Shelton v. Gudmanson

Decision Date14 June 1996
Docket NumberNo. 95-C-0709-C.,95-C-0709-C.
PartiesMelvin SHELTON, Plaintiff, v. Donald W. GUDMANSON, Dick Verhagen, Kristine Timm, James Doyle, Jeff Campbell, G. Peters, J. Boyce, and Donald Klemmer, Defendants.
CourtU.S. District Court — Western District of Wisconsin

Melvin Shelton, Oshkosh, WI, pro se.

Eileen W. Pray, Assistant Attorney General, Madison, WI, for Donald W. Gudmanson, Dick Verhagen, Kristine Timm, Jeff Campbell, G. Peters, J. Boyce, Donald Klemmer.

OPINION AND ORDER

CRABB, District Judge.

Wis.Stat. § 165.76 requires inmates of state correctional facilities who have been convicted of sexual assault offenses to provide biological specimens to the state for inclusion in a deoxyribonucleic acid (DNA) analysis and data bank established under Wis.Stat. § 165.77. In this civil action for monetary and injunctive relief brought pursuant to 42 U.S.C. § 1983, plaintiff Melvin Shelton, an inmate confined at the Oshkosh Correctional Institution, contends that the state law and the manner in which defendants have implemented it violate his rights under the Fourth Amendment. Defendants have moved for summary judgment on the ground that plaintiff's claim fails as a matter of law because the taking of the sample was a search that comported with the requirements of the Fourth Amendment. I conclude that defendants are correct. Their motion for summary judgment will be granted.

From the parties' proposed findings of fact, I find the following material facts to be undisputed.

UNDISPUTED FACTS

Plaintiff Melvin Shelton is serving a twenty-year sentence for first degree sexual assault in violation of Wis.Stat. § 940.225(1)(d). He is incarcerated in the Oshkosh Correctional Institution in Oshkosh, Wisconsin. Defendant Donald Gudmanson is the warden at Oshkosh; defendant Kristine Timm is Gudmanson's administrative assistant; defendant Donald Klemmer is a correctional officer at Oshkosh; defendants G. Peters and J. Boyce are employees of the Department of Corrections. (Defendant Jeff Campbell has never been served and is therefore not a party to this action.)

In 1993, the state of Wisconsin created a forensic DNA data base for use in state crime laboratories. DNA is the encoded genetic information contained within almost all human cells and is unique in every person, with the exception of identical siblings. It is specific enough to allow trained staff and investigators to implicate as well as exonerate individual suspects by comparing DNA samples from known individuals with residue left at crime scenes. DNA identification can narrow a match to less than one percent of the population whereas conventional methods of blood typing can narrow the pool of possible sources of blood evidence to between one and fifty percent of the population. The state legislature enacted Wis.Stat. §§ 165.76 and 165.77 in the belief that DNA matching would be helpful in identifying sex offenders, who have a high rate of recidivism. The data bank is expected to enable investigators to eliminate suspects promptly and to lead to more accurate prosecutions. In accordance with the statute, the state has been putting DNA profiles of known offenders of certain sex crimes into the data base.

The Department of Corrections enforces Wis.Stat. § 165.76 as follows: first, the inmate is informed of the law and the procedure (swabbing the inside of the inmate's cheek mouth with a sponge-like toothbrush) and is provided an opportunity to comply voluntarily. If the inmate refuses or resists, he is ordered to comply. If he continues to resist, he is issued a major conduct report for disobeying orders and, if found guilty, can lose good time. Sometime later, the inmate is given another chance to provide a sample. If he refuses again, he is ordered to comply. Continued resistance leads to a second conduct report and corrections officials will take a blood sample forcibly from the inmate by the finger stick method.

In the course of implementing its plan to build a data base, the Wisconsin Department of Corrections wrote to plaintiff, informing him of the reason for the DNA sampling procedure and its nature, requesting his written consent and setting forth the potential criminal penalties for not complying. On both May 16 and August 14, 1995, plaintiff refused to cooperate. Defendant Timm met with plaintiff, showed him the sponges to be used in the sampling procedure and explained the procedure verbally. On August 14, Timm gave plaintiff a direct order to provide a specimen and issued a conduct report a day later when plaintiff refused to comply. On September 5, 1995, plaintiff provided a DNA sample in accordance with the sampling procedure, which involved rubbing the inside of each of plaintiff's cheeks with a small sponge on a toothbrush-like handle for approximately fifteen seconds. The sponges were sent later to a laboratory for use in the forensic DNA program.

OPINION

Plaintiff's sole claim is that the taking of his DNA sample constituted an unreasonable search in violation of his Fourth Amendment rights because it was executed without his permission and without an order or warrant. Defendants dispute the lack of permission, alleging that plaintiff agreed on September 5, 1995, to submit voluntarily to swabbing. Plaintiff avers that the sample was taken forcibly over his objections. For the purpose of deciding defendants' motion, I will resolve this disputed fact in plaintiff's favor and will assume that plaintiff did not agree to provide a DNA sample voluntarily.

In addition, I will assume for the purpose of this opinion that the non-consensual taking of such a sample from an inmate constitutes a search and thus implicates Fourth Amendment privacy rights. See Schmerber v. California, 384 U.S. 757, 767, 86 S.Ct. 1826, 1833-34, 16 L.Ed.2d 908 (1966) (taking blood sample from a suspected drunken driver is search); Rise v. Oregon, 59 F.3d 1556, 1559 (9th Cir.1995) (applying Schmerber analysis to the drawing of blood from prisoners for DNA analysis); Jones v. Murray, 962 F.2d 302, 306 (4th Cir.) (same), cert. denied, 506 U.S. 977, 113 S.Ct. 472, 121 L.Ed.2d 378 (1992). However, a cheek swab to obtain DNA information could be analyzed like fingerprinting and be held not to constitute a search but rather simply part of the routine identification process that takes place when persons are arrested. See Smith v. United States, 324 F.2d 879, 882 (D.C.Cir.1963) (person in lawful custody may be required to submit to photographing and fingerprinting as part of routine identification process; no need for warrant before collecting such information). See also Rise, 59 F.3d at 1560 (once inmate is convicted of predicate offense, "his identity has become a matter of state interest and he has lost any legitimate expectation of privacy in the identifying information derived from the blood sampling").

Assuming that non-consensual cheek swabbing to obtain DNA material is a search, it is necessary to determine whether it is one that is reasonable under the Fourth Amendment. Reasonableness requires "that the facts upon which an intrusion is based be capable of measurement against an `objective standard,' whether this be probable cause or a less stringent test." Delaware v. Prouse, 440 U.S. 648, 654, 99 S.Ct. 1391, 1396, 59 L.Ed.2d 660 (1979) (footnotes omitted). Generally, the Fourth Amendment requires searchers to obtain a warrant that establishes "probable cause," based on individualized suspicion, Griffin v. Wisconsin, 483 U.S. 868, 873, 107 S.Ct. 3164, 3168, 97 L.Ed.2d 709 (1987), but there are a number of exceptions to this general rule. Among them is the expanding field of "special needs" beyond the normal need...

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