William Gerber v. Rodney Hickman, Warden

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. CIV. 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…

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-FCDBefore: Myron H. Bright, ** Stephen Reinhardt, and Barry G. Silverman, Circuit Judges. Bright, Circuit Judge 1 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…

dissenting:

This is a seminal case in more ways than one. Contrary to all precedent, the majority today holds that a prison inmate — in this instance, an inmate serving a life sentence — has a constitutional right to mail his semen from prison so that his wife can be artificially inseminated. With the utmost respect, the majority’s reading of the Constitution is as unprecedented as it is ill-conceived.

The majority simply does not accept the fact that there are certain downsides to being confined in prison, and that the interference with a normal family life is one of them. Morrissey v. Brewer, 408 U.S. 471, 482 , 92 S.Ct. 2593 , 38 L.Ed.2d 484 (1972). It is true that inmates do not lose all constitutional rights upon incarceration. It is true that they retain the right to marry. Turner v. Safley, 482 U.S. 78 , 107 S.Ct. 2254 , 96 L.Ed.2d 64 (1987). It is true that the Eighth Amendment protects them against forced surgical sterilization. Skinner v. Oklahoma, 316 U.S. 535 , 62 S.Ct. 1110 , 86 L.Ed. 1655 (1942). All of that, however, is a far cry from holding that inmates retain a constitutional right to procreate from prison via FedEx. The Turner Court recognized that even though…