Desper v. Clarke, No. 19-7346 (4th Cir. 2021)
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Plaintiff, a sex offender incarcerated at Augusta Correctional Center, filed a 42 U.S.C. 1983 action challenging the prison's decision for twice denying him in-person visitation privileges with his minor daughter. Plaintiff alleged that for years before 2015, he enjoyed in-person visitation with the child without incident. However, consistent with amendments to prison Operating Procedures adopted in March 2014, the child was removed from his in-person visitation list in 2015. As amended, Operating Procedure 851.1 prohibits those inmates required to register on Virginia's Sex Offender and Crimes Against Minors Registry from having in-person visits with minors unless the offender receives an exemption from prison officials.
The Fourth Circuit affirmed the district court's grant of the VDOC's motion to dismiss, concluding that the right of association protected by the Constitution does not require a prison to allow an inmate who has committed a sex offense against a minor to have in-person visitation with his minor daughter. In this case, defendant did not plausibly allege that the VDOC's denial of his applications for exemptions for in-person visitation with his minor daughter under Operating Procedure 851.1 violated any aspect of the right to association that may have survived incarceration. The court rejected defendant's contention that the VDOC's denial of his two applications for exemption violated his procedural and substantive due process rights. Finally, defendant failed to plead a plausible equal protection claim.
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