621 F.3d 1196 (9th Cir. 2010), 08-15957, Dunn v. Castro

Docket Nº:08-15957.
Citation:621 F.3d 1196
Opinion Judge:MILAN D. SMITH, JR., Circuit Judge:
Party Name:Dylan Lee DUNN, Plaintiff-Appellee, v. J. CASTRO; T. Surges; P. Stockman; D. Ortiz; Y. Yamamoto; A.K. Scribner, Defendants-Appellants.
Attorney:Edmund G. Brown, Jr., Attorney General of California; Rochelle C. East, Senior Assistant Attorney General; David A. Carrasco, Supervising Deputy Attorney General; and Vickey P. Whitney, Supervising Deputy Attorney General, Sacramento, CA, for the defendants-appellants. Dylan Lee Dunn, Delano, CA,...
Judge Panel:Before: PROCTER HUG, JR., and MILAN D. SMITH, JR., Circuit Judges, and JAMES D. TODD, Senior District Judge.[**]
Case Date:September 14, 2010
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 1196

621 F.3d 1196 (9th Cir. 2010)

Dylan Lee DUNN, Plaintiff-Appellee,

v.

J. CASTRO; T. Surges; P. Stockman; D. Ortiz; Y. Yamamoto; A.K. Scribner, Defendants-Appellants.

No. 08-15957.

United States Court of Appeals, Ninth Circuit.

September 14, 2010

Submitted July 16, 2010.[*]

Page 1197

Edmund G. Brown, Jr., Attorney General of California; Rochelle C. East, Senior Assistant Attorney General; David A. Carrasco, Supervising Deputy Attorney General; and Vickey P. Whitney, Supervising Deputy Attorney General, Sacramento, CA, for the defendants-appellants.

Dylan Lee Dunn, Delano, CA, pro se.

Appeal from the United States District Court for the Eastern District of California, Anthony W. Ishii, Chief District Judge, Presiding. D.C. No. 1:06-CV-00088-AWI-DLB.Dylan Lee Dunn, Delano, CA, pro se.

Before: PROCTER HUG, JR., and MILAN D. SMITH, JR., Circuit Judges, and JAMES D. TODD, Senior District Judge.[**]

MILAN D. SMITH, JR., Circuit Judge:

Plaintiff-Appellee Dylan Dunn, a California state prisoner acting pro se, filed this action under 42 U.S.C. § 1983 against Defendants-Appellants J. Castro, T. Surges, P. Stockman, D. Ortiz, Y. Yamamoto, and A.K. Scribner (collectively, Defendants). Dunn challenges a restriction that was temporarily imposed on his right to receive visits from his three minor children while he was in prison. Defendants appeal from the district court's order denying their motion to dismiss Dunn's complaint. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we reverse.

BACKGROUND

Dunn is a California state prisoner. On May 7, 2002, while incarcerated at Corcoran State Prison, prison officials reported Dunn for violating prison rules by " attempting to elicit illegal sexual relations by phone in concert [with a] minor." Dunn claims that he was actually engaging in a sexually-oriented telephone conversation with his wife, without realizing at the time that his child was on the phone. Nevertheless, on January 29, 2004, an Institutional Classification Committee (ICC) decided to prohibit Dunn from receiving visits from all minors, based upon the May 2002 violation.

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The ICC relied upon California Code of Regulations (CCR), title 15, section 3173.1, in making its decision.1Section 3173.1 provides that " [i]nmates may be prohibited from having contact or non-contact visits where substantial evidence ... of the misconduct described in section 3177(b)(1) exists, with or without a criminal conviction." Section 3177(b)(1), in turn, lists several California Penal Code sections dealing with sex offenses, including California Penal Code section 266j. Penal Code section 266j criminalizes the act of causing, inducing, or persuading a child under the age of 16 to engage in " any lewd or lascivious act" with another person.

Dunn sought relief from the restriction through the prison administrative grievance system. On February 18, 2005, prison officials lifted the restriction on Dunn's visitation privileges, of which Dunn received notice on July 28, 2005.

Dunn, proceeding pro se and in forma pauperis, later filed a complaint against Defendants under 42 U.S.C. § 1983. In his complaint, Dunn pleaded five claims, alleging that Defendants violated his right to: (1) substantive due process under the Fourteenth Amendment; (2) freedom of association under the First Amendment; (3) freedom from cruel and unusual punishment under the Eighth Amendment; (4) equal protection under the Fourteenth Amendment; and (5) a state-created liberty interest under the Fourteenth Amendment. After screening the complaint pursuant to 28 U.S.C. § 1915A(a), the district court permitted the complaint to proceed as to the due process claims. Defendants then filed a Rule 12(b)(6) motion to dismiss the remaining claims on the ground of qualified immunity.

Defendants' motion to dismiss was first heard by a magistrate judge. Applying the two-prong test for qualified immunity announced in Saucier v. Katz, 533 U.S. 194, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001), the magistrate judge found that (1) Dunn had adequately alleged a violation of the " fundamental liberty interest in his relationship with his children" that was clearly established at the time of Defendants' challenged conduct, and (2) that he could not reach a decision as to the reasonableness of Defendants' conduct because it was a fact-based inquiry that was improper for disposition on a motion to dismiss. As a result, the magistrate judge recommended that Defendants' motion be denied. The district court subsequently adopted the magistrate judge's findings and recommendation in full and denied the motion to dismiss. Defendants promptly appealed the district court's order.

STANDARD OF REVIEW

We review de novo a district court's decision to deny a motion to dismiss under Rule 12(b)(6). Camacho v. Bridgeport Fin. Inc., 430 F.3d 1078, 1079 (9th Cir.2005). On review of a denial of a motion to dismiss based on qualified immunity, we review de novo whether governing law was clearly established at the time of the alleged violation. See Mabe v. San Bernardino County Dep't of Pub. Soc. Servs., 237 F.3d 1101, 1106 (9th Cir.2001).

DISCUSSION

The doctrine of qualified immunity shields government officials performing discretionary functions from liability for damages " insofar as their conduct does not

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violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). In analyzing whether a government official is entitled to qualified immunity, the court looks at two distinct questions. See, e.g., Greene v. Camreta, 588 F.3d 1011, 1021 (9th Cir.2009) (discussing the " two-step procedure" established in Saucier ). First, the court determines whether the facts alleged, construed in the light most favorable to the injured party, establish the violation of a constitutional right. Saucier, 533 U.S. at 201, 121 S.Ct. 2151. Second, the court decides whether the right is clearly established such that a reasonable government official would have known that " his conduct was unlawful in the situation he confronted." Id. at 202, 121 S.Ct. 2151. The Supreme Court recently instructed that we are " permitted to exercise [our] sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand." Pearson v. Callahan, __ U.S. __, 129 S.Ct. 808, 818, 172 L.Ed.2d 565 (2009). Because (as will be discussed infra ) Defendants' conduct does not constitute the violation of a clearly established constitutional right of which a reasonable person would have known, the second prong of the Saucier analysis is dispositive in this case. See James v. Rowlands, 606 F.3d 646, 651 (9th Cir.2010) (" Pearson ... gave courts discretion to grant qualified immunity on the basis of the ‘ clearly established’ prong alone, without deciding in the first instance whether any right had been violated." ). We, therefore, address only the second prong of the qualified immunity analysis.

We find it particularly appropriate to resolve Dunn's case at this stage because the Supreme Court has " repeatedly ... stressed the importance of resolving immunity questions at the earliest possible stage in litigation." Hunter v. Bryant, 502 U.S. 224, 227, 112 S.Ct. 534, 116 L.Ed.2d 589 (1991). Qualified immunity confers upon officials " a right, not merely to avoid ‘ standing trial,’ but also to avoid the burdens of ‘ such pretrial matters as discovery.’ " Behrens v. Pelletier, 516 U.S. 299, 308, 116 S.Ct. 834, 133 L.Ed.2d 773 (1996) (quoting Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985)). Moreover, although the first Saucier prong calls for a factual inquiry, Tortu v. Las Vegas Metro. Police Dep't, 556 F.3d 1075, 1085 (9th Cir.2009), the second prong of the Saucier analysis is " solely a question of law for the judge," id. See also Act Up!/ Portland v. Bagley, 988 F.2d 868, 873 (9th Cir.1993) (" The threshold determination of whether the law governing the conduct at issue is clearly established is a question of law for the court." ). Therefore, contrary to the district court's ruling, it is proper for us to reach the inquiry into whether the facts as alleged supported a reasonable officer's belief that his conduct was lawful. See id. (" The determination of whether the facts alleged could support a reasonable belief in the existence of probable cause or reasonable suspicion is also a question of law to be determined by the court." ); see also Elder v. Holloway, 510 U.S. 510, 516, 114 S.Ct. 1019, 127 L.Ed.2d 344 (1994) (" Whether an asserted federal right was clearly established at a particular time, so that a public official who allegedly violated the right has no qualified immunity from suit, presents a question of law, not one of legal facts." (internal quotation marks omitted)).

As to the second prong, " [t]he relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted."

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Saucier, 533 U.S. at 202, 121 S.Ct. 2151. To do so, the court must " determine whether the preexisting law provided the defendants with ‘ fair warning’ that their conduct was unlawful." Flores v. Morgan Hill Unified Sch. Dist., 324 F.3d 1130, 1137 (9th Cir.2003) (quoting Hope v. Pelzer, 536 U.S. 730, 740, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002)). Therefore, we must consider the state of the clearly established law in 2004, and whether it gave Defendants fair warning that their decision to suspend Dunn's visitation privileges with his children was unconstitutional.

The district court articulated the clearly established constitutional right at issue in this case to be " the fundamental interest...

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