The opinion of the court was delivered by: J. P. VUKASIN, JR.
Defendant's Motion to Dismiss was scheduled to be heard on August 20, 1992. After a review of the briefs, this court considered it appropriate to submit the motion on the pleadings pursuant to Local Rule 220-1, and now GRANTS the motion.
Plaintiffs, death row inmates currently housed in San Quentin State Prison, filed this action under 42 U.S.C. § 1983 alleging that the denial of conjugal visits constitutes cruel and unusual punishment in violation of the Eighth Amendment to the U.S. Constitution. Plaintiffs also allege that they have not been given the opportunity to preserve their sperm for artificial insemination in violation of the Eighth Amendment. Also "named" as "DOE" plaintiffs are unidentified spouses and/or other women partners willing to procreate with the death row inmate plaintiffs, and potential grandparents of such possible issue.
has filed this motion to dismiss, pursuant to Rule 12(b)(6), Federal Rules of Civil Procedure, on the grounds that plaintiffs complaint fails to state a claim upon which relief can be granted. Specifically, defendant argues that the denial of conjugal visits and artificial insemination does not violate the Eighth Amendment's prohibition of cruel and unusual punishment. Defendant also argues that the artificial insemination claim is not ripe for review. Defendant further argues that the non-prisoner "DOE" plaintiffs lack standing to sue under the Eighth Amendment. This Court agrees with defendant's arguments.
It is well established law in this Circuit, and elsewhere, that prisoners have no constitutional right to contact visits. See, e.g., Touissant v. McCarthy, 801 F.2d 1080, 113-1114 (9th Cir. 1986), and cases cited therein; Bellamy v. Bradley, 729 F.2d 416 (8th Cir. 1984); McCray v. Sullivan, 509 F.2d 1332 (5th Cir. 1975). Because there is no right to contact visits, a fortiori, there is no right to conjugal visits. Plaintiffs cite no authority for the proposition that denial of conjugal visits constitutes cruel and unusual punishment. The deprivation of conjugal visits does "not come up to the level of a federal constitutional right so as to be cognizable as a basis for relief in federal court." Tarlton v. Clark, 441 F.2d 384, 385 (5th Cir.), cert. denied, 408 U.S. 934 (1971).
In an effort to defeat dismissal, plaintiffs, in their opposition brief, argue that they are being denied equal protection. Plaintiffs contend that California Penal Code section 2601 provides for conjugal visits for other inmates, such as inmates sentenced to life imprisonment, who may be equally, if not more dangerous than plaintiffs. Thus, plaintiffs argue, there is no reasonably related security reason to treat "lifers" differently than the condemned plaintiffs.
Therefore, as there is no constitutional right to conjugal visits, and no denial of equal protection, dismissal of plaintiffs' claim relating to conjugal visits is appropriate.
3. Artificial Insemination
In their complaint, plaintiffs allege that they "have not been given the opportunity to preserve their sperm for artificial insemination." However, in their complaint, plaintiffs have not alleged that they have sought the opportunity to preserve their sperm. Nor does the complaint contain any allegation that defendant denied plaintiffs the opportunity to preserve their sperm for artificial insemination. Certainly, the defendant is under no affirmative duty to provide facilities to assist in artificial ...