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rejecting Texas prisoner's challenge based on Fifth Amendment protection against self-incrimination because DNA sample was not "testimonial or communicative in nature"
Summary of this case from Taylor v. NortonOpinion
2:04-CV-0142.
October 6, 2004
MEMORANDUM OPINION AND ORDER OF DISMISSAL
The instant cause was received by transfer from the United States District Court for the Northern District of Texas, Dallas Division, to the United States District Court for the Northern District of Texas, Amarillo Division, on June 10, 2004. Plaintiff JASON MOSS, acting pro se and while a prisoner incarcerated in the Texas Department of Criminal Justice, Correctional Institutions Division, has filed suit pursuant to Title 42, United States Code, Section 1983 complaining against the above-referenced defendants. Plaintiff has paid the filing fee and is not proceeding in forma pauperis.
Plaintiff complains the defendants violated his First, Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendment rights by taking blood and hair samples from him, under duress, for inclusion in the DNA database pursuant to state law. Plaintiff argues the procedure was performed without probable cause or reasonable suspicion and caused "physical, psycological, emotional damage and harm resulting from arbitrary descration of religous, Const. Bill of rights. . . . [sic et passim]"
Plaintiff requests a return of the blood and hair samples, deletion of the information obtained from their analysis from all databases, and an award of monetary damages in the amount of $1,220,000.00.
JUDICIAL REVIEW
When a prisoner confined in any jail, prison, or other correctional facility brings an action with respect to prison conditions under any federal law, the Court may evaluate the complaint and dismiss it without service of process, Ali v. Higgs, 892 F.2d 438, 440 (5th Cir. 1990), if it is frivolous, malicious, fails to state a claim upon which relief can be granted, or seeks monetary relief from a defendant who is immune from such relief. 42 U.S.C. 1997e(c)(1). A Spears hearing need not be conducted for every pro se complaint. Wilson v. Barrientos, 926 F.2d 480, 483 n. 4 (5th Cir. 1991).
A claim is frivolous if it lacks an arguable basis in law or in fact, Booker v. Koonce, 2 F.3d 114, 115 (5th Cir. 1993); see, Denton v. Hernandez, 504 U.S. 25, 112 S.Ct. 1728, 1733, 118 L.Ed.2d 340 (1992).
Cf, Green v. McKaskle, 788 F.2d 1116, 1120 (5th Cir. 1986) ("Of course, our discussion of Spears should not be interpreted to mean that all or even most prisoner claims require or deserve a Spears hearing. A district court should be able to dismiss as frivolous a significant number of prisoner suits on the complaint alone or the complaint together with the Watson questionnaire.").
The District Judge has reviewed plaintiff's original Complaint and has viewed the facts alleged by plaintiff to determine if his claim presents grounds for dismissal or should proceed to answer by defendants.
THE LAW AND ANALYSIS
By his attached grievances, plaintiff complains he was threatened with disciplinary action if he did not cooperate with the sample collection and argues the analysis of his DNA violates divine law concerning the proper scope of mankind's knowledge. Plaintiff also references the Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments as well.
Plaintiff has not developed his Free Exercise Clause argument and has not alleged exactly how important the DNA collection is within the framework of his beliefs. Nevertheless, the statute in question is a state, not federal, statute and the challenge is premised solely on the federal Constitution; therefore, no compelling interest test is applied. Boerne v. Flores, 521 U.S. 507, 117 S.Ct. 2157, 138 L.Ed.2d 624 (1997). The Free Exercise Clause does not relieve an individual of the obligation to comply with a valid or neutral law of general applicability on the ground that the law proscribes or requires conduct that is contrary to his religious practice, as long as the law does not violate other constitutional protections. Employment Div., Dep't of Human Resources v. Smith, 494 U.S. 872, 878-79, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990). The challenged DNA statute, Tex. Gov't Code § 411.148, is religion-neutral and generally applicable to all inmates meeting the non-religious criteria established therein. Consequently, its application to plaintiff, even if abhorrent within the context of his religious beliefs, did not violate his First Amendment right of Free Exercise. Plaintiff's claim in this respect lacks an arguable basis in law and is frivolous. Neitzke v. Williams, 490 U.S. 319, 325, 109 S.Ct. 1827, 1831, 104 L.Ed.2d 338 (1989).
The Texas DNA statute has also survived Fourth Amendment scrutiny in challenges identical to that which appears implicated by plaintiff's suit. See, e.g., Velasquez v. Woods, 329 F.3d 420 (5th Cir. 2003).
In his Step 2 grievance, plaintiff argues that only a judge can order DNA testing; however, there is no constitutional basis for this argument. Plaintiff's challenge based on his Fifth and Fourteenth Amendment right to due process of law is without merit. "When the legislature passes a law which affects a general class of persons, those persons have received all procedural due process — the legislative process." County Line Joint Venture v. City of Grand Prarie, 839 F.2d 1142, 1144 (5th Cir. 1988). The Supreme Court has held that the extraction of blood from an individual in a simple, medically acceptable manner does not implicate substantive due process, even where the individual does not consent. See, Schmerber v. California, 384 U.S. 757, 759-760, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966). Moreover, since the DNA sample sought was not testimonial or communicative in nature, any challenge based on a Fifth Amendment protection against self-incrimination also fails. Schmerber v. California, 384 U.S. at 765. Thus, plaintiff's Fifth and Fourteenth Amendment claims lack an arguable basis in law and are frivolous. Neitzke v. Williams, 490 U.S. 319, 325, 109 S.Ct. 1827, 1831, 104 L.Ed.2d 338 (1989).
Plaintiff's reference to the Sixth Amendment appears to be an attempt to assert a right to counsel, nevertheless, the constitutional guarantee applies whenever necessary to assure a meaningful defense and a right to fair trial. United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967). The collection of a DNA sample, like the pre-conviction line-up examined in Wade, is not a "critical stage" requiring the presence of counsel.
Plaintiff has not supported his Eighth Amendment claim with any allegation that the samples were not collected in accordance with medically-accepted protocols and the presence of a nurse among those named as defendants would seem to indicate they were. Not every hardship endured in prison constitutes cruel and unusual punishment. Rhodes v. Chapman, 452 U.S. 337, 345-46, 101 S.Ct. 2392, 69 L.Ed.2d 59 (1981). Plaintiff has not alleged any fact to support a claim that the samples were collected with deliberate indifference to a "wanton and unnecessary infliction of pain," under conditions which deprived plaintiff of "the minimal civilized measure of life's necessities," Rhodes v. Chapman, 452 U.S. 337, 346-47, 101 S.Ct. 2392, 2399, 69 L.Ed.2d 59 (1981), or in a manner which caused a substantial risk of serious physical injury to plaintiff; Farmer v. Brennan, 511 U.S. 825, 837-43, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994). Plaintiff has failed to state an Eighth Amendment claim on which relief can be granted.
CONCLUSION
Pursuant to Title 42, United States Code, section 1997e(c)(1),
IT IS HEREBY ORDERED that the Civil Rights Complaint filed pursuant to Title 42, United States Code, Section 1983, by plaintiff JASON MOSS is DISMISSED WITH PREJUDICE AS FRIVOLOUS AND FOR FAILURE TO STATE A CLAIM ON WHICH RELIEF CAN BE GRANTED.
LET JUDGMENT BE ENTERED ACCORDINGLY.
A copy of this Order shall be mailed to plaintiff and to any attorney of record by first class mail. The Clerk shall also mail copies of this Order of Dismissal to TDCJ-Office of the General Counsel, P.O. Box 13084, Austin, TX 78711; and to the Pro Se Clerk at the U.S. District Court for the Eastern District of Texas, Tyler Division.
Any pending motions are DENIED.
IT IS SO ORDERED.