Unpublished Disposition, 884 F.2d 1395 (9th Cir. 1989)

Annotate this Case
U.S. Court of Appeals for the Ninth Circuit - 884 F.2d 1395 (9th Cir. 1989)

Deborah Lynn RIGSBY, Plaintiff-Appellant,v.Samuel LEWIS, Director, Department of Corrections, State ofArizona, and John Avenentti, Warden Arizona StatePrison, Florence, Defendants-Appellees.

No. 87-2023.

United States Court of Appeals, Ninth Circuit.

Submitted March 14, 1989.* Decided Aug. 31, 1989.

Before POOLE, FERGUSON and WIGGINS, Circuit Judges.


MEMORANDUM** 

Deborah Lynn Rigsby, ("Rigsby") proceeding pro se, appeals from the district court's dismissal of her 42 U.S.C. § 1983 claim for failure to state a claim. We have jurisdiction pursuant to 28 U.S.C. § 1291 and we affirm.

We review the district court's dismissal for failure to state a claim de novo. Gibson v. United States, 781 F.2d 1334, 1337 (9th Cir. 1986).

Appellant is married to Raymond Earl Rigsby, who is currently serving a life sentence at the Arizona State Prison Complex at Florence, Arizona. The basis for the Sec. 1983 claim is that Rigsby has been denied conjugal visitation with her incarcerated spouse. Arizona has prohibited conjugal visitations with incarcerated prisoners. The district court dismissed the action and Rigsby timely appeals.

Rigsby contends that she is constitutionally guaranteed conjugal visits under the First, Fourth, Fifth, Ninth and Fourteenth Amendments to the constitution. The Supreme Court expressly rejected this argument in Block v. Rutherford, 468 U.S. 576 (1983). In that case, the Court held that the Constitution does not require conjugal visits for detainees when prison officials determined that visits would jeopardize security at the facility. Block, 468 U.S. at 589. (emphasis added). The Court also found that there is a valid, rational connection between security of the prison and a ban on contact visits. "In sum, we conclude that petitioner's blanket prohibitions [of contact visits] is an entirely reasonable, nonpunative response to the legitimate security concerns identified, consistent with the Fourteenth Amendment." Block, 468 U.S. at 588. See also, Toussaint v. McCarthy, 801 F.2d 1080 (9th Cir. 1986) (Denial of contact visits not violative of the Eight Amendment.)

Although Block dealt with detainees not released on bail, it is unlikely that convicted prisoners enjoy more expansive protections. On the contrary, the Supreme Court explained in Bell v. Wolfish, 441 U.S. 520 (1978), " 'Lawful incarceration brings about the necessary withdrawal or limitation of many privileges and rights, a retraction justified by the considerations underlying our penal system.' [citations]." Bell, 441 U.S. at 545-46.

Appellant also contends that the denial of conjugal visits are a deprivation of her right to practice religion without state interference. This argument is without merit. In order to prevail on this issue, Rigsby must show that sexual relations are central and indispensable to the practice of her religion. Additionally, she must show government actions "seriously interfere with or impair those religious practices." Northwest Indian Cemetery Protective v. Peterson, 795 F.2d 688, 692 (9th Cir. 1986). While appellant has pleaded sincerely held beliefs, she has not shown that sexual relations are central to the practice of the Christian religion. We reject this argument.

Rigsby further contends that she is entitled to conjugal visitation based on the "right to marital privacy" developed in Griswold v. Connecticut, 381 U.S. 479 (1965). This argument was rejected in Lyons v. Gilligan, 382 F. Supp. 198 (N.D. Ohio 1974). That case involved a suit by the wife, who was denied conjugal visitation with her incarcerated spouse. The district court stated, " [T]he nub of Griswold was restraint on government intrusion. It cannot be extended to impose an affirmative duty on the government." Lyons, 382 F. Supp. at 200.

Even if Griswold could be characterized as giving a fundamental right to conjugal visits, security in prison is a compelling state interest sufficient to encroach that right. " [M]aintaining institutional security and preserving internal order and discipline are essential goals that may require limitation or retraction of the retained constitutional rights of both convicted prisoners and pretrial detainees." Bell, 441 U.S. at 546.

Because we do not find a colorable claim to conjugal visitations, the dismissal by the district court is AFFIRMED.

 *

The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a); 9th Cir.R. 34-4

 **

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3