Dunn v. Castro

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DYLAN LEE DUNN, 

Plaintiff-Appellee, No. 08-15957

v. D.C. No.

J. CASTRO; T. SURGES;  1:06-CV-00088-

P. STOCKMAN; D. ORTIZ; AWI-DLB

Y. YAMAMOTO; A. K. SCRIBNER, OPINION

Defendants-Appellants.



Appeal from the United States District Court

for the Eastern District of California

Anthony W. Ishii, Chief District Judge, Presiding

Submitted July 16, 2010*

San Francisco, California

Filed September 14, 2010

Before: Procter Hug, Jr., and Milan D. Smith, Jr.,

Circuit Judges, and James D. Todd, Senior District Judge.**

Opinion by Judge Milan D. Smith, Jr.

*This case was submitted for decision on the briefs and record without

oral argument. Fed. R. App. P. 34(a)(2).

**The Honorable James D. Todd, Senior United States District Judge

for the Western District of Tennessee, sitting by designation.

14077

14080 DUNN v. CASTRO

COUNSEL

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, California, for the defendants-appellants.

Dylan Lee Dunn, Delano, California, pro se.

DUNN v. CASTRO 14081

OPINION

M. SMITH, 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, Defen-

dants). 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.

The ICC relied upon California Code of Regulations

(CCR), title 15, section 3173.1, in making its decision.1 Sec-

tion 3173.1 provides that “[i]nmates may be prohibited from

having contact or non-contact visits where substantial evi-

dence . . . of the misconduct described in section 3177(b)(1)

1

This version of section 3173.1 became operative on March 20, 2003.

A repealer, new section, and amendment were filed on December 5, 2005.

The parties agree that the 2003 version quoted above was in effect at the

time of the ICC’s decision, and controls in this case.

14082 DUNN v. CASTRO

exists, with or without a criminal conviction.” Section

3177(b)(1), in turn, lists several California Penal Code sec-

tions 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 priv-

ileges, 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 Defen-

dants 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 protec-

tion 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 qual-

ified immunity.

Defendants’ motion to dismiss was first heard by a magis-

trate judge. Applying the two-prong test for qualified immu-

nity announced in Saucier v. Katz, 533 U.S. 194 (2001), the

magistrate judge found that (1) Dunn had adequately alleged

a violation of the “fundamental liberty interest in his relation-

ship 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’ con-

duct because it was a fact-based inquiry that was improper for

disposition on a motion to dismiss. As a result, the magistrate

DUNN v. CASTRO 14083

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. Bridge-

port 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

[1] The doctrine of qualified immunity shields government

officials performing discretionary functions from liability for

damages “insofar as their conduct does not violate clearly

established statutory or constitutional rights of which a rea-

sonable person would have known.” Harlow v. Fitzgerald,

457 U.S. 800, 818 (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 proce-

dure” established in Saucier). First, the court determines

whether the facts alleged, construed in the light most favor-

able to the injured party, establish the violation of a constitu-

tional right. Saucier, 533 U.S. at 201. Second, the court

decides whether the right is clearly established such that a rea-

sonable government official would have known that “his con-

duct was unlawful in the situation he confronted.” Id. at 202.

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

14084 DUNN v. CASTRO

addressed first in light of the circumstances in the particular

case at hand.” Pearson v. Callahan, ___ U.S. ___, 129 S. Ct.

808, 818 (2009). Because (as will be discussed infra) Defen-

dants’ 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 estab-

lished’ 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 (1991). Qualified immunity confers upon offi-

cials “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 (1996) (quoting

Mitchell v. Forsyth, 472 U.S. 511, 526 (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 rul-

ing, 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 exis-

tence of probable cause or reasonable suspicion is also a ques-

tion of law to be determined by the court.”); see also Elder

v. Holloway, 510 U.S. 510, 516 (1994) (“Whether an asserted

federal right was clearly established at a particular time, so

DUNN v. CASTRO 14085

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)).

[2] 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.” Saucier,

533 U.S. at 202. To do so, the court must “determine whether

the preexisting law provided the defendants with ‘fair warn-

ing’ that their conduct was unlawful.” Flores v. Morgan Hill

Unified Sch. Dist., 324 F.3d 1130, 1137 (9th Cir. 2003) (quot-

ing Hope v. Pelzer, 536 U.S. 730, 740 (2002)). Therefore, we

must consider the state of the clearly established law in 2004,

and whether it gave Defendants fair warning that their deci-

sion to suspend Dunn’s visitation privileges with his children

was unconstitutional.

The district court articulated the clearly established consti-

tutional right at issue in this case to be “the fundamental inter-

est a parent has in maintaining a relationship with his child.”

Our able district court colleague erred in defining the estab-

lished constitutional right so broadly.

[3] A court, when deciding whether there has been a viola-

tion of a “clearly established right” for qualified immunity,

must strike the proper balance in defining that right. In Ander-

son v. Creighton, the Court stressed the importance of this

balance and the adverse consequences of defining the right

too generally. 483 U.S. 635, 639-40 (1987). “For example, the

right to due process of law is quite clearly established by the

Due Process Clause, and thus there is a sense in which any

action that violates that Clause (no matter how unclear it may

be that the particular action is a violation) violates a clearly

established right,” id. at 639. Assuming there is an established

fundamental right to a relationship with one’s children, the

same could be said for any action that violates that fundamen-

tal right.

14086 DUNN v. CASTRO

But if the test of “clearly established law” were to be

applied at this level of generality, it would bear no

relationship to the “objective legal reasonableness”

that is the touchstone of Harlow. Plaintiffs would be

able to convert the rule of qualified immunity that

our cases plainly establish into a rule of virtually

unqualified liability simply by alleging violation of

extremely abstract rights. Harlow would be trans-

formed from a guarantee of immunity into a rule of

pleading. Such an approach, in sum, would destroy

“the balance that our cases strike between the inter-

ests in vindication of citizens’ constitutional rights

and in public officials’ effective performance of their

duties,” by making it impossible for officials “rea-

sonably [to] anticipate when their conduct may give

rise to liability for damages.” It should not be sur-

prising, therefore, that our cases establish that the

right the official is alleged to have violated must

have been “clearly established” in a more particular-

ized, and hence more relevant, sense: The contours

of the right must be sufficiently clear that a reason-

able official would understand that what he is doing

violates that right.

Id. at 639-40 (internal quotation marks and citation omitted)

(alteration in original).

The Court in Anderson criticized the court of appeals for

considering the qualified immunity question only in terms of

the petitioner’s “right to be free from warrantless searches of

one’s home unless the searching officers have probable cause

and there are exigent circumstances,” id. at 640, rather than

considering “the objective (albeit fact-specific) question

whether a reasonable officer could have believed Anderson’s

warrantless search to be lawful, in light of clearly established

law and the information the searching officers possessed,” id.

at 641.

DUNN v. CASTRO 14087

[4] The district court has committed a similar error in the

present case. It defined the pertinent right as a broad general

proposition, that is, a father’s right to the companionship of

his child. The cases cited by the magistrate judge and district

court may support the basic premise that a parent has a “fun-

damental liberty interest” in “the companionship and society

of his or her child” outside of prison.2 Lee v. City of Los Ange-

les, 250 F.3d 668, 685 (9th Cir. 2001). But we stress that “the

right allegedly violated must be defined at the appropriate

level of specificity before a court can determine if it was

clearly established.” Wilson v. Layne, 526 U.S. 603, 615

(1999); see also Calabretta v. Floyd, 189 F.3d 808, 812 (9th

Cir. 1999) (“The right the official is alleged to have violated

must have been ‘clearly established’ in an appropriately par-

ticularized sense.”). While an ordinary father may possess a

general right to a relationship with his child, Dunn is no ordi-

nary parent. He is a parent who is lawfully incarcerated. In

this case, therefore, the appropriate question is whether a rea-

sonable prison official could have believed that terminating

Dunn’s right to receive visits from his children was lawful, in

light of clearly established law and the information he pos-

2

None of the cases cited by the magistrate judge or district court

addresses the extent to which the “fundamental liberty interest” in familial

association survives when one is lawfully incarcerated. In Kelson v. City

of Springfield, the parents sued the city for school officials’ negligence in

permitting their 14-year old son to commit suicide while at school. 767

F.2d 651, 653-55 (9th Cir. 1985). In Smith v. City of Fontana, a detainee’s

children sued the city for the wrongful death of their father while in police

custody. 818 F.2d 1411, 1418-20 (9th Cir. 1987). In Lee, a mother sued

the city and city officials for the wrongful arrest, extradition, and incarcer-

ation of her mentally disabled son, who officials had mistakenly identified

as a wanted fugitive. 250 F.3d at 677-80. In Board of Directors of Rotary

International v. Rotary Club of Duarte, the Rotary Club of Duarte, Cali-

fornia, and two of its female members sued Rotary International for its

rules prohibiting the admission of female members. 481 U.S. 537, 540-42

(1987). In Conti v. City of Fremont, a restaurant owner sued the city for

its refusal to amend a zoning use permit that prohibited him from serving

alcohol to customers 18 to 20 years old. 919 F.2d 1385, 1386-88 (9th Cir.

1990).

14088 DUNN v. CASTRO

sessed. See James, 606 F.3d at 652-53 (acknowledging “a par-

ent’s right to participate in his child’s care, custody, and

management is clearly established ‘as a broad general propo-

sition,’ ” but holding that a father did not have a clearly estab-

lished right to have officials investigating the alleged abuse of

his child inform him about the investigation).

[5] At the time Defendants imposed the challenged restric-

tion, Supreme Court and Ninth Circuit precedent clearly

established that prisoners do not enjoy an absolute right to

receive visits while incarcerated, even from family members.

In Block v. Rutherford, the Court held “that the Constitution

does not require that detainees be allowed contact visits when

responsible, experienced administrators have determined, in

their sound discretion, that such visits will jeopardize the

security of the facility.” 468 U.S. 576, 589 (1984).3 In Ken-

tucky Department of Corrections v. Thompson, the Supreme

Court held “[t]he denial of prison access to a particular visitor

is well within the terms of confinement ordinarily contem-

plated by a prison sentence, and therefore is not independently

protected by the Due Process Clause.” 490 U.S. 454, 461

(1989) (internal citation and quotation marks omitted).

In Overton v. Bazzetta, the Court considered a substantive

due process claim challenging various prison regulations

restricting prisoners’ rights to receive visits from family mem-

bers. 539 U.S. 126, 129-30 (2003). The Court’s own hesita-

tion in articulating the existence and nature of an inmate’s

right to receive visits from family members while in prison is

instructive. The Court acknowledged that “outside the prison

context, there is some discussion in our cases of a right to

maintain certain familial relationships, including association

among members of an immediate family and association

between grandchildren and grandparents.” Id. at 131 (empha-

3

Block involved pretrial detainees, but the Court indicated that this

group should be treated similarly to convicted inmates in this regard. See

id. at 587.

DUNN v. CASTRO 14089

sis added). The Court, however, declined to “attempt to

explore or define the asserted right of association at any

length or determine the extent to which it survives incarcera-

tion.” Id. at 132. At the same time, the Court observed that

“[a]n inmate does not retain rights inconsistent with proper

incarceration,” and that “freedom of association is among the

rights least compatible with incarceration.” Id. at 131 (empha-

sis added). Further, despite how “severe[ly]” the prison regu-

lations at issue in Overton restricted the prisoners’ right to

receive visits from their own family, including minors, id. at

134, the Court upheld the constitutionality of the challenged

regulations, id. at 136-37.

The Court’s failure to recognize an absolute right to receive

visitors in prison, to a certain extent, necessarily flows from

the nature of prison, the goals it serves, and the deference

owed to prison administrators in effectuating those goals.

Prison serves the important purpose of deterring crime. Pell

v. Procunier, 417 U.S. 817, 822 (1974). “The premise is that

by confining criminal offenders in a facility where they are

isolated from the rest of society, a condition that most people

presumably find undesirable, they and others will be deterred

from committing additional criminal offenses.” Id.; see also

Rhodes v. Chapman, 452 U.S. 337, 352 (1981) (identifying

the deterrence of future crime among the “goals of the penal

function in the criminal justice system”). To that end,

“[l]awful incarceration brings about the necessary withdrawal

or limitation of many privileges and rights,” Pell, 417 U.S. at

822 (internal quotation marks omitted) (alteration in original),

including the right to associate with individuals with whom an

inmate would otherwise enjoy close personal and professional

relations outside of the prison context. See Jones v. North

Carolina Prisoners’ Labor Union, Inc., 433 U.S. 119, 125-26

(1977) (“Perhaps the most obvious of the First Amendment

rights that are necessarily curtailed by confinement are those

associational rights that the First Amendment protects outside

of prison walls. The concept of incarceration itself entails a

restriction on the freedom of inmates to associate with those

14090 DUNN v. CASTRO

outside of the penal institution.”). In Overton, the Court reiter-

ated the “substantial deference [courts must accord] to the

professional judgment of prison administrators, who bear a

significant responsibility for defining the legitimate goals of

a corrections system and for determining the most appropriate

means to accomplish them.” 539 U.S. at 132.

We have similarly declined to recognize a prisoner’s con-

stitutional right to receive visits, stating that “it is well-settled

that prisoners have no constitutional right while incarcerated

to contact visits.” Gerber v. Hickman, 291 F.3d 617, 621 (9th

Cir. 2002 ) (en banc); see also Keenan v. Hall, 83 F.3d 1083,

1092 (9th Cir. 1996) (affirming dismissal of prisoner’s claim

challenging regulation that denied him visits from persons

other than his immediate family); Barnett v. Centoni, 31 F.3d

813, 817 (9th Cir. 1994) (per curiam) (holding that prisoners

do not have a constitutional right to contact visitation privi-

leges); Toussaint v. McCarthy, 801 F.2d 1080, 1114 (9th Cir.

1986) (“To the extent that denial of contact visitation is

restrictive and even harsh, it is part of the penalty that crimi-

nals pay for their offenses against society.”), abrogated in

part on other grounds by Sandin v. Connor, 515 U.S. 472

(1995).

In determining whether a right is clearly established, we

may also look to precedent from other circuits. See Boyd v.

Benton County, 374 F.3d 773, 781 (9th Cir. 2004). Other cir-

cuits that have addressed the question have also declined to

recognize the right Dunn asserts here.4

4

See Samford v. Dretke, 562 F.3d 674, 682 (5th Cir. 2009) (per curiam)

(holding the removal of prisoner’s sons from the approved visitors list did

not violate his constitutional rights); Wirsching v. Colorado, 360 F.3d

1191, 1198-1201 (10th Cir. 2004) (upholding prison regulation that pro-

hibited a prisoner from receiving any visits from his children so long as

he refused to participate in a treatment program); Ware v. Morrison, 276

F.3d 385, 388 (8th Cir. 2002) (holding that the suspension of a prisoner’s

visitation privileges with his wife did not violate his due process rights);

DUNN v. CASTRO 14091

[6] Two other circumstances are relevant to defining the

contours of the constitutional right Dunn asserts in this case.

First, Dunn is not challenging the constitutionality of any of

the prison’s regulations as a matter of law. Instead, he is chal-

lenging the specific decision restricting his visitation privi-

leges. We note that Dunn is no longer under a permanent

restriction on his right to receive visits from his children.

Since July 28, 2005, Dunn has been aware of his entitlement

to receive visits from his children. Thus, Dunn is essentially

Peterson v. Shanks, 149 F.3d 1140, 1145 (10th Cir. 1998) (“[T]the

Supreme Court has held that inmates have no right to unfettered visitation.

Rather, prison officials necessarily enjoy broad discretion in controlling

visitor access to a prisoner[.]” (internal citation omitted)); Caraballo-

Sandoval v. Honsted, 35 F.3d 521, 525 (11th Cir. 1994) (“[I]nmates do not

have an absolute right to visitation, such privileges being subject to the

prison authorities’ discretion provided that the visitation policies meet

legitimate penological objectives.”); Robinson v. Palmer, 841 F.2d 1151,

1156-57 (D.C. Cir. 1988) (holding that the permanent denial of face-to-

face communications between inmate and his wife was not an “exagger-

ated response” to the perceived threat of visitors introducing drugs into the

prison); Thorne v. Jones, 765 F.2d 1270, 1273-75 (5th Cir. 1985) (holding

prisoner had no absolute right to visits from his parents); Harmon v.

Auger, 768 F.2d 270, 272 (8th Cir. 1985) (holding that an inmate does not

have a liberty interest in contact visits); Smith v. Coughlin, 748 F.2d 783,

788-89 (2d Cir. 1984) (upholding prison regulation that prohibited contact

visits from family); Bellamy v. Bradley, 729 F.2d 416, 420 (6th Cir. 1984)

(upholding the termination of family visits as a result of prison regulation

violations); Ramos v. Lamm, 639 F.2d 559, 570 n.26 (10th Cir. 1980)

(“[W]e think the weight of present authority clearly establishes that there

is no constitutional right to contact visitation. We agree with this view.”

(internal citations omitted)); Lynott v. Henderson, 610 F.2d 340, 342 (5th

Cir. 1980) (holding that “convicted prisoners have no absolute constitu-

tional right to visitation”); Inmates of Allegheny County Jail v. Pierce, 612

F.2d 754, 758-60 (3d Cir. 1979) (holding that prohibition of contact visits

from family members does not violate prisoners’ due process rights); Fee-

ley v. Sampson, 570 F.2d 364, 372-73 (1st Cir. 1978) (“As for contact vis-

its, we can discover no constitutional guarantee that such visits may take

place.”); Oxendine v. Williams, 509 F.2d 1405, 1407 (4th Cir. 1975) (hold-

ing that inmate had no constitutional right to physical contact with his

family).

14092 DUNN v. CASTRO

challenging an 18-month suspension of his visitation privileges.5

Our conclusion might be different if Dunn were presently

subject to a blanket ban on his visitation privileges. See Over-

ton, 539 U.S. at 137 (“If the withdrawal of all visitation privi-

leges were permanent or for a much longer period, . . . the

case would present different considerations.”); but see id. at

130, 134 (upholding a prison regulation that prohibited pris-

oners who had committed multiple substance abuse violations

from receiving any visitors except attorneys and clergy mem-

bers for a period of two years).

[7] Second, prisons officials had grounds for concluding

that Dunn had violated prison rules when he participated in a

sexually-oriented telephone call involving a minor. Dunn

alleges that he was merely having phone sex with his wife,

without knowing that his child was also on the line, an allega-

tion we must accept as true for purposes of our analysis. See

Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). Even

accepting Dunn’s allegation as true, however, he still con-

cedes the essential facts of the reported misconduct—his par-

ticipation in a sexually explicit phone call that involved a

minor.

[8] Further, whether or not based upon 15 CCR section

3173.1, prison officials had a basis for restricting Dunn’s visi-

tation privileges. In the Director’s Level Appeal Decision, the

Inmate Appeal Branch concluded that even though 15 CCR

section 3173.1 may not have been the “appropriate vehicle”

for imposing the restriction on Dunn’s privileges, the restric-

tion “could as easily have been supported by initiating an

investigation into a possible conspiracy to circumvent visiting

rules using minors, causing the minor’s right to visit to be sus-

pended pending the outcome of that investigation.”6 As a

5

Dunn’s visitation privileges were actually restored on February 18,

2005. Dunn, however, did not receive notice of the decision lifting the

restriction until July 28, 2005.

6

In considering a Rule 12(b)(6) motion, a district court generally may

not take into account material beyond the complaint. Intri-Plex Technolo-

DUNN v. CASTRO 14093

result, the Inmate Appeals Branch concluded that “[t]he

immediate effect would have been the same,” and “there

[was] no evidence that either the appellant or his family suf-

fered needless harm from the actions of ICC and there [was]

evidence that ICC had both reason and obligation to ensure

the safety of the minor before allowing future visits to occur.”

Id. Moreover, the possibility of a mistake in originally basing

the restriction in section 3173.1, as opposed to some alterna-

tive regulation, would not foreclose the qualified immunity

defense. “The qualified immunity standard gives ample room

for mistaken judgments.” Hunter, 502 U.S. at 229 (internal

quotation marks omitted); see also Mueller v. Auker, 576 F.3d

979, 993 (9th Cir. 2009) (stating the purpose of qualified

immunity is “to recognize that holding officials liable for rea-

sonable mistakes might unnecessarily paralyze their ability to

make difficult decisions in challenging situations, thus dis-

rupting the effective performance of their public duties”). In

sum, the facts alleged in this case do not reveal that the

restriction on Dunn’s visitation privileges was imposed arbi-

trarily or irrationally. See Overton, 539 U.S. at 137 (“If the

gies, Inc. v. Crest Group, Inc., 499 F.3d 1048, 1052 (9th Cir. 2007). How-

ever, there are exceptions to the general rule. Under the “incorporation by

reference” doctrine, we may consider “documents whose contents are

alleged in a complaint and whose authenticity no party questions, but

which are not physically attached to the [plaintiff’s] pleading.” Knievel v.

ESPN, 393 F.3d 1068, 1076 (9th Cir. 2005) (alteration in original) (inter-

nal quotation marks omitted); see also Tellabs, Inc. v. Makor Issues &

Rights, Ltd., 551 U.S. 308, 322 (2007) (“[C]ourts must consider the com-

plaint in its entirety, as well as other sources courts ordinarily examine

when ruling on Rule 12(b)(6) motions to dismiss, in particular, documents

incorporated into the complaint by reference, and matters of which a court

may take judicial notice.”). Dunn expressly refers to the July 28, 2005,

decision—an administrative decision the authenticity of which neither

party contests—throughout his complaint. Further, we note that Dunn has

attached a copy of the July 28, 2005, decision as an exhibit to both his

memorandum in response to Defendant’s motion to dismiss in the district

court as well as his response brief before this court. Thus, our consider-

ation of the Director’s Level Appeal Decision is appropriate in the context

of reviewing Defendants’ motion to dismiss.

14094 DUNN v. CASTRO

withdrawal of all visitation privileges . . . were applied in an

arbitrary manner to a particular inmate, the case would pre-

sent different considerations.”).

CONCLUSION

[9] The right at issue here is not an abstract right to famil-

ial association. By so holding, the district court erred by

defining the question at too high a level of generality and

evaluating that question without regard to the relevant fact-

specific circumstances. Like the Court in Overton, we do not

hold or imply that incarceration entirely extinguishes the right

to receive visits from family members. See 539 U.S. at 131-

32. Nor do we deprecate the value of the relationship between

Dunn and his children. The relationship between a father or

mother and his or her child, even in prison, merits some

degree of protection. The pertinent inquiry in this case, how-

ever, goes beyond an ordinary father’s interest in sharing a

relationship with his child. It is rather whether a reasonable

officer could have believed that Dunn—a lawfully incarcer-

ated prisoner who was reasonably believed to have engaged

in improper conduct with a minor—could be temporarily

deprived of his visitation privileges with his own children.

That constitutional question “is by no means open and shut.”

See Wilson, 526 U.S. at 615. At the time of the challenged

restriction on Dunn’s visitation privileges, federal courts had

held that prisoners do not have an absolute right to visitation,

as such privileges are necessarily subject to the prison author-

ities’ discretion, provided their administrative decisions are

tied to legitimate penological objectives. Thus, we conclude

that the right of a prisoner to receive visits from his children

in the factual circumstances of this case was not clearly estab-

lished in 2004, when the restriction was imposed. Accord-

ingly, we hold that Defendants did not have fair warning that

their actions were unconstitutional and that they “could have

believed [their] actions lawful at the time they were

undertaken.” Friedman v. Boucher, 580 F.3d 847, 858 (9th

DUNN v. CASTRO 14095

Cir. 2009). As a result, the district court erred in holding

Defendants are not entitled to qualified immunity.7

REVERSED and REMANDED to the district court for

further proceedings in conformity with this opinion.

7

Defendants asked the district court to rule in their favor on the basis

of the four-factor test articulated in Turner v. Safley, 482 U.S. 78 (1987).

Both the magistrate judge and district court concluded that the application

of the Turner factors would be premature at the Rule 12(b)(6) stage. We

have previously declined to render a decision on whether a prisoner’s

rights have been violated under a challenged regulation in the absence of

adequate factual findings by the district court on the Turner elements. See

Shakur v. Schriro, 514 F.3d 878, 887-88 (9th Cir. 2008); Ward v. Walsh,

1 F.3d 873, 878-79 (9th Cir. 1993). We similarly decline to render any

decision on the application of Turner to the facts at issue in this case.