Vore v. U.S. Dept. of Justice

• Decision Date: 08 September 2003
• Docket Number: No. CV 02-405 TUC DCB.,CV 02-405 TUC DCB.
• Citation: 281 F.Supp.2d 1129
• Parties: William Bernard VORE, Plaintiff, v. UNITED STATES DEPARTMENT OF JUSTICE, et al., Defendants.
• Court: U.S. District Court — District of Arizona

281 F.Supp.2d 1129

William Bernard VORE, Plaintiff, v. UNITED STATES DEPARTMENT OF JUSTICE, et al., Defendants.

No. CV 02-405 TUC DCB.

United States District Court, D. Arizona.

September 8, 2003.

COPYRIGHT MATERIAL OMITTED

William Bernard Vore, Pro se, FCI-Tucson, Tucson, AZ, for William Bernard Vore, pla.

Gerald S Frank, U.S. Attorney's Office, Tucson, AZ, for Justice, Department of, John Ashcroft, Attorney General, Prisons, Federal Bureau of, Kathleen Hawk Sawyer, Director, Berta Lockhart, Warden, dfts.

ORDER

BURY, District Judge.

Pending before this Court is Defendants' Motion to Dismiss or, in the alternative, Motion for Summary Judgment, as well as Plaintiff's Cross-Motion for Summary Judgment. For the reasons set forth below, Defendants' Motion to Dismiss, construed as a Motion for Summary Judgment, is granted and Plaintiff's Cross-Motion is denied.

I. INTRODUCTION

Plaintiff is an inmate currently incarcerated at Federal Correctional Institution ("FCI"), Tucson, Arizona. Plaintiff is serving a sentence of 157 months imprisonment, followed by 3 years of supervised release for Bank Robbery in violation of 18 U.S.C. §§ 2113(a) and (2). Plaintiff was sentenced on July 3, 1997.

On December 19, 2000, Congress enacted the DNA Analysis Backlog Elimination Act of 2000 ("DNA Act"), 42 U.S.C. §§ 14135(a)—14135(e). The DNA Act provides, in relevant part, that the Bureau of Prisons ("BOP") "shall collect a DNA sample from each individual in the custody of the Bureau of Prisons who is, or has been, convicted of a qualifying Federal offense." 42 U.S.C. § 14135a(a)(1). Plaintiff's conviction for Bank Robbery under 18 U.S.C. § 2113 is a qualifying Federal offense under the DNA Act. 42 U.S.C. § 14135a(d)(1)(E). The Director of the BOP is authorized to use "such means as are reasonably necessary to detain, restrain, and collect a DNA sample from an individual who refuses to cooperate in the collection of the sample." 42 U.S.C. § 14135a(a)(4)(A). The DNA Act also criminalizes the unauthorized retention or disclosure of a DNA sample, and expunges a person's DNA records if his qualifying convictions are overturned. See 42 U.S.C. §§ 14135e, 14132.

Plaintiff filed the present action for declaratory and injunctive relief on August 20, 2002, after learning that he was required to provide a blood sample in accordance with the DNA Act. On September 12, 2002, a blood sample was forcibly taken from Plaintiff for the purpose of collecting a DNA sample.

Plaintiff raises four arguments. First, Plaintiff argues the DNA Act unconstitutionally violates his rights under the Fourth Amendment. Second, Plaintiff argues the DNA Act unconstitutionally violates his right to due process under the Fifth Amendment. Third, Plaintiff argues the DNA Act unconstitutionally violates his right to remain silent and his protection against self-incrimination under the Fifth Amendment. Finally, Plaintiff argues that the DNA Act violates the Ex Post Facto Clause of the Constitution, Article 1, § 9, cl. 3, as it was enacted after the imposition of Plaintiff's conviction and sentence.

All of Plaintiff's arguments lack merit.

II. DISCUSSION

A. Standard of Review

Defendants' Motion is characterized as a Motion to Dismiss pursuant to Rule 12(b)(6), Fed.R.Civ.P., or, alternatively, a Motion for Summary Judgment pursuant to Rule 56(c), Fed.R.Civ.P. Defendants attached exhibits to their Motion, thereby presenting matters outside of the pleadings. Plaintiff included exhibits with his Cross-Motion, as well. Accordingly, this Court treats Defendants' Motion as a motion for summary judgment. Rule 12(b), Fed.R.Civ.P.

A motion for summary judgment shall be granted if there are no genuine issues of material fact, entitling the moving party to judgment as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). A motion for summary judgment should be granted if reasonable minds could not differ that the moving party must prevail as a matter of law. Id. at 250-51, 106 S.Ct. at 2511-12. A mere scintilla of evidence is insufficient to defeat a motion for summary judgment. Id. at 251, 106 S.Ct. at 2512. The party opposing a motion for summary judgment may not rest upon his pleadings, but must set forth specific facts which indicate that there is a genuine issue for trial. Id. at 250, 106 S.Ct. at 2511; Rule 56(e), Fed. R.Civ.P. The party with the burden of proof at trial also bears that same burden when making or opposing a motion for summary judgment. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986).

Motions for summary judgment should be viewed "not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed `to secure just, speedy and inexpensive determination of every action.'" Celotex, 477 U.S. at 327, 106 S.Ct. at 2548. (Citations omitted.) Accordingly, the rules governing motions for summary judgment should be enforced with regard not just for rights of the nonmovant, but also for the rights of the party contending that there exists no genuine issue of material fact. Id.

B. The DNA Act Does Not Violate the Fourth Amendment

The Fourth Amendment guarantees the right to be free from unreasonable searches and seizures and to be secure in one's person, house, papers, and effects. U.S. Const. Amend. IV; see Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961). The Amendment "guarantees the privacy, dignity, and security of persons against certain arbitrary and invasive acts by officers of the government or those acting at their direction." Skinner v. Railway Labor Executives' Ass'n., 489 U.S. 602, 613, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989).

Under the Fourth Amendment, all searches and seizures must be reasonable. City of Indianapolis v. Edmond, 531 U.S. 32, 45, 121 S.Ct. 447, 148 L.Ed.2d 333 (2000). Whether or not a search or seizure is reasonable is a fact-specific determination. United States v. Montoya de Hernandez, 473 U.S. 531, 537, 105 S.Ct. 3304, 87 L.Ed.2d 381 (1985). The "permissibility of a particular 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 (citation omitted). "A search or seizure is ordinarily unreasonable in the absence of individualized suspicion of wrongdoing." Edmond, 531 U.S. at 36, 121 S.Ct. 447. There are only limited circumstances in which individualized suspicion is not required. Id. Certain suspicionless searches are constitutional where the purpose of the policy or program was designed to serve "special needs, beyond the normal need for law enforcement." Id. (citations omitted).

The special needs doctrine is limited in its application to exceptional circumstances and "must be analyzed in the context of the specific factual circumstances involved in the case." Henderson v. City of Simi Valley, 305 F.3d 1052, 1056-57 (9th Cir.2002) (citation omitted). If the primary purpose of the law or policy at issue is ordinary law enforcement, the special needs doctrine is inapplicable and the search violates the Fourth Amendment, absent individualized suspicion. Edmond, 531 U.S. at 46-48, 121 S.Ct. 447; Ferguson v. City of Charleston, 532 U.S. 67, 81, 121 S.Ct. 1281, 149 L.Ed.2d 205 (2001) ("In looking to the programmatic purpose, we consider all the available evidence in order to determine the relevant primary purpose."). It is not enough that the ultimate purpose is something other than ordinary law enforcement if the primary purpose is not. Ferguson, 532 U.S. at 81, 121 S.Ct. 1281.

If the court determines that the primary purpose of the law or policy is beyond the normal need for law enforcement, it must perform "a careful balancing of governmental and private interests." Portillo v. United States District Court for the District of Arizona, 15 F.3d 819, 823 (9th Cir.1994) (per curiam) (quoting Skinner, 489 U.S. at 624, 109 S.Ct. 1402). "In limited circumstances, where the privacy interests implicated by the search are minimal, and where an important governmental interest furthered by the intrusion would be placed in jeopardy by a requirement of individualized suspicion, a search may be reasonable despite the absence of such suspicion." Skinner, 489 U.S. at 624, 109 S.Ct. 1402. In other words, the special needs doctrine reaffirms "the long-standing principle that neither a warrant nor probable cause, nor, indeed, any measure of individualized suspicion, is an indispensable component of reasonableness in every circumstance." National Treasury Employees Union v. Von Raab, 489 U.S. 656, 665, 109 S.Ct. 1384, 103 L.Ed.2d 685 (1989) (citation omitted).

It is well-established that a compelled intrusion into the body for blood to be analyzed is a Fourth Amendment search. Skinner, 489 U.S. at 616, 109 S.Ct. 1402. Undoubtedly, the DNA Act implicates the Fourth Amendment by requiring the non-consensual extraction of DNA from a person. See Rise v. State of Oregon, 59 F.3d 1556, 1558-59 (9th Cir. 1995). Accordingly, the issue is whether the DNA Act is a valid suspicionless search pursuant to the special needs doctrine.

While they do not forfeit all constitutional protections by reason of their conviction and imprisonment, prisoners do have limited privacy rights under the Fourth Amendment. See Hudson v. Palmer, 468 U.S. 517, 526-528, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984). Indeed, the Ninth Circuit has noted that the Supreme Court in Hudson "may have intended to strip the inmates of all Fourth Amendment privacy rights." Somers v. Thurman, 109 F.3d 614, 617 (9th Cir.1997). As the Supreme Court noted, in dicta, in Hudson:

A right of privacy in traditional Fourth Amendment terms is fundamentally incompatible with the close and continual surveillance of inmates and their cells required to ensure institutional security and internal order....