Gerber v. Hickman

• Citation: 291 F.3d 617
• Decision Date: 23 May 2002
• Docket Number: No. 00-16494.,00-16494.
• Parties: William GERBER, Plaintiff-Appellant, v. Rodney HICKMAN, Warden, Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 617

291 F.3d 617

William GERBER, Plaintiff-Appellant, v. Rodney HICKMAN, Warden, Defendant-Appellee.

No. 00-16494.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 20, 2002.

Filed May 23, 2002.

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Teresa L. Zuber, Law Offices of Teresa L. Zuber, Sacramento, CA, for the plaintiff-appellant.

Gregory S. Walston, Deputy Attorney General, Sacramento, CA, for the defendant-appellee.

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

Before: SCHROEDER, Chief Judge, KOZINSKI, O'SCANNLAIN, RYMER, HAWKINS, TASHIMA, SILVERMAN, GOULD, PAEZ, BERZON, and RAWLINSON, Circuit Judges.

SILVERMAN, Circuit Judge.

William Gerber, an inmate in the California State prison system, filed an amended complaint in federal court in which he alleged: "Petitioner asserts that Mule Creek State Prison is violating his Constitutional Rights by not allowing him to provide his wife with a sperm specimen that she may use to be artificially inseminated." Gerber sought an order of the court directing the institution to permit him to provide "a sample of sperm to artificially inseminate his wife."

The district court dismissed Gerber's suit for failure to state a claim, ruling that a prisoner does not have a constitutional right to procreate while incarcerated. Gerber v. Hickman, 103 F.Supp.2d 1214, 1216-18 (E.D.Cal.2000). Because we agree with the district court that the right to procreate is fundamentally inconsistent with incarceration, we affirm.

I. BACKGROUND

We adopt the statement of facts from the district court's thoughtful opinion:

Plaintiff, a forty-one year old man, is an inmate at Mule Creek State Prison serving a sentence of 100 years to life plus eleven years. Plaintiff's wife, Evelyn Gerber, is forty-four years old. Plaintiff and his wife want to have a baby. The California Department of Corrections ("CDC") prohibits family visits 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." Cal.Code Regs. tit. 15 § 3174(e)(2). No parole date has been set for plaintiff, and according to plaintiff, due to the length of his sentence, no parole date seems likely. Accordingly, he wishes to artificially inseminate his wife. To accomplish this, plaintiff requests that (1) a laboratory be permitted to mail him a plastic collection container at the prison along with a prepaid return mailer, (2) he be permitted to ejaculate into the container, and (3) the filled container be returned to the laboratory in the prepaid mailer by overnight mail. Alternatively, plaintiff requests that his counsel be permitted to personally pick up the container for transfer to the laboratory or health care provider. Plaintiff represents that he and his wife will bear all of the costs associated therewith, including any costs incurred by the CDC. Defendant [Hickman] refuses to accommodate plaintiff's request.

Gerber, 103 F.Supp.2d at 1216 (first alteration in original).

II. JURISDICTION AND STANDARD OF REVIEW

We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291, and we review de novo a district court's dismissal for failure to state a claim. Monterey Plaza Hotel, Ltd. v. Local 483, 215 F.3d 923, 926 (9th Cir.2000).

III. ANALYSIS

A. Fundamental Rights in the Prison Setting

It is well-settled that "[p]rison walls do not form a barrier separating prison inmates from the protections of the Constitution." Turner v. Safley, 482 U.S. 78, 84, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987). A state could not, for example, decide to ban inmate access to mail or prohibit access to the courts. However, "while persons imprisoned ... enjoy many protections of the Constitution, it is also clear that imprisonment carries with it the... loss of many significant rights." Hudson v. Palmer, 468 U.S. 517, 524, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984). The very fact of incarceration thus "withdraw[s] or limit[s]... many privileges and rights," and this "retraction [is] justified by the considerations underlying our penal system." Pell v. Procunier, 417 U.S. 817, 822, 94 S.Ct. 2800, 41 L.Ed.2d 495 (1974) (internal quotation marks omitted). Prisoners retain only those rights "not inconsistent with [their] status as ... prisoner[s] or with the legitimate penological objectives of the corrections system." Hudson, 468 U.S. at 523, 104 S.Ct. 3194 (quoting Pell, 417 U.S. at 822, 94 S.Ct. 2800) (alterations in original).

Gerber challenges the prison's refusal to allow him to artificially inseminate his wife from prison. In order to determine whether this amounts to an impermissible deprivation of Gerber's constitutional rights, our inquiry is two-fold. First, we must determine whether the right to procreate while in prison is fundamentally inconsistent with incarceration. Turner, 482 U.S. at 94-96, 107 S.Ct. 2254. If so, this ends our inquiry. Prisoners cannot claim the protection of those rights fundamentally inconsistent with their status as prisoners.

Only if we determine that the asserted right is not inconsistent with incarceration do we proceed to the second question: Is the prison regulation abridging that right reasonably related to legitimate penological interests? Turner, 482 U.S. at 96-99, 107 S.Ct. 2254. If it is, the regulation is valid; if not, it is unconstitutional.

B. Whether the Right to Procreate is Fundamentally Inconsistent with Incarceration

1.

We begin our analysis by inquiring whether the right to procreate is fundamentally inconsistent with incarceration. Incarceration, by its very nature, removes an inmate from society. Pell, 417 U.S. at 822-23, 94 S.Ct. 2800. A necessary corollary to this removal is the separation of the prisoner from his spouse, his loved ones, his friends, family, and children. Cf. Montanye v. Haymes, 427 U.S. 236, 242 n. 4, 96 S.Ct. 2543, 49 L.Ed.2d 466 (1976) (noting that among the hardships that may result from a prison transfer are separation of the inmate from home and family). Once released from confinement, an inmate "can be gainfully employed and is free to be with family and friends and to form the other enduring attachments of normal life." Morrissey v. Brewer, 408 U.S. 471, 482, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972). But not until then.

During the period of confinement in prison, the right of intimate association, "a fundamental element of personal liberty," Roberts v. United States Jaycees, 468 U.S. 609, 618, 104 S.Ct. 3244, 82 L.Ed.2d 462 (1984), is necessarily abridged. Intimate association protects the kinds of relationships "that attend the creation and sustenance of a family — marriage, childbirth, the raising and education of children, and cohabitation with one's relatives...." Id. at 619, 104 S.Ct. 3244 (citations omitted). The loss of the right to intimate association is simply part and parcel of being imprisoned for conviction of a crime.

"[M]any aspects of marriage that make it a basic civil right, such as cohabitation, sexual intercourse, and the bearing and rearing of children, are superseded by the fact of confinement." Goodwin v. Turner, 702 F.Supp. 1452, 1454 (W.D.Mo. 1988). Thus, while the basic right to marry survives imprisonment, Turner, 482 U.S. at 96, 107 S.Ct. 2254, most of the attributes of marriage—cohabitation, physical intimacy, and bearing and raising children — do not. "Rights of marital privacy, like the right to marry and procreate, are necessarily and substantially abridged in a prison setting." Hernandez v. Coughlin, 18 F.3d 133, 137 (2d Cir.1994) (citing Turner, 482 U.S. at 95-96, 107 S.Ct. 2254). Incarceration is simply inconsistent with the vast majority of concomitants to marriage, privacy, and personal intimacy.

Our view is informed by "the legitimate policies and goals of the corrections system...." Pell, 417 U.S. at 822, 94 S.Ct. 2800. We note that "confining criminal offenders in a facility where they are isolated from the rest of society" serves to deter crime and protect the public. Id. Also, "by quarantining criminal offenders for a given period of time ... the rehabilitative processes of the corrections system work to correct the offender's demonstrated criminal proclivity." Id. at 823, 94 S.Ct. 2800. In this sense "[t]he curtailment of certain rights is necessary, as a practical matter, to accommodate a myriad of `institutional needs and objectives' of prison facilities...." Hudson, 468 U.S. at 524, 104 S.Ct. 3194 (quoting Wolff v. McDonnell, 418 U.S. 539, 555, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974)). Furthermore, "these restrictions or retractions also serve ... as reminders that, under our system of justice, deterrence and retribution are factors in addition to correction." Hudson, 468 U.S. at 524, 104 S.Ct. 3194. "[I]ncarceration, by its very nature, deprives a convicted individual of the fundamental right to be free from physical restraint," and this "in turn encompasses and restricts other fundamental rights, such as the right to procreate." State v. Oakley, 245 Wis.2d 447, 629 N.W.2d 200, 209 (2001) (citing Meyer v. Nebraska, 262 U.S. 390, 399, 43 S.Ct. 625, 67 L.Ed. 1042 (1923)).

For example, it is well-settled that prisoners have no constitutional right while incarcerated to contact visits or conjugal visits. See Kentucky Dep't of Corrs. v. Thompson, 490 U.S. 454, 460, 109 S.Ct. 1904, 104 L.Ed.2d 506 (1989) (no due process right to unfettered visitation); Block v. Rutherford, 468 U.S. 576, 585-88, 104 S.Ct. 3227, 82 L.Ed.2d 438 (1984) (pretrial detainees have no constitutional due process right to contact visits); Hernandez, 18 F.3d at 137 (no constitutional right to conjugal visits); Davis v. Carlson, 837 F.2d 1318, 1319 (5th Cir.1988) (same); Toussaint v. McCarthy, 801 F.2d 1080, 1113-1114 (9th Cir.1986) (denial of contact visits does not violate Eighth Amendment).¹ The fact that California prison officials may...