Padgett v. Ferrero, Civil Action No. 1:01-CV-1936-TWT.

• Decision Date: 10 December 2003
• Docket Number: Civil Action No. 1:01-CV-1936-TWT.
• Parties: Roy PADGETT, et al., Plaintiffs, v. Joe FERRERO, Commissioner of Georgia Department of Corrections, et al., Defendants.
• Court: U.S. District Court — Northern District of Georgia

294 F.Supp.2d 1338

Roy PADGETT, et al., Plaintiffs, v. Joe FERRERO, Commissioner of Georgia Department of Corrections, et al., Defendants.

Civil Action No. 1:01-CV-1936-TWT.

United States District Court, N.D. Georgia, Atlanta Division.

December 10, 2003.

COPYRIGHT MATERIAL OMITTED

Christopher David Booth, Randall Marc Hawkins, Kimberly Jean Johnson, Paul R. Wellons, Jones Day, William E. Hoffmann, Jr., Patrice D. Russell, King & Spalding, Atlanta, GA, for Plaintiffs.

Thurbert E. Baker, John C. Jones, David E. Langford, Kathleen Mary Pacious, Office of State Attorney General, Atlanta, GA, for Defendants.

ORDER

THRASH, District Judge.

This action for injunctive relief seeks to have the Georgia law requiring DNA sampling of all convicted felons declared unconstitutional. The case is currently before the Court on Defendants' Motion for Summary Judgment [Doc. 37] and Plaintiff-Intervenors' Cross-Motion for Summary Judgment [Doc. 40]. For the reasons set forth below, the Defendants' Motion for Summary Judgment is granted and Plaintiffs' motion is denied.

I. BACKGROUND

The Plaintiffs are convicted felons who served or are serving prison sentences which started before July 1, 2000. Plaintiffs' sentences will end after July 1, 2000. The Defendant Georgia Bureau of Investigation is a law enforcement agency within the state of Georgia. The Defendant Georgia Department of Corrections administers the prison system for the state of Georgia. The Defendant Joe Ferrero is the Commissioner of the Georgia Department of Corrections.

The material facts in this case are not in dispute. In 2000, the Georgia General Assembly amended O.C.G.A. § 24-4-60 to require "any person convicted of a felony and incarcerated in a state correctional facility" to have a sample of his deoxyribonucleic acid ("DNA") taken: (1) by swabbing the inside of his mouth; (2) from a sample of his blood; or (3) by some other non-invasive procedure. O.C.G.A. § 24-4-60. The DNA sample is to be "typed" or analyzed to determine the identifying characteristics of the person from whom it was taken. Id. The convict's identifying information is to be stored in a data bank maintained by the Georgia Bureau of Investigation. Id. The information in the data bank may then be released directly to federal, state, or local law enforcement upon a "request made in furtherance of an official investigation of any criminal offense." O.C.G.A. § 24-4-63(a).

Two of the Plaintiffs in this case, Roy Padgett and Frederick Pettigrew, have already given DNA samples which are currently in the Georgia Bureau of Investigation's database. (Staples Aff. ¶ 6.) The action has been dismissed as to them. John Burney has given a DNA sample but it is sequestered pending the outcome of this litigation. Paul N. Boulineau has yet to provide a DNA sample. As required by the statute, Defendants will take a sample and store information from Boulineau's DNA before he is released from prison. (Hitchcock Aff. ¶ 4.) Department of Corrections' policy dictates that a member of the prison medical staff will take a sample of Boulineau's DNA by using swabs to collect saliva from the inside of his mouth. (Id. at ¶¶ 4-5.) Those swabs will then be sent to the Georgia Bureau of Investigation for typing and placement in the DNA database. (Id. at 5.) Failure to comply with the requirement to give a DNA sample will subject the inmate to a disciplinary report, followed by a hearing and disciplinary action by prison staff. (Id. at ¶¶ 7-9.) If the inmate still refuses to cooperate, the sample will be taken by force.

II. SUMMARY JUDGMENT STANDARD

Summary judgment is appropriate only when the pleadings, depositions, and affidavits submitted by the parties show that no genuine issue of material fact exists and that the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). An issue is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). An issue is material if it "might affect the outcome of the suit under the governing law." Id. The court should view the evidence and any inferences that may be drawn in the light most favorable to the nonmovant. Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-159, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). The party seeking summary judgment must first identify grounds that show the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The burden then shifts to the nonmovant, who must go beyond the pleadings and present affirmative evidence to show that a genuine issue of material fact does exist. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

III. DISCUSSION

Plaintiffs claim that the DNA sampling statute is invalid as an unreasonable search and seizure in violation of the Fourth Amendment, that it violates the Ex Post Facto clause of Article I of the United States Constitution, that it violates certain privacy rights implicit in the penumbra of the Bill of Rights, that it violates the right against self incrimination, and that it deprives them of Due Process.

A. Eleventh Amendment Immunity

Defendants contend that the Eleventh Amendment to the United States Constitution bars the action against the Georgia Bureau of Investigation and the Georgia Department of Corrections. The Eleventh Amendment bars suit against states and those entities which are arms of the state. Fouche v. Jekyll Island-State Park Authority, 713 F.2d 1518, 1520 (11th Cir.1983). An entity is an arm of the state when the relief sought against the named defendant would actually operate against the state if granted. Jackson v. Georgia Dept. of Transp., 16 F.3d 1573, 1577 (11th Cir.1994). Plaintiffs' only response is that they may seek injunctive relief against the Defendant Ferrero. This constitutes abandonment of any claims against the Georgia Bureau of Investigation and the Georgia Department of Corrections. Therefore, their Motion for Summary Judgment is granted.

B. Fourth Amendment

Plaintiffs claim that O.C.G.A. § 24-4-60 authorizes a search which violates their Fourth Amendment right to be free from unreasonable searches and seizures. A compelled intrusion into the body for a blood or saliva sample is a Fourth Amendment search. Skinner v. Railway Labor Executives' Ass'n, 489 U.S. 602, 616, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989); Schmerber v. California, 384 U.S. 757, 767-68, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966). Therefore, the search must be reasonable to comply with the mandate of the Fourth Amendment. What is reasonable "depends on all of the circumstances surrounding the search or seizure and the nature of the search or seizure itself," and the permissibility of the search is "judged by balancing its intrusion on the individual's Fourth Amendment interests against its promotion of legitimate governmental interests." Skinner, 489 U.S. at 619, 109 S.Ct. 1402. In general, courts strike the reasonableness balance in favor of the warrant requirement of the Fourth Amendment. With some narrowly defined exceptions, a search is not reasonable unless it is carried out pursuant to a judicial warrant issued on probable cause. Id. In general, searches performed in the absence of a warrant and pursuant to an exception must be predicated upon "probable cause to believe that the person to be searched has violated the law," or, at the very least, "some quantum of individualized suspicion." Id. at 624, 109 S.Ct. 1402.

In the face of Fourth Amendment challenges, the overwhelming majority of courts have held that DNA collection and typing laws are constitutional. See Roe v. Marcotte, 193 F.3d 72 (2nd Cir.1999); Boling v. Romer, 101 F.3d 1336 (10th Cir. 1996); Rise v. State of Oregon, 59 F.3d 1556 (9th Cir.1995); Jones v. Murray, 962 F.2d 302 (4th Cir.1992). These cases properly weigh the interests of the state and those of the individuals involved. The bodily intrusion of taking a blood or saliva sample is minimal. It is not significantly greater than taking fingerprints or a photograph. The state has a compelling interest in obtaining reliable and accurate identifying characteristics of individuals convicted of felonies. These valid law enforcement interests outweigh a convicted felon's privacy interests. To the extent that probable cause or individualized suspicion is required to justify a search, the Plaintiffs' felony convictions provide that justification. Therefore, O.C.G.A. § 24-4-60 does not authorize unreasonable searches in violation of the Fourth Amendment.

Plaintiffs contend that in order for the state to take samples of their DNA, it must be acting in furtherance of a "special need" beyond general law enforcement. The special needs doctrine is an exception to the general requirement of individualized suspicion for searches; if a search is in furtherance of a special need outside of general law enforcement, then individualized suspicion is not required. Plaintiffs rely on two recent Supreme Court cases and a Ninth Circuit case for this argument. In City of Indianapolis v. Edmond, 531 U.S. 32, 121 S.Ct. 447, 148 L.Ed.2d 333 (2000), the Court struck down as unconstitutional motor vehicle roadblocks designed to target drug trafficking. Because the roadblocks served the ends of general law enforcement instead of a special need, the Court found them to be invalid under the Fourth Amendment. Similarly, in Ferguson v. City of Charleston, 532 U.S. 67, 121 S.Ct. 1281, 149 L.Ed.2d 205 (2001), the Court held that performing drug screens on mothers who met certain demographic criteria was impermissible, because the statute authorized suspicionless searches designed to meet the needs of general law enforcement instead of a special need of the state. In United States v. Kincade, 345 F.3d 1095 (9th Cir.2003), a divided panel of the Ninth Circuit relied...