Steven Bangs v. Walter William Smith

22-1353
Steven Bangs v. Walter William Smith, et al.


                           UNITED STATES COURT OF APPEALS
                               FOR THE SECOND CIRCUIT

                                           August Term 2022

                (Argued: May 10, 2023                         Decided: October 12, 2023)

                                                  No. 22-1353

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

                                                STEVEN BANGS

                                               Plaintiff-Appellant,

                                                       -v.-

WALTER WILLIAM SMITH, Commissioner of the New York State Board of Parole,
   in his individual capacity; SUSAN KICKBUSH, Superintendent of Gowanda
Correctional Facility, in her individual capacity; KELLY R. VANNOTE, Supervising
Offender Rehabilitation Coordinator, in her individual capacity; MARK ADAMS,
 Supervising Offender Rehabilitation Coordinator, in his individual capacity,

                                          Defendants-Appellees.

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

Before:          LIVINGSTON, Chief Judge, and RAGGI and NARDINI, Circuit Judges.

      This case concerns New York’s merit time allowance system, pursuant to
which prisoners serving indeterminate sentences for certain non-violent offenses
can earn “merit time allowances” to reduce their minimum sentences by one-sixth.
See 

(1). Once prison staff grant a merit time allowance, the


                                                        1
grantee is eligible to appear before the Board of Parole to be considered for
discretionary release on the merit eligibility date, which is equal to the expiration
of five-sixths of the minimum sentence of incarceration. Plaintiff-Appellant
Steven Bangs alleges that Defendants-Appellees, New York prison officials,
revoked his merit time allowance and rescinded his merit-based parole release
date without a hearing in violation of his procedural due process rights. Bangs
appeals from a judgment of the United States District Court for the Western
District of New York (Geraci, J.) dismissing his complaint on the grounds that
Defendants-Appellees were entitled to qualified immunity.                Though we
recognize that Bangs had a protected liberty interest in his expected merit-based
release date, we nonetheless conclude that Defendants-Appellees are entitled to
qualified immunity because Bangs’s rights were not clearly established at the time
of the prison officials’ conduct. Accordingly, the judgment of the district court is
AFFIRMED.

FOR PLAINTIFF-APPELLANT:               ANDREW STECKER, Prisoners’ Legal Services
                                       of New York, Buffalo, NY.

FOR DEFENDANTS-APPELLEES:              FRANK BRADY, Assistant Solicitor General
                                       (Barbara D. Underwood, Solicitor General;
                                       Jeffrey W. Lang, Deputy Solicitor General,
                                       on the brief), for Letitia James, Attorney
                                       General for the State of New York, Albany,
                                       NY.

DEBRA ANN LIVINGSTON, Chief Judge:

      This case concerns New York’s merit time allowance system, pursuant to

which prisoners serving indeterminate sentences for certain non-violent offenses

can earn “merit time allowances” to reduce their minimum sentences by one-sixth.

See 

(1). Once prison staff grant a merit time allowance, the

grantee is eligible to appear before the New York Board of Parole (the “Parole


                                         2
Board”) to be considered for discretionary release on the merit eligibility date,

which is equal to the expiration of five-sixths of the minimum sentence of

incarceration.    Plaintiff-Appellant Steven Bangs alleges that Defendants-

Appellees (“Defendants”), New York prison officials, revoked his merit time

allowance and rescinded his merit-based parole release date without a hearing in

violation of his procedural due process rights.

      Bangs appeals from a judgment of the United States District Court for the

Western District of New York (Frank P. Geraci, Judge) dismissing his complaint on

the grounds that Defendants were entitled to qualified immunity because Bangs’s

rights in this context were not clearly established.   Though we recognize that

Bangs had a protected liberty interest in his expected release date once it was

granted by the Parole Board, we nevertheless conclude that Defendants are

entitled to qualified immunity because Bangs’s rights were not clearly established

at the time of the prison officials’ conduct. In particular, we hold that, although

our prior decision in Victory v. Pataki recognized the due process rights of parole

grantees in New York’s state prisons, see 

 (2d Cir. 2016), legal

uncertainties introduced by the revocation of Bangs’s merit time allowance—an

issue this Court has not previously addressed—render qualified immunity



                                         3
appropriate under the circumstances of this case.      Accordingly, we affirm the

judgment of the district court.

                                  BACKGROUND

                             I.   Factual Background

        We first explain the operation of the merit time allowance system under

New York law, and then describe the allegations in Bangs’s complaint, which we

accept as true in considering Defendants’ motion to dismiss.

                  A. New York’s Merit Time Allowance System

        Depending on the nature of the offense, an individual convicted of a crime

under New York law may be sentenced to an “indeterminate” term of

imprisonment.      An indeterminate sentence of imprisonment consists of a

“minimum period of imprisonment” and a “maximum term.” 

(1); see N.Y. PRACTICE, CRIMINAL LAW § 3:3 (4th ed.) (internal quotation

marks omitted).        Once a prisoner reaches the minimum term of his

imprisonment, he may be “paroled from the institution” at the discretion of the

Parole Board, 

(1), which is part of the Department of

Corrections and Community Supervision (“DOCCS”), see 

-

b(1).   That discretion is guided by the Parole Board’s regulations.    Prior to a



                                         4
prisoner’s minimum term, the Parole Board conducts an interview and makes a

decision regarding release.     See 9 N.Y.C.R.R. §§ 8002.1, 8002.2.     If the Parole

Board decides to grant parole release, a parole release date—referred to as an

“open release date” or “open date”—is set. See Victory, 

 n.4. 1

      Before a prisoner is released on parole, the Parole Board may, in certain

limited circumstances, reconsider its determination and rescind the prisoner’s

open date. See 9 N.Y.C.R.R. § 8002.5. The process for reconsidering a prisoner’s

planned release begins when it “come[s] to the attention of the senior parole officer

or the parole officer in charge of an institutional parole office that there may be a

basis for board reconsideration of a parole release date.” Id. § 8002.5(b)(1). The

parole officer may temporarily suspend the prisoner’s release date at that time,

notify the prisoner of the suspension, and begin investigating the matter. Id. §

8002.5(b)(1), (b)(3).   Ultimately, the officer must prepare a “rescission report”

detailing the investigation, which is then submitted to a member of the Parole

Board. Id. § 8002.5(b)(3). In most cases, the Parole Board member must either




      1  The “open date” is the earliest date the prisoner may be released, though the
release remains contingent on the approval of a supervision plan, which includes
residence verification and employment confirmation. See Appellees’ Br. at 7.


                                          5
hold a rescission hearing or reinstate the parole release date. Id. § 8002.5(b)(4)(i)–

(ii).

        If a rescission hearing is to be held, the prisoner is entitled to a full

complement of procedural protections, including notice, a right to counsel, a right

to present evidence, a right to confront and cross-examine witnesses, a right to a

written statement of the disposition, and a right to an administrative appeal. Id.

§§ 8002.5(b)(5), (d)(3), (e). At the conclusion of the hearing, the Parole Board may

rescind parole only when doing so is justified by “substantial evidence of

significant information not previously known by the [Parole] Board.”           Victory,

 (quoting Diaz v. Evans, 

, 225 (3d Dep’t 2011)); accord

9 N.Y.C.R.R. § 8002.5(b)(2)(i).     If the Parole Board does not find a basis for

rescission, the suspension must be cancelled and the release date reinstated. See

9 N.Y.C.R.R. § 8002.5(d)(2).

        Under the regulations, there is only one circumstance in which the Parole

Board may rescind the prisoner’s parole release date without a hearing—namely,

if the prisoner has incurred a new indeterminate sentence or received a resentence

that extends the minimum term of imprisonment beyond the “pre-existing

minimum term.”       Id. § 8002.5(b)(2)(ii)(e), (b)(4)(iii).   In that case, the Parole



                                           6
Board must rescind the parole release date and send a written notice to the

prisoner.   Id. § 8002.5(b)(4)(iii).

      Although the Parole Board has significant authority to decide whether an

eligible prisoner may be released on parole, it does not have the authority to decide

when a prisoner becomes eligible for parole consideration. In the first instance,

that authority rests with the sentencing court, which, in setting the prisoner’s

minimum term, also sets his or her parole eligibility release date. See 

(1), 70.40(1)(a)(i). But that minimum term is not immutable. New

York state law provides several avenues for prisoners to receive “time allowances”

that—in the cases of an indeterminate sentence—reduce either the prisoner’s

maximum or minimum term. 

(1)(a).

      At issue in this case is the “merit time allowance,” which generally reduces

a prisoner’s minimum term by one-sixth. 

 § 803(1)(d)(i). Prisoners “serving

sentences for certain nonviolent crimes may receive merit time allowances” if they

“have achieved certain significant programmatic objectives, have not committed

any serious disciplinary infractions[,] and have not filed any frivolous lawsuits.”

7 N.Y.C.R.R. § 280.1. The merit time allowance is treated as “a privilege” under

state law and, accordingly, no prisoner “has the right to demand or require that



                                         7
any such allowance be granted.” Id. The DOCCS Commissioner is vested with

the authority to promulgate “rules and regulations” governing “the granting,

withholding, forfeiture, cancellation and restoration of allowances,” including

merit time allowances. 

(3). And in accordance with these

regulations, the decision of the Commissioner or his designee to grant a merit

allowance is “final.”   7 N.Y.C.R.R. § 280.4(b)(2).    However, the regulations

further provide that a “merit time allowance [previously granted] may be revoked

at any time prior to an inmate’s release on parole if the inmate commits a serious

disciplinary infraction or fails to continue to perform and pursue his or her

assigned program plan or earned eligibility plan.” Id. § 280.4(b)(4).

      The regulations do not set forth any specific procedures for challenging the

revocation of a merit time allowance. However, as New York state courts have

recognized, a prisoner may challenge a revocation using the general inmate

grievance process and then seek judicial review in a New York State Article 78

Proceeding. See Beaubrun v. Annucci, 

 (3d Dep’t 2016).

                             B. Bangs’s Complaint

      Bangs began serving an indeterminate prison sentence of three to six years

for a non-violent offense on June 23, 2017, at Gowanda Correctional Facility. His



                                        8
parole eligibility release date, on which the minimum term of his sentence would

expire, was calculated to be September 16, 2019.       On August 5, 2018, prison

officials granted Bangs a merit time allowance based on his “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.”   Joint Appendix (“App’x”) 10.       Bangs interviewed before the

Parole Board and was granted an open date for release to parole supervision on

his merit eligibility date of March 13, 2019. The parole release decision that Bangs

received included the warning that his release date was “not guaranteed” and a

serious disciplinary report or multiple minor disciplinary reports could result in a

rescission hearing in which the Parole Board would determine whether to rescind

his release date. 

 at 10–11.

      On February 6, 2019, Bangs was issued an inmate misbehavior report

(“MBR”) alleging that he handed a can of Spam to another inmate and demanded

that it be returned after a corrections officer confiscated it. The MBR charged him

with creating a disturbance, refusing a direct order, harassing an employee, and

an unauthorized exchange, none of which are “serious disciplinary infractions”

under the merit time allowance regulations. Id. at 11. A hearing officer held a



                                         9
Tier II disciplinary hearing, found Bangs guilty of the MBR charges, and sentenced

him to 30 days in “keeplock” confinement, during which time he was allegedly

locked in his cell for 23 hours per day. Id. at 12. As a result of his keeplock

status, Bangs was not allowed to attend the pre-high school equivalency class in

which he was enrolled. He requested and was permitted instead to participate

in a cell study program to continue his coursework.

      Shortly after his disciplinary hearing, Defendants-Appellees began a

procedure to rescind Bangs’s early release date. Specifically, Bangs alleges that

on February 14, 2019, while Bangs was still in keeplock confinement, Defendant-

Appellee Mark Adams, a supervising offender rehabilitation coordinator at

Gowanda Correctional Facility, ordered that Bangs’s merit time allowance be

revoked.   On the same day, Defendant-Appellee Kelly R. Vannote, another

supervising offender rehabilitation coordinator at Gowanda Correctional Facility,

completed a temporary suspension of parole release form that stated Bangs was

“[r]emoved from a required Academic Program due to [keeplock] status for a Tier

2 infraction” and was therefore “not in compliance” with his earned eligibility

program. Id. at 13. She then notified the Parole Board of the suspension and

requested that the release decision be rescinded. Subsequently, on February 21,



                                       10
2019, Defendant-Appellee Susan Kickbush, the superintendent of Gowanda

Correctional Facility, issued a notice that stated Bangs’s merit time allowance was

revoked due to “poor institutional behavior as it has impacted on [his] progress

and participation and/or that of other inmates in programs.” Id. at 14.

         On March 5, 2019, Defendant-Appellee Walter William Smith, Jr., a

commissioner of the Parole Board, signed a form ordering the rescission of Bangs’s

parole release date.      Smith checked a box on the rescission form that

(inaccurately) stated: “Release rescinded based upon imposition of a new

indeterminate sentence(s) or determinate sentence(s), re-release on original

indictment, or recalculation of the minimum period of imprisonment where the

parole eligibility date of the term exceeds that of the pre-existing minimum.” Id.

at 14.    Underneath this printed text, Smith handwrote: “merit certificate was

taken back due to discipline.” Id. Bangs alleges that he later received a revised

copy of his parole release decision that stated: “On 3/5/19 at a rescission hearing

held at the Buffalo area office of the NYS Parole Board, Commissioner Smith made

the following decision: merit certificate was taken back due to discipline.”   Id. at

15. Bangs alleges that no such hearing took place on March 5, 2019, “or on any




                                        11
other date,” and that he was never given notice of the specific allegations to be

considered as a basis for rescission. Id.

      Bangs appealed to the Parole Board’s Appeals Unit on March 17, 2019, and

was notified that his appeal had been administratively closed because, according

to the Parole Board’s records, Bangs had received an open release date following

his October 2018 parole interview.

      In accordance with the ordinary process in the absence of a merit time

allowance, Bangs interviewed with the Parole Board again on April 30, 2019 and

was granted an open date for parole release on September 16, 2019, the expiration

of his minimum sentence.     On May 31, 2019, Bangs commenced an Article 78

proceeding against DOCCS and the Parole Board in New York State Supreme

Court, seeking the reinstatement of his March 13, 2019 open date for parole release

and immediate release to parole. He “alleged that the suspension and rescission

of his merit parole release date without following the parole rescission procedure

and holding a parole rescission hearing violated the regulations of the Board of

Parole and DOCCS.”      Id. at 16.   DOCCS subsequently restored Bangs’s merit

time allowance and released him to parole on July 1, 2019.       The parties then

agreed to discontinue the state court proceeding.



                                        12
                          II.   History of the Proceedings

      On July 7, 2021, Bangs brought a § 1983 action in the Western District of New

York against Smith, Kickbush, Vannote, and Adams in their individual capacities,

seeking declaratory and monetary relief for his alleged 110 days of wrongfully

prolonged incarceration due to the rescission of his merit-based parole release date

without notice and a hearing.       Defendants moved to dismiss the complaint

pursuant to Federal Rule of Civil Procedure 12(b)(6).

      In a May 26, 2022 decision, the district court granted Defendants’ motion to

dismiss, holding that Defendants were entitled to qualified immunity because

Bangs’s liberty interest in his release date had not been clearly established. Citing

this Court’s decision in Victory, 

, the district court concluded that

“Plaintiff possessed a liberty interest in his merit time release date once the parole

board granted him parole after the October 2018 hearing” and “could not be

deprived of that interest without due process.”      Bangs v. Smith, No. 21-cv-6475,

, at *5 (W.D.N.Y. May 26, 2022). However, relying on a recent

decision of New York’s Fourth Department, Lown v. Annucci, 

 (4th

Dep’t 2020), the district court concluded that “Plaintiff’s release on parole was

barred by operation of law due to the revocation of his merit time allowance.”     

                                         13
at 27.    Thus, the court reasoned that regardless of whether Bangs received a

hearing, the “postponement of his parole was an inevitability” because “[e]ven if

the commissioner’s revocation [of the merit time allowance] were wrong or

unlawful, the parole board did not have any authority to review it, let alone

overturn it.”    

.   Regarding the revocation of the merit time allowance

itself, the district court concluded that no binding precedent had established an

inmate’s liberty interest in merit time allowances under New York law. See 

 at

*7–*9.     Thus, the district court dismissed the complaint on the grounds that

Defendants were entitled to qualified immunity.        See 

.   This appeal

followed.

                                    DISCUSSION

         We review de novo a dismissal of a complaint under Federal Rule of Civil

Procedure 12(b)(6), “accepting all factual allegations in the complaint as true and

drawing all reasonable inferences in the plaintiff’s favor.” Tongue v. Sanofi, 

 (2d Cir. 2016) (citation omitted).        Because Bangs has sued

Defendants “under 

 for actions taken in the course of their official

duties, his lawsuit must overcome the qualified immunity that shields executive

officials from such liability.” Francis v. Fiacco, 

, 139 (2d Cir. 2019).



                                          14
Like other affirmative defenses, official immunity may be resolved by Rule

12(b)(6) when the facts establishing it are apparent on the face of the complaint.

See Liberian Cmty. Ass’n of Conn. v. Lamont, 

, 186 (2d Cir. 2020).

                                            I

      “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.’”              Francis, 942 F.3d at 139

(quoting Harlow v. Fitzgerald, 

 (1982)). 2 In evaluating a claim of

qualified immunity, we determine whether any constitutional right that the

defendant allegedly violated “was clearly established at the time of the alleged

violation.” Wilson v. Layne, 

 (1999) (quoting Conn v. Gabbert, 

 (1999)). A right is “clearly established if the contours of the right are

sufficiently clear that a reasonable official would understand that what [they are]

doing violates that right.” McKinney v. City of Middletown, 

, 738 (2d



      2  In addition to monetary damages, Bangs seeks declaratory relief, which qualified
immunity does not bar. See Sudler v. City of New York, 

 (2d Cir. 2012).
However, because “[a] declaratory judgment in [Bangs’s] favor would not shorten [his]
term of imprisonment, since [he has] already been released from prison,” his claim for
declaratory judgment is moot. 

 at 177–78.


                                           15
Cir. 2022) (internal quotation marks and brackets omitted) (quoting Taravella v.

Town of Wolcott, 

 (2d Cir. 2010)). This does not mean that “an

official action is protected by qualified immunity unless the very action in question

has previously been held unlawful, but it is to say that in the light of pre-existing

law the unlawfulness must be apparent.” Anderson v. Creighton, 

(1987) (internal citation omitted); see also White v. Pauly, 

, 79 (2017)

(explaining that for a right to be clearly established “existing precedent must have

placed the statutory or constitutional question beyond debate” (citation omitted)).

For purposes of qualified immunity, “[w]hether the law was sufficiently clearly

established is . . . an issue of law that we consider de novo.” Outlaw v. City of

Hartford, 

 (2d Cir. 2018).

      The Supreme Court once “instructed courts to conduct a qualified immunity

inquiry sequentially, first deciding whether the plaintiff has complained of the

violation of a right guaranteed by the Constitution or federal law, and only then

assessing whether the right was sufficiently clearly established at the time of the

official’s actions.” DiStiso v. Cook, 

 (2d Cir. 2012). But after this

“‘rigid order of battle’ . . . encountered widespread criticism,” the Supreme Court

changed course and instead held that “lower courts should ‘exercise their sound



                                          16
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.’” Francis, 942 F.3d at 140 (quoting Pearson v. Callahan, 

(2009)).

       Accordingly, we now have the option of “proceed[ing] directly to step two

of the analysis, and, [when we] find that qualified immunity applies, avoid[ing]

the unnecessary litigation of constitutional issues at step one.”            

 (internal

quotation marks and brackets omitted). Nevertheless, in circumstances that may

occur repeatedly but are likely to never “arise in a case in which qualified

immunity is unavailable,” we may choose to address the merits and thus bring

clarity to the law. Sabir v. Williams, 

, 58 n.3 (2d Cir. 2022), cert. dismissed,

 (2023). Bangs suggests that this is such a case, noting that, because

merit time allowances “are only available against sentences for non-violent

felonies, which carry relatively shorter sentences, an individual whose previously

granted merit parole release date is rescinded will typically be released from

custody before a claim for injunctive relief could be litigated to judgment in federal

court.” Appellant’s Reply Br. at 4.




                                            17
      Though we are cognizant of this concern, finding qualified immunity

applies, we ultimately do not fully resolve the merits of Bangs’s claim.

Specifically, though we recognize that Bangs had a liberty interest in his early

release once he was granted an open release date by the Parole Board, we decline

to specify what protections are constitutionally due.     As we discuss in the

following section, there are open questions of New York law regarding what

procedural protections Bangs should have been provided before his early release

date was rescinded.     Because the resolution of these questions may render

unnecessary any articulation of a constitutionally required minimum, we reserve

the issue for another day.

                                       II

      Bangs alleges that Defendants violated his rights under the Due Process

Clause of the Fourteenth Amendment by rescinding his early parole date without

a hearing. The Due Process Clause prohibits the states from “depriv[ing] any

person of life, liberty, or property, without due process of law.” U.S. CONST.

amend. XIV, § 1. We “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



                                       18
attendant upon that deprivation were constitutionally sufficient.”      Francis, 942

F.3d at 141 (quoting Ky. Dep’t of Corr. v. Thompson, 

 (1989)).

Qualified immunity may operate at either of these steps to bar relief—that is, a

plaintiff’s damages claim will be dismissed if either his possession of a

constitutionally protected interest or his entitlement to greater procedural

protections were not “clearly established . . . at the time when the [defendants]

engaged in the course of conduct at issue.” Id. at 149 (internal quotation marks

omitted).

      We begin with the first step—identifying whether Bangs has plausibly

alleged a liberty interest that Defendants have infringed. “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, 

 (2005) (internal citation omitted).

The Supreme Court has made clear that “[t]here is no right under the Federal

Constitution to be conditionally released before the expiration of a valid sentence,

and the States are under no duty to offer parole to their prisoners.” Swarthout v.

Cooke, 

, 220 (2011) (per curiam). Accordingly, any “liberty interest in




                                         19
parole,” to the extent one exists, falls into the second category. Graziano v. Pataki,

 (2d Cir. 2012) (per curiam) (internal quotation marks omitted).

         Specifically, we have held that a prisoner’s interest in parole is protected by

the Due Process Clause only where the state has “establish[ed] ‘substantive

predicates’ to govern official decision[-]making,” Rodriguez v. McLoughlin, 

 (2d Cir. 2000) (citation omitted), such that the prisoner can be said to “have

a legitimate expectancy of release that is grounded in the state’s statutory scheme.”

Graziano, 

 (quoting Barna v. Travis, 

 (2d Cir. 2001)

(per curiam)). In any given case, determining whether a prisoner’s “expectancy

of release” is sufficient for the prisoner to be “entitled to some measure of

constitutional protection” will depend on the “unique structure and language” of

the relevant statutory and regulatory regime, generally to “be decided on a case-

by-case basis.” Greenholtz v. Inmates of Neb. Penal & Corr. Complex, 

(1979)

         This Court first addressed the liberty interests of parole grantees in Drayton

v. McCall, 

 (2d Cir. 1978).         In that case, we held that “a federal

prisoner whose date of parole has been approved but who has not yet been

released from prison” possesses a “justifiable expectation in his freedom” that



                                            20
entitles him to due process before parole can be rescinded. 

. Our

conclusion rested on the fact that, though the U.S. Parole Commission retained the

authority to rescind parole, “[a]ccording to the [Parole] Commission’s own

regulations,” it could only do so “under two narrowly circumscribed conditions,”

that is, (1) “when the grantee has been found guilty of institutional misconduct,”

or (2) “when new information adverse to the prisoner and unrelated to prison

misconduct is discovered.” 

 (citations omitted). Noting that in both

cases “the regulations require[d] compliance with a detailed procedural scheme

before the Parole Commission [could] order rescission,” we held that these

limitations sufficiently limited the Parole Commission’s discretion to give rise to a

“protected liberty interest.” 

 at 1215–17.

      Nearly a decade later, this Court reaffirmed Drayton’s holding in Green v.

McCall, 

 (2d Cir. 1987), another case involving the rights of federal

parole grantees.   There we rejected the argument that Drayton was effectively

overruled by the Supreme Court’s subsequent decision in Greenholtz, which held

that Nebraska prisoners who had not yet been granted parole release dates

possessed only a limited liberty interest in being paroled.       See 

 at 287–89

(discussing Greenholtz, 

).     Explaining that Greenholtz recognized a



                                         21
distinction between a regulatory scheme that creates only the possibility that

parole will be granted and one that affirmatively promises that parole will be

extended in the absence of prohibitive findings or circumstances, we concluded

that federal parole grantees maintained a sufficiently “concrete[] . . . liberty

expectation” so as to support a constitutionally protected due process right. Id.

at 289; see Greenholtz, 

 (“The differences between an initial grant of

parole and the revocation of the conditional liberty of the parolee are well

recognized.”). In so doing, we noted that though “the regulations in effect when

Drayton was decided have since been modified, the pertinent changes have not

been substantial,” and still required a showing of either misconduct or significant

new information. Green, 822 F.2d at 287–88.

      In Victory, we returned once again to the liberty interests of parole grantees,

this time addressing grantees who—like Bangs—are in New York’s state prison

system. Applying our decision in Green, we held that New York’s parole system

similarly provided those granted future parole dates a “legitimate expectancy of

release” entitling them to due process. Victory, 

 (quoting Graziano,

). In reaching that decision, we relied on the fact that, “[a]lthough

the Board of Parole retains ‘broad discretion’ to rescind a grant of parole, that



                                         22
discretion is limited [under the relevant regulatory regime] by ‘the requirement

that there be substantial evidence of significant information not previously known

by the Board.’” 

 at 61 (quoting Diaz, 935 N.Y.S.2d at 225). Concluding that

this limitation was not “meaningfully different from those at issue in Green,” we

held that Victory was constitutionally entitled to due process in connection with

the rescission of his parole. Id. at 62.

      By its own terms, Victory would seem to make clear that Bangs, as a parole

grantee, possessed a liberty interest in his open release date.       Indeed, the

regulations governing the Parole Board’s authority to rescind a release date once

granted draw no distinction between the rights of a prisoner granted a release date

pursuant to a merit time allowance and those of any other parole grantee. See 9

N.Y.C.R.R. § 8002.5.      Nevertheless, that Bangs’s merit time allowance was

revoked subsequent to his receipt of the open release date but prior to his actual

release gives rise to a complication this Court has not previously addressed. In

particular, Defendants argue that the revocation of an inmate’s merit time

allowance renders him ineligible for parole prior to the expiration of his minimum

sentence, even if the Parole Board previously granted him an earlier release date.

Appellees’ Br. at 35–38. In support of this proposition, Defendants rely on the



                                           23
Fourth Department’s decision in Lown, which held that maintaining the merit time

allowance was a “statutory and regulatory predicate” to early parole release and

thus its revocation gave the Parole Board no choice but to rescind the previously

granted open release date, “thereby obviating any need for an evidentiary

rescission hearing.” 123 N.Y.S.3d at 780–83.

      In our view, it is not obvious that the Fourth Department’s assessment is

correct. The relevant regulations explicitly mandate that, except in the case of the

imposition of a new sentence by a criminal court, a parole release date may only

be rescinded upon a determination by the Parole Board that the rescission is

appropriate. See 9 N.Y.C.R.R. § 8002.5(b)(4). Indeed, the New York State Court

of Appeals has held that even when a grant of parole release is subsequently

discovered to have been based on an erroneous computation of the prisoner’s

parole eligibility date, the Parole Board is vested with final authority to determine

whether to rescind or modify its prior parole decision in response. See Spinks v.

Harris, 

 (1981); accord Mirra v. Smith, 

 (4th

Dep’t 1981) (same). As such, while it is true that New York law makes eligibility

for early parole release contingent on a merit time allowance having been

“granted,” 

(1)(a)(i), it does not necessarily follow that the



                                         24
revocation of a previously granted allowance renders invalid the Parole Board’s

prior decision.

      Were revocation not to have this invalidating effect, it would be clear that

Bangs, as a parole grantee, was similarly situated to the plaintiff in Victory and

thus in possession of a “protectable liberty interest.”    

 (internal

quotation marks omitted). But given the present legal uncertainty, we cannot at

this time say that “every reasonable official would interpret” the relevant

regulatory framework in this manner. District of Columbia v. Wesby, 

,

63 (2018); cf. Windsor v. United States, 

 (2d Cir. 2012) (“[A]n

intermediate appellate state court is a datum for ascertaining state law which is

not to be disregarded by a federal court unless it is convinced by other persuasive

data that the highest court of the state would decide otherwise.” (citation

omitted)), aff’d, 

 (2013). Accordingly, we adopt the assumption that

the Parole Board was statutorily required to rescind Bangs’s release date once his

merit time allowance was revoked, and consider whether Bangs could nonetheless

be said to possess a clearly established, constitutionally protected interest in his

early release.




                                        25
      To answer this question, we must ask, as we have when previously

addressing the due process rights of parole grantees, whether “[t]he regulatory

structure . . . justifies the parole grantee’s expectation of future liberty” by

sufficiently limiting the authority of the relevant officials “to rescind a parole

grant.”   Drayton v. McCall, 

 (2d Cir. 1978). 3             Given our

assumption that rescission necessarily follows revocation of a merit time

allowance, the locus of our inquiry is the regulations, promulgated pursuant to

(3), that govern such a revocation.                Turning to those

regulations, though they vest the DOCCS Commissioner with significant

discretion in deciding whether to grant a merit time allowance, they also provide

that an allowance 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.” 7 N.Y.C.R.R. §§ 280.2(b), 280.4(b)(2), 280.4(b)(4). Both



      3   As we explained in Victory, “[c]onsistent with the Supreme Court’s guidance in
Sandin v. Conner, our inquiry does not hinge on ‘the search for a negative implication from
mandatory language in prisoner regulations.’” 

 n. 8 (quoting 

 (1995)). Instead, we focus on whether the “deprivation involved . . . a state-created
right of ‘real substance.’” 

 (quoting Wolff v. McDonnell, 

 (1974)).


                                            26
of these criteria are narrowly drawn, substantially limiting the discretion of the

DOCCS Commissioner or his designee to revoke an allowance once issued.

      Considering these conditions of revocation alongside the parole rescission

standards at issue in Green and Victory, it seems fair to say that Bangs had a

“legitimate expectancy of release” no less substantial than the parole grantees in

those cases.     Graziano, 

.     The revocation criteria are more

restrictive than the relatively opened-ended standards we have previously

addressed in the parole rescission context—both of which permitted rescission on

the basis of essentially any “new and significant adverse information.” Green, 

; see also Victory, 

. In fact, Defendants concede as much,

acknowledging in their brief that “[Bangs] has plausibly alleged that he ha[d] a

liberty interest in his merit time allowance after the [Parole] Board . . . granted a

release date.”     Appellees’ Br. at 2.    Nonetheless, they argue that qualified

immunity bars Bangs’s claim for monetary relief for the reason that neither this

liberty interest nor the constitutional minimum procedure attendant upon its

deprivation are clearly established under existing law. Though the question is

close, we agree.




                                          27
      Although both Green and Victory involved substantive restrictions on the

relevant parole authority’s discretion that are facially less limiting than those

governing the DOCCS Commissioner’s revocation decision, the parole rescission

regulations in those cases required something the revocation regulations at issue

here do not—a formal evidentiary hearing.             In particular, in Victory, we

emphasized that “New York regulations provide robust procedural protections

‘[a]fter an inmate has received a parole release date’” and require that a “majority

of the members of the [Parole Board] . . . are . . . satisfied that substantial evidence

exists to form a basis for rescinding the grant of release.”        814 F.3d at 61–62

(quoting 9 N.Y.C.R.R. § 8002.5).      And, while Green itself did not discuss the

procedural protections afforded in a rescission hearing for federal parole grantees,

our opinion in Drayton emphasized the “detailed procedural scheme” with which

the Parole Commission was required to comply. 

.

      The significance of these procedural safeguards should not be overstated.

It is the “substantive limits on the authority of state officials,” not the “procedural

requirements,” that “ground[]” a liberty interest. BAM Hist. Dist. Ass’n v. Koch,

 (2d Cir. 1983) (quoting Cofone v. Manson, 

 (2d

Cir.1979)); cf. Olim v. Wakinekona, 

, 250 n.12 (1983) (“[A]n expectation



                                          28
of receiving process is not, without more, a liberty interest protected by the Due

Process Clause.”).    That said, state law mandating “procedure may [in certain

circumstances] provide significant reasons to infer an articulable [liberty] right

meant to be protected.” Town of Castle Rock v. Gonzales, 

 (2005)

(Souter, J., concurring). Consistent with that caveat, in both Victory and Drayton,

we suggested that we viewed the respective state and federal regulations’ formal

hearing requirements as indicative of “the objective nature of the findings that

must be made before” parole could be rescinded. Victory, 

 (quoting

Green, 

); see also Drayton, 

.

      The regulatory scheme at issue here lacks this particular indicium of

objectivity as it does not provide for any pre-deprivation process for challenging

the revocation of a merit time allowance. And while we believe it clear on their

face that the revocation regulations require the DOCCS Commissioner to make an

“essentially fact-bound” determination, rather than a “subjective appraisal[],”

Green, 

 (citations omitted), to conclude otherwise—particularly in

light of the broad discretion over merit time allowances with which the statutory

regime as a whole endows the DOCCS Commissioner—falls within the scope of

the “breathing room” qualified immunity “gives government officials . . . to make



                                          29
reasonable but mistaken judgments about open legal questions,” Francis, 942 F.3d

at 146 (quoting Ashcroft v. al-Kidd, 

, 743 (2011)). Given that qualified

immunity “protects all but the plainly incompetent or those who knowingly

violate the law,” id. (quoting al-Kidd, 563 U.S. at 743), it follows that Defendants

are entitled to its protection here.

      For similar reasons, we do not agree with Bangs’s argument that his liberty

interest in maintaining his merit time allowance as a parole grantee was clearly

established by the Supreme Court’s decision in Wolff v. McDonnell, which

recognized a protected liberty interest in an inmate’s “good time” credits.     

 (1974). Under the statutory scheme at issue in that case, prisoners

received sentence reduction credits for good behavior that, once issued, “were

revocable only if the prisoner was guilty of serious misconduct.” Sandin, 

 (citing Wolff, 

). In contrast, the regulatory scheme at issue

here allows revocation in a broader set of circumstance—including whenever an

inmate “fails to continue to perform and pursue his or her assigned program plan

or earned eligibility plan,” 7 N.Y.C.R.R. § 280.4(b)(4)—thus providing greater

discretion to the relevant authority.




                                        30
      Qualified immunity is often appropriate when we are asked to extend

decisions that “have not set forth clearly-defined standards” and instead have

inaugurated doctrinal lineages in which “the cases have proceeded on a case-by-

case basis.” Luna v. Pico, 

 (2d Cir. 2004); cf. al-Kidd, 563 U.S. at

742 (“We have repeatedly told courts . . . not to define clearly established law at a

high level of generality.” (internal citation omitted)).    Because Wolff does not

provide clear guidance for when a less restrictive set of revocation conditions may

give rise to a protected liberty interest, even setting aside any other potentially

relevant differences between the legal regime at issue in that case and the regime

here, we cannot conclude that the Supreme Court’s decision in Wolff clearly

established Bangs’s right to due process.

      Having concluded that Bangs’s liberty interest in his early release date was

not so clearly established at the time so as to overcome qualified immunity, we

need not go on to discuss what procedural protections were constitutionally due.

See Francis, 942 F.3d at 140. Nonetheless, we note that—depending on how the

New York courts resolve the present uncertainty regarding whether maintaining

a merit time allowance remains a predicate to parole release once a release date is

granted—the answer to the question of “how much process is due” may be “no



                                         31
more than state law already provides.” As we have discussed, New York law

may be read to permit the Parole Board to rescind an early release date only when

doing so is found to be appropriate following an evidentiary hearing, regardless

of whether a previously awarded merit time allowance has been subsequently

revoked. See 9 N.Y.C.R.R. § 8002.5(b)(4). Had Defendants adopted that view in

Bangs’s case, he would have benefited from the “robust procedural protections”

New York law provides to parole grantees, satisfying due process. Victory, 

. Accordingly, because the subsequent development of the law in this

area may render anything we say now as unnecessary “constitutional dicta,”

Ehrlich v. Town of Glastonbury, 

 (2d Cir. 2003), we decline to opine

further on the issue at this time.

                                     CONCLUSION

      For the foregoing reasons, we AFFIRM the judgment of the district court.




                                         32