Kaemmerling v. Lappin

• Citation: 553 F.3d 669
• Decision Date: 30 December 2008
• Docket Number: No. 07-5065.,07-5065.
• Parties: Russell KAEMMERLING, Appellant v. Harley G. LAPPIN, Director, Federal Bureau of Prisons and Michael B. Mukasey, Appellees.
• Court: U.S. Court of Appeals — District of Columbia Circuit

553 F.3d 669

Russell KAEMMERLING, Appellant v. Harley G. LAPPIN, Director, Federal Bureau of Prisons and Michael B. Mukasey, Appellees.

No. 07-5065.

United States Court of Appeals, District of Columbia Circuit.

Argued September 8, 2008.

Decided December 30, 2008.

Appeal from the United States District Court for the District of Columbia (No. 06cv01389).

Jef Kosseff, Student Counsel, argued the cause as amicus curiae in support of petitioner. With him on the briefs were Steven H. Goldblatt, appointed by the court, and Cecily E. Baskir, Damon C. Elder, and Elizabeth A. Rose, Student Counsel.

Russell Kaemmerling, pro se, was on the brief for appellant.

Oliver W. McDaniel, Assistant U.S. Attorney, argued the cause for appellee. With him on the brief were Jeffrey A. Taylor, U.S. Attorney, and R. Craig Lawrence and Michael J. Ryan, Assistant U.S. Attorneys.

Before: SENTELLE, Chief Judge, and HENDERSON and KAVANAUGH, Circuit Judges.

Opinion for the Court filed by Chief Judge SENTELLE.

SENTELLE, Chief Judge:

Russell Kaemmerling, a federal prisoner, appeals from the district court's dismissal of his action seeking to enjoin application of the DNA Analysis Backlog Elimination Act of 2000 ("DNA Act" or "the Act"), 42 U.S.C. §§ 14135-14135e. Kaemmerling alleged that the Act violated his rights under the Religious Freedom Restoration Act ("RFRA"), 42 U.S.C. §§ 2000bb-2000bb-4, and the First, Fourth, and Fifth Amendments of the United States Constitution. The district court denied his request for a preliminary injunction and then dismissed the action for his failure to exhaust administrative remedies pursuant to the Prison Litigation Reform Act ("PLRA"), 42 U.S.C. § 1997e. Although we conclude that the PLRA does not require Kaemmerling to exhaust administrative remedies on his challenge to the DNA Act, we nevertheless affirm the dismissal of the case because his complaint fails to state a claim.

I

Pursuant to congressional authorization, the Federal Bureau of Investigation ("FBI") established the Combined DNA Index System ("CODIS"), a national database containing electronic DNA profiles of convicted offenders from the state and federal systems, evidence from crime scenes, and unidentified human remains that allows government officials to match an electronic DNA profile to its donor's identity for "law enforcement identification purposes," "judicial proceedings," and "criminal defense purposes." 42 U.S.C. § 14132(a), (b)(3). Law enforcement officers use the CODIS to match one forensic crime scene sample to another, thereby connecting unsolved crimes through a common perpetrator, and to match evidence from the scene of a crime to a particular offender's profile, thereby solving crimes committed by known offenders. See United States v. Kincade, 379 F.3d 813, 819 (9th Cir.2004). Unauthorized uses or disclosures of DNA information stored in the database are punishable by fines and imprisonment. 42 U.S.C. § 14133(c).

To facilitate the efficacy of the CODIS, the DNA Act directs the Federal Bureau of Prisons ("BOP") to collect "a tissue, fluid, or other bodily sample ... on which a[n] ... analysis of the deoxyribonucleic acid (DNA) identification information" can be carried out, id. § 14135a(c), from "each individual in the custody of the [BOP] who is, or has been, convicted of a qualifying Federal offense," which includes all felonies, sexual abuse, and crimes of violence, id. § 14135a(a)(1)(B), (d). Failure to cooperate in the collection of a sample is a misdemeanor offense. Id. § 14135a(a)(5). The BOP turns an offender's sample over to the FBI, where an analyst extracts the DNA from cells in the sample and then uses short tandem repeat ("STR") technology to identify non-genic variants known as alleles at thirteen specific loci on the DNA. See Banks v. United States, 490 F.3d 1178, 1180 (10th Cir.2007); Kincade, 379 F.3d at 818. After creating the donor's unique DNA profile, the FBI then records a copy of the profile in the CODIS. See Johnson v. Quander, 440 F.3d 489, 498 (D.C.Cir.2006).

Kaemmerling was convicted of conspiring to commit wire fraud, a felony offense, and is currently incarcerated at the Federal Correctional Institution in Seagoville, Texas. Because he has committed a qualifying offense, the DNA Act requires the BOP to take a fluid or tissue sample from Kaemmerling for DNA analysis and inclusion in the CODIS. In August 2006, Kaemmerling brought suit against the Director of the BOP and the Attorney General, seeking a declaratory judgment and injunctive relief against enforcement of the DNA Act. He alleged that, as an "Evangelical Christian," submitting to DNA "sampling, collection and storage with no clear limitations of use" is repugnant to his strongly held religious beliefs about the proper use of "the building blocks of life." According to his religious beliefs, the collection and retention of his DNA information is "tantamount to laying the foundation for the rise of the anti-Christ." Kaemmerling protested that enforcing the DNA Act against him would violate his rights under the RFRA and the First Amendment, as well as under the Fourth and Fifth Amendments.

Four other plaintiffs joined Kaemmerling in his suit and filed, along with their joint complaint, a motion for class certification and a motion for a temporary restraining order and preliminary injunction to prevent the BOP from collecting their DNA samples while the action was pending. The district court denied the plaintiffs' motion for a temporary restraining order and a preliminary injunction, discerning no imminent irreparable injury.

The district court subsequently dismissed the case without prejudice for failure to exhaust administrative remedies under the PLRA. The plaintiffs objected that the BOP "lacks any authority to provide any relief or take any action whatsoever" in response to their challenges to the DNA Act, leaving them with no administrative remedy to exhaust. The district court disagreed, concluding that the plaintiffs must comply with PLRA procedures even if pursuing administrative remedies might be futile, because collection of their DNA samples is a prison circumstance or occurrence. In its final order, the court denied all other pending motions as moot, including the motion for class certification.

Kaemmerling timely appealed the dismissal, and we dismissed the plaintiffs' earlier interlocutory appeal from denial of the motion for a temporary restraining order. Although all five plaintiffs pursued the interlocutory appeal, only Kaemmerling seeks review in the present proceeding. See December 28, 2007 Order, Case No. 07-5065 (denying plaintiff Daniel Siler's motion for injunction because he "failed to note an appeal in this action"). On appeal, Kaemmerling argues that the district court erred in dismissing his case because the PLRA's exhaustion requirement does not apply and that it erred in denying his motion for a preliminary injunction. The BOP defends the district court's PLRA decision and further argues that, even if Kaemmerling is not required to exhaust administrative remedies, we should dismiss his complaint for failure to state a claim.

II

The PLRA provides that "[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a). The exhaustion requirement affords prison officials time and opportunity to resolve complaints concerning the exercise of their responsibilities before allowing the initiation of a federal case. Exhaustion thus "has the potential to reduce the number of inmate suits" by resolving problems at the administrative level and "to improve the quality of suits that are filed by producing a useful administrative record." Jones v. Bock, 549 U.S. 199, 127 S.Ct. 910, 166 L.Ed.2d 798 (2007); see Porter v. Nussle, 534 U.S. 516, 524-25, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002).

Exhaustion is the "general rule" for litigation within Section 1997e(a)'s compass. Porter, 534 U.S. at 525 n. 4, 122 S.Ct. 983.¹ Even if an inmate believes that seeking administrative relief from the prison would be futile and even if the grievance system cannot offer the particular form of relief sought, the prisoner nevertheless must exhaust the available administrative process. Booth v. Churner, 532 U.S. 731, 739, 741 & n. 6, 121 S.Ct. 1819, 149 L.Ed.2d 958 (2001). But a prisoner must exhaust only "such administrative remedies as are available," 42 U.S.C. § 1997e(a), that is, those prison grievance procedures that provide "the possibility of some relief for the action complained of," Booth, 532 U.S. at 738, 121 S.Ct. 1819. The statutory requirement of an available remedy presupposes authority to take some action in response to a complaint. Booth, 532 U.S. at 736, 121 S.Ct. 1819. Thus, if "the relevant administrative procedure lacks authority to provide any relief or to take any action whatsoever in response to a complaint," then a prisoner is left with nothing to exhaust and the PLRA does not prevent the prisoner from bringing his or her claim directly to the district court. Id.; see Larkin v. Galloway, 266 F.3d 718, 723 (7th Cir.2001) (prisoner must exhaust any prison administrative process that "was empowered to consider his complaint and ... could take some action in response to it"); Snider v. Melindez, 199 F.3d 108, 113 n. 2 (2d Cir.1999) ("If ... the inmate's suit complains that he was beaten by prison guards, and the institution provides a grievance proceeding for inmate complaints about food ... but none for complaints about beatings," the inmate would not be required to pursue the grievance procedure having "no application whatsoever to the subject matter of his complaint.").

This case is the rare one in which there is no administrative process to exhaust because the BOP lacks authority to...