                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                              FEB 25 2015

                                                                          MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS

WILLIAM TORRES,                                  No. 13-15096

              Plaintiff - Appellant,             D.C. No. 1:11-cv-00724-SOM-
                                                 BMK
  v.

THOMAS READ; JOHN DOES, 1-10,                    MEMORANDUM*

              Defendants - Appellees.


                   Appeal from the United States District Court
                            for the District of Hawaii
                   Barry M. Kurren, Magistrate Judge, Presiding

                          Submitted February 19, 2015**
                               Honolulu, Hawaii

Before: CLIFTON, N.R. SMITH, and FRIEDLAND, Circuit Judges.

       William Torres brought a 42 U.S.C. § 1983 action alleging that his sentence

recalculation resulted in post-conviction overdetention that violated his Eighth and

Fourteenth Amendment rights. The district court denied Torres’s Fed. R. Civ. P.


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
56(d) motion to continue discovery and granted Defendant-Appellee Read’s

motion for summary judgment on the basis of qualified immunity. Torres timely

appealed. We have jurisdiction under 28 U.S.C. § 1291.

      We review de novo a district court’s order denying summary judgment on

the ground of qualified immunity. Rodis v. City & Cnty. of S.F., 558 F.3d 964, 968

(9th Cir. 2009). We review a district court’s order denying additional discovery for

abuse of discretion. See United States v. Kitsap Physicians Serv., 314 F.3d 995,

1000 (9th Cir. 2002).

      The two-pronged qualified immunity inquiry asks (1) whether “the officer’s

conduct violated a constitutional right” and (2) whether “the right was clearly

established” at the time of the alleged misconduct. Alston v. Read, 663 F.3d 1094,

1098 (9th Cir. 2011) (quoting 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

begin our analysis with either prong. Pearson, 555 U.S. at 236. “The plaintiff

bears the burden to show that the contours of the right were clearly established” at

the time of the alleged misconduct. Clairmont v. Sound Mental Health, 632 F.3d

1091, 1109 (9th Cir. 2011). “We begin with the second prong, and we hold that

Torres has not pled facts indicating that Read violated a “clearly established”

constitutional right. See Anderson v. Creighton, 483 U.S. 635, 640 (1987).


                                          2
      This case is controlled by Alston, 663 F.3d 1094. In Alston, we addressed

the issue of qualified immunity in a § 1983 action against Read alleging Eighth and

Fourteenth Amendment violations for substantially the same conduct challenged

by Torres in this case. 663 F.3d at 1096-97. We concluded that “where [a

prisoner’s] institutional file appears complete, the [prisoner’s] sentence was

appropriately recalculated under state law, and the prisoner has presented no

evidence to the contrary,” a prison official had no clearly established duty under

the Eighth and Fourteenth Amendments to a prisoner alleging overdetention

beyond reviewing the prisoner’s institutional file, relevant state laws, and the

original judgment received from the court. Id. at 1099-100. Torres has not alleged

facts showing that his institutional file was incomplete, or that his sentence

recalculation was inappropriate under state law. Therefore, Read did not violate a

clearly established right and he was entitled to summary judgment on both Torres’s

Eighth and Fourteenth Amendment claims. See id.

      The district court did not abuse its discretion in denying Torres’s Rule 56(d)

motion to continue summary judgment to allow further discovery. Torres failed to

identify specific facts to be obtained in discovery that would have precluded




                                          3
summary judgment. Natural Res. Def. Council v. Houston, 146 F.3d 1118, 1133

(9th Cir. 1998).1

      AFFIRMED.




      1
        Read requests we take judicial notice of his opening brief filed in Alston.
See Dkt. No. 33. The document is a matter of public record. See Lee v. City of Los
Angeles, 250 F.3d 668, 688-89 (9th Cir. 2001). Thus, we take judicial notice of the
document, but “not for the truth of the facts recited therein.” See id. at 690
(internal quotation marks omitted).
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