William GERBER, Plaintiff-Appellant, v. Rodney HICKMAN, Warden, Defendant-Appellee, 291 F.3d 617

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. Plaintiffs 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 plaintiffs 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 488, 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^] 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]ncareeration, 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). The fact that California prison officials may choose to permit some inmates the privilege of conjugal visits is simply irrelevant to whether there is a constitutional right to conjugal visits or a right to procreate while in prison.

It is difficult, if not impossible, to reconcile the holdings of cases like Turner, Hudson, and Pell and an understanding of the nature and goals of a prison system, with a wholly unprecedented reading of the constitution that would command the warden to accommodate Gerber’s request to artificially inseminate his wife as a matter of right. 2. One issue that arose during oral argument was the effect of technological advancement on the issue before us. If, for example, science progressed to the point where Gerber could artificially inseminate his wife as easily as write her a letter, would this change our analysis?

It would not. Our conclusion that the right to procreate is inconsistent with incarceration is not dependent on the science of artificial insemination, or on how easy or difficult it is to accomplish. Rather, it is a conclusion that stems from consideration of the nature and goals of the correctional system, including isolating prisoners, deterring crime, punishing offenders, and providing rehabilitation. See generally Jack B. Weinstein & Catherine Wimberly, Secrecy in Law and Science, 23 Cardozo L.Rev. 1, 9-11 (2001) (discussing the interaction between law and science). 3.

Gerber argues that the right to be free from forced surgical sterilization, Skinner v. Oklahoma, 316 U.S. 535, 62 S.Ct. 1110, 86 L.Ed. 1655 (1942), combined with the right to marry while in prison, Turner, 482 U.S. at 96, 107 S.Ct. 2254, inevitably leads to the conclusion that inmates have a constitutional right to procreate while in prison. This argument fails for two reasons. First, Skinner stands only for the proposition that forced surgical sterilization of prisoners violates the Equal Protection Clause.

The Court in Skinner recognized that procreation is fundamental to the existence of the race, and thus the state’s “power to sterilize, if exercised, may have subtle, farreaching and devastating effects.” Skinner, 316 U.S. at 541, 62 S.Ct. 1110. Sterilization is intrusive, permanent, and irreparable. By no stretch of the imagination, however, did Skinner hold that inmates have the right to exercise their ability to procreate while still in prison.

The right to procreate while incarcerated and the right to be free from surgical sterilization by prison officials are two very different things. “There is simply no comparison between sterilization ... and denial of the facilitation of artificial insemination.” Goodwin, 702 F.Supp. at 1454 (citation omitted). The Second Circuit in Hernandez, 18 F.3d at 136, has recognized this crucial distinction, noting in its discussion of Skinner that “inmates possess the right to maintain their procreative abilities for later use once released from custody .... ” Later use, not current use.

Second, the Supreme Court in Turner recognized that an inmate’s right to marry while in prison did not include the inmate’s right to consummate the marriage while in prison or to enjoy the other tangible aspects of marital intimacy. The Turner Court held that the right to marry and “many important attributes of marriage” survive incarceration, such as expressions of emotional support and the exercise of religious faith. 482 U.S. at 95-96, 107 S.Ct. 2254.

However, the Court clearly stated that the right to marry “is subject to substantial restrictions as a result of incarceration,” and that inmate marriages are formed “in the expectation that they ultimately will be fully consummated.” Id. at 96, 107 S.Ct. 2254 (emphasis added). The Court plainly envisioned that while the intangible and emotional aspects of marriage survive incarceration, the physical aspects do not. See Hernandez, 18 F.3d at 137.

A holding that the State of California must accommodate Gerber’s request to artificially inseminate his wife as a matter of constitutional right would be a radical and unprecedented

interpretation of the Constitution. We hold that the right to procreate while in prison is fundamentally inconsistent with incarceration. Accordingly, we do not reach the second part of the analysis to inquire whether the prison’s regulation is related to a valid peno-logical interest. C. State Law Claims Gerber alleges that the Hickman’s failure to accommodate his artificial insemination request violates CaLPenal Code §§ 2600 &

Section 2600 provides that “persons sentenced to imprisonment in state prison may during that period of confinement be deprived of such rights ... reasonably related to legitimate penological interests.” The test under § 2600 thus mirrors the Turner v. Safley inquiry. Thompson v. Department of Corr., 25 Cal.4th 117, 130, 105 Cal.Rptr.2d 46, 18 P.3d 1198 (2001). We have already found that Gerber has no constitutional right to procreate while in prison. Nor can he show that the California constitution or California statutes afford him this right.

The most Gerber can point to is the right to marry contained in § 2601 (permitting California prisoners to marry). Thus, Gerber cannot satisfy Thompson and fails to state a claim upon which relief can be granted. We therefore affirm the dismissal of his state law claims. D. Leave to Amend Gerber argues that the district court abused its discretion in dismissing his complaint without leave to amend to add equal protection and Eighth Amendment claims. We review a denial of leave to amend for an abuse of discretion. Simon v. Value Behavioral Health, Inc., 208 F.3d 1073, 1084 (9th Cir.2000).

Gerber claims that the state’s refusal to allow him to provide his wife with a sperm sample violates equal protection principles, because the state allows conjugal visits to some inmates but denies them to him. However, Gerber is not similarly situated to inmates who are eligible for conjugal visits. Inmates eligible for conjugal visits will eventually be released from prison, CaLCode Regs. tit. 15 § 3174(e)(2), while Gerber will not. We therefore apply rationality review. Giannini v. Real, 911 F.2d 354, 359 (9th Cir.1990).

Because it is completely rational for prison officials to decide that maintaining contact with those outside the prison is more important for inmates who will eventually be released from prison than for those ineligible for parole, the distinction Gerber challenges is rational and his equal protection claim is without merit. Because leave to allege a violation of the Equal Protection Clause would have been futile, the district did not abuse its discretion. Gerber also argues that denial of his artificial insemination request violates the Eighth Amendment’s prohibition against cruel and unusual punishment.

Because the state’s denial of his request to artificially inseminate his wife can by no means be considered a deprivation of “the minimal civilized measure of life’s necessities,” Hudson v. McMillian, 503 U.S. 1, 9, 112 S.Ct. 995, 117 L.Ed.2d 156 (1992), granting leave for Gerber to allege an Eight Amendment claim would have been futile as well. The district court therefore acted within its discretion in dismissing Gerber’s complaint without permitting leave to amend. AFFIRMED. . See also Barnett v.

Centoni, 31 F.3d 813, 817 (9th Cir.1994) (per curiam) (prisoner right to access to counsel not inconsistent with lack of general right to contact visits); Bellamy v. Bradley, 729 F.2d 416, 420 (6th Cir.1984) (no absolute right to contact visits); Montana v. Commissioners Court, 659 F.2d 19, 21 (5th Cir.1981) (no constitutional right to conjugal visits); Lynott v. Henderson, 610 F.2d 340, 342 (5th Cir.1980) (no constitutional right to visitation); Ramos v. Lamm, 639 F.2d 559, 580 n. 26 (10th Cir.1980) (no constitutional right to contact visits); McCray v.

Sullivan, 509 F.2d 1332, 1334-35 (5th Cir.1975) (no constitutional right to conjugal visits); Oxendine v. Williams, 509 F.2d 1405, 1407 (4th Cir.1975) (no constitutional right to physical contact with family); Payne v. District of Columbia, 253 F.2d 867, 868 (D.C.Cir.1958) (per curiam) (no right to conjugal visits in jail).