Unpublished Disposition, 940 F.2d 1535 (9th Cir. 1990)

MEMORANDUM^** 

William Adolf Noguera, a California death-row prisoner, appeals pro se the district court's dismissal of his 42 U.S.C. § 1983 action under Fed. R. Civ. P. 12(b) (6) for failure to state a claim. We review de novo, Kruso v. Int'l Tel. & Tel. Corp., 872 F.2d 1416, 1421 (9th Cir. 1989), cert. denied, 110 S. Ct. 3217 (1990), and affirm.

Noguera, who is Catholic, argues that a prison regulation prohibiting condemned inmates from receiving conjugal visits violates his first amendment right to free exercise of religion. This argument fails however, because Noguera cannot show that the prison regulation prohibiting conjugal visits for condemned inmates is not rationally related to a valid penological interest. See Turner v. Safley, 482 U.S. 78, 89-91 (1987).

Noguera also contends that the state has created a liberty interest in conjugal visits. In an unpublished order filed March 6, 1990, the district court considered and addressed this issue. We affirm the dismissal based on the analysis set forth in the district court's well-reasoned order.

Noguera also contends that the denial of conjugal visits deprives him of equal protection. To support this contention, Noguera asserts that "Close Custody B [inmates]," which "closely matches the Grade A condemned [inmates]," are allowed conjugal visits, while condemned inmates are not. Nevertheless, Noguera has failed to show that condemned inmates and "Close Custody B" inmates are similarly situated, which is a threshold requirement in establishing a violation of the equal protection clause. Christian Gospel Church v. San Francisco, 896 F.2d 1221, 1225-26 (9th Cir. 1990). Moreover, it is undisputed that all condemned inmates are forbidden conjugal visits. Accordingly, the district court properly dismissed the claim.

AFFIRMED.