OPINION AND ORDER
SHIRA A. SCHEINDLIN, District Judge.
I. INTRODUCTION
Beginning in 1998, New York mandated that certain violent felonies be punished by a determinate prison sentence followed by a mandatory term of parole, known as post-release supervision ("PRS").1 The governing statute did not require that the term of PRS be announced by the judge at sentencing. In thousands of cases where the judge did not impose a term of PRS at sentencing, the New York State Department of Correctional Services ("DOCS") imposed PRS on convicted felons either before or as they were released from prison and the Department of Parole ("DOP") then enforced its terms upon them.
On June 9, 2006, in Earley v. Murray, the United States Court of Appeals for the Second Circuit held that the administrative imposition of PRS by DOCS violates the federal constitutional right to Due Process.2 The court explained that "[o]nly the judgment of a court, as expressed through the sentence imposed by a judge, has the power to constrain a person's liberty," and that "[t]he additional provision for post-release supervision added by DOCS is a nullity."3
Plaintiffs in these two related actions — the three Betances plaintiffs on behalf of themselves and a putative class and the twenty-one Bentley plaintiffs — bring their actions pursuant to section 1983 of Title 42 of the United States Code against current and former high-ranking officials at DOCS and DOP. Plaintiffs claim that in the years following Earley, "[i]n flat defiance of clear constitutional commands,"4 state officials subjected them to unlawful custody by continuing to impose the terms of PRS that had been declared unlawful, arresting and re-incarcerating them for technical violations of those terms of PRS, and in one case administratively imposing a new term of PRS.
Defendants now move to dismiss the complaints, principally on the grounds that because plaintiffs' constitutional rights were not "clearly established" at the time that those rights were allegedly violated, state officials are entitled to qualified immunity for their actions. This argument rests principally on the claim that for at least two years following Earley, there was confusion in the state courts about whether the decision was binding on the State and what remedies it required.
On close analysis, however, this argument is not persuasive. Although some New York state courts were in disagreement over the reach of the Earley decision and although some state trial courts held that they were not bound by a decision of the Second Circuit, there was never any disagreement or confusion about the core constitutional holding announced by Earley (and reiterated by the court in a denial for rehearing): terms of PRS imposed by the executive branch were nullified and if the State wished to re-impose them, it could seek resentencing before a judge.
II. BACKGROUND
The following factual allegations are drawn from the plaintiffs' complaints. They are not findings of fact, but are assumed to be true for the purpose of this motion to dismiss and are construed in the light most favorable to the plaintiffs.
A. The Betances Plaintiffs
On July 20, 2004, Paul Betances was sentenced to five years incarceration. He was not sentenced to PRS. On April 24, 2008, DOCS and DOP administratively-imposed a five-year term of PRS on him. On July 9, 2009 after Betances had completed his incarceration for robbery and his maximum judicially-imposed sentence had expired, DOCS and DOP imprisoned him for violating his administratively-imposed PRS. He was released after a New York court granted his writ of habeas corpus on July 24, 2009.5
On August 15, 2000, Lloyd Barnes was sentenced to six years of incarceration and no term of PRS. On October 19, 2005, DOCS and DOP administratively-imposed on him a five year term of PRS. In about June 2008, DOP sentenced Barnes to three months incarceration based on his violation of the terms of his PRS. Barnes was released around September or October of 2008.6
On February 20, 2001, Gabriel Velez was sentenced to five years incarceration. He was not sentenced to PRS. On July 2, 2004, he was released from prison and subjected to administratively-imposed PRS. In July 2008, he was arrested and charged with violating that PRS. He was incarcerated on that ground until October 6, 2008. He was released from the terms of the PRS on October 15, 2008 by writ of habeas corpus.7 Betances, Barnes, and Velez bring their claims on behalf of a putative class of others who were subjected to administratively-imposed PRS and/or incarcerated for violations of such PRS.8
B. The Bentley Plaintiffs
There are twenty-one plaintiffs in Bentley and a recitation of the facts common to all of them is sufficient: each Bentley plaintiff alleges that he was convicted of a crime, sentenced to a determinate term of incarceration, and not sentenced to any term of PRS.9 Each Bentley plaintiff was later subjected to administratively-imposed PRS. Then, after the Second Circuit issued its Earley decision, each Bentley plaintiff was incarcerated for technical violations of his PRS. With one exception, these incarcerations began on dates after Earley and before April 29, 200810 and continued until various dates between February 23, 2008 and November 24, 2008.11
In their complaint, the Bentley plaintiffs describe their experiences during their terms of unlawful custody — both under PRS and during incarceration. Many of these unlawful terms of PRS lasted for years, as did some of the periods of unlawful incarceration.12 The plaintiffs' alleged experiences include being attacked by corrections officers and placed in solitary confinement,13 missing the births of their children,14 and being denied medical care.15
C. The Defendants
The named defendants are current and former high ranking officials at DOP and DOCS. They are sued in their individual and official capacities.16 Plaintiffs allege that defendants were responsible for setting and enforcing the policies at DOP and DOCS that directly caused the deprivation of plaintiffs' constitutional rights. Plaintiffs allege that
in the immediate aftermath of the Second Circuit's decision in Earley, defendants, including defendant [Anthony Annucci, Deputy Commissioner and Counsel for DOCS] undertook an analysis of DOCS records in order to identify all inmates, or former inmates, who were administratively sentenced to PRS by DOCS notwithstanding any indication that a court had actually sentenced that person to PRS, whether in their sentencing and commitment paperwork or the minutes of their sentencing. That analysis identified 8,100 inmates that could not be subjected to PRS under Earley, including 1,600 that had already been released and subjected to PRS. We know this happened because defendant Annucci swore to the truth of these facts under penalty of perjury.... Defendants, however, did nothing with the information that was gathered.17
Plaintiffs allege that despite knowing which inmates and parolees were in custody due to administratively-imposed PRS that had been declared a "nullity" by Earley, defendants continued to arrest people for alleged violations of the terms of their parole (e.g., failure to report or to adhere to curfew restrictions), re-incarcerate people after administrative hearings for those violations, impose PRS on individuals who had not been sentenced to PRS, and fully enforce the terms of PRS.18
Plaintiffs incorporate into their Complaint a letter written by defendant Annucci to an inmate who had invoked his rights under Earley.19 In the letter, Annucci wrote that the 2006 Earley decision "is contrary to state appellate case law" from 2002 through 2005 and that "[w]hen state and federal courts reach different results regarding state law, the state case law takes precedence over federal case law in state court until the specific issue is addressed by the U.S. Supreme Court."20 Annucci wrote that "this Department would be required to set aside your period of post-release supervision if specifically ordered to do so by a state or federal court.... In the absence of such order, your determinate term is deemed to include a period of post-release supervision pursuant to the statutes and state case law set forth above."21
This letter, plaintiffs claim, supports their allegation that defendants "deliberately engaged in a planned campaign of massive resistence to and defiance of Earley."22 Plaintiffs allege that the defendants
were especially aware of Earley because numerous persons incarcerated for technical violations of administratively-imposed PRS after Earley filed habeas corpus petitions in the state courts. Although defendants prevailed in some of these cases because some state trial judges accepted defendants' assertions that they were not technically "bound" to follow Earley, defendants were obviously aware that even if the state courts defied Earley as non-binding, the federal district courts — which were bound by Earley — would have to grant habeas corpus relief. Regardless of whether the lower state courts or the Appellate Divisions or even the New York State Court of Appeals ultimately disagreed with Earley, individuals who had been placed on PRS administratively and sent to prison for PRS violations administratively were entitled to relief in federal court under Earley....23
III. LEGAL STANDARD
A. Motion to Dismiss
In deciding a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), the court may disregard "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements."24 In contrast, "[w]hen there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement for relief."25
To survive a Rule 12(b)(6) motion to dismiss, the allegations in the complaint must meet a standard of "plausibility."26 A claim is facially plausible "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged."27 Plausibility "is not akin to a probability requirement;" rather, plausibility requires "more than a sheer possibility that a defendant has acted unlawfully."28 "[A] district court may consider the facts alleged in the complaint, documents attached to the complaint as exhibits, and documents incorporated by reference in the complaint."29
B. Qualified Immunity
Qualified immunity protects officials from liability if "their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known."30 The Second Circuit has held that "[a] right is clearly established if (1) the law is defined with reasonable clarity, (2) the Supreme Court or Second Circuit has recognized the right, and (3) a reasonable defendant [would] have understood from the existing law that [his or her] conduct was unlawful."31
IV. DISCUSSION
A. There Is No Qualified Immunity for the Affirmative Imposition and Enforcement of Unlawful PRS After Earley
1. Plaintiffs Allege a Violation of Their Constitutional Rights
"It is now indeed clearly established that ... an administrative imposition of PRS is unconstitutional."32 Each plaintiff alleges a constitutional deprivation because he claims that PRS was administratively-imposed on him and then enforced after the Earley decision. Most of the terms of PRS were initially imposed on plaintiffs prior to Earley, at a time when the unconstitutional nature of such action had not yet been clearly established.33 However, Betances' PRS was allegedly imposed on him by defendants on April 24, 2008, nearly two years after Earley had declared such action unconstitutional.34 Furthermore, each of the plaintiffs was subjected to PRS after Earley and then incarcerated for technical violations of his PRS after Earley. There is little doubt that if these allegations are true, defendants violated plaintiffs' constitutional rights. The primary question presented by this motion is whether plaintiffs' constitutional rights were clearly established at the time that they were allegedly violated, so that a reasonable senior official at DOCS or DOP would have understood that his or her conduct was unlawful.
2. Earley Clearly Established Plaintiffs' Constitutional Rights
Beginning in 1998, New York law mandated that PRS be included as part of violent offenders' determinate sentences.35 During that time, New York courts "routinely upheld the administrative imposition of mandatory PRS," even if the sentencing judge had not included it in a defendant's sentence.36 On June 9, 2006, the Second Circuit issued its opinion in Earley. The court's ruling was not ambiguous:
Earley's sentence was therefore never anything other than the six years of incarceration imposed on him by the judge at his sentencing hearing and recorded in his order of commitment. The additional provision for post-release supervision added by DOCS is a nullity. The imposition of a sentence is a judicial act; only a judge can do it. The penalty administratively added by the Department of Corrections was, quite simply, never a part of the sentence.37
The Earley court also clearly explained the remedy for the legal infirmity — the term of PRS should be vacated and the state given the opportunity to seek appropriate resentencing:
Because we find that clearly established38 Supreme Court precedent renders the five-year PRS term added to Earley's sentence by DOCS invalid, we vacate the district court's judgment and remand the case for that court to determine whether Earley's petition for a writ of habeas corpus was timely filed. Should the district court determine that the petition was timely, it is instructed to issue a writ of habeas corpus excising the term of post-release supervision from Earley's sentence and relieving him of any subsequent penalty or other consequence of its imposition. Our ruling is not intended to preclude the state from moving in the New York courts to modify Earley's sentence to include the mandatory PRS term.39
Defendants argue that "[e]ven after Earley was decided, it is clear that the law was unclear as to an appropriate remedy. Even the Earley court did not hold that release was a preferred remedy to a constitutional infirmity in sentencing."40 Defendants' second claim is correct — the Earley court did not hold that Earley had to be immediately released. But defendants' first statement is incorrect — the Earley court made clear that the appropriate remedy was to remove the unlawful PRS and seek resentencing. Indeed, defendants at times acknowledge this. "The clearly established law when plaintiff's PRS was revoked did not require expunging PRS from plaintiff's sentence, or releasing him from prison or parole: the preferred remedy for such a problem is resentencing, as expressed by the Second Circuit in Earley ..."41 In the absence of such resentencing, plaintiffs were not lawfully subject to the state's custody because, as Earley held, "[t]he additional provision for post-release supervision added by DOCS is a nullity."42
After the Second Circuit issued its ruling, the named DOCS superintendent sought rehearing, arguing that Earley could have a wide-ranging impact. The court reiterated its decision and made clear that its holding was not simply limited to Earley's habeas petition, but was meant to impact all improperly imposed sentences:
Respondent-appellee indicates that New York courts regularly fail to inform defendants of mandatory PRS terms but consider them part of those defendants' sentence nonetheless. As a result, our decision may call into question the validity of the PRS components of numerous sentences. We nonetheless adhere to our ruling.43
In Scott v. Fischer, the Second Circuit authoritatively established that government officials have qualified immunity for their imposition and enforcement of PRS prior to Earley, because until that time it was not clearly established, for qualified immunity purposes, that administratively-imposed PRS was unconstitutional.44 But the court explicitly refrained from determining when the right to be free from administratively-imposed PRS did become clearly established.45 Instead, it dismissed Scott's section 1983 claims regarding her post-Earley arrest, parole revocation, and incarceration on grounds that clearly distinguish the Scott complaint from these plaintiffs' complaints.
First, the Second Circuit held that DOC officials could not be sued by Scott for the revocation of her PRS (which happened after Earley) because the parole violation hearing "was conducted entirely by and before the New York State Division of Parole" and there were no facts pled that "could establish that the DOC defendants were aware of, let alone participated in, the hearing."46 Unlike the plaintiff in Scott, the plaintiffs here have sued the DOP officials who set and supervised PRS revocation policy during the time that plaintiffs' PRS was revoked.47
Second, the Second Circuit held that Scott's complaint did not assert "that the DOC defendants themselves knew whether her PRS had been imposed administratively or judicially."48 In contrast, the plaintiffs here have alleged (and submitted proof) that "Defendant Annucci has also stated under oath that early in 2007 DOCS began to identify the inmates in its custody to whom Earley was applicable, and by the spring of 2007 had in fact identified most of them."49 Thus, in contrast to the plaintiff in Scott, the Betances and Bentley plaintiffs have clearly and plausibly alleged that DOC defendants knew that the plaintiffs' terms of PRS had been imposed administratively when those plaintiffs were returned to DOC custody for unlawful incarceration, and that the DOC officials were deliberately indifferent to these known violations of the plaintiffs' rights.
Defendants argue that "no federal court, either at the trial or the appellate level, has found that [prior to the enactment of remedial legislation in July 2008] the State or any of its officials had an affirmative duty — either under the Constitution or under State procedural law — to remediate flawed PRS by taking action to verify the sentence calculations of inmates or parolees."50 The Second Circuit accepted this argument in Scott.51 Therefore, if plaintiffs' only complaint were that defendants had failed to evaluate the legitimacy of their terms of PRS or to seek resentencing, dismissal on the basis of qualified immunity might be appropriate. But plaintiffs allege that post-Earley, DOC voluntarily identified more than eight thousand defendants on whom a term of PRS had been improperly imposed. Despite that knowledge: DOP revoked each of plaintiffs' PRS on the basis of technical violations; DOC incarcerated plaintiffs whom it knew had been given PRS by the executive branch, not a judge; and DOC even imposed a new term of PRS on plaintiff Betances in April, 2008, nearly two years after Earley.52 These claims allege that defendants affirmatively acted to violate plaintiffs' rights, not merely that they failed to "remediate flawed PRS by taking action to verify the sentence calculations of inmates and parolees."53
Faced with a section 1983 claim from a plaintiff who had been arrested and re-incarcerated after Earley for violating administratively-imposed PRS, Judge John Gleeson of the Eastern District of New York noted that "after Earley, the defendants could have reasonably believed that the remedy for the concededly unlawful administrative imposition of a supervision term was a resentencing procedure in which a judge imposed the correct sentence, effective as of the date of the original sentence."54 I agree. If defendants wanted to continue imposing supervision on the plaintiffs, they could have sought resentencing by a judge and therefore satisfied the Due Process requirements laid out in Earley. But the Betances and Bentley plaintiffs allege that defendants did not seek such resentencing for nearly two years. Instead, on the basis of violations of a PRS that the Second Circuit had already declared null and void, DOP revoked plaintiffs' supervision and DOCS re-incarcerated them. Judge Gleeson also held that "[n]othing in Earley or Sparber suggested that administratively-imposed terms of supervision should be administratively revoked or otherwise unenforced."55 Here I am constrained to disagree. The Earley court clearly revoked all administratively-imposed terms of PRS ("[t]he penalty administratively added by the Department of Corrections was, quite simply, never a part of the sentence") but permitted the State to seek a reimposition of those terms by a judge.56 Earley cannot be read to permit defendants to arrest and re-incarcerate plaintiffs without seeking such a resentencing.
Plaintiffs allege that, well aware of Earley and the thousands of people covered by Earley's holding, defendants continued to revoke PRS and re-incarcerate people for violations of their PRS terms, without seeking resentencing by a judge. "`[A] supervisory official may be liable under section 1983 not only because he or she created a policy or custom under which unconstitutional practices occurred, but also because he or she allowed such a policy or custom to continue.'"57 As a result, if the allegations regarding their actions after Earley are correct, defendants are not entitled to qualified immunity for re-incarcerating plaintiffs based on terms of PRS that had already been nullified or for the administrative imposition of new PRS.
3. The Earley District Court's Actions on Remand Did Not Create Any Confusion About the Appropriate Remedy
By the time Earley was remanded from the Second Circuit and Judge Edward Korman determined that Earley's petition for habeas corpus had been timely filed, Earley was again incarcerated, this time for a violation of his PRS. Judge Korman granted Earley the writ but stayed his order for twenty-eight days "to permit the sentencing court to exercise its power to conform the sentence to the mandate of New York law."58 Earley's attorney filed a motion for reconsideration, arguing that "[s]ince petitioner's PRS has been unequivocally invalidated, it does not exist, and in fact never existed. Petitioner remains incarcerated for violation of a term he did not receive."59 The court rejected this argument, and granted a new stay of the writ pending appeal of the Second Circuit's decision to the Supreme Court.60
Defendants point to Judge Korman's actions for the proposition that
[e]ven after Earley was decided, it is clear that the law was unclear as to an appropriate remedy. Even the Earley court did not hold that release was a preferred remedy to a constitutional infirmity in sentencing. Judge Kormann [sic], in May 2007, stayed his grant of the federal writ of habeas corpus to afford the People the opportunity to resentence petitioner Earley, nunc pro tunc.61
This argument is a straw man. Plaintiffs are not claiming that defendants were obligated immediately to release people from prison. But, barring that remedy, they were obligated to seek resentencing. Judge Korman stayed his writ for twenty-eight days so that the People could immediately move for resentencing. But with respect to the Betances and Bentley plaintiffs, defendants did not seek resentencing until twenty-three months after Earley.62 Instead, they continued imposing PRS on plaintiffs, arrested them, and re-incarcerated them. Judge Korman's actions followed the Circuit's directives and did not create confusion about the state of the clearly established law or the appropriate remedy.
It is important to emphasize why the remedy of resentencing was so important to plaintiffs, and not merely an exercise in constitutional formalities that would have had no real impact on them: according to an attorney who led the Legal Aid Society's post-Earley efforts, once affected individuals eventually were resentenced by judges in 2008 and 2009
the overwhelming majority of [them] were released from prison and from PRS custody by sentencing judges. Many had already completed their sentences, or at least had been on PRS long enough to have served the minimum PRS term that the judge could have imposed at sentencing. (DOCS had imposed the maximum PRS term in every instance, even though the sentencing judges could and often did impose shorter PRS terms.)63
4. Subsequent State Court Decisions Could Not and Did Not Place Earley's Holding in Doubt
Central to defendants' argument that they did not violate "clearly established" constitutional rights is their claim that in the two years after Earley, there was confusion in the lower state courts and "the law in the federal and state courts continued to evolve."64 The Second Circuit reiterated this argument in dicta in Scott v. Fischer, noting that
Whether Earley itself sufficed clearly to establish the unconstitutionality of administratively imposed PRS for a reasonable New York State correctional official may be open to question inasmuch as two Departments of the New York Appellate Division thereafter continued to find the practice constitutional, conclusions that appear to reflect oversight rather than defiance of Earley. See Garner v. N.Y. State Dep't of Corr. Servs., 39 A.D.3d 1019, 831 N.Y.S.2d 923 (3d Dep't 2007); People v. Thomas, 35 A.D.3d 192, 826 N.Y.S.2d 36 (1st Dep't 2006). It was not until 2008 that the New York Court of Appeals held that administrative imposition of PRS by DOC was contrary to law. See Garner v. N.Y. State Dep't of Corr. Servs., 10 N.Y.3d 358, 859 N.Y.S.2d 590, 889 N.E.2d 467 (2008); People v. Sparber, 10 N.Y.3d 457, 859 N.Y.S.2d 582, 889 N.E.2d 459 (2008). In circumstances of such apparent judicial confusion as to the constitutional propriety of a statutory mandate, qualified immunity might well continue to shield state officials acting pursuant to that statute.65
This reading of the caselaw has been reiterated by many district courts adjudicating section 1983 claims regarding unlawful arrests and re-incarcerations between Earley and the April 29, 2008 New York Court of Appeals decisions in Sparber and Garner.66 And as Judge Kenneth Karas has explained, "the overwhelming consensus within the Second Circuit is that the protection of qualified immunity applied until April 2008, when the New York Court of Appeals resolved a split among the lower courts and invalidated the administrative imposition of PRS."67 Defendants' argument that there was confusion in the lower courts, and that therefore Earley's holding was not clearly established, has been the linchpin of their continued success in obtaining qualified immunity. And indeed it is true that "[i]f judges ... disagree on a constitutional question, it is unfair to subject [government officials] to money damages for picking the losing side of a controversy."68 But it is incorrect to say that the Appellate Division found administrative PRS constitutional. Defendants point to no court that has ever questioned — let alone disagreed with — the holding in Earley. Indeed, the notion of confusion rests on a misreading of the relevant Appellate Division cases.
Defendants point to five Appellate Division cases from 2006 and 2007 to support the notion of confusion following Earley.69 But the first four of these — Lingle, Sparber, Thomas, and Boyer — did not deal with administratively-imposed PRS at all. Instead, the PRS imposed on the defendants in these cases had been written in the sentencing courts' sentence and commitment orders.70 The appellate courts in these cases determined that these impositions of PRS had complied with Earley's requirements because they had been imposed by the courts, not by DOCS, even though they had not been verbalized by the sentencing judge. These four cases, therefore, are evidence that the lower courts were still trying to determine how far they should extend Earley's logic. The cases do not show that the appellate courts were in disagreement over whether Earley had invalidated PRS imposed by DOCS.71 The fifth case cited by defendants — Garner — was a two-paragraph ruling that did not mention Earley or the constitutionality of administratively-imposed PRS at all but rather dismissed the request for relief on state procedural grounds.72 Therefore, neither of the two cases cited by the Second Circuit and many district courts (Garner and Thomas) actually stand for the proposition that "the New York Appellate Division thereafter continued to find the practice [of administratively imposing PRS] constitutional."73
In a thorough opinion that helpfully lays out the procedural history following Earley, Judge Joseph Bianco of the Eastern District of New York points to "several New York state court opinions during this time period that demonstrate that the New York courts were in severe disagreement as to Earley's application."74 And indeed it is true that there was uncertainty regarding the outer reaches of Earley. But none of the cases cited by defendants show that there was confusion regarding the clear, core constitutional holding in Earley: that administratively-imposed PRS was unlawful and that if the state wished to enforce such PRS, resentencing by a judge was required.
It is true that some trial level state courts initially held that Earley was not binding on them and did not require that they invalidate administrative PRS.75 It is also noteworthy that immediately after Earley was issued, other state courts were already fully accepting its authority and referring defendants back to court for resentencing or removing terms of unlawfully-imposed PRS.76 Defendants do not cite to any post-Earley trial court opinions that in any way "unestablished" the clear constitutional holding in Earley. But their "confusion" argument rests on this logic. There are two problems with the position. First, it was DOCS and DOP that immediately began urging the lower courts not to follow Earley: As one trial court explained, "[t]he people ... now oppose defendant's application, contending that the Second Circuit case of Earley v. Murray, cited by defendant, is not binding on this court."77 This argument was repeated by defendant Annucci in his letter to an inmate seeking to invoke his rights.78 Annucci wrote this letter because "[Defendant] Commissioner Fischer has asked me to."79 Second, even if the lower state courts determined that they were not bound by Earley, it would not have justified defiance of Earley by the defendants, who indisputably were bound by it.80 The Supremacy Clause precludes state officials taking actions that violate the federal Constitution, even if those actions are authorized or mandated by state law. The Second Circuit recognized that its decision "may call into question the validity of the PRS components of numerous sentences."81
Defendants Annucci and Terrence Tracy, chief counsel to DOP, are experienced attorneys. The other defendants are (or were) high ranking officials with access to skilled legal counsel and the responsibility to ensure that their large agencies complied with all state and federal laws. None of the defendants were low ranking police officers making quick decisions on the street under high pressure. By contrast, these defendants had ample time to consider their response to Earley. Any reasonable high-ranking New York official would know that she is bound by decisions of the Second Circuit and that the United States Constitution trumps any conflicting state laws. In light of Earley's holding, it was improper of DOCS and DOP to wait until they were "specifically ordered to [set aside each individual PRS] by a state or federal court."82 Defendants had an obligation to treat Earley as binding on all terms of administratively-imposed PRS.
Any alleged confusion indisputably was resolved on April 29, 2008, when the New York Court of Appeals issued its decisions in Garner and Sparber. Sparber held that as a matter of state law, all sentences of PRS must be pronounced by the judge at sentencing.83 Garner reversed the lower court and held that because the imposition of PRS is a judicial act, an Article 78 proceeding is an appropriate procedural route by which to challenge a term of administratively-imposed PRS.84 This was the only holding made by the Garner court. A number of courts have either held or suggested that this date marks the point at which Earley's constitutional holding became clearly established.85 However, in both Sparber and Garner, the Court of Appeals explicitly refused to address any constitutional concerns or pass on the applicability or consequences of Earley.86 It is therefore difficult to see how the New York Court of Appeals, as opposed to the Second Circuit in Earley, could have clearly established plaintiffs' federal constitutional rights. Furthermore, as plaintiffs note, only the United States Courts of Appeals and the United States Supreme Court can "clearly establish" constitutional law for the purpose of qualified immunity. Because the Scott court held that the constitutional law was "now indeed clearly established," it seems unlikely that any case other than Earley could have done the establishing.87
In short, defendants have pointed to no state cases that questioned the constitutional holding or clearly articulated remedies in Earley. Nor could they. State courts do not have the power to invalidate the interpretations of the federal Constitution handed down by a federal Court of Appeals. And Earley's holding was crystal clear: "The additional provision for post-release supervision added by DOCS is a nullity."88 As plaintiffs correctly argue,
[e]ven if the state courts had disagreed as a matter of federal constitutional law (they did not), that would be of no moment. To allow the decisions of New York state courts to effectively nullify [an] individual's clearly established federal constitutional rights as determined by the Second Circuit would violate the Supremacy Clause and undermine our federalist system.89
I recognize that on this point, I am in disagreement with many of my colleagues. But this disagreement arises from a fundamental misunderstanding. The intermediate state courts' approval of PRS imposed by judges via sentencing documents never placed in doubt Earley's central holding that nullified the terms of PRS imposed by the executive branch. Defendants should not be permitted to sow greater confusion regarding the history of these post-Earley cases in order to obtain immunity for their allegedly unconstitutional acts. My conclusion is also different from that of my colleagues because the Bentley and Betances Complaints, unlike complaints in other cases, make the following plausible allegations, supported by documents that are incorporated in the Complaints or are found in the public record: (1) defendants knew who was under administratively-imposed PRS by early 2007; (2) defendants intentionally sought to evade Earley by urging state courts not to follow it; (3) defendants knew they would be bound by court orders to comply with Earley on a case-by-case basis, but refused to apply its holding broadly without such orders; and (4) defendants continued administratively imposing PRS through at least April 2008, revoking such PRS on the basis of violations through at least February 2009, and imprisoning people based on those violations through at least July 2009.
5. Plaintiffs Allege that Beginning in July 2008, Defendants Failed to Comply with Their Affirmative Legal Duties
The Second Circuit has explained that when the New York State Legislature passed Correction Law § 601(d), it "imposed an affirmative duty on the part of [government officials]" to seek to resentence or otherwise handle the cases of inmates" such as plaintiffs, a duty that was effective June 30, 2008.90 Plaintiffs allege that "[d]espite this crystal clarity of the law, none of the Betances Plaintiffs here were ever resentenced, and were only released after months of incarceration post-June 2008 upon their own habeas petitions, or after completing their full sentences."91 On November 15, 2008, DOP issued a parole violation warrant charging Betances with having violated his administratively-imposed PRS; on February 23, 2009, that PRS was revoked at a parole hearing; and for an uncertain number of days in July 2009, Betances was imprisoned solely for those technical violations.92 On July 8, 2008, DOP issued a warrant charging Velez with violations of his administratively-imposed PRS.93 He was arrested and incarcerated for approximately three months, when he was released as a result of a grant of habeas corpus.94 In June 2008, DOP sentenced Barnes to three months incarceration based on violations of the terms of his administratively-imposed PRS. Barnes was released in or around September or October of 2008.95
The Bentley plaintiffs were released from unlawful incarceration at various times between February 25, 200896 and January 21, 2009.97 Some of these plaintiffs were released after DOCS requested that a state judge resentence them in accordance with Section 601(d),98 some on their own petitions for habeas corpus,99 and some because they had served their entire sentences.100 Plaintiffs' incarcerations continued for various lengths of time until thirteen months after the New York Legislature established a process for plaintiffs' resentencing, sixteen months after the New York Court of Appeals ruled in Sparber and Garner, and more than three years after the Second Circuit had first declared plaintiffs' terms of PRS "a nullity." Whether or not defendants complied with their affirmative duties after June 2008 is a separate question of fact, but there is no dispute that they had clear affirmative duties during that time period. If a factfinder determines that they failed to comply with those obligations, they will not be protected by qualified immunity.
B. Defendants' Other Arguments Do Not Merit Dismissal
1. Plaintiffs Have Made Plausible Factual Allegations that Defendants Were Individually Responsible for the Deprivation of Plaintiffs' Constitutional Rights
Defendants argue that plaintiffs have failed to plead defendants' personal involvement. To state a constitutional tort claim, "a [p]laintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution."101 Certainly, even after Iqbal, a supervisor may be liable for constitutional torts not only if she commits the tort herself, but if she "created a policy or custom under which unconstitutional practices occurred."102 Indeed, in Scott, which was decided more than a year after Iqbal, the Second Circuit explained that "a supervisory official may be liable under section 1983 not only because he or she created a policy or custom under which unconstitutional practices occurred, but also because he or she allowed such a policy or custom to continue."103
Regardless of precisely how the Second Circuit decides to apply Iqbal, plaintiffs have pled sufficiently detailed and plausible facts to support their allegation that in the period after Earley, each of the defendants personally created and/or implemented the policies and practices that led to the deprivations of plaintiffs' constitutional rights.104 According to plaintiffs' allegations, defendants were the officials individually responsible for establishing and enforcing DOCS's and DOP's policies with respect to PRS — policies that led directly to plaintiffs' unlawful custody. These claims allege sufficient personal involvement to survive a motion to dismiss.
2. Plaintiffs' Claims Are Not Barred By the Eleventh Amendment
Defendants argue that New York's sovereign immunity, embodied in the Eleventh Amendment, bars plaintiffs' claims because "[t]he State of New York and its officials sued in their official capacity are immune from suits for money damages in federal court."105 Defendants have been sued in both their individual and official capacities.106 Plaintiffs seek both money damages and declaratory relief.107 The Eleventh Amendment does not bar suits for money damages against state officials sued in their individual capacity, "even when the conduct complained of was carried out in accordance with state law."108 Nor does it bar claims for equitable relief.109
3. Plaintiffs' Claims Are Not Barred By the Statute of Limitations or for Late Service
Defendants argue that plaintiffs' claims may be barred by the three year statute of limitations for section 1983 actions in New York.110 However, "a § 1983 cause of action for damages attributable to an unconstitutional conviction or sentence does not accrue until the conviction or sentence has been invalidated."111 Courts dealing with post-Earley section 1983 claims have all held that pursuant to Heck v. Humphrey, plaintiffs' cause of action accrues only once the underlying sentence is invalidated or the writ of habeas corpus granted.112 All Betances plaintiffs were released from custody less than three years before their suit was filed on May 11, 2011. All Bentley plaintiffs were released from custody less than three years before their suit was filed on February 10, 2011.
Defendants also argue that the Betances Amended Complaint should be dismissed because it was served on October 24, 2011, more than 120 days after the original complaint was filed and four days after the extended deadline for filing set by the court at a status conference.113 The Amended Complaint was filed timely on October 20, 2011 and a copy sent electronically to defense counsel.114 The four-day delay in effectuating hand service in Albany does not merit dismissal.
4. Plaintiffs State a Claim for Unlawful Imprisonment
Defendants argue that plaintiffs fail to state a claim for unlawful imprisonment because their actions were privileged under New York State law.115 "The common law tort of false arrest is a species of false imprisonment" and "[t]he elements of a claim of false arrest under § 1983 are substantially the same as the elements of a false arrest claim under New York law."116 Like the question of qualified immunity, the question of privilege turns on whether defendants' actions were objectively reasonable.117 Because I have found that it was objectively unreasonable of defendants to continue enforcing administrative PRS without seeking resentencing for two years after Earley, defendants' re-incarceration of plaintiffs was not privileged.
5. Abstention Is Inappropriate
The Court declines defendants' invitation to abstain as it appears unlikely that this litigation will in any way interfere with ongoing state court litigation.118
V. CONCLUSION
For the reasons stated above, defendants' motions to dismiss are denied. The Clerk of the Court is ordered to close these motions [Betances Docket No. 17 and Bentley Docket No. 21]. A status conference is scheduled for February 21, 2012 at 5:30 p.m.
SO ORDERED.
