Opinion
Civil No. 9:01-CV-1865 (DNH/GLS)
January 7, 2003
DAVID ZAIRE, Plaintiff, Pro Se, Bare Hill Correctional Facility, Malone, New York., For The Plaintiff.
MARIA MORAN, ESQ., Attorney General of the Assistant, HON. ELIOT SPITZER Attorney General State of New York, Syracuse, NY., For The Defendants.
REPORT-RECOMMENDATION
I. INTRODUCTION
This matter has been referred to the undersigned for a Report-Recommendation by the Honorable David N. Hurd, United States District Judge, pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 72.3(c). On April 5, 2002, the defendants filed a motion to dismiss (Dkt. Nos. 9-10). Plaintiff, pro se, David Zaire ("Zaire") has responded (Dkt. No. 12). For the foregoing reasons, the motion to dismiss should be granted in its entirety.
II. Background
Zaire brings this action under 42 U.S.C. § 1983 claiming that the defendants violated his civil rights under the Fourth, Eighth and Fourteenth Amendments. Specifically, Zaire claims that his rights were violated when the defendants took a DNA blood sample and that it caused pain, discomfort, and prolonged blood flow. He seeks compensatory damages. Zaire also seeks, through injunctive relief, an order directing the Commissioner of the Department of Correctional Services to retrieve his DNA blood sample from the New York State Deoxyribonucleric Acid ("DNA") databank.
The defendants maintain that Zaire failed to allege the personal involvement of defendant Goord, and that he fails to state a claim for which relief can be granted. The defendants also argue that the suit is barred against them in their official capacity under the Eleventh Amendment and that they are entitled to qualified immunity.
III. Facts
On September 26, 2000, while housed at Shawangunk Correctional Facility, Zaire was called to the infirmary. Nurse Barringer ("Barringer") provided him a form letter advising him that he was brought to the infirmary to satisfy the law requiring him to submit a DNA sample. He was then escorted to the medical technician for taking of the DNA sample, but he requested permission to provide a sample by other means rather than blood. Barringer informed him that he was not permitted to provide anything but a blood sample. She further informed him that refusal to provide the sample would result in disciplinary penalties according to the letter he received prior to entering the medical technician's office. Thereafter, a blood sample was taken which he claims caused pain, discomfort, and prolonged blood flow.
IV. Discussion
A. Legal Standard
Federal Rules of Civil Procedure 12(b)(6) provides that a cause of action shall be dismissed if a complaint fails "to state a claim upon which relief can be granted." In analyzing a motion to dismiss, the facts alleged by a plaintiff are assumed to be true and must be liberally construed in the light most favorable to him. See e.g., Easton v. Sundram, 947 F.2d 1011, 1014-15 (2d Cir. 1991). While a court need not accept mere conclusions of law, it should accept the pleader's description of what happened along with any conclusions that can reasonably be drawn therefrom. See Murray v. City of Milford, 380 F.2d 468 (2d Cir. 1967). Furthermore, when a party makes a Rule 12(b)(6) motion, a court will limit its consideration to the facts asserted on the face of the complaint. See Cosmas v. Hassett, 886 F.2d 8, 13 (2d Cir. 1989). A complaint will not be dismissed for failure to state a claim unless it appears, beyond a reasonable doubt, that a plaintiff cannot prove any set of facts entitling him or her to relief. See Wanamaker v. Columbian Rope Co., 740 F. Supp. 127 (N.D.N.Y. 1990). With this standard in mind, the court turns to the sufficiency of Zaire's claims.
B. Eleventh Amendment
The Eleventh Amendment provides that: "[t]he judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State." U.S. Const. Amend. XI. Although the Amendment does not specifically prohibit suits against a state by its own citizens, the Supreme Court has consistently applied that immunity to such cases. See Burnette v. Carothers, 192 F.3d 52, 57 (2d Cir. 1999) (citing Edelman v. Jordan, 415 U.S. 651, 662-63, 94 S.Ct. 1347, 1355, 39 L.Ed.2d 662 (1974)). Moreover, it is well established that Eleventh Amendment immunity applies not only when a state is a named defendant, but when liability must be paid from state coffers. See New York City Health Hosp. Corp. v. Perales, 50 F.3d 129, 134 (2d Cir. 1995) (citing Edelman, 415 U.S. at 665, 94 S.Ct. at 1356-57)); Dawkins v. State of New York, 1996 WL 156764, at *2 (N.D.N.Y. Mar. 28, 1996).
In this case, Zaire appears to be raising claims against the defendants in their official capacity. Since the Eleventh Amendment bars these state officers from suit, this court recommends that Zaire's official capacity claims against the defendants should be dismissed.
C. Personal Involvement
It is well settled in this Circuit that personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983. Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995) (citation omitted). Since there is no respondeat superior liability, the defendant must be shown to have personal involvement in the alleged deprivation of rights. Al-Jundi v. Estate of Rockefeller, 885 F.2d 1060, 1065 (2d Cir. 1989). Supervisory officials cannot be held liable under § 1983 solely for the acts of their subordinates. See Monell v. Department of Social Servs. of the City of New York, 436 U.S. 658, 690-695, 98 S.Ct. 2018, 2035-2038, 56 L.Ed.2d 611 (1978). However, a supervisory official can be held liable for constitutional violations if he or she: (1) directly participated in the violation; (2) failed to remedy the violation after learning of it through a report or appeal; (3) created a custom or policy fostering the violation after learning of it; or (4) was grossly negligent in supervising subordinates who caused the violation. Sealey v. Giltner, 116 F.3d 47, 51 (2d Cir. 1997) (citing Williams v. Smith, 781 F.2d 319, 323-24 (2d Cir. 1986)).
This court finds that Zaire has failed to allege the personal involvement of defendant Goord. There is nothing in the complaint which purports to show that this defendant was personally involved in any alleged constitutional violation. Accordingly, this court recommends the dismissal of defendant Goord from this suit.
D. Zaire's Claims
Zaire claims that his rights were violated when the defendants failed to take his DNA sample in the least invasive manner. The Eighth Amendment, which applies to the states through the Due Process Clause of the Fourteenth Amendment, see e.g., Rhodes v. Chapman, 452 U.S. 337, 344-45, 101 S.Ct. 2392, 69 L.Ed.2d 59 (1981), prohibits the infliction of "cruel and unusual punishments," U.S. Const. Amend. VIII, including the "unnecessary and wanton infliction of pain," Gregg v. Georgia, 428 U.S. 153, 173, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976). A claim of cruel and unusual punishment in violation of the Eighth Amendment has two components, one subjective, focusing on the defendant's motive for his conduct, and the other objective, focusing on the conduct's effect. See Hudson v. McMillian, 503 U.S. 1, 7-8, 112 S.Ct. 995, 117 L.Ed.2d 156 (1992); Blyden v. Mancusi, 186 F.3d 252, 262 (2d Cir. 1999). The subjective component of the claim requires a showing that the defendant "had the necessary level of culpability, shown by actions characterized by 'wantonness'" in light of the particular circumstances surrounding the challenged conduct. Blyden v. Mancusi, 186 F.3d at 262 (quoting Wilson v. Seiter, 501 U.S. 294, 298-299, 111 S.Ct. 2321, 115 L.Ed.2d 271 (1991)). The objective component of a cruel and unusual punishment claim focuses on the harm done; however, the amount of harm that must be shown depends on the nature of the claim. See e.g., Hudson, 503 U.S. at 8, 112 S.Ct. 995. This objective component is "contextual and responsive to contemporary standards of decency." Id. (internal quotation marks omitted).
In 1994, the Court of Appeals of the State of New York held that forensic Deoxyribonucleric Acid ("DNA") evidence was admissible at trial and that courts in the future could take judicial notice of the admissibility of forensic DNA Restriction Fragment Length Polymorphism ("RFLP") analysis. See People v. Wesley, 83 N.Y.2d 417, 425 (1994). In addition, New York State Executive Law was amended to add Article 49-B, entitled "Commission on Forensic Science and Establishment of DNA Identification Index" ("DNA ID Index Law"). The DNA ID Index Law enables the State to receive, exchange, and store DNA records from federal, state and local forensic laboratories. New York Executive Law § 995(7) authorizes the State to create a DNA databank of those persons convicted of certain designated felonies. The original statute required a sample of blood to be taken from each designated offender, however, it was amended in 1999 to allow for the collection of DNA through "appropriate" means rather than through blood samples alone. See N.Y. Executive Law § 995-c(3); 1999 N.Y. Law 560.
In Roe v. Boscoe, 193 F.3d 72, 80 (2d Cir. 1999), the Second Circuit found the DNA collections reasonable under a similar statute in Connecticut. The court noted that the drawing of a blood sample for testing was an intrusion which the Supreme Court characterized as minimal. Id. at 79 (citation omitted). See also Skinner v. Railway Labor Executives' Ass'n, 489 U.S. 602, 625, 109 S.Ct. 1402, 1417,103 L.Ed.2d 639 (1989) (citing Winston v. Lee, 470 U.S. 753,762, 105 S.Ct. 1611,1617, 84 L.Ed.2d 662 (1985)). Moreover, the court has held that "the blood test procedure has become routine in our everyday life." Breithaupt v. Abram, 352 U.S. 432, 436, 77 S.Ct. 408, 410, 1 L.Ed.2d 448 (1957). Furthermore, in January of 2002, the New York Appellate Division, Third Dep't found that although N.Y. Executive Law 995-c(3) allows for other means of taking DNA samples, the person having the sample taken does not have the option to "dictate the type of sample to be taken." Lunney v. Goord, 736 N.Y.S.2d 718, 720 (N.Y. A.D.3d Dep't 2002).
In that case, imprisoned sex offenders in Connecticut challenged the constitutionality of the statute which required that they submit a blood sample for analysis and inclusion in a DNA databank.
In this case, Zaire claims that the defendants violated his rights when they failed to collect his DNA sample by means less intrusive than a blood sample. Specifically, he claims that the procedure caused him anguish, prolonged bleeding and possible internal injury. Zaire also claims that the defendants failed to advise him that the DNA ID Index Law permitted alternatives to blood samples of DNA, and further violated his right to make an informed decision under the Patient's Bill of Rights and deprived him of equal protection of the law under the Fourteenth Amendment.
The Court notes that Zaire is suing under the equal protection clause of the Fourteenth Amendment. The equal protection clause directs state actors to treat similarly situated people alike. See Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439, 105 S.Ct. 3249, 3254, 87 L.Ed.2d 313 (1985). "To prove an equal protection violation, claimants must prove purposeful discrimination directed at an identifiable or suspect class." Giano v. Senkowski, 54 F.3d 1050, 1057 (2d Cir. 1995) (citations omitted). Here, Zaire presents no evidence that the policy discriminated against a particular class of inmates. Thus, Zaire's equal protection claim should be dismissed.
The defendants maintain that Zaire has failed to show that the search was unreasonable under the Fourth and Fourteenth amendments. They argue that there is no constitutional requirement that mandates they use the least invasive means of obtaining the DNA sample. They contend that the intrusion only need be reasonable under the circumstances.
This court finds that Zaire's claims are without merit. As previously mentioned, the Supreme Court has characterized the taking of blood as a minimal intrusion and the Second Circuit has already upheld a similar statute. Furthermore, the person having the sample taken does not have the option to dictate the type of sample taken. This court agrees with the defendants in that the drawing of blood to obtain a DNA sample, a proven diagnostic test, is a minimal intrusion when balanced with the State's interest in creating the DNA Databank. Accordingly, this court recommends that Zaire's claims against Nurse Barringer should be dismissed.
WHEREFORE, for the foregoing reasons, it is hereby
RECOMMENDED, that the defendants' motion to dismiss (Dkt. No. 9) be GRANTED as to defendant Barringer since Zaire failed to state a claim for which relief can be granted; and it is further
RECOMMENDED, that the defendants' motion to dismiss (Dkt. No. 9) be GRANTED as to defendant Goord since Zaire failed to show that he was personally involved in the alleged Constitutional violation; it is further
RECOMMENDED, that the defendants' motion to dismiss be GRANTED in regards to Zaire's official capacity claim since it is barred by the Eleventh Amendment; and it is further
ORDERED, that the Clerk of the Court serve a copy of this Report-Recommendation upon the parties by regular mail.
NOTICE: Pursuant to 28 U.S.C. § 636(b)(1), the parties may lodge written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court within TEN days. FAILURE TO SO OBJECT TO THIS REPORT WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72, 6(a), 6(e).