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Aponte v. Perez

20-2186 Aponte v. Perez 1 IN THE

• The Clerk of the Court is directed to amend the caption to conform to the above.

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21 22 23 ARUN SUBRAMANIAN (Geng Chen, on the brief), Susman Godfrey L.L.P., 24 New York, NY, for Plaintiff-Appellant. 25 ERIC DEL POZO, Assistant Solicitor General of Counsel (Barbara D. 26 Underwood, Solicitor General, Steven C. Wu, Deputy Solicitor 27 General, on the brief), for Letitia James, Attorney General of the State of

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1 2 CALABRESI, Circuit Judge: 3 Plaintiff-appellant Felix Aponte appeals from a judgment of the United 4 States District Court for the Southern District of New York (Karas, J.). In 2000, a 5 New York state court sentenced Aponte to an eight-year determinate term of 6 imprisonment for attempted robbery, and the New York State Department of 7 Correctional Services (“DOCS”) administratively added a five-year term of post-8 release supervision (“PRS”). In Earley v. Murray, 451 F.3d 71 (2d Cir. 2006), we 9 held that administratively imposed PRS terms are unconstitutional. But Aponte’s 10 administratively imposed PRS was not excised from his sentence, and it remained 11 improperly effective until he was resentenced in June 2008 by a New York state 12 court, after his determinate sentence had expired. 13 Between our decision in Earley and Aponte’s resentencing, Aponte was 14 released subject to this improper administrative PRS. He was then imprisoned for 15 violating this PRS and confined in prison beyond the expiration of his determinate 16 sentence. Then, on two occasions after his June 2008 resentencing, Aponte was 17 held in custody pursuant to the PRS the court imposed after his sentence had 18 ended. In People v. Williams, 925 N.E.2d 878, 889–90 (N.Y. 2010), the New York

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1 Court of Appeals held the practice of judicial reimposition of PRS terms after the 2 expiration of an offender’s determinate term unconstitutional. Still, after Williams 3 and until March 2011, Aponte was twice incarcerated for violating his judicially 4 reimposed PRS. 5 Aponte sued the defendants-appellees (collectively, the “appellees”)— 6 DOCS and New York Division of Parole (“DOP”) officials—under 42 U.S.C. 7 § 1983, seeking to recover damages for the enforcement of his invalid PRS terms. 8 The district court found that Aponte suffered a clear due process violation during 9 the period between the maximum expiration of his determinate sentence and his 10 resentencing. But it limited relief to $1 in nominal damages. It further concluded 11 that though Aponte’s incarceration pursuant to the terms of the subsequently 12 court-imposed PRS sentence might well have been invalid, these claims were 13 barred by qualified immunity. The district court granted summary judgment for 14 the appellees on Aponte’s false imprisonment claim. 15 This case requires us primarily to determine whether Aponte is entitled to a 16 jury trial to establish compensatory or punitive damages arising from his 17 imprisonment pursuant to the administratively imposed PRS which violated his 18 due process rights. We hold that the operative law permits an award of punitive

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1 damages in these circumstances, and that such damages may be awarded if the 2 facts of the case justify them. 3 We also hold that the district court erred at the time in deciding that 4 Aponte’s compensatory damages were only nominal. But we instruct the district 5 court to consider further whether the compensatory damages that Aponte seeks 6 on appeal are still available to him in light of our recent decision in Vincent v. 7 Annucci, 63 F.4th 145 (2d Cir. 2023) [hereinafter Vincent]. 8 We further conclude that disputed issues of material fact as to the length of 9 Aponte’s illegal confinement preclude summary judgment for the appellees on his 10 due process claim with respect to the period before June 6, 2008 and the period 11 after June 20, 2008. 12 We also hold that the district court erred in granting summary judgment for 13 the appellees on Aponte’s false imprisonment claim. 14 Finally, we hold that Aponte’s challenge to his post-resentencing 15 confinement is foreclosed by the appellees’ qualified immunity defense. We 16 therefore affirm in part and vacate in part the district court’s judgment and 17 remand for further proceedings consistent with this opinion.

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1 BACKGROUND 2 The facts, viewed in the light most favorable to Aponte as the nonmoving 3 party in the district court, are as follows. On April 25, 2000, Aponte pleaded guilty 4 to attempted robbery in the first degree in New York state court. On May 5, 2000, 5 the Supreme Court of the County of New York sentenced Aponte to a determinate 6 term of eight years of imprisonment, without any PRS term in his sentence. N.Y. 7 Penal Law § 70.45, however, imposes a mandatory period of PRS on all violent-8 felony offenders. Accordingly, even though the sentencing court had not imposed 9 PRS, DOCS administratively added a five-year PRS term to Aponte’s sentence 10 after receiving him into custody. At the time of sentencing in 2000, the Office of 11 Sentencing Review (within DOCS) calculated the maximum expiration date of 12 Aponte’s determinate sentence as February 13, 2008. 13 Aponte served more than six years of his determinate sentence and was 14 conditionally released on January 16, 2007. In 2006, well before his conditional 15 release, we held in Earley that PRS terms added by DOCS to a defendant’s sentence 16 were constitutionally invalid. 451 F.3d at 76. But because DOCS officials did not 17 comply with Earley, Aponte’s conditional release improperly triggered the 18 beginning of his administratively imposed five-year PRS term.

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1 Three weeks after his conditional release, Aponte was arrested for drug-2 related offenses and charged with violating the conditions of his PRS. An 3 Administrative Law Judge (“ALJ”) at the Division of Parole first determined that 4 Aponte should participate in a voluntary, residential drug-treatment program at 5 Willard Drug Treatment Center. Aponte refused to do so. In response, on July 30, 6 2007, the ALJ imposed a delinquent time assessment of twelve months. Under 7 N.Y. Penal Law §§ 70.40(2) and 70.45(5), the unelapsed portion of a defendant’s 8 determinate term is “held in abeyance” upon conditional release. As a result of 9 his PRS violation, the appellees argue, Aponte received no credit against his 10 sentence during the delinquent period between February 2007 and July 2007, and 11 the maximum expiration of his sentence was extended to June 6, 2008. 12 In June 2008—two years after our decision in Earley, and indisputably after 13 his determinate sentence had ended—DOCS took steps to address Aponte’s 14 unconstitutional term of PRS. In June 2008, the Supreme Court of the County of 15 New York resentenced Aponte nunc pro tunc to a determinate term of eight years 16 of imprisonment, followed by a three-year term of PRS. 1 The court ordered DOCS

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1 to release Aponte “forthwith into the community, or otherwise into post-release 2 supervision,” if it determined that Aponte “has served the full jail term of [his] 3 modified sentence, and is not subject to any other hold or detainer.” A 195. On 4 June 26, 2008, Aponte was transferred to a residential treatment facility, where he 5 remained in custody until July 28, 2008. A 165. 6 On April 14, 2009, Aponte was reincarcerated for a new violation of his 7 court-imposed PRS and remained in prison until March 23, 2010. A 165. In 8 February 2010, while Aponte was still incarcerated, the New York Court of 9 Appeals held that a resentencing by a court to impose a term of PRS undertaken 10 after the expiration of a convicted offender’s determinate sentence violates the 11 Double Jeopardy Clause, and, as a result, that any term of PRS purportedly so 12 imposed cannot be enforced. People v. Williams, 925 N.E.2d at 889–90. On January 13 7, 2011, Aponte was reincarcerated for another violation of his PRS and remained 14 in prison until March 17, 2011. A 165. 2

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1 On May 29, 2014, Aponte sued the appellees pro se under § 1983 in the 2 United States District Court for the Southern District of New York. 3 Aponte’s 3 operative second amended complaint alleged that the appellees “subject[ed him] 4 to unlawful custody by continuing to impose terms of [PRS] that had been 5 declared unlawful and arresting and re-incarcerating [him] for technical violations 6 of those terms.” A 58. Aponte brought claims for “false imprisonment, illegal 7 detainment, illegal negotiation of post release supervision, and violation of [his] 8 Constitutional Rights” under the Fifth, Sixth, Eighth, and Fourteenth 9 Amendments. A 60. Aponte sought $3 million in compensatory damages and $3 10 million in punitive damages from each defendant. 11 On April 17, 2017, the appellees moved to dismiss the second amended 12 complaint. On February 28, 2018, the district court denied the appellees’ motion 13 to dismiss Aponte’s due process and false imprisonment claims for the period 14 between the end of Aponte’s determinate sentence, which the district court 15 deemed to be June 6, 2008, and his resentencing, which the district court deemed

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1 to be June 20, 2008. As to the period after Aponte’s June 2008 resentencing, the 2 district court found that the appellees were entitled to qualified immunity. In the 3 alternative, the district court found that Aponte’s resentencing by the state court 4 constituted an intervening cause that relieved the appellees of liability. The 5 district court granted the appellees’ motion with respect to all other claims. 6 On October 1, 2019, the appellees moved for summary judgment on 7 Aponte’s remaining due process and false imprisonment claims. On April 20, 8 2020, the district court granted the appellees’ motion in part and denied it in part. 9 The district court found a due process violation for the period between the 10 maximum expiration of Aponte’s determinate sentence and his resentencing on 11 June 20, 2008. Relying on the declaration of an employee of the Office of 12 Sentencing Review, the district court concluded that the beginning of this due 13 process liability period, i.e., the maximum expiration date of Aponte’s determinate 14 sentence, was June 6, 2008. 15 The district court explained that this liability period of fourteen days 16 between June 6, 2008 and June 20, 2008 “d[id] not fall within any legitimate 17 determinate sentence” and resulted from the appellees’ failure to comply with our 18 decision in Earley. A 239. The district court held that the appellees were not

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1 entitled to qualified immunity for the due process liability period, “given their 2 clear understanding of the state of the law after Earley and their failure to bring 3 their departments into compliance for a year or more afterwards.” A 241–42. The 4 district court also determined that Annucci and Fischer, but not the other 5 individual appellees, could have been personally involved in the due process 6 violation. 7 As to the period before the maximum expiration of Aponte’s determinate 8 sentence, the district court relied on our decision in Hassell v. Fischer, 879 F.3d 41 9 (2d Cir. 2018), to conclude that no due process violation had occurred. The district 10 court reasoned that even in the absence of the unconstitutionally imposed PRS, 11 Aponte would have been subject to a release that was conditional and hence would 12 not have experienced any less onerous repercussions. 13 With respect to Aponte’s false imprisonment claims, the district court 14 granted summary judgment for the appellees, on the ground that Aponte’s 15 confinement was privileged pursuant to a court order. The district court 16 explained: “Plaintiff’s additional detainment here, according to the record, was 17 the result of a court order seeking to resentence Plaintiff and constitutionally 18 impose a PRS term nunc pro tunc.” A 244.

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1 The district court denied summary judgment with respect to the appellees’ 2 argument that Aponte was entitled only to nominal damages. The district court 3 noted that Aponte “may be ‘entitled to compensatory, not merely nominal 4 damages,’” A 244 (quoting Kerman v. City of New York, 374 F.3d 93, 124 (2d Cir. 5 2004)), and “may be entitled to present [the question regarding compensatory 6 damages] before a jury,” id. at 245. 7 The district court instructed Aponte to respond within thirty days with a 8 brief explanation why he was entitled to more than nominal damages for the due 9 process liability period of June 6, 2008 to June 20, 2008. On May 18, 2020, Aponte, 10 still proceeding pro se, filed a response, and requested $4,000 per day of 11 compensatory damages for his “injuries[,] mental anguish, stress, [and] duress.” 12 A 251. Aponte also requested punitive damages. 13 On June 4, 2020, the district court entered a final judgment for $1 in nominal 14 damages on Aponte’s due process claim. The district court concluded that Aponte 15 failed to allege any actual injury and referred only “to the injustice of being 16 detained unconstitutionally and generalized ‘mental’ and ‘emotional’ suffering.” 17 A 257. 18 Aponte timely appealed, and we appointed counsel.

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1 DISCUSSION 2 On appeal, Aponte argues inter alia that (1) the district court erred in limiting 3 relief to $1 in nominal compensatory damages; (2) the district court erred in failing 4 to find punitive damages to be available; (3) disputed issues of fact as to the length 5 of his illegal confinement precluded summary judgment for the appellees on his 6 due process claim; (4) the district court erred in granting summary judgment for 7 the appellees on his false imprisonment claim; and (5) the district court erred in 8 dismissing his claims based on his confinement after his June 2008 resentencing. 9 We have jurisdiction under 28 U.S.C. § 1291. “We review the district court’s 10 grant of summary judgment de novo, construing the facts in the light most 11 favorable to the non-moving party and drawing all reasonable inferences in its 12 favor.” Ashley v. City of New York, 992 F.3d 128, 136 (2d Cir. 2021). “The movant 13 must show that there is no genuine issue as to any material facts, and that they are 14 entitled to judgment as a matter of law.” Id. (citing June v. Town of Westfield, 370 15 F.3d 255, 257 (2d Cir. 2004)).

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1 I. Punitive Damages 2 We first address Aponte’s argument that he is entitled to a jury trial to 3 determine the existence and possible amount of punitive damages. In a § 1983 4 action, “punitive damages may be awarded . . . ‘when the defendant’s conduct is 5 shown to be motivated by evil motive or intent, or when it involves reckless or 6 callous indifference to the federally protected rights of others.’” New Windsor 7 Volunteer Ambulance Corps, Inc. v. Meyers, 442 F.3d 101, 121 (2d Cir. 2006) (quoting 8 Smith v. Wade, 461 U.S. 30, 56 (1983)). “To be entitled to an award of punitive 9 damages, a claimant must show a ‘positive element of conscious wrongdoing.’” 10 Id. (quoting Kolstad v. Am. Dental Ass’n, 527 U.S. 526, 538 (1999)). 11 We have long recognized that punitive damages may be available in certain 12 circumstances where actual damages are only nominal. Id. (“The fact that the 13 constitutional violation does not warrant an award of compensatory damages is 14 not a basis for denying an award of punitive damages.”); Stolberg v. Members of Bd. 15 of Trs. for State Colls. of Conn., 474 F.2d 485, 489 (2d Cir. 1973) (“[P]unitive damages 16 may, in an appropriate case, be awarded for violation of 42 U.S.C. § 1983, even in 17 the absence of actual damages . . . .”); see also Robinson v. Cattaraugus County, 147 18 F.3d 153, 161 (2d Cir. 1998); King v. Macri, 993 F.2d 294, 298 (2d Cir. 1993). In other

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1 words, the availability of compensatory damages in a § 1983 suit is not a 2 prerequisite to punitive damages. 3 We conclude that Aponte is entitled to a jury trial to establish the availability 4 of punitive damages arising from his confinement pursuant to the 5 administratively imposed PRS. We have admonished the appellees for their 6 repeated failure to take prompt action to end the custody of prisoners 7 unconstitutionally detained for violating PRS terms imposed by DOCS, when the 8 appellees were fully aware of the holding and implications of Earley. See, e.g., Reyes 9 v. Fischer, 934 F.3d 97, 101 (2d Cir. 2019) (“The defendants [(including Fischer and 10 Annucci)] have appeared before this Court many times regarding their imposition 11 of PRS, and their deliberate refusal to follow Earley I’s holding is well 12 documented.”); Betances v. Fischer, 837 F.3d 162, 167 (2d Cir. 2016) (“Annucci 13 immediately understood Earley I’s holding but deliberately refused to change 14 DOCS procedures to bring them into compliance.”); Hassell, 879 F.3d at 51 (holding 15 that defendants unreasonably failed to comply with Earley by subjecting the 16 plaintiff to administratively imposed PRS terms); Vincent v. Yelich, 718 F.3d 157, 17 173 (2d Cir. 2013) [hereinafter Yelich] (“Annucci testified . . . that he was ‘aware of 18 the Second Circuit’s decision in Earley v. Murray at the time it came out in 2006,’

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1 that he was aware that Earley I ruled ‘that DOCS did not have the authority to add 2 a period of post-release supervision, if it was not included by the sentencing 3 judge,’ and that he ‘did not agree with that decision.’” (citation omitted)). 4 Most recently, in Vincent, we emphatically noted “Annucci’s unexcused 5 delay in complying with Earley.” 63 F.4th at 150; see also id. at 151 (“Earley was a 6 decision that this court had issued. Under the Supremacy Clause of the 7 Constitution, it was binding on state courts and state officials, regardless of their 8 willingness to accept it.”). 9 In the case before us, the appellees did not arrange for a state court to 10 resentence Aponte until two years after Earley. Cf. Betances, 837 F.3d at 173 (“[T]he 11 unexcused delay of 14 to 19 months between Earley [] and [DOCS and Division of 12 Parole officials’] first significant remedial efforts was objectively unreasonable.”). 13 The appellees’ deliberate refusal to comply with Earley therefore shows “conscious 14 wrongdoing” and a “reckless or callous indifference to [] federally protected 15 rights,” and hence can serve as a basis for punitive damages. Meyers, 442 F.3d at 16 121 (citations and internal quotation marks omitted). 17 Punitive damages may be especially appropriate here. “[P]unitive damages 18 serve the dual purpose of deterrence and retribution,” and the “purpose of § 1983

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1 is ‘not only to provide compensation to the victims of past abuses, but to serve as 2 a deterrent against future constitutional deprivations, as well.’” Ciraolo v. City of 3 New York, 216 F.3d 236, 242 (2d Cir. 2000) (Calabresi, J., concurring) (citations and 4 internal quotation marks omitted). As a result, “[p]unitive damages can ensure 5 that a wrongdoer bears all the costs of its actions, and is thus appropriately 6 deterred from causing harm, in those categories of cases in which compensatory 7 damages alone result in systematic underassessment of costs, and hence in 8 systematic underdeterrence.” Id. at 243. 9 As we explain below, our decision in Vincent may make it more difficult for 10 Aponte to obtain compensatory damages. In such circumstances, punitive 11 damages may ensure that the appellees bear at least some cost for the undisputed 12 due process violation that Aponte suffered. 13 We therefore hold that Aponte is entitled to a jury trial to establish punitive 14 damages. See Cameron v. City of New York, 598 F.3d 50, 69 (2d Cir 2010) (concluding 15 that in order to present “a question of fact . . . to the jury” as to punitive damages, 16 the “plaintiffs’ evidence need only be enough ‘to permit the factfinder to infer that 17 the responsible official was motivated by malice or evil intent or that he acted with 18 reckless or callous indifference’” (citations omitted)).

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1 II. Compensatory Damages 2 We next turn to Aponte’s claim that a jury must consider awarding more 3 than nominal compensatory damages. As to this, we are bound by our prior 4 decision in Vincent. The plaintiff in Vincent also sued under § 1983 for unlawful 5 confinement pursuant to an administratively imposed PRS, and sought 6 compensatory damages. 63 F.4th at 147. In Vincent, we noted that in a § 1983 suit, 7 “[w]hen a defendant has deprived the plaintiff of liberty, but the adverse action 8 would have been taken even in the absence of the wrongful conduct, the plaintiff 9 is entitled only to nominal damages.” Id. at 151 (alteration in original) (quoting 10 Rentas v. Ruffin, 816 F.3d 214, 223 (2d Cir. 2016)). We explained that this “analysis 11 requires [us] to reconstruct what would have ‘occurred had proper procedure 12 been observed,’” that is, “whether . . . [the plaintiff] established that he suffered an 13 injury as a result of Annucci’s failure to follow our directive in Earley that would 14 not have occurred otherwise.” Id. at 151–52 (citation omitted). 15 In Vincent, we rejected Annucci’s “assert[ion] that, had he promptly referred 16 [the Vincent plaintiff] for judicial resentencing after Earley, the state court would 17 have likely imposed PRS nunc pro tunc.” Id. at 153. That is, “Earley gave [New 18 York] the option of either (1) arranging for defendants subject to null and void PRS

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1 terms to be appropriately resentenced or (2) excising their PRS terms.” Id. at 147. 2 And in Vincent, resentencing—the proper procedure—“was not available,” 3 because the plaintiff “had completed [his] judicially imposed sentence[] and w[as] 4 incarcerated solely for violating [his] administratively imposed PRS term[].” Id. 5 By the time we decided Earley in June 2006, the plaintiff in Vincent had already 6 been arrested for violating his administratively imposed PRS. And this was after 7 the expiration of his maximum determinate sentence. Id. at 148. 8 Vincent held that “[o]nce a defendant serves his original sentence . . . , a court 9 cannot reverse the ‘error’ and retroactively validate DOCS’s ultra vires and 10 unlawful imposition of PRS.” Id. at 154. In other words, New York courts could 11 not have resentenced the Vincent plaintiff nunc pro tunc to comply with Earley. As 12 a result, had proper procedure been observed, the Vincent plaintiff likely would 13 not have suffered the same injury. Under such circumstances, Vincent’s analysis 14 requires a jury to determine the amount of compensatory damages, whether 15 nominal or more. See id. at 151; Patterson v. City of Utica, 370 F.3d 322, 338 (2d Cir. 16 2004) (“[I]t is evident that in order to award plaintiff compensatory damages, the 17 jury must determine that the injuries plaintiff claims he suffered as a result of the

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1 deprivation of his liberty interest would not have occurred if [the defendant] had 2 provided plaintiff with [] sufficient [procedure].” (emphasis added)). 3 By contrast, Aponte’s determinate sentence did not expire until at least 4 2008. 4 In June 2006, when we decided Earley, Aponte was still serving his 5 determinate sentence; he was not conditionally released until January 16, 2007. In 6 Vincent, we noted that “there is no constitutional bar to resentencing defendants 7 who were incarcerated and serving determinate sentences without a judicially 8 imposed PRS term.” Id. at 152 (citing Smith v. Wenderlich, 826 F.3d 641, 651 (2d Cir. 9 2016)). 10 New York courts, therefore, could have resentenced Aponte nunc pro tunc 11 to comply with Earley. They could have included in that resentencing a properly 12 imposed PRS term. And all this could have been done before Aponte’s conditional 13 release in 2007. 5 Had such a proper procedure been followed, it is likely that

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1 Aponte would have been detained for violating the terms of a constitutionally 2 imposed PRS, and hence would have suffered the same injury. 3 We do not, however, hold that compensatory damages above a nominal 4 amount are unavailable. That is a question that we leave for the district court to 5 determine anew in light of Vincent. In their supplemental briefing regarding the 6 effect of Vincent on this appeal, the appellees do not take Vincent as categorically 7 precluding compensatory damages for defendants in Aponte’s position. Both 8 sides may be read as suggesting that the facts of this case may lead to a conclusion 9 that the injury Aponte suffered would not have occurred even had there been a 10 timely referral for a judicial reimposition of the PRS. And if this is so, as Vincent 11 holds, 63 F.4th at 151–54, it would be up to a jury to determine what amount of 12 compensatory damages Aponte should receive. 13 Given the fact-intensive nature of the inquiry and the appellees’ approach 14 in their supplemental briefing, and especially as we are remanding on punitive 15 damages, we therefore instruct the district court to consider further whether, 16 under Vincent, compensatory damages may still be available to Aponte. If, in light 17 of our intervening decision in Vincent, it decides that Aponte has shown a

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1 sufficient basis for an award, then it should direct the jury to determine the 2 appropriate amount. 3 III. Relevant Period of Unlawful Confinement 4 With respect to the period before the state court imposed a PRS sentence 5 during which Aponte alleges he was unlawfully confined, we agree with Aponte 6 that material issues of disputed fact preclude summary judgment. The appellees’ 7 Rule 56.1 statement stated that as of May 30, 2000, the maximum expiration date 8 of Aponte’s sentence was February 13, 2008, and as of July 30, 2007, it was June 6, 9 2008. They rely on a declaration of an employee of the New York State Department 10 of Corrections and Community Supervision (“DOCCS”) to support the latter 11 assertion. See Decl. of Kristina M. Lennon (stating without explanation, “DOCCS 12 records document that the maximum expiration date of Mr. Aponte’s determinate 13 term [as of July 30, 2007] was June 6, 2008”). A 168. 14 On appeal, Aponte argues that there are material disputes about when his 15 determinate sentence ended. He argues that the Lennon Declaration is 16 inadmissible hearsay and that it is contradicted by other portions of the appellees’ 17 summary judgment evidence; in particular, he advances the view that the 18 explanation offered by the appellees in their briefing for the change in maximum

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1 termination date from February 13, 2008 to June 6, 2008 is not supported by the 2 record. The appellees’ retort is three-fold: that Aponte forfeited this argument 3 because he failed to respond to their summary judgment motion, that the Lennon 4 Declaration falls within a hearsay exception for statements of a public officer 5 regarding the office’s activities, and that they had no obligation to explain the 6 change of termination date. 7 We conclude that Aponte’s failure in the district court to object to the 8 appellees’ statement of material facts does not preclude him from relying on 9 inconsistencies in the appellees’ own evidence to identify a disputed issue of 10 material fact that made it erroneous to enter summary judgment. See Vermont 11 Teddy Bear Co. v. 1-800 Beargram Co., 373 F.3d 241, 246 (2d Cir. 2004) (noting that 12 even if a summary judgment motion is unopposed, the moving party must still 13 establish the absence of a genuine issue of material fact, and that the moving party 14 is entitled to judgment as a matter of law). Even assuming the district court 15 properly considered the Lennon Declaration, a question we need not decide, the 16 bare assertion that as of July 30, 2007, DOCCS records indicated that the maximum 17 expiration date of Aponte’s determinate term was June 6, 2008, does not quiet the 18 apparent contradiction between that assertion and the previously reported

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1 maximum expiration date of February 13, 2008. The appellees’ brief on appeal 2 suggests an explanation for the changed date, but the record contains no support 3 for that explanation as the contemporaneous rationale. For this reason, we 4 conclude that factual uncertainty as to the expiration date of Aponte’s determinate 5 sentence prevented entry of summary judgment for the appellees with respect to 6 the period from February 13, 2008 to June 6, 2008. The district court (or, possibly, 7 after further factual development, a jury) should resolve the question on remand. 8 Similarly, Aponte disputes the district court’s finding that his resentencing 9 hearing took place on June 20, 2008. Aponte notes that though the court’s 10 sentencing order is dated June 20, 2008, it is stamped June 24, 2008. Additionally, 11 while Aponte’s inmate records do not show any “movement” on June 20, 2008, 12 they “do contain an entry for June 24, 2008, the same date as stamped on the 13 resentencing order.” Appellant’s Br. 28–29 (citing A 165). The appellees respond 14 that “Aponte misreads the record,” as the stamp date reflects the date that the 15 order was filed in the clerk’s office, which is “a separate event from when it was 16 originally issued.” Appellees’ Br. 37. For substantially the same reasons discussed 17 above, we find the inconsistencies in the record sufficient to constitute a triable 18 issue of material fact.

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1 IV. False Imprisonment 2 We next address the district court’s grant of summary judgment on 3 Aponte’s false imprisonment claim. “Under New York law, the elements of the 4 tort of false imprisonment are: ‘(1) the defendant intended to confine [the plaintiff], 5 (2) the plaintiff was conscious of the confinement, (3) the plaintiff did not consent 6 to the confinement and (4) the confinement was not otherwise privileged.’” 7 McGowan v. United States, 825 F.3d 118, 126 (2d Cir. 2016) (per curiam) (quoting 8 Broughton v. State, 335 N.E.2d 310, 314 (N.Y. 1975)). 9 We conclude that the district court erred in granting summary judgment for 10 the appellees on the false imprisonment claim. The district court found that 11 Aponte’s confinement was privileged pursuant to “a court order seeking to 12 resentence [Aponte] and constitutionally impose a PRS term nunc pro tunc.” A 13 244. But the district court cited nothing to indicate the actual existence of such a 14 court order beyond the appellees’ own statement of facts in support of summary 15 judgment. And the appellees’ statement of facts, in turn, referred only to the June 16 20, 2008 court order. That court order, however, resentenced Aponte nunc pro tunc 17 (to include a term of PRS) and was issued after Aponte was already detained 18 unlawfully pursuant to the administratively imposed PRS.

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1 The appellees now argue that despite their failure to produce the relevant 2 court order, “[t]he only reasonable inference is that a court had issued an order to 3 produce Aponte for purposes of resentencing,” because such an order “is 4 ordinarily required.” Appellees’ Br. 43. We disagree. 5 At summary judgment, we “constru[e] the facts in the light most favorable 6 to the non-moving party and draw[] all reasonable inferences in its favor.” Ashley, 7 992 F.3d at 136; see also Giannullo v. City of New York, 322 F.3d 139, 143 n.5 (2d Cir. 8 2003) (rejecting the contention “that if a defendant asserts in his Rule 56.1 9 statement a material fact on which his summary judgment motion depends but 10 supports it with a wholly unsupportive record citation, a plaintiff’s failure to 11 controvert the statement absolves the district court of [] checking whether the 12 citation supports the assertion”). 13 The absence of any evidence of the existence of a relevant court order creates 14 a genuine dispute of material fact and does not allow us to infer that Aponte’s 15 confinement was privileged. 6 While Aponte’s false imprisonment claim may, in

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1 the end, duplicate his due process claim, see Warren v. Pataki, 823 F.3d 125, 142 (2d 2 Cir. 2016), we conclude that the district court’s grant of summary judgment on the 3 basis of privilege, at this stage, was improper. 4 V. Compensatory Damages Relating to Post-Resentencing 5 Confinement 6 Finally, we consider Aponte’s claims arising from his post-resentencing 7 confinement. Aponte argues that the court’s purported June 20, 2008 order 8 sentencing him to PRS terms was unlawful because once his determinate term 9 expired—on June 6, 2008, at the very latest—the court could not properly impose 10 a new sentence of post-release supervision. See Williams, 925 N.E.2d at 889–90. He 11 therefore challenges his confinement pursuant to that unlawful sentence of post-12 release supervision.

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1 For the time in which Aponte was incarcerated for a violation of his 2 judicially imposed PRS—before Williams was decided—our decision in Hassell v. 3 Fischer directly precludes Aponte’s claims. 879 F.3d 41 (2d Cir. 2018). Like Aponte, 4 Hassell sought damages for the imposition of a PRS by a court after his 5 determinate sentence had expired. This Court affirmed the district court’s 6 dismissal of his claims on qualified immunity grounds, explaining that “[u]ntil the 7 2010 decision of the New York Court of Appeals in People v. Williams, it was not 8 clearly established that judicially imposed PRS upon released prisoners was 9 unlawful.” Id. at 50. 10 We today hold that qualified immunity also shields the appellees as to 11 Aponte’s challenge to the post-Williams time period in which he was incarcerated 12 for a violation of his judicially imposed PRS. As to this time period, our holding 13 in Hassell does not directly apply. The district court in the instant case, relying on 14 Hassell, appears to have held that after the Williams decision the appellees 15 necessarily had a qualified immunity defense to claims arising from Aponte’s 16 incarceration for violations of his judicially imposed PRS because they followed a

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1 valid court order. 7 If the district court held that the existence of such a court order 2 necessarily protected the appellees and gave rise to qualified immunity, the district 3 court erred. 4 Following orders, no matter how invalid they are on their face, cannot be an 5 absolute defense. Indeed, there are cases where simply following orders can be 6 criminal if the order is so obviously enough invalid or on its face so clearly 7 unconstitutional that any reasonable official would know the order contains 8 instructions that ought not be executed. See, e.g., United States v. Calley, 48 C.M.R. 9 19, 26–27 (C.M.A. 1973). Nor can we say that in every case the fact that there is a 10 subsequent cause makes the original cause irrelevant to the inquiry about an 11 official’s liability; that, too, depends on the circumstances. For these reasons, any 12 automatic application of qualified immunity to situations in which a prison official 13 executes a court order is error. That said, in the circumstances of this case, we 14 believe that a reasonable prison official might very well have properly followed 15 the court order. The applicable court order did not on its face “violate clearly 16 established statutory or constitutional rights of which a reasonable person would

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1 have known.” Mullenix v. Luna, 577 U.S. 7, 11 (2015). As a result, applying the 2 normal standards of qualified immunity to the circumstances before us, we hold 3 that the appellees’ actions in incarcerating Aponte pursuant to this specific court 4 order qualify as reasonable as a matter of law. See Hassell, 879 F.3d at 50. 8 5 CONCLUSION 6 We therefore hold that Aponte is entitled to a jury trial to establish the 7 availability of punitive damages arising from his illegal confinement pursuant to 8 the administratively imposed PRS.

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1 We also ask the district court to consider further whether compensatory 2 damages are still available to Aponte in light of Vincent, and if they are, to direct a 3 jury to determine the proper amount of such damages. 4 The district court erred in holding that Aponte’s illegal confinement 5 pursuant to the administratively imposed PRS was restricted to the period from 6 June 6, 2008 to June 20, 2008 because disputed issues of material fact precluded 7 summary judgment on his due process claim regarding the date on which his 8 determinate sentence ended and the date on which he was resentenced to PRS by 9 the state court. We remand to allow for further factual development and for the 10 district court (or a jury, if disputed facts remain) to determine the length of 11 Aponte’s illegal confinement. 12 We also conclude that the district court erred in granting summary 13 judgment for the appellees on Aponte’s false imprisonment claim with respect to 14 his confinement before resentencing.

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1 Finally, we hold that Aponte’s challenge to his post-resentencing 2 confinement is precluded by the appellees’ qualified immunity defense. 3 The judgment of the district court is therefore AFFIRMED in part and 4 VACATED in part, and the case is remanded for further proceedings consistent 5 with this opinion.

Footnotes

[1] The parties dispute the exact date of Aponte’s resentencing. See infra Section III.

[7] To the extent that Hassell can be read that way, it is only dicta. See 879 F.3d at 50.

[8] We reject Aponte’s suggestion that Hassell does not bar his claim for the appellees’ failure to release him “forthwith” following the court’s June 2008 sentencing order. Appellant’s Br. 28–29. The appellees point to record evidence that, following his resentencing, Aponte was transferred to a residential treatment facility where he lived for about one month as part of his post-release supervision pursuant to Penal Law § 70.45(3) (which authorizes a condition of PRS requiring transfer to a residential treatment for up to six months upon release from the term of imprisonment). Aponte does not argue that he could not have been transferred to a residential treatment facility for several months pursuant to a lawful court order for PRS; he argues simply that because the state court’s resentencing was unlawful, he could not be held in a residential treatment facility. This is no different from his challenge to subsequent periods of confinement resulting from the court-ordered PRS and fails for the same reasons. Our affirmance of the district court’s dismissal of Aponte’s claims arising from post- resentencing confinement resolves Aponte’s challenge to the district court’s dismissal of his claims against Andrea Evans, who was allegedly liable for her actions as Chair of Parole beginning in 2009. We likewise affirm the district court’s dismissal of Aponte’s claims against Glenn Goord, Lucien LeClaire, and George Alexander on the ground that Aponte produced no evidence of the requisite personal involvement with respect to Aponte’s unlawful confinement in 2008.