Darren Bajo, et al v. Thomas Read, et al
FILED OPINION (DIARMUID F. O'SCANNLAIN, RICHARD C. TALLMAN and MILAN D. SMITH, JR.) REVERSED AND REMANDED. Judge: DFO Authoring, Judge: FILED AND ENTERED JUDGMENT. 
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UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CORNELIUS ALSTON; GARY AULD;
DARREN D. BAJO; KEVIN BROOKS;
WALTER DEGUAIR; DANILO
DIMAPOLIS; RANDAL GOUVEIA; FOE
LIULAMA; ADRIAN LUCERNO; ERIC
MILLER; JAMIE TAFOYA,
THOMAS READ; NETTIE SIMMONS,
Appeal from the United States District Court
for the District of Hawaii
Samuel P. King, Senior District Judge, Presiding
Argued and Submitted
October 13, 2011—Honolulu, Hawaii
Filed December 14, 2011
Before: Diarmuid F. O’Scannlain, Richard C. Tallman, and
Milan D. Smith, Jr., Circuit Judges.
Opinion by Judge O’Scannlain
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ALSTON v. READ
John F. Molay, Deputy Attorney General, Department of the
Attorney General, State of Hawaii, argued the cause for the
defendants-appellants and filed the brief. Attorney General
Mark J. Bennett and Deputy Attorneys General Caron M. Inagaki and Kendall J. Moser, Department of the Attorney General, State of Hawaii, were also on the brief.
Jack Schweigert, Jack Schweigert, PLC, Honolulu, Hawaii,
argued the cause for the plaintiffs-appellees and filed the
brief. Rory Soares Toomey, Rory S. Toomey Law Office,
Honolulu, Hawaii, and Shannon Parrott, Honolulu, Hawaii,
were also on the brief.
O’SCANNLAIN, Circuit Judge:
We must decide whether state prison officials had a clearly
established duty to seek out original court records in response
ALSTON v. READ
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to a prisoner’s unsupported assertion that he was being overdetained in violation of the United States Constitution.
Cornelius Alston was twice sentenced to a term of imprisonment in the Hawaii state prison system under two separate,
unrelated sentencing orders. He was convicted of seconddegree robbery in 1991. While on parole from the robbery
sentence in 1997, he was convicted of two counts of promoting a dangerous drug and was sentenced to ten years in prison
on the first count and five on the second. The judgment,
issued November 20, 1997, stated: “Sentences are to run concurrently.” Alston’s release date was calculated as August 4,
2007, by the Offender Management Office of Hawaii’s
Department of Public Safety (“DPS”).
On December 10, 1997, the sentencing judge ordered that
Alston’s sentences for the drug offenses “run concurrent with
each other and any other sentence Defendant is serving.”
There is no evidence that DPS ever received a copy of this
Until 2005, DPS had a practice of treating sentences issued
at different times for different crimes as concurrent unless the
judgment for the later crime stated that they were to be served
consecutively. Such practice was inconsistent with Hawaii
state law, which, when Alston was sentenced, required that
“[m]ultiple terms of imprisonment imposed at different times
run consecutively unless the court orders that the terms run
concurrently.” Haw. Rev. Stat. § 706-668.5(1) (2007). To
conform the Department’s practice to state law, Thomas
Read, the Administrator for DPS’s Offender Management
Office, implemented a new policy beginning January 1, 2005,
that treated sentences issued at different times for different
crimes as consecutive unless the judgment stated that they
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ALSTON v. READ
were to be served concurrently. Thus, sentences of prisoners
sentenced before 2005 were reviewed and, where necessary,
In June 2007, Nettie Simmons, a litigation coordination
specialist working under Read’s supervision, sent Alston a
letter telling him that his sentence had been recalculated to
conform to Hawaii state law. His new maximum term release
date was set for November 17, 2011—more than four years
later than his original release date.
Alston wrote several letters complaining that his new
release date was incorrect. In a July 2007 letter, he argued that
because the November 1997 judgment stated that his sentences were “to run concurrently,” DPS should not have
applied section 706-668.5 of the Hawaii Revised Statutes
when calculating his release date. In a letter signed by both
Simmons and Read, Simmons explained:
You are correct in that your sentence for Cr. No. 970506 [drug-related convictions] does state ‘sentences
are to run concurrently’ which refers to the two
counts in that criminal case alone, and both are running concurrently. However, pursuant to HRS § 706668.5, the sentence term in Cr. No. 97-0506 imposed
on November 20, 1997 shall run consecutive to Cr.
No. 87-0457 [robbery conviction], which was
imposed at a different time.
Alston sent two subsequent letters alleging that his November 1997 sentence and conviction were incorrect. He stated in
one letter: “Judge Herbert K. Shimabukuro: On 11-20-97,
sentenced me to 10 years in prison on count # 97-0506 to run
‘concurrently.’ . . . The mistake is that Mr. [sic] Nettie Simmons of D.P.S. applied the HRS 706-668.5 consecutive sentence statute to my case. I was not given any consecutive
term.” He followed this letter with another that made several
new allegations not at issue here and again claimed that his
ALSTON v. READ
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sentence was not supposed to be consecutive. Simmons, in a
letter also signed by Read, responded in relevant part:
The Department of Public Safety (PSD) interprets all
legal documents received from courts according to
state law and does not have any authority over the
judges [sic] decisions or the judiciary.
. . . [A]n audit was conducted back in June 2007
to ensure the accuracy of your sentence computation.
During our review, it was determined that your sentence computation was computed in error which
resulted in a wrong maximum release date.
At this time, no adjustments to your maximum
release date will be done. In addition, an amended
judgment for Cr. No. 97-0506 is needed from the
courts stating your time to ‘run concurrent with any
time currently serving’ in order for PSD to update
On Alston’s behalf, the Office of the Public Defender then
successfully sought an amended judgment, which was issued
on December 27, 2007. Alston was released that same day.
Alston and a group of allegedly similarly situated state prisoners brought suit under 42 U.S.C. § 1983 against Read and
Simmons in the district court for the District of Hawaii alleging that they were overdetained in violation of federal and
state law. Read and Simmons moved for partial summary
judgment as to Alston’s claims only.
The district court granted the motion with respect to the
claims of state law violations but otherwise denied it. The
court found that there were genuine issues of fact as to
whether Alston had been deprived of meaningful process in
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ALSTON v. READ
violation of the Due Process Clause of the Fourteenth Amendment and whether Read and Simmons had acted with deliberate indifference in response to Alston’s overdetention claim in
violation of the Eighth Amendment.
The district court further concluded that it could not grant
either officer qualified immunity at the summary judgment
stage because there were questions of material fact as to
whether Read and Simmons had conducted a proper investigation of Alston’s claim that his sentence was incorrectly calculated. Read and Simmons timely filed this interlocutory
appeal of the denial of qualified immunity.
 Read and Simmons contend that the district court erred
in denying them qualified immunity. Alston responds that we
lack jurisdiction over this appeal because the district court
concluded that there were genuine issues of material fact for
 When evaluating a denial of summary judgment on the
issue of qualified immunity, our review is limited to the
“purely legal issue whether the facts alleged . . . support a
claim of clearly established law.” Moran v. Washington, 147
F.3d 839, 843 (9th Cir. 1998) (internal quotations omitted).
We may not review a district court’s denial of summary judgment “insofar as that order determines whether or not the pretrial record sets forth a ‘genuine’ issue of fact for trial.” Id.
(quoting Johnson v. Jones, 515 U.S. 304, 319-20 (1995)). In
other words, we “lack[ ] jurisdiction over an interlocutory
appeal challenging the sufficiency of the evidence supporting
the trial court’s conclusion that an issue of fact exists.” Jeffers
v. Gomez, 267 F.3d 895, 903 (9th Cir. 2001) (citing Johnson,
515 U.S. at 313).
 But Read and Simmons are not contesting the district
court’s conclusion that genuine issues of fact exist for trial.
ALSTON v. READ
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Rather, they are appealing the purely legal issue of whether
they violated Alston’s clearly established federal rights. Compare Johnson, 515 U.S. at 307-08, 315 (concluding that there
was no “final” decision to review where the record “raised a
genuine issue of fact concerning [defendants’] involvement”),
with Moran, 147 F.3d at 844-45 (finding jurisdiction even
though the district court concluded that there were genuine
issues of material fact because the defendant was not asserting
that there was insufficient evidence but rather that the district
court had misapplied the law). Thus, we conclude that we
possess appellate jurisdiction over this appeal under 28 U.S.C.
§ 1291. See Moran, 147 F.3d at 844.
 Government officials are “shielded from liability for
civil damages insofar as their conduct does not violate clearly
established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald,
457 U.S. 800, 818 (1982). The qualified immunity inquiry is
two-pronged. We must ask whether “the officer’s conduct
violated a constitutional right” and whether “the right was
clearly established” at the time of the alleged misconduct.
Saucier v. Katz, 533 U.S. 194, 201 (2001), overruled in part
on other grounds by Pearson v. Callahan, 555 U.S. 223
(2009). We may conduct this two-pronged inquiry in any
order. See Pearson, 555 U.S. at 236. Alston bears the burden
of showing that the right at issue was clearly established. See
Sorrels v. McKee, 290 F.3d 965, 969 (9th Cir. 2002) (citing
Camarillo v. McCarthy, 998 F.2d 638, 639 (9th Cir. 1993)).
For a constitutional right to be clearly established, “[t]he
contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates
that right.” Anderson v. Creighton, 483 U.S. 635, 640 (1987).
It is not sufficient to allege the violation of “abstract rights.”
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ALSTON v. READ
Id. at 639. Rather, the right the officials are alleged to have
violated must be “ ‘clearly established’ in a more particularized, and hence more relevant, sense.” Id. at 640; see also
Cousins v. Lockyer, 568 F.3d 1063, 1070 (9th Cir. 2009)
(concluding that while the plaintiff had the right to be free
from wrongful incarceration, the relevant qualified immunity
inquiry was whether the plaintiff had provided any evidence
that a reasonable official in the defendant’s position would
have known that by failing to monitor state appellate court
decisions for changes to the law, he would be violating the
plaintiff ’s constitutional rights).
Applying these principles here, we must determine whether
Read and Simmons would have understood that they were
violating Alston’s right to be free from wrongful incarceration
by failing to review his court file to ensure that they had
received all relevant court documents in his case. Viewing the
facts in Alston’s favor, Read and Simmons had notice only
that possibly hundreds of prisoners had sentences recalculated
under DPS’s change in policy contrary to the unexpressed
intent of sentencing judges unaware of the policy change. Alston’s institutional file contained a copy of the November 1997
judgment, which was silent as to whether the sentence was to
run concurrent or consecutive with previous sentences. Alston’s recalculated sentence, based on the information in the
judgment, conformed to Hawaii state law. The institutional
file did not contain the December 10, 1997, order, of which
neither the prison officers nor Alston were aware until after
Alston’s release ten years later.
 The relevant inquiry is thus whether a reasonable official would have known that he or she had a duty to investigate
an overdetention claim in these circumstances by obtaining
the prisoner’s original courthouse file.
Alston contends that Ninth Circuit precedent establishes
such a duty. He points first to Haygood v. Younger, 769 F.2d
ALSTON v. READ
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1350 (9th Cir. 1985) (en banc), which concluded that an overdetention caused by the erroneous calculation of a prisoner’s
release date had violated the prisoner’s Eighth and Fourteenth
Amendment rights. But in that case, the defendant-officials
“after being put on notice, simply refused to investigate a
computational error.” Id. at 1355 (internal quotations omitted). Here, Read and Simmons confronted materially different
circumstances. Whereas Haygood challenged the officials’
interpretation of the state statutes under which his sentence
was calculated, id. at 1353, Alston argued only that Read and
Simmons should not have applied the relevant state statute
and failed to present any documentary evidence that Read and
Simmons were misinterpreting his sentences. Indeed, Read
and Simmons were trying to correct the computation of his
sentence to make sure it conformed to unambiguous state law.
Alston also cites Alexander v. Perrill, 916 F.2d 1392 (9th
Cir. 1990), which affirmed the denial of summary judgment
on the issue of qualified immunity where a prisoner was overdetained after the defendant-officials “made no inquiries [and]
conducted no investigation” in response to the prisoner’s
objection that his credit for time served had been erroneously
reduced. Id. at 1393-94. Unlike the prisoner in Alexander,
who “offered verified court documents and other proof” in
support of his overdetention claim, id. at 1399, Alston’s letters referred Read and Simmons only to the November 1997
judgment that was already in his institutional file. As Simmons and Read reasonably explained in their letter to Alston,
that judgment did not support Alston’s claim that his sentence
was erroneously calculated.
 Thus, neither Haygood nor Alexander establishes a
duty to obtain a prisoner’s court file where the institutional
file appears complete, the sentence was appropriately recalculated under state law, and the prisoner has presented no evidence to the contrary. Read and Simmons were entitled to rely
on the state statute and the original judgment received from
the court in their sentencing calculations and were not
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ALSTON v. READ
required to go in search of additional courthouse records that
might affect Alston’s sentence beyond what was initially
received from the court for inclusion in DPS’s institutional
file. See Stein v. Ryan, No. 10-16527, ___ F.3d ___, 2011 WL
5607646, at *4 (9th Cir. Nov. 18, 2011) (“Prison officials may
properly assume that they have the authority to execute the
sentencing orders delivered to them by the court without fear
of civil liability.”).
 We conclude that there is no clearly established duty
on a prison official to review a prisoner’s original court
records beyond those in his institutional file on the facts of
this case. Thus, Read and Simmons are entitled to qualified
REVERSED and REMANDED for proceedings consistent
with this opinion.
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