HENRY M. HAYES, AKA Henry M. Mitchell v. R. Bolen; M. Seifert

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
HENRY M. HAYES, AKA Henry M.
Mitchell,
Plaintiff - Appellant,
v.
R. BOLEN; M. SEIFERT,
Defendants - Appellees.
No. 13-17655
D.C. No. 1:12-cv-00469-LJO-DLB
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of California
Lawrence J. O’Neill, District Judge, Presiding
Submitted February 17, 2015**
Before: O’SCANNLAIN, LEAVY, and FERNANDEZ, Circuit Judges.
California state prisoner Henry M. Hayes, aka Henry M. Mitchell, appeals
pro se from the district court’s judgment dismissing his 42 U.S.C. § 1983 action
alleging violation of the First Amendment relating to prison mail. We have
FILED
FEB 27 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* 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).

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jurisdiction under 28 U.S.C. § 1291. We review de novo a dismissal on the basis
of qualified immunity. Nelson v. Heiss, 271 F.3d 891, 893 (9th Cir. 2001). We
affirm in part, reverse in part, and remand.
The district court properly dismissed Hayes’s First Amendment claim for
damages on the basis of qualified immunity because Hayes did not have a clearly
established right to receive mail weighing more than prison regulations permitted.
See Pearson v. Callahan, 555 U.S. 223, 232 (2009) (defendant is entitled to
qualified immunity unless the conduct at issue violated a clearly established
constitutional right); Hope v. Pelzer, 536 U.S. 730, 739 (2002) (“For a
constitutional right to be clearly established, its contours must be sufficiently clear
that a reasonable official would understand that what he is doing violates that
right.” (citation and internal quotation marks omitted)).
In addition to his claim for damages, Hayes pleaded claims for injunctive
and declaratory relief. Qualified immunity does not preclude such prospective
relief. See Presbyterian Church (U.S.A.) v. United States, 870 F.2d 518, 527 (9th
Cir. 1989) (“Qualified immunity is an affirmative defense to damage liability; it
does not bar actions for declaratory or injunctive relief.”). Moreover, on the record
before the district court, it is not clear whether the prospective relief sought by
Hayes would be moot. See Nelson, 271 F.3d at 897. Should the district court
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determine that Hayes’s First Amendment rights were violated and that his claims
for prospective relief are not moot, it may grant injunctive or declaratory relief.
Accordingly, we reverse the district court’s order dismissing Hayes’s action under
§ 1983 to the extent he sought prospective relief, and remand for further
proceedings.
We reject Hayes’s contentions concerning the district court’s jurisdiction.
The parties shall bear their own costs on appeal.
AFFIRMED in part, REVERSED in part, and REMANDED.
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