FILED
                           NOT FOR PUBLICATION                               MAR 14 2014

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



                            FOR THE NINTH CIRCUIT


MATTHEW BECKSTRAND,                             No. 12-17318

              Plaintiff - Appellee,             D.C. No. 1:11-cv-00597-SOM-
                                                BMK
  v.

THOMAS READ; NETTIE SIMMONS,                    MEMORANDUM*

              Defendants - Appellants,

  and

DOES 1 - 10,

              Defendant.


                   Appeal from the United States District Court
                            for the District of Hawaii
                Susan Oki Mollway, Chief District Judge, Presiding

                     Argued and Submitted February 19, 2014
                               Honolulu, Hawaii

Before: HAWKINS, McKEOWN, and BEA, Circuit Judges.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      Defendants-Appellants Thomas Read and Nettie Simmons (“Read and

Simmons”) appeal the denial of qualified immunity on Plaintiff-Appellee Matthew

Beckstrand’s (“Beckstrand”) 42 U.S.C. § 1983 action. Under 28 U.S.C. § 1291, we

have jurisdiction to review only the qualified immunity issue.1 Viewing any disputed

material facts in the light most favorable to Beckstrand and reviewing the district

court’s legal conclusions de novo, we reverse.

      Beckstrand brought this Section 1983 action asserting his post-conviction

overdetention violated the Fourth and Eighth Amendments and the Due Process

Clause of the Fourteenth Amendment. The district court granted Read and Simmons

summary judgment on the Eighth and Fourteenth Amendment claims on statute of

limitations grounds, but denied summary judgment on the Fourth Amendment claim

on qualified immunity grounds. We discuss only the Fourth Amendment claim.

      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, 

,

1098 (9th Cir. 2011) (quoting Saucier v. Katz, 

, 201 (2001), overruled

in part on other grounds by Pearson v. Callahan, 

(2009)). We may



      1
        Liberal v. Estrada, 

, 1073-74 (9th Cir. 2011) (citing Mitchell
v. Forsyth, 

, 530 (1985)).

                                         2
begin our analysis with either prong. 

. “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, 

, 1109

(9th Cir. 2011).

      We begin with the second Saucier prong. Beckstrand has not cited a single case

in support of the proposition that post-conviction overdetention may violate the Fourth

Amendment. While our cases provide some support for a due process or Eighth

Amendment right against overdetention, see, e.g., Haygood v. Younger, 

(9th Cir 1985) (en banc), they do not speak to any analogous Fourth Amendment

right. Lee v. City of Los Angeles, 

, 685 (9th Cir. 2001), does mention an

arguably relevant Fourth Amendment right, but only in the context of an initial arrest

by police. The facts in Lee are thus materially distinguishable from the lengthy post-

conviction detention at issue here, meaning Lee could not have put Read and Simmons

on notice that their actions would constitute a Fourth Amendment violation.

Similarly, the case upon which the district court relied, Hill v. United States ex rel.

Wampler, 

(1936), is not sufficiently grounded in the Fourth Amendment

such that Read and Simmons would have been on notice as to the potential Fourth

Amendment violation.




                                          3
      Beckstrand has failed to show he had a clearly established Fourth Amendment

right against overdetention. Accordingly, we reverse the district court on the Fourth

Amendment claim and remand with instructions to grant summary judgment to Read

and Simmons.2

      REVERSED AND REMANDED WITH INSTRUCTIONS.




      2
         We have jurisdiction to address only the qualified immunity issue on the
Fourth Amendment claim, and our instructions are limited to that claim. Because the
district court has not yet entered final judgment on the Eighth and Fourteenth
Amendment claims (and we do not know if Beckstrand will appeal that judgment), we
make clear our holding does not establish law of the case with respect to the Eighth
and Fourteenth Amendment claims.

                                         4