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Ninth Circuit: Prison Visitation Privileges May be Temporarily Restricted for Legitimate Penological Reasons

Holding that the temporary suspension of a prisoner’s visiting privileges with his minor children due to an alleged rule infraction did not violate any clearly established constitutional right of which a reasonable prison official would have been aware, the Ninth Circuit reversed a district court’s denial of qualified immunity in a case raising that particular issue.

In May 2002, Corcoran State Prison officials cited California prisoner Dylan Lee Dunn for violating prison rules by “attempting to elicit illegal sexual relations by phone in concert [with a] minor.” In his defense, Dunn claimed that, unbeknownst to him, his child was on the phone when he engaged in a sexually-oriented telephone conversation with his wife.

Twenty months later, relying on a regulation that authorizes the imposition of visiting restrictions where substantial evidence of specified sexual misconduct exists, “with or without a criminal conviction” (Title 15, Cal. Code Regs., § 3173.1), Corcoran’s Institutional Classification Committee (ICC) prohibited Dunn from receiving visits from all minors, including his own children. In the ICC’s view, Dunn’s May 2002 prison rule violation constituted substantial evidence that he had violated Penal Code § 266j, a law which prohibits persuading a child under 16 to engage in “any lewd or lascivious act” with another.

Dunn appealed the visiting restriction and ultimately prevailed; his visitation privileges were restored in February 2005. He then filed suit pursuant to 42 U.S.C. § 1983, alleging violations of his First, Eighth and Fourteenth Amendment rights. After the district court screened out all but Dunn’s due process claims, the defendants moved to dismiss on the basis of qualified immunity.

The court found that Dunn had a clearly established “fundamental liberty interest in his relationship with his children,” and therefore denied the defendants’ motion.

On appeal, the Ninth Circuit found that the district court had defined the relevant constitutional right too broadly. As a lawfully incarcerated prisoner, the appellate court noted, Dunn was no “ordinary father.” Because prisoners do not enjoy an absolute right to visitation, even from family members, a reasonable prison official could have believed the visiting restriction was lawful, given that Dunn was reasonably thought to have engaged in improper conduct with a minor. Accordingly, the Ninth Circuit reversed the district court’s denial of qualified immunity. See: Dunn v. Castro, 621 F.3d 1196 (9th Cir. 2010).

Following remand, on November 15, 2010, in accordance with the appellate ruling, the district court granted the defendants’ motion to dismiss based on qualified immunity and dismissed Dunn’s complaint with prejudice.

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Related legal case

Dunn v. Castro