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Second Circuit Grants New York Officials Qualified Immunity for Prisoner’s Stolen Sentence Credits

by David M. Reutter

On October 12, 2023, the U.S. Court of Appeals for the Second Circuit affirmed the grant of summary judgment to Defendant officials with New York’s Department of Corrections and Community Supervision (DOCCS) in a state prisoner’s civil rights action. The Court recognized that Steven Bangs had a protected liberty interest in his expected merit-based release date. Nonetheless, the Court concluded that DOCCS officials were entitled to qualified immunity (QI) because Bangs’ rights were not clearly established at the time.

Bangs began serving an indeterminate three-to-six-year sentence for a non-violent offense on June 23, 2017, at Gowanda Correctional Facility (GCF). DOCCS then granted Bangs a merit-time allowance on August 5, 2018, based on “successful participation in six months of vocational programming and receipt of a vocational trade certificate, as well as his overall positive institutional record while incarcerated.” The state Board of Parole determined his minimum term of sentence would expire on September 16, 2019.

But he was issued a misbehavior report (MBR) on February 6, 2019, alleging that he handed a can of Spam to another prisoner and, after a guard confiscated it, demanded its return. The MBR charged him with creating a disturbance, refusing a direct order, harassing an employee and having an “unauthorized exchange,” none of which was one of the “serious disciplinary infractions” outlined in the merit-time allowance regulations. But he was sentenced to 30 days in “keep-lock” confinement, allegedly locked in his cell for 23 hours per day. That kept him from attending a pre-high school equivalency class in which he was enrolled. So instead, he requested and was permitted to participate in a cell-study program.

But on February 14, 2019, while Bangs was still in keep-lock confinement, Mark Adams, a Supervising Offender Rehabilitation Coordinator (SORC) at GCF, ordered that Bangs’ merit-time allowance be revoked for failure to stay enrolled in the class. GCF Superintendent Susan Kickbush issued a notice that formalized the revocation on February 21, 2019. Kelly R. Vannote, another SORC at the prison, then notified the Parole Board of the suspension and requested that the release decision be rescinded. On March 5, 2019, Parole Board Commissioner Walter W. Smith, Jr. ordered the rescission.

Bangs then commenced an Article 78 proceeding against DOCCS and the Parole Board in state Supreme Court on May 31, 2019, seeking reinstatement of his open date for parole release—which had been March 13, 2019—and immediate release to parole. He alleged that Parole Board regulations had been violated when his release date was rescinded without a hearing. DOCCS subsequently restored Bangs’ merit-time allowance and released him to parole on July 1, 2019. The parties then agreed to discontinue the state-court proceeding.

Bangs then brought suit pursuant to 42 U.S.C. § 1983 in July 2021 in U.S. District Court for Western District of New York against Smith, Kickbush, Vannote, and Adams in their individual capacities, seeking declaratory and monetary relief for 110 days of wrongfully prolonged incarceration due to rescission of his merit-based parole release date without notice and a hearing. The district court granted Defendants QI, and Bangs appealed.

The Second Circuit agreed “that Bangs had a liberty interest in his early release” once it was granted by the Parole Board. However, it “declined to specify what protections are constitutionally due” because on the threshold point of QI, it upheld the grant to Defendants.

Smith had discretion to award merit time, the Court said, and that award “becomes ‘final’ once granted and may be revoked only if an inmate either (1) ‘commits a serious disciplinary infraction,’ a term defined to refer to behavior resulting in criminal or specified disciplinary sanctions, or (2) ‘fails to continue to perform and pursue his or her assigned program plan or earned eligibility plan.’”

But the regulatory scheme at issue here, found in 7 N.Y.C.R.R. §§ 280.2(b), 280.4(b)(2), 280.4(b)(4), allows revocation in a broader set of circumstances, the Court said, than that in Wolff v. McDonnell, 418 U.S. 539 (1974) and Sandin v. Conner, 472 U.S. 515 (1995)—including a prisoner’s failure “to perform and pursue his or her assigned program plan or earned eligibility plan.”

Furthermore, the process due for such a revocation was not established at the time. New York courts had a case before them to resolve that issue at the time of the Second Circuit’s ruling, however, so it didn’t wade into those waters but merely affirmed the district court’s order. Before the Court, Bangs was represented by attorney Andrew Stecker with Prisoner’s Legal Services of New York. See: Bangs v. Smith, 84 F.4th 87 (2d Cir. 2023).  

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Related legal case

Bangs v. Smith