Rendelman v. Scott , 378 F. App'x 309 ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-8428
SCOTT LEWIS RENDELMAN,
Plaintiff – Appellant,
v.
SCOTT, DOC Captain, individually and in official capacity; JOHN
DOE, Maryland State Trooper, individually and in official
capacity,
Defendants – Appellees.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Andre M. Davis, District Judge. (1:07-
cv-01643-AMD)
Argued: March 25, 2010 Decided: May 19, 2010
Before TRAXLER, Chief Judge, and GREGORY and SHEDD, Circuit
Judges.
Affirmed by unpublished per curiam opinion.
ARGUED: Stephanie D. Taylor, JONES DAY, Pittsburgh,
Pennsylvania, for Appellant. Nicholé C. Gatewood, OFFICE OF THE
ATTORNEY GENERAL OF MARYLAND, Baltimore, Maryland, for
Appellees. ON BRIEF: Thomas S. Jones, JONES DAY, Pittsburgh,
Pennsylvania, for Appellant. Douglas F. Gansler, Attorney
General of Maryland, Baltimore, Maryland, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Scott Lewis Rendelman filed this action under 42 U.S.C.
§ 1983 alleging that Maryland state officials involuntarily
obtained a DNA sample from him during his incarceration pursuant
to the Maryland DNA Collection Act, Md. Code Ann., Public
Safety, §§ 2-501 et seq. The district court entered summary
judgment against Rendelman, holding as a matter of law that the
collection of the sample did not violate his rights under the
Fourth or Eighth Amendments to the United States Constitution.
Rendelman now appeals. We affirm.
I
Summary judgment is appropriate “if the pleadings, the
discovery and disclosure materials on file, and any affidavits
show that there is no genuine issue as to any material fact and
that the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(c). The relevant inquiry in a summary
judgment analysis is “whether the evidence presents a sufficient
disagreement to require submission to a jury or whether it is so
one-sided that one party must prevail as a matter of law.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986).
We review the district court’s order granting summary judgment
de novo. Jennings v. U.N.C., 482 F.3d 686, 694 (4th Cir. 2007)
(en banc). In doing so, we generally must view all facts and
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draw all reasonable inferences in the light most favorable to
the nonmoving party. Scott v. Harris, 550 U.S. 372, 378 (2007).
However, “facts must be viewed in the light most favorable to
the nonmoving party only if there is a ‘genuine’ dispute as to
those facts.” Id. at 380 (quoting Fed. R. Civ. P. 56(c)).
A.
The material facts of this case are not disputed. Through
its DNA Collection Act, the State of Maryland requires
individuals convicted of certain felonies to provide a DNA
sample to the Department of Maryland State Police (“DMSP”). See
generally State v. Raines, 857 A.2d 19, 23-25 (Md. 2004)
(discussing the Act’s provisions). The Maryland Division of
Correction (“DOC”) has issued a directive titled “DNA Sampling
of Inmates by the Department of Maryland State Police” (“DCD 20-
9”) that establishes DOC policy and procedure for the collection
of DNA samples from designated inmates in cooperation with the
DMSP. DCD 20-9 specifies that DOC’s policy is “to cooperate
with the DMSP as required by state law in the collection of DNA
samples from designated inmates to be used for the development,
maintenance, and operation of a statewide DNA database system
and repository.” J.A. 39.
DCD 20-9 further states that “[i]t is mandatory for
designated inmates to provide a DNA sample,” J.A. 39, and it
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sets forth the consequences of an inmate’s failure to provide a
sample:
When an inmate refuses to provide a DNA sample as
required by law, the following actions shall be taken:
a. The staff person ordering the inmate to provide the
sample shall write a notice of inmate rule violation.
b. A hearing officer will conduct a disciplinary
hearing in accordance with established procedures. If
there is a guilty finding, the hearing officer shall
order the inmate’s visits suspended indefinitely, the
revocation of all applicable diminution credits, and
placement on disciplinary segregation in accordance
with the disciplinary sentencing matrix.
c. The inmate shall be rescheduled by the DMSP to give
a DNA sample no sooner than 60 days from the date of
refusal. If the inmate again refuses, staff shall use
restraints and the minimum amount of necessary force,
in accordance with DCD 110-23, to ensure that a DNA
sample can be taken.
d. The warden may elect to place an inmate on
administrative segregation until a DNA sample is
obtained.
J.A. 42.
While he was incarcerated in Maryland, Rendelman was within
the class of felons subject to DNA collection. In August 2006,
DOC Captain R. Scott was present when a Maryland State Trooper
attempted to use a cheek swab to obtain a DNA sample from
Rendelman. Rendelman asked the trooper what would happen if he
refused, and the trooper responded that DCD 20-9 authorized him
to use “whatever force is necessary” to collect the sample.
J.A. 9. Rendelman then submitted to the collection of the
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sample. At no time did Rendelman refuse to provide the sample,
and no force was used against him.
Thereafter, Rendelman filed an administrative complaint in
which he contended that the collection of the sample was illegal
because it was obtained by threat of force. DOC denied this
complaint, concluding that DCD 20-9 allows for the use of force
when an inmate refuses to provide a DNA sample and that
Rendelman was “not threatened but simply advised of the
consequences of refusing to submit a sample.” J.A. 36.
B.
Rendelman then filed this pro se action against Captain
Scott and the state trooper who obtained the cheek swab seeking
the return of his DNA sample, destruction of all records
pertaining to its analysis, nominal damages of $1, and punitive
damages of $10,000. The district court dismissed the action
under 28 U.S.C. § 1915(e) without service of process against the
defendants, concluding that Maryland’s collection of DNA from
inmates is constitutionally permissible under our decisions in
Jones v. Murray, 962 F.2d 302 (4th Cir. 1992), and Ewell v.
Murray, 11 F.3d 482 (4th Cir. 1993). 1 On appeal, we vacated the
dismissal order, holding that because neither Jones nor Ewell
1
In those cases, we upheld the constitutionality of
Virginia’s DNA collection statute. Notably, the Virginia DNA
collection statute authorized the taking of blood rather than
the unquestionably less intrusive cheek swab.
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addressed the potential use of force to obtain the DNA (as
Rendelman alleges), the district court erred in summarily
dismissing the complaint. Rendelman v. Scott, 267 Fed. Appx.
207 (4th Cir. 2008).
On remand, Captain Scott was served with the complaint, and
he moved for dismissal or, alternatively, for summary judgment. 2
Captain Scott argued that (1) the collection of the DNA sample
did not violate Rendelman’s constitutional rights and (2) he is
entitled to qualified immunity. Because Captain Scott did not
make the alleged threat to use force to obtain the DNA sample,
Rendelman’s claim against him is premised on the fact that he
did not intervene to stop the cheek swab from occurring.
The district court granted summary judgment in Captain
Scott’s favor, explaining:
Plainly, under Jones and Ewell, there is no Fourth
Amendment impediment in the process of obtaining the
DNA sample. Thus, there was no constitutional problem
in Scott’s failure to halt the process. DCD 20-9
establishes the policy and procedure for collection of
the DNA sample from designated DOC inmates in
cooperation with the [DMSP]. It is mandatory for
designated inmates to provide a sample. Procedures
are set in place should the inmate refuse to submit to
the sample. Plaintiff’s protestations to the
contrary, he was not “threatened with force,” but in
response to his question, was merely advised of the
possible consequences of refusing to submit a sample.
He then submitted to the collection process.
2
Because he did not know the trooper’s identity, Rendelman
sued him as “John Doe.” The trooper has never been served with
the complaint.
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Plaintiff was neither sanctioned [nor] physically
restrained, nor was the minimal amount of force
contemplated in the regulation applied.
Additionally, while the Eighth Amendment prohibits
cruel and unusual punishment, in order to state such a
claim, the challenged force must be applied for the
purpose of causing harm. There are no allegations
here that any force that might be employed against
inmates refusing to provide DNA samples would be used
with the intention of harming the inmates. Therefore,
the DNA sampling procedure may be enforced in the same
way as other lawful orders of prison officials. [DCD
20-9] expressly permits the use of minimal force to
ensure compliance with a lawful order.
J.A. 61-62 (internal footnotes and citations omitted).
II
On appeal, Rendelman concedes that our circuit precedent
establishes that the State of Maryland had the right to collect
a DNA sample from him under its DNA collection program. He also
concedes that the State could have used administrative measures
to attempt to coerce his compliance if he refused to provide a
sample. Moreover, he does not assert that force was actually
used against him to collect his DNA sample or that Captain
Scott, the only defendant who has been served in this case, made
the alleged threat to use force.
Nonetheless, Rendelman contends that the district court
erred in dismissing both of his constitutional claims. He
argues that regardless of the State’s right to obtain the DNA
sample from him, the State did not have the right to use, or
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threaten to use, force to collect the sample. Further, he
argues that even if the State is allowed to use some level of
force, the trooper’s “threat” to use “whatever force is
necessary” to collect the sample is sufficient to state claims
against Captain Scott under the Fourth and Eighth Amendments.
Having carefully considered the parties’ arguments and the
controlling legal principles, we hold that the district court
did not err in granting summary judgment to Captain Scott. Our
decisions in Jones and Ewell establish that the State had the
right to obtain the DNA sample from Rendelman. Those cases did
not address the issue of force, but the State’s right to obtain
the DNA sample from designated inmates must necessarily carry
with it the right to use a reasonable degree of force that is
sufficient to ensure compliance. Otherwise, the State’s right
can be rendered meaningless by an inmate who refuses to grant
permission for the cheek swab. See generally United States v.
Bullock, 71 F.3d 171, 175-77 (5th Cir. 1995) (holding that use
of force to obtain blood and hair samples from a criminal
suspect for DNA purposes did not violate the Fourth Amendment
and noting that the suspect had no right to refuse to comply
with the search warrant); Soto v. Dickey, 744 F.2d 1260, 1267
(7th Cir. 1984) (“Inmates cannot be permitted to decide which
orders they will obey, and when they will obey them. Someone
must exercise authority and control.”).
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Of course, there is a constitutional limit to the amount of
force that may be used to obtain a DNA sample (just as there is
in any government search). However, this case does not approach
that limit as no force was used and the trooper, who was present
for the sole purpose to obtain a lawful DNA sample, simply
responded to Rendelman’s question about the consequences of his
refusal to provide the sample. 3 Based on this record, we find
that Rendelman has failed to present sufficient evidence to
establish that his rights under the Fourth or Eighth Amendment
were violated. See generally Florida v. Jimeno, 500 U.S. 248,
250 (1991) (“The Fourth Amendment does not proscribe all state-
initiated searches and seizures; it merely proscribes those
which are unreasonable.”); Whitley v. Albers, 475 U.S. 312, 319
(1986) (“After incarceration, only the unnecessary and wanton
infliction of pain . . . constitutes cruel and unusual
punishment forbidden by the Eighth Amendment.” (citation and
internal punctuation omitted)). 4
3
Because the State had the right to use force to obtain the
sample from Rendelman, the trooper had the right to inform
Rendelman that force could be used. Although Rendelman argues
that he could have interpreted the trooper’s “threat” to use
“whatever force is necessary” as meaning force that is
excessive, we do not believe that interpretation is a reasonable
inference on this record.
4
Our holding that the trooper’s actions were not improper
necessarily leads to the conclusion that Captain Scott did
nothing improper. Alternatively, to the extent that Rendelman
(Continued)
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III
Based on the foregoing, we affirm the summary judgment.
AFFIRMED
seeks monetary damages from him, Captain Scott is entitled to
summary judgment based on qualified immunity. See Pearson v.
Callahan, 129 S. Ct. 808, 815 (2009) (“The doctrine of qualified
immunity protects government officials ‘from liability for civil
damages insofar as their conduct does not violate clearly
established statutory or constitutional rights of which a
reasonable person would have known.’” (citation omitted);
American Roll-On Roll-Off Carrier, LLC v. P & O Ports Baltimore,
Inc., 479 F.3d 288, 295 (4th Cir. 2007) (noting that “we may
affirm a district court's decision for any reason appearing in
the record”).
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