Gerber v. Hickman

• Decision Date: 13 December 2000
• Docket Number: PLAINTIFF-APPELLANT,DEFENDANT-APPELLEE,No. 00-16494,00-16494
• Citation: 264 F.3d 882
• Parties: (9th Cir. 2001) WILLIAM GERBER,, v. RODNEY HICKMAN, <A HREF="#fr1-*" name="fn1-*">* WARDEN,
• Court: U.S. Court of Appeals — Ninth Circuit

Page 882

264 F.3d 882 (9th Cir. 2001)

WILLIAM GERBER, PLAINTIFF-APPELLANT, v. RODNEY HICKMAN,^* WARDEN, DEFENDANT-APPELLEE.

No. 00-16494

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Argued and Submitted December 13, 2000--San Francisco, California

Filed September 5, 2001

Counsel Teresa L. Zuber, Sacramento, California, for the appellant.

Bill Lockyer, Attorney General, David P. Druliner, Chief Assistant Attorney General, Paul D. Gifford, Senior Deputy Attorney General, John M. Appelbaum, Supervising Deputy Attorney General, and Gregory S. Walston, Deputy Attorney General, Sacramento, California, for the appellee.

Appeal from the United States District Court for the Eastern District of California Frank C. Damrell, Jr., District Judge, Presiding D.C. No. CV-99-01315-FCD

Before: Myron H. Bright,^**Stephen Reinhardt, and Barry G. Silverman, Circuit Judges.

Bright, Circuit Judge

William Gerber, a prisoner incarcerated in the State of California, appeals from a judgment in the district court dismissing his complaint for failure to state a claim upon which relief can be granted pursuant to FED. R. C IV. P. 12(b)(6). The complaint presents a claim under 42 U.S.C. § 1983 for alleged violation of his substantive due process rights and under California state law for alleged violation of his statutory rights. In the complaint, Gerber alleges that the California Department of Corrections ("CDC") denied his fundamental right to procreate in violation of the Fourteenth Amendment guarantee of substantive due process. On appeal, Gerber principally contends that the district court erred in concluding that the right to procreate does not survive incarceration. The district court did not reach the question of whether the prison may restrict Gerber's exercise of that right in the manner in which he seeks to exercise it (i.e. by artificial insemination). We conclude that the right to procreate survives incarceration and that the factually unsupported arguments put forth by the Warden as legitimate penological reasons to restrict Gerber's exercise of his right to procreate are insufficient to justify dismissal of the complaint. Accordingly, we REVERSE and VACATE the dismissal and REMAND for further proceedings.

I. BACKGROUND¹

This case concerns a life-term prisoner's effort to have a child by artificially inseminating his wife. Artificial insemination is a noncoital process in which semen is collected from a man under laboratory conditions and then introduced into a woman's body with a needleless hypodermic syringe at a favorable time in her ovulation cycle. See generally Katheryn D. Katz, The Clonal Child: Procreative Liberty and Asexual Reproduction, 8 Alb. L.J. Sci. & Tech. 1, 23 (1997); Katheleen R. Guzman, Property, Progeny, Body Part: Assisted Reproduction and the Transfer of Wealth, 31 U.C. Davis L. Rev. 193, 202 (1997) (noting a conservative estimate that there have been more than 500,000 children conceived by artificial insemination in the United States).

Appellant William Gerber desires to artificially inseminate his wife because his particular circumstances disallow the "natural" method of procreation. Gerber was sentenced to 100 years to life imprisonment plus eleven years pursuant to California's three strikes law, Cal. Penal Code § 667, after his 1997 conviction for discharging a firearm, making terrorist threats, and using narcotics. Prior to his conviction, he and his now forty-six-year-old wife wished to conceive a child. However, he is constrained in employing the usual methods for achieving this goal because he is a life-term prisoner incarcerated in California, and, under CDC regulations, conjugal visits are prohibited for inmates "sentenced to life without the possibility of parole [or] sentenced to life, without a parole date established by the Board of Prison Terms." C AL. CODE REGS. tit. 15, § 3174(e)(2). Given Gerber's sentence and his wife's age, he alleges that artificial insemination is the only method by which they can conceive a child together.

Gerber requested that prison authorities permit him to provide a semen specimen to a laboratory so that his wife may be artificially inseminated with it. According to Gerber, the University Andrology Laboratory and Sperm Bank at the University of Illinois at Chicago Medical Center would mail him a packet containing a plastic receptacle and a postage-paid return mailer. Then, Gerber would ejaculate into the receptacle, place it into the return mailer, and send it by overnight mail back to the laboratory. Gerber's privately retained lawyer offered to retrieve the return mailer directly from Gerber if prison authorities do not want Gerber to place it in the mail himself. Gerber does not object to the inspection of his return package in accordance with the prison's usual procedures. Furthermore, Gerber and his wife are willing to bear all of the costs necessary to facilitate the specimen collection, including paying for a licensed physician to come on the premises to oversee the procedure. The prison denied his request after determining that the procedure was not medically necessary and that Gerber as a prisoner had not shown that the CDC had violated any of his constitutional rights.

This case has a complicated procedural history. On July 8, 1999, following denial of his request and exhaustion of his administrative remedies, Gerber filed an application for a writ of habeas corpus, construed by the district court as a civil action alleging violation of Gerber's civil rights, against the Warden of the Mule Creek State Prison where he was incarcerated.² By order dated September 9, 1999, the district court dismissed Gerber's action with leave for Gerber to file an amended complaint alleging a violation of 42 U.S.C.§ 1983.

On October 7, 1999, Gerber filed the amended complaint, naming Warden Rodney Hickman as the sole defendant and seeking injunctive relief. In the complaint, he alleged that the Warden's policy violated his constitutional right to procreate under the Due Process Clause of the Fourteenth Amendment and his statutory rights as a California prisoner guaranteed by CAL. PENAL CODE §§ 2600 and 2601. The parties consented, under 28 U.S.C. § 636(c), to conduct all proceedings before Magistrate Judge John F. Moulds. On January 5, 2000, the Warden moved to dismiss the complaint pursuant to F ED. R. CIV. P. 12(b)(6), for failure to state a claim upon which relief can be granted, or, alternatively, for summary judgment, on the basis that the right to procreate does not survive incarceration and that, even if it did, the restriction on artificial insemination is reasonably related to the legitimate penological goals of treating male and female inmates equally to the extent possible, conserving prison resources, maintaining institutional security interests, and preserving inmates' rehabilitation.

The magistrate judge heard oral argument on the Warden's motion on March 2, 2000. On March 7, 2000, the magistrate judge filed findings and recommendations, recommending denial of the Warden's motion to dismiss and denial of both parties' motions for summary judgment without prejudice. The magistrate judge found that the Warden failed to establish as a matter of law that the right to procreate does not exist during incarceration, that an inquiry into both the practical aspects of restrictions that arise as a consequence of an individual's status as a prisoner and the legitimate penological objectives of the corrections system is best undertaken on a fully developed factual record and not on a motion to dismiss, and that Gerber made a substantial showing that numerous facts are disputed underlying the determination of legal issues, thus obviating summary judgment dismissal.

Subsequently, the district court rejected the magistrate judge's findings and recommendations and dismissed the complaint for failure to state a claim upon which relief can be granted. The district court made no ruling on the motion for summary judgment. On June 23, 2000, the district court filed an amended memorandum and order and entered judgment that same day. The district court concluded that:

Whatever right plaintiff has to artificial insemination, it does not survive incarceration.

Gerber v. Hickman, 103 F. Supp. 2d 1214, 1218 (E.D. Cal. 2000). Gerber appealed.

II. JURISDICTION AND STANDARD OF REVIEW

We have jurisdiction over the district court's judgment pursuant to 28 U.S.C. § 1291.

We review the district court's dismissal for failure to state a claim de novo. Wright v. Riveland, 219 F.3d 905, 912 (9th Cir. 2000). "[A] complaint should not be dismissed unless it appears beyond a doubt that plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Id. (quoting Steckman v. Hart Brewing, Inc., 143 F.3d 1293, 1295 (9th Cir. 1998)).

III. DISCUSSION

A. Section 1983 Claim

To successfully bring a claim under 42 U.S.C. § 1983, Gerber must establish that (1) the conduct complained of was committed by a person acting under color of state law, and (2) the conduct deprived [Gerber] of a constitutional right. L.W. v. Grubbs, 974 F.2d 119, 120 (9th Cir. 1992).

The parties do not dispute that Defendant-Appellee Warden Hickman is a state actor. Our focus, therefore, must be on whether Warden Hickman deprived Mr. Gerber of a right or interest granted by the Constitution.

In urging this court to reverse the district court's dismissal, Gerber asserts that he set forth a violation of his substantive due process rights by the CDC and that the district court erred in its determination that the fundamental right to procreate does not survive incarceration.³

We must undertake a two step analysis to determine whether Gerber's substantive due process rights were violated. First, we must determine whether there is a fundamental right involved (in this case, the right to procreate) and whether that fundamental right is not "inconsistent with [Gerber's...