NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ANTHONY PENTON, 

Plaintiff-Appellee, 

 v. 

LAYTON JOHNSON, 

Defendant-Appellant, 

and 

S. HUBARD; et al., 

Defendants.

No. 22-15665 

D.C. No. 

2:11-cv-00518-TLN-KJN 

MEMORANDUM*

Appeal from the United States District Court

for the Eastern District of California

Troy L. Nunley, District Judge, Presiding

Argued and Submitted September 13, 2023

San Francisco, California

Before: WALLACE, BOGGS,**and FORREST, Circuit Judges.

Defendant Layton Johnson appeals the district court’s order denying him 

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

** The Honorable Danny J. Boggs, United States Circuit Judge for the 

U.S. Court of Appeals for the Sixth Circuit, sitting by designation.

FILED

OCT 30 2023

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 

summary judgment on qualified-immunity grounds, and argues that plaintiff 

Anthony Penton’s rights to access the courts and to receive mail were not clearly 

established. Because the denial of summary judgment based on qualified immunity 

is immediately appealable, we have jurisdiction. See Foster v. City of Indio, 908 F.3d 

1204, 1210 (9th Cir. 2018).

We review denials of qualified immunity de novo. Ballou v. McElvain, 29 

F.4th 413, 421 (9th Cir. 2022). In an interlocutory appeal from denial of qualified 

immunity, we view facts in the light most favorable to the plaintiff. Estate of 

Anderson v. Marsh, 985 F.3d 726, 731 (9th Cir. 2021). In this light, we consider 

whether (1) Johnson violated Penton’s constitutional rights, and (2) whether those 

rights were clearly established at the time of the violation. Peck v. Montoya, 51 F.

4th 877, 887 (9th Cir. 2022). 

We affirm the district court. Because the parties are familiar with the factual 

and procedural history of this case, we need not recount it here.

Courts may address the two parts of the qualified immunity analysis in 

whichever order they prefer. Pearson v. Callahan, 555 U.S. 223, 236 (2009). 

Because Johnson does not argue that he did not violate Penton’s rights, only that 

those rights were not clearly established, we focus on the second part of the test.

A right is clearly established if “every reasonable official would have 

understood that what he is doing violates that right.” Andrews v. City of Henderson, 
3 

35 F.4th 710, 718 (9th Cir. 2022) (citation omitted). While the Supreme Court “has 

repeatedly told courts . . . not to define clearly established law at a high level of 

generality,” Kisela v. Hughes, 138 S. Ct. 1148, 1152 (2018), there “can be the rare 

‘obvious case,’ where the unlawfulness of the officer’s conduct is sufficiently clear 

even though existing precedent does not address similar circumstances,” District of 

Columbia v. Wesby, 583 U.S. 48, 64 (2018) (quoting Brosseau v. Haugen, 543 U.S.

194, 199 (2004) (per curiam)). “[T]here need not be a Supreme Court or circuit case 

‘directly on point,’ but ‘existing precedent must place the lawfulness of the conduct 

beyond debate.’” Ballou, 29 F.4th at 421 (quoting Tobias v. Arteaga, 996 F.3d 571, 

580 (9th Cir. 2021)). “[W]e ‘may look to decisions from the other circuits’ to 

determine whether they reflect a ‘consensus of courts’ that can be said to clearly 

establish the relevant law.” Shooter v. Arizona, 4 F.4th 955, 963 (9th Cir. 2021)

(quoting Martinez v. City of Clovis, 943 F.3d 1260, 1276 (9th Cir. 2019)). 

1. The district court did not err in denying qualified immunity on the

access-to-courts claim. “Adequate, effective and meaningful” access to the courts is 

“the touchstone” of a prisoner’s rights and was clearly established when the 

defendant’s prison began withholding Penton’s mail. Bounds v. Smith, 430 U.S. 817, 

822-23 (1977); Lewis v. Casey, 518 U.S. 343, 351 (1996). Prison officials are 

constitutionally required to “make it possible for inmates to prepare, file, and serve 

pleadings and other documents essential for pleading their causes.” Phillips v. Hust, 
4 

477 F.3d 1070, 1077 (9th Cir. 2007). 

Out-of-circuit precedent that predates Johnson’s alleged conduct has held that 

prison officials who seriously delay or otherwise fail to forward legal mail to 

prisoners, including prisoners who have been transferred to other facilities, violate 

clearly established law. Simkins v. Bruce, 406 F.3d 1239, 1242–43 (10th Cir. 2005). 

In fact, in other circuits, allowing mail to accumulate before forwarding it to 

prisoners has been held as “patent deprivation of the prisoners’ right of access to the 

courts.” Gramegna v. Johnson, 846 F.2d 675, 677–78 (11th Cir. 1988). Viewed in 

the light most favorable to Penton, Johnson was on notice that holding Penton’s mail 

for over seven months violated Penton’s constitutional right to access the courts.

2. The district court did not err in denying qualified immunity on the rightto-mail claim.1 While very few cases address what prison officials are required to do 

with personal mail when a prisoner is transferred to another facility, delay in 

forwarding mail “for an inordinate amount of time” has been held to violate the 

Constitution. Antonelli v. Sheahan, 81 F.3d 1422, 1423 (7th Cir. 1996); see also 

Bryan v. Wener, 516 F.2d 233, 238 (3d Cir. 1975) (noting that “officials . . . have a 

1The second claim in Penton’s operative Complaint is a First and Fourteenth 

Amendment right-to-mail claim. Penton alleges that Johnson had “no legitimate 

penological reasons” to “withhold[ ] Mr. Penton’s legal mail or for his failure to 

notify Mr. Penton of the withholding.” Accordingly, while Penton challenges 

Johnson’s failure to provide notice that he was withholding Penton’s mail, this is 

part of the right-to-mail claim and not a separate claim for relief. 
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responsibility to promptly forward mail”).

Viewing the facts in the light most favorable to Penton, Johnson’s withholding 

of mail violated clearly established law. Supreme Court and multiple circuit

precedents make clear that Penton had a right to receive mail and that undue delay 

violated that right. See Witherow v. Paff, 52 F.3d 264, 265 (9th Cir. 1995) (per 

curiam) (citing Thornburgh v. Abbott, 490 U.S. 401, 407 (1989)); Antonelli, 81 F.3d 

at 1432. Every reasonable official would have known that withholding prisoner mail 

for over seven months violated the Constitution, regardless of whether the prisoner 

was temporarily transferred elsewhere. Penton’s case is, therefore, the obvious case 

where the general rule that prisons may not withhold a prisoner’s mail for a 

prolonged period gave “fair and clear warning” to Johnson that his conduct was 

unlawful. Kisela, 138 S. Ct. at 1153 (quoting White v. Pauly, 580 U.S. 74, 79 (2017) 

(per curiam)).

Johnson correctly notes that cases establishing the general rule are factually 

dissimilar, but this does not change the outcome. The question is not whether a case 

is “directly on point” but whether Johnson was clearly on notice that he was violating 

Penton’s right. Ballou, 29 F.4th at 421. Johnson’s conduct violated Penton’s 

constitutional right to mail and a body of clearly established case law. This violation 

was so obvious as to preclude qualified immunity. See Wesby, 583 U.S. at 63. 

3. The district court did not err in denying qualified immunity on Penton’s 
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due process right-to-notice allegation. Due process requires that a prison notify a 

prisoner of its decision to withhold incoming mail, and we have repeatedly stated 

that withholding delivery of inmate mail must be accompanied by “minimal 

procedural safeguards against arbitrary or erroneous censorship of protected 

speech.” Procunier v. Martinez, 416 U.S. 396, 417–19, n.10 (1974) (overruled on 

other grounds by Thornburgh, 490 U.S. at 413–14). Minimum procedural safeguards 

include notifying inmates that their mail was withheld, allowing them a reasonable 

opportunity to protest that decision, and referring prisoner complaints to a prison 

official other than the one who seized the mail. Procunier, 416 U.S. at 418–19.

While Penton’s location during transit may not have been disclosed, the 

continued delay of his mail once he was in custody in Bowling Green, Kentucky was

unjustified. It is undisputed that Penton was not provided notice that his mail was 

being withheld and there is no evidence that Johnson’s out-to-court mail-holding 

practice included providing notice to the prisoner that his mail was being withheld. 

California regulations state that, for an out-to-court inmate, mail may be held when 

return is anticipated within one week. See Cal. Code Regs. tit. 15, § 3133(f), (h).

Johnson should have sought Penton’s address and forwarded his mail once Penton 

did not return to the prison within the time stated in the regulation. This failure to 

provide notice runs contrary to prison regulations and minimum procedural 

safeguards and is a clear violation of Penton’s Fourteenth Amendment “liberty 
7 

interest in receiving notice that his incoming mail is being withheld.” Frost, 197 

F.3d at 353–54.

We therefore AFFIRM the judgment of the district court.