Alston v. Read

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CORNELIUS ALSTON; GARY AULD; 

DARREN D. BAJO; KEVIN BROOKS;

WALTER DEGUAIR; DANILO

No. 10-15332

DIMAPOLIS; RANDAL GOUVEIA; FOE

LIULAMA; ADRIAN LUCERNO; ERIC D.C. No.

MILLER; JAMIE TAFOYA,  1:07-cv-00266-

Plaintiffs-Appellees, SPK-LEK

v. OPINION

THOMAS READ; NETTIE SIMMONS,

Defendants-Appellants.



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

20979

20982 ALSTON v. READ

COUNSEL

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. Ina-

gaki and Kendall J. Moser, Department of the Attorney Gen-

eral, 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.

OPINION

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 20983

to a prisoner’s unsupported assertion that he was being over-

detained in violation of the United States Constitution.

I

A

Cornelius Alston was twice sentenced to a term of impris-

onment in the Hawaii state prison system under two separate,

unrelated sentencing orders. He was convicted of second-

degree robbery in 1991. While on parole from the robbery

sentence in 1997, he was convicted of two counts of promot-

ing 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 con-

currently.” 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

order.

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

20984 ALSTON v. READ

were to be served concurrently. Thus, sentences of prisoners

sentenced before 2005 were reviewed and, where necessary,

recalculated.

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 sen-

tences 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. 97-

0506 [drug-related convictions] does state ‘sentences

are to run concurrently’ which refers to the two

counts in that criminal case alone, and both are run-

ning concurrently. However, pursuant to HRS § 706-

668.5, 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 Novem-

ber 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 Sim-

mons of D.P.S. applied the HRS 706-668.5 consecutive sen-

tence 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 20985

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 sen-

tence 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

our records.

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.

B

Alston and a group of allegedly similarly situated state pris-

oners brought suit under 42 U.S.C. § 1983 against Read and

Simmons in the district court for the District of Hawaii alleg-

ing 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

20986 ALSTON v. READ

violation of the Due Process Clause of the Fourteenth Amend-

ment and whether Read and Simmons had acted with deliber-

ate 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 investi-

gation of Alston’s claim that his sentence was incorrectly cal-

culated. Read and Simmons timely filed this interlocutory

appeal of the denial of qualified immunity.

II

[1] 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

trial.

[2] 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 judg-

ment “insofar as that order determines whether or not the pre-

trial 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).

[3] But Read and Simmons are not contesting the district

court’s conclusion that genuine issues of fact exist for trial.

ALSTON v. READ 20987

Rather, they are appealing the purely legal issue of whether

they violated Alston’s clearly established federal rights. Com-

pare 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.

III

A

[4] 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 rea-

sonable 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 reason-

able 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.”

20988 ALSTON v. READ

Id. at 639. Rather, the right the officials are alleged to have

violated must be “ ‘clearly established’ in a more particular-

ized, 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. Als-

ton’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. Als-

ton’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.

[5] The relevant inquiry is thus whether a reasonable offi-

cial 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.

B

Alston contends that Ninth Circuit precedent establishes

such a duty. He points first to Haygood v. Younger, 769 F.2d

ALSTON v. READ 20989

1350 (9th Cir. 1985) (en banc), which concluded that an over-

detention 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 omit-

ted). 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 over-

detained 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 let-

ters referred Read and Simmons only to the November 1997

judgment that was already in his institutional file. As Sim-

mons and Read reasonably explained in their letter to Alston,

that judgment did not support Alston’s claim that his sentence

was erroneously calculated.

[6] 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 recalcu-

lated under state law, and the prisoner has presented no evi-

dence 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

20990 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.”).

IV

[7] 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

immunity.

REVERSED and REMANDED for proceedings consistent

with this opinion.