William Gerber v. Rodney Hickman, Warden

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. COPYRIGHT MATERIAL OMITTED 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. 1 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…

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:

*620 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…

with whom KOZINSKI, HAWKINS, PAEZ, and BERZON, Circuit Judges, join, dissenting.

There is absolutely nothing in the record indicating that procreation simpliciter— the right to have a child — is fundamentally inconsistent with the fact of incarceration. The majority has cited no facts to support such a conclusion and common sense does not lead to such a result. I therefore respectfully dissent.

The majority assumes that there is a fundamental right to procreation and I agree. There can be no dispute that such a right exists. See Carey v. Population Servs. Int'l, 431 U.S. 678, 685 , 97 S.Ct. 2010 , 52 L.Ed.2d 675 (1977) (citing the right of personal privacy in decisions relating to marriage, procreation, contraception, family relationships, and child rearing and education, and stating that “[t]he decision whether or not to beget or bear a child is at the very heart of this cluster of constitutionally protected choices”); Skinner v. Oklahoma, 316 U.S. 535, 541 , 62 S.Ct. 1110 , 86 L.Ed. 1655 (1942) (describing procreation as “one of the basic civil rights of man” and “fundamental to the very existence and survival of the race”). Thus, the question is whether that right is…