J., dissenting) (same).




                                          26
       Nevertheless, there remains a role for courts to rule on constitutional

questions even in cases where qualified immunity ultimately determines the

result. As the Court explained in Camreta, such rulings “have a significant future

effect on the conduct of public officials . . . and the policies of the government units

to which they belong . . . by establishing controlling law and preventing

invocations of immunity in later cases.” 

(majority opinion). For

instance, Camreta invoked the hypothetical scenario of a court repeatedly rejecting

a novel constitutional claim on qualified immunity grounds, adhering to

traditional principles of constitutional avoidance but potentially licensing a

government official’s unconstitutional conduct in perpetuity. Courts taking that

approach “fail to clarify uncertain questions, fail to address novel claims, fail to

give guidance to officials about how to comply with legal requirements.” 

  And an exclusive focus on qualified immunity in such contexts “may

frustrate ‘the development of constitutional precedent’ and the promotion of law‐

abiding behavior.” 

555 U.S. at 237).

       Under the circumstances of this case, we think the arguments weigh in favor

of considering the merits of one of Francis’s constitutional claims, notwithstanding

the ultimate qualified immunity bar. For the reasons explained below, while the




                                          27
law was not clearly established on this point, we conclude that the State

Defendants failed to provide Francis with procedural protections that the Due

Process Clause required. Were we to proceed directly to the qualified immunity

question, and confine our entire analysis to that subject, the State Defendants could

continue to withhold those procedural protections—and thus continue to violate

the Constitution—ad infinitum.         What’s more, the State Defendants have

represented that in the absence of a constitutional holding, they will do exactly

that. See Oral Arg. Recording at 16:28 (Jacobs, J.: “Unless we rule against you,

this . . . arrangement is going to continue?”); 

(Counsel to State

Defendants: “Yes.”).10    Therefore, having thought hard and then thought hard

again, we now exercise our Pearson‐conferred discretion in proceeding to resolve

one of Francis’s constitutional claims, before ultimately concluding that the State

Defendants are entitled to qualified immunity from all of them.

                                           II.

      Francis claims that the State Defendants violated his rights under the Due

Process Clause of the Fourteenth Amendment.             That provision prohibits the




      10  Given our resolution of Francis’s due process claim on the merits, we need not
similarly address his Eighth Amendment claim at this time.


                                           28
states from “depriv[ing] any person of life, liberty, or property, without due

process of law.”      U.S. Const. amend. XIV, § 1.        Federal courts “examine

procedural due process questions in two steps: the first asks whether there exists

a liberty or property interest which has been interfered with by the State; the

second examines whether the procedures attendant upon that deprivation were

constitutionally sufficient.” Ky. Dep’t of Corr. v. Thompson, 

, 460 (1989)

(citations omitted); see also Bedoya v. Coughlin, 

, 351–52 (2d Cir. 1996).

Accordingly, in considering the merits of Francis’s procedural due process claim,

we take the two steps of the inquiry in turn.

                                         A.

      We must first identify the specific liberty interest for which Francis seeks

protection. “A liberty interest may arise from the Constitution itself, by reason

of guarantees implicit in the word ‘liberty,’ or it may arise from an expectation or

interest created by state laws or policies.” Wilkinson v. Austin, 

, 221

(2005) (citations omitted). The liberty interest at stake in this case falls into the

former category.    At the most basic level, Francis’s “liberty interest is that in

avoiding future incarceration.” United States v. Vizcaino, 

, 56 (2d Cir.

1989). The general liberty interest in freedom from detention is perhaps the most




                                         29
fundamental interest that the Due Process Clause protects.       See, e.g., Foucha v.

Louisiana, 

, 80 (1992) (“Freedom from bodily restraint has always been

at the core of the liberty protected by the Due Process Clause from arbitrary

governmental action.”); Parham v. J.R., 

, 600 (1979) (recognizing a

“substantial liberty interest in not being confined unnecessarily”).

      We recognize that, “given a valid conviction, the criminal defendant has

been constitutionally deprived of his liberty” such that “the State may confine him

and subject him to the rules of its prison system.” Meachum v. Fano, 

,

224 (1976). But conviction at trial does not extinguish a prisoner’s liberty interest

in freedom from detention altogether. For one thing, “the sentencing process, as

well as the trial itself, must satisfy the requirements of the Due Process Clause.”

Gardner v. Florida, 

, 358 (1977); see also 

has a

legitimate interest in the character of the procedure which leads to the imposition

of sentence even if he may have no right to object to a particular result of the

sentencing process.”).   We have also recognized that “an inmate has a liberty

interest in being released upon the expiration of his maximum term of

imprisonment.” Calhoun v. N.Y. State Div. of Parole Officers, 

, 653 (2d

Cir. 1993). Thus, while a valid conviction subjects a defendant to a constitutional




                                         30
deprivation of his liberty, the determination of his sentence, and the state’s

compliance therewith, remain subject to due process protections.

      It follows naturally that a prisoner’s liberty interest in freedom from

detention implicates the Due Process Clause not only when a jury convicts him or

when a court initially sentences him, but also when prison officials interpret and

implement the sentence that the trial court has imposed.        In the typical case,

implementation of the prisoner’s sentence follows straightforwardly from the

sentencing court’s commitment order.       But Francis’s was not the typical case.

The sentencing court issued a directive that Francis’s state sentence should run

concurrently with a future sentence from a different jurisdiction.        The State

Defendants, however, concluded that New York law did not authorize the

sentencing court to issue that directive and that they therefore could not follow it.

As a result, Francis’s sentence as implemented by the State Defendants diverged

from the sentence originally pronounced by the sentencing court.

      Regardless of whether the State Defendants’ course of conduct was legally

justified (or perhaps even legally required), their decision to implement Francis’s

sentence in a manner that diverged from the sentence pronounced by the

sentencing court implicated a liberty interest of the highest order.      Therefore,




                                         31
when the State Defendants declined to implement the sentencing court’s directive

of concurrency, filed the consecutive detainer with the BOP, and retained custody

of Francis upon expiration of his federal sentence, the Due Process Clause required

them to provide certain procedural protections to safeguard Francis’s liberty

interest in avoiding future incarceration. We turn now to consider what exactly

the Due Process Clause required under those circumstances.

                                         B.

      Having identified the liberty interest at stake, we now consider whether the

procedures that the State Defendants followed in implementing Francis’s sentence

sufficiently protected that interest.   In determining “what process is due,” we

recognize that “due process is flexible and calls for such procedural protections as

the particular situation demands.” Morrisey v. Brewer, 

, 481 (1972).

To assess whether the government’s procedures meet that flexible standard under

a given set of circumstances, this Court applies the three‐factor analysis from

Mathews v. Eldridge, 

(1976), considering (1) “the private interest that

will be affected by the official action;” (2) “the risk of an erroneous deprivation of

such interest through the procedures used, and the probable value, if any, of

additional or substitute procedural safeguards;” and (3) “the Government’s




                                         32
interest, including the function involved and the fiscal and administrative burdens

that the additional or substitute procedural requirement would entail.” 

      We first consider “the private interest . . . affected by the official action.” 

interest at stake in this case was Francis’s interest in his timely release

from prison. As the Supreme Court has stated, “the interest in being free from

physical detention by one’s own government” is “the most elemental of liberty

interests.” Hamdi v. Rumsfeld, 

, 529 (2004). The importance of the

private interest at stake here requires no further elaboration. Francis’s interest in

freedom from detention was an interest of the highest order.

      Second, we consider “the risk of an erroneous deprivation of such interest

through the procedures used, and the probable value, if any, of additional or

substitute procedural safeguards.”      

.       Assessing first

“the risk of an erroneous deprivation” of Francis’s liberty under “the procedures

used” here, 

that the risk was unacceptably high. As this case

demonstrates, New York has enacted a complex statutory scheme governing the

imposition and implementation of criminal sentences. The sentence‐calculation

procedures on display here involved a coterie of non‐lawyers interpreting that

statutory scheme and then privileging their understanding of the law above the




                                          33
sentence pronounced by the sentencing court. Under these circumstances, the

risk that Francis would be detained beyond his maximum term of imprisonment

was unacceptably high.        We cannot countenance a system whereby prison

officials implement a sentence in a manner that deviates from the sentence

pronounced by the sentencing court on the basis of unchecked conclusions about

the legality of that pronouncement.

      The State Defendants argue that their procedures sufficiently safeguarded

Francis’s liberty because “[Francis] was notified that defendants could not

implement the sentencing court’s directive of concurrency” and “[Francis] acted

on that notice . . . by contacting the sentencing court.” Defs.‐Apps. Br. 55. But

as the facts recounted above make clear, the mere provision of notice to a prisoner

is grossly inadequate to safeguard his liberty under these circumstances. Francis

did contact the sentencing court, but instead of carefully reviewing Francis’s

circumstances and complaint, the state court responded to his pro se submissions

by erecting a Kafkaesque sequence of roadblocks and prerequisites to

consideration of his claim.    First, the state court inaccurately informed Francis

that it could not give him any relief absent a formal motion; second, when Francis

actually made that motion, the state court rejected it on technical grounds; and




                                         34
finally, the state court referred him to a state Article 78 proceeding that Francis

could not have initiated until after he had sustained the deprivation of liberty he

was seeking to prevent.     Contrary to the State Defendants’ argument, merely

notifying a prisoner that his liberty might be in jeopardy and then placing upon

him the burden of navigating the legal system, from his prison cell and without

counsel, does not satisfy the requirements of the Due Process Clause.

      The “probable value” of “additional or substitute procedural safeguards,”

, meanwhile, is quite high. The district court noted that

the State Defendants should have “[brought] any sentencing irregularities to the

attention of the sentencing court so that the defendant [could] be resentenced to

comply with the law.” S.A. 18. We add that the State Defendants should also

have notified the attorneys who appeared on behalf of each of the parties at

Francis’s sentencing.      Finally, they should have done so promptly upon

discovering the irregularity in Francis’s state sentence (whether before or after the

filing of the detainer).

      Prompt notice to the sentencing court and both parties’ attorneys of the

perceived error in the prisoner’s original sentence as initially pronounced will in

many circumstances abate the risk of an erroneous deprivation of a prisoner’s




                                         35
liberty altogether. Francis’s is a case in point: upon his transfer to state custody,

Francis sought resentencing with the aid of counsel, and the sentencing court

immediately granted it, acknowledging that “by operation of law, [Francis] did

not receive the credit the Court intended.” J.A. 89. The ease of obtaining that

result suggests that previous formal contact with the sentencing court, either by

DOCCS or the parties’ attorneys, could have effectuated the same result before

Francis’s federal sentence expired.      The sentencing court and the parties’

attorneys should have the opportunity to take steps, if necessary, to adjust a

prisoner’s sentence in order to avoid legal problems identified by prison officials.

      Third and finally, we consider “the Government’s interest, including the

function involved and the fiscal and administrative burdens that the additional or

substitute procedural requirement would entail.” 

. The

governmental “function involved” here, id.—prison officials’ implementation of

an inmate’s sentence—was essentially ministerial.      Prison officials are charged

with effectuating the sentencing court’s sentence, filing a detainer if necessary,

arranging for transfers between various jurisdictions, and the like.             The

ministerial nature of the role makes the addition of extra levels of procedure

particularly feasible.    Moreover, the “fiscal and administrative burdens”




                                         36
attendant upon the procedures contemplated above, 

minimal.

While Fiacco noted that “it was not wholly uncommon to receive a NYS Sentence

and Commitment that was illegal by operation by law,” J.A. 43, we suspect that

only a small minority of cases feature a sentencing court directive that squarely

contradicts New York law. Even in those few cases, the additional procedural

protections detailed above would impose almost no fiscal or administrative

burdens on the government at all. DOCCS need only promptly dispatch a letter

informing the sentencing court and the parties’ attorneys that prison officials

cannot, under the law, implement the court’s intended directive of concurrency.

        Not only would the fiscal or administrative burdens attendant upon these

additional procedures be negligible, but state law already requires the government

to provide the protections we have described above under similar circumstances.

Pursuant to New York statute:

      Whenever it shall appear to the satisfaction of [DOCCS] based on facts
      submitted on behalf of a person sentenced and confined in a state
      prison, that any such person has been erroneously sentenced, it shall
      be the duty of the department to communicate with the sentencing
      court, the inmate’s defense attorney and the district attorney of the
      county in which such person was convicted.

N.Y. Correct. Law § 601‐a. The State Defendants represent that “[i]t is DOCCS’s

practice to provide detailed notice to sentencing courts regarding any errors in



                                       37
sentencing and the potential effects of those errors on its calculations of prisoner

sentences.” Defs.‐Apps. Br. 54. (They concede, however, that “[w]hile such a

notice may have been provided in this case, there is no evidence to that effect in

the record.” Id.) Therefore, to the extent that DOCCS typically provides notice

under these circumstances, the procedural protections we have described impose

precisely no additional burden on the government. In short, the only effect of

today’s decision on the operations of the government is to clarify that, in this

context, obligations like those imposed by section 601‐a are of constitutional as

well as statutory dimension.

      To review our Mathews analysis: The private interest at stake here is

Francis’s interest in freedom from detention, a liberty interest that sits at the very

heart of the Due Process Clause. The “risk of an erroneous deprivation” of that

interest under the procedures followed in this case is unacceptably high, and the

“probable value . . . of [the] additional or substitute procedural safeguards” we

have proposed is substantial.     

.     Finally, the fiscal or

administrative burdens that the government will sustain as a result of this

additional process are at most negligible; more likely, assuming future compliance

with state law, DOCCS will sustain no burden at all. We thus hold that prison




                                         38
officials implementing a sentence that, as pronounced, appears to be in error under

applicable law must, at a minimum, promptly inform the prisoner, the sentencing

court and the attorneys for both parties of their determination that the sentence as

pronounced by the sentencing court cannot be lawfully implemented. The reasons

for this conclusion should also be provided.     In the circumstances of Francis’s

case, the State Defendants violated the Due Process Clause by failing to provide

these basic procedural protections.

                                        III.

      We now address the question whether, notwithstanding the constitutional

violation identified above, qualified immunity nonetheless protects the State

Defendants from Francis’s claims for damages. We note, once again, the relevant

legal standard: Qualified immunity applies to defeat a federal claim “unless a

plaintiff pleads facts showing (1) that the official violated a statutory or

constitutional right, and (2) that the right was ‘clearly established’ at the time of

the challenged conduct.” 

(quoting 

). We focus now on the second prong of the inquiry, which “protects officials

from liability for civil damages as long as their conduct does not violate clearly

established statutory or constitutional rights of which a reasonable person would




                                         39
have known.”      Taravella v. Town of Wolcott, 

, 133 (2d Cir. 2010)

(internal quotation marks and citation omitted).

      The Supreme Court has lately emphasized the breadth of qualified

immunity protection.     See, e.g., City of Escondido v. Emmons, 

, 503

(2019) (per curiam); Kisela v. Hughes, 

, 1152 (2018) (per curiam).

While the Court “does not require a case directly on point for a right to be clearly

established, existing precedent must have placed the statutory or constitutional

question beyond debate.” White v. Pauly, 

, 551 (2017) (per curiam)

(internal quotation marks, citation, and brackets omitted). That precedent “must

be clear enough that every reasonable official would interpret it to establish the

particular rule the plaintiff seeks to apply.” District of Columbia v. Wesby, 138 S.

Ct. 577, 590 (2018). Moreover, the Supreme Court has “repeatedly told courts . .

. not to define clearly established law at a high level of generality,” City and County

of San Francisco v. Sheehan, 

, 1775–76 (2015) (quoting 

), instead emphasizing that “clearly established law must be ‘particularized’

to the facts of the case,” 

(quoting Anderson v. Creighton, 

, 640 (1987)). In short, qualified immunity “gives government officials

breathing room to make reasonable but mistaken judgments about open legal




                                          40
questions” and “protects ‘all but the plainly incompetent or those who knowingly

violate the law.’” 

(quoting Malley v. Briggs, 

,

341 (1986)).   With that standard in hand, we now consider whether qualified

immunity protects the State Defendants from Francis’s constitutional claims.

                                           A.

      We begin with Francis’s Fourteenth Amendment claim. We identify two

potential sources of “clearly established” law that might support this claim: first,

the principles articulated in Hill v. United States ex rel. Wampler, 

(1936),

and Earley v. Murray, 

(2d Cir. 2006); and second, the traditional

procedural due process balancing test from Mathews, which we have applied

above. We consider each of these potential sources in turn.

                                           1.

      In rejecting the State Defendants’ claim of qualified immunity, the district

court relied heavily on Wampler and Earley. Those two cases, the court reasoned,

“clearly established [the principle] that a criminal defendant had the right not to

be imprisoned for a significant period of time after he or she should have been

released pursuant to the terms of the sentence.” S.A. 34. Given the holdings of

those two cases, the court concluded, the State Defendants’ “only permissible




                                           41
course was to release [Francis] or bring the issue to the attention of the district

attorney, [Francis’s] criminal counsel, and/or the state court.” S.A. 35.

      In Wampler, the sentencing court had imposed various fines and costs on

Wampler following his conviction for attempted tax evasion. The clerk of that

court, acting in accordance with court policy, had added to Wampler’s

commitment letter one further provision: that “in default of payment of said fines

and costs, [Wampler] stand further committed until the payment of said fines and

costs or until discharged by due process of law.” 

. The

Supreme Court struck down this additional condition of Wampler’s federal

sentence because the clerk of court, rather than the sentencing court itself, had

imposed it. Without making any mention of the Constitution, the Court reasoned

that “[t]he choice of pains and penalties, when choice is committed to the

discretion of the court . . . must have expression in the sentence.” 

It

also articulated the broad notion that “[t]he only sentence known to the law is the

sentence or judgment entered upon the records of the court.” 

the sentencing court had sentenced Earley to six years’

incarceration pursuant to a plea agreement. DOCCS subsequently added a five‐

year term of post‐release supervision to Earley’s sentence, as required by a then‐




                                        42
recent New York law. The sentencing court had made no mention of any term of

post‐release supervision in Earley’s written sentence or commitment order.       In

considering Earley’s habeas corpus petition, the Second Circuit concluded that

Wampler had clearly established the principle that “[t]he judgment of the court

establishes a defendant’s sentence, and that sentence may not be increased by an

administrator’s amendment.”      

.   As the Court explained,

Wampler stood for the broad proposition that “[t]he only cognizable sentence is the

one imposed by the judge,” and that “[a]ny alteration to that sentence, unless

made by a judge in a subsequent proceeding, is of no effect.”       

therefore vacated the lower court’s denial of Earley’s habeas petition.

      Wampler and Earley did not clearly establish the unconstitutionality of the

State Defendants’ conduct here.      Two features of Francis’s case in particular

distinguish it from those precedents.    First, Wampler and Earley concerned the

augmentation of a defendant’s sentence with additional conditions found

nowhere in the original commitment order. In Wampler, the clerk added a further

penalty: that Wampler would be detained until he had paid the fines and costs

that the court had imposed upon him. In Earley, DOCCS unilaterally imposed a

five‐year term of supervised release that the sentencing court had never




                                         43
mentioned. Here, by contrast, the State Defendants did not augment Francis’s

sentence with any novel conditions; the state court imposed a three‐year

maximum term of imprisonment and DOCCS did not purport to add any further

penalties. Instead, the State Defendants merely declined to implement a directive

of concurrency contained in the original sentence because, as the sentencing court

itself later explained, the directive of concurrency was rendered invalid “by

operation of law.”    J.A. 89.   Thus, while Francis’s case clearly implicates the

broad dicta of Wampler and Earley, the nature of the official conduct in question—

declining to implement one aspect of a sentence on the ground that state law did

not authorize it—is different.

      More significantly, the sentences in Wampler and Earley—and the unlawful

additions to those sentences—did not implicate the interaction between two

sentences imposed by different jurisdictions. A sentencing court’s directive that

a state sentence should run concurrently with a federal sentence alters the practical

impact of the both sentences. Such a directive may implicate sensitive issues of

federalism—for instance, if a state court indicates that the defendant’s two

sentences should run concurrently but the federal court directs them to run

consecutively. New York has an obvious interest in addressing such issues and




                                         44
has apparently attempted to do so by providing for concurrent sentencing only

where the defendant being sentenced “is subject to an undischarged term of

imprisonment imposed at a previous time by a court of another jurisdiction.”

N.Y. Penal Law § 70.30(2‐a). The State Defendants faced a situation where that

legislative judgment seemingly conflicted with the state court’s attempt to run

Francis’s state sentence concurrently with his future federal sentence, and they

reasonably concluded that New York’s legislative scheme required them to follow

a certain course of action while coordinating the two sentences.          Whatever

Wampler and Earley establish with respect to the administrative alteration of

sentences, they do not speak clearly to a situation like this one, which presented

DOCCS with complicated considerations not addressed in those prior cases.

      Our decision in Sudler v. City of New York, 

(2d Cir. 2012), places

particular force behind this second distinction. In Sudler, we confronted a similar

lawsuit over DOCCS officials’ failure to implement a state court’s directive of

concurrency at sentencing. Sudler, the lead plaintiff, had pleaded guilty in state

court to petit larceny charges and the sentencing court had directed that his two

nine‐month sentences for those charges run concurrently with his preexisting

sentence on a separate state charge. Sudler served his petit larceny sentences in




                                         45
the custody of New York City. When New York State retook custody of Sudler

so that he might resume serving his prior state sentence, however, DOCCS officials

refused to credit him for the time he had just served in City custody—contravening

the sentencing court’s explicit directive.      By the time Sudler was finally

discharged from State custody, he had served six months more than he would

have if DOCCS had credited him for the time he had served in City custody.

      As Francis did here, Sudler brought suit against the relevant DOCCS

officials pursuant to 42 U.S.C. § 1983, arguing that Wampler and Earley had clearly

established the illegality of the DOCCS officials’ conduct. We disagreed and held

that the officials were entitled to qualified immunity. The Court explicitly noted

that “[n]either Earley nor Wampler addresses a situation like the one at bar, . . .

involving not one sentence but the relationship between one sentence and another

sentenced imposed by a different judge in a separate proceeding.” 

. With respect to Earley, we also reiterated that “[its] holding, by its

terms, does not instruct prison administrators as to the calculation of release dates

when multiple sentences are at issue—and, indeed, one sentencing judge’s

instructions may conflict with another’s.”     

  Accordingly, the Court

declined to “resolve the parties’ . . . disagreement as to the scope of Wampler and




                                         46
Earley” and concluded that “the State Defendants [were] entitled to qualified

immunity on the [the plaintiffs’] claim.” 

      While the facts of this case are not identical to those in Sudler, the same

analysis applies.   Sudler expressly declined to resolve the question whether

Wampler and Earley “should apply not only with regard to a single sentence, but

also in the context of a sentencing judge’s pronouncement as to the relationship

between the sentence he is imposing and another sentence imposed in a separate

proceeding.” 

Court held that qualified immunity protected the

State Defendants because the answer to that question had not been clearly

established. 

No case since Sudler has provided further guidance

on the extent of Wampler and Earley’s reach, so Defendants‐Appellants should

receive qualified immunity again here. As in Sudler, the facts “are sufficient to

convince us that the asserted unlawfulness of the State Defendants’ conduct in

calculating [the plaintiff’s] release date would not have been apparent to

reasonable prison officials.” 

      In short, in light of the distinctions we have identified above, along with the

reasoning we applied in Sudler, we cannot say that “every reasonable official




                                            47
would interpret [Wampler and Earley] to establish” the unconstitutionality of the

State Defendants’ conduct in this case. 

.

                                         2.

      We concluded above, without relying on Wampler and Earley, that the State

Defendants violated the Due Process Clause pursuant to the traditional three‐

factor balancing test from Mathews v. Eldridge. See supra Part II. We held that

the Due Process Clause required the State Defendants to notify the sentencing

court, as well as the attorneys for both parties at sentencing, prior to implementing

Francis’s sentence in a manner that deviated from the sentencing court’s original

pronouncement.      We now consider whether Mathews and its progeny had

“clearly established” those constitutional requirements at the time when the State

Defendants engaged in the course of conduct at issue here.

      The Supreme Court has repeatedly emphasized that “‘due process,’ unlike

some legal rules, is not a technical conception with a fixed content unrelated to

time, place and circumstances.” Gilbert v. Homar, 

, 930 (1997) (quoting

Cafeteria & Restaurant Workers v. McElroy, 

, 895 (1961)).        To the

contrary, “due process is flexible and calls for such procedural protections as the

particular situation demands.”      

.     The traditional




                                         48
Mathews balancing test embodies that flexibility, requiring courts to weigh three

highly fact‐bound considerations with respect to any potential procedural

innovation that the parties might propose.           Given this flexible, context‐

dependent approach, it will be a rare case in which prior precedents have

definitively resolved a novel claim of procedural due process.          That makes

particularly fertile ground for qualified immunity, given that state officials can be

liable only for violations of rights that have been established “beyond debate” and

with “particular[ity]” by existing constitutional precedents. 

–52.

      With respect to this case in particular, precedent had not clearly established

the due process requirements we identified above at the time of the State

Defendants’ conduct. Indeed, no case of which we are aware has even hinted

that the Constitution might require the specific procedural protections we have

now prescribed.    Once again, the most closely analogous precedent is Sudler,

where we affirmed a grant of qualified immunity to prison officials faced with a

similar claim.   One of Sudler’s co‐defendants, relying partially on Earley, had

argued that the officials violated the Due Process Clause by failing to provide

additional procedural protections that a Mathews balancing test would have




                                         49
required.   We noted that Earley “does not employ the familiar three‐factor

analysis [from Mathews] . . . to delineate what process prison officials should

undertake to avoid impermissibly extending sentences in the context of

implementing them” and that “the State Defendants had little guidance in

weighing the three Mathews factors in the circumstances confronting them.”

, 177; see also 

(“The State Defendants cannot be

expected to have divined answers to [those] questions at the time of their allegedly

illegal conduct.”). Once again, Sudler’s analysis applies here. No case before or

after Sudler has even considered whether prison officials implementing a state

sentence violate the Constitution by failing to provide notice to the sentencing

court and attorneys, let alone subjected such a claim to a Mathews analysis.

Accordingly, though we identify a constitutional violation pursuant to such an

analysis, we conclude that qualified immunity protects the State Defendants from

damages liability under the circumstances of this particular case.

                                        B.

      We conclude with Francis’s Eighth Amendment claim. Francis claims that

the State Defendants violated his rights under the Eighth Amendment by

incarcerating him for longer than his duly imposed sentence.           The Eighth




                                        50
Amendment provides that “cruel and unusual punishments” shall not be

“inflicted.”    U.S. Const. amend. VIII.         A plaintiff asserting an Eighth

Amendment claim pursuant to 42 U.S.C. § 1983 must meet two requirements.

“First, the alleged deprivation must be, in objective terms, ‘sufficiently serious.’”

Hathaway v. Coughlin, 

, 66 (2d Cir. 1994) (quoting Wilson v. Seiter, 

, 298 (1991)).    Second, “the charged official must act with a sufficiently

culpable state of mind.” 

, 501 U.S. at 298).

      No Supreme Court or Second Circuit caselaw has clearly established either

prong of the particular Eighth Amendment claim that Francis asserts here. With

respect to objective seriousness, Francis remained in prison for four months

beyond the expiration of his federal sentence as a result of the State Defendants’

actions. No case establishes that these four months of additional incarceration,

although of serious dimension, crossed the threshold of sufficient objective

seriousness to constitute “cruel and unusual punishment[]” under the Eighth

Amendment. Similarly, with respect to the State Defendants’ subjective mental

states, an Eighth Amendment violation typically requires “a state of mind that is

the equivalent of criminal recklessness.” Hathaway v. Coughlin, 

, 553

(1996); see also Farmer v. Brennan, 

, 837 (1994). “[T]his standard requires




                                          51
that only the deliberate infliction of punishment, and not an ordinary lack of due

care for prisoner interests or safety, lead to liability.” Blyden v. Mancusi, 

, 262 (2d Cir. 1999). No case has found this standard met under circumstances

like these, where the State Defendants weighed the proper course of action, acted

in accordance with a reasonable understanding of a complicated area of state law,

and relayed the legal basis for their actions to Francis in response to his subsequent

inquiries. Indeed, state officials such as these ought to strive to understand and

scrupulously adhere to state law, albeit while demonstrating proper consideration

for a sentencing court’s pronouncements and the need to seek clarification when

such pronouncements appear to conflict with state law.

      The district court did not conduct any particularized qualified immunity

analysis with respect to Francis’s Eighth Amendment claim.11 In accepting the

merits of that Eighth Amendment claim, though, the district court relied on two

out‐of‐circuit cases: Haygood v. Younger, 

(9th Cir. 1985) (en banc), and

Sample v. Diecks, 

(3d Cir. 1989). Out‐of‐circuit caselaw is relevant

to the qualified immunity analysis only where the cases “clearly foreshadow a



      11 As noted above, the district court’s qualified immunity analysis relied mainly
on Wampler and Earley, neither of which makes any reference to the Eighth Amendment,
cruel and unusual punishment, or any Eighth Amendment caselaw.


                                          52
particular ruling on the issue.” Terebesi v. Torreso, 

, 231 (2d Cir. 2014)

(internal quotation marks and citation omitted).

      Neither Haygood nor Sample “clearly foreshadow[ed]” a favorable ruling for

Francis with respect to either prong of the Eighth Amendment analysis. 

the plaintiff served an additional five years in prison due to an admittedly

erroneous determination by prison officials as to the requirements of state 

–53. Sample similarly concerned an erroneous calculation that led to

the plaintiff serving an additional nine months after all three of his sentences had

independently expired or been 

–05.     Here, Francis

served four months of his three‐year state sentence because the sentencing court’s

intended directive of concurrency was concededly void “by operation of law.”

J.A. 89. In addition, both Haygood and Sample involved prison officials who were

found to be “deliberately indifferent” to their own clerical errors on the basis of

their refusals to investigate well‐founded complaints regarding these errors.

; 

. Here, the State Defendants

had nothing to investigate: they correctly determined that the sentencing court’s

directive was invalid under New York law. Francis argues that the Eighth

Amendment required these prison officials nonetheless to comply with the invalid




                                         53
sentencing directive.     But, with respect to both objective seriousness and

subjective culpability, Francis’s Eighth Amendment claim bears little comparison

with the out‐of‐circuit cases on which he relies. In sum, whatever we might think

of the merits of Francis’s claim, it is clear that “existing precedent” has not “placed

the . . . constitutional question beyond debate.” 

.

      In short, we are aware of no precedent clearly establishing an Eighth

Amendment right that the State Defendants violated under the circumstances of

this case. We therefore hold, without addressing the merits of Francis’s Eighth

Amendment claim, that the claim must fail on qualified immunity grounds.

                                  CONCLUSION

      We have considered all of Francis’s remaining arguments and deem them

either waived or without merit.       For the reasons stated in this opinion, we

REVERSE the district court’s order and REMAND with instructions to grant the

State Defendants’ motion for summary judgment on qualified immunity grounds.




                                          54