Wilson v. Wilkinson, Case No. 2:04-CV-918.

• Decision Date: 06 March 2007
• Docket Number: Case No. 2:04-CV-918.
• Citation: 608 F.Supp.2d 891
• Parties: Antoine D. WILSON, Plaintiff, v. Reginald WILKINSON, et al., Defendants.
• Court: U.S. District Court — Southern District of Ohio

608 F.Supp.2d 891

Antoine D. WILSON, Plaintiff, v. Reginald WILKINSON, et al., Defendants.

Case No. 2:04-CV-918.

United States District Court, S.D. Ohio, Eastern Division.

March 6, 2007.

William J. Pohlman, Elizabeth H. Smith, Gina R. Russo, Thomas Howard Fusonie, Pearl Chin, Vorys Sater Seymour & Pease LLP, Columbus, OH, David A. Singleton, Ohio Justice & Policy Center, Cincinnati, OH, for Plaintiff.

Philip A. King, The Supreme Court of Ohio Office of Disciplinary Counsel, Richard Thomas Cholar, Jr., Ohio Attorney General, Columbus, OH, for Defendants.

OPINION AND ORDER

NORAH McCANN KING, United States Magistrate Judge.

Antoine D. Wilson ("plaintiff') is an African-American male in the custody of the Ohio Department of Rehabilitation and Correction ("ODRC") and is currently incarcerated at the Ross Correctional Institution ("RCI")Plaintiff asserts claims under 42 U.S.C. § 1983 ("Section 1983"), Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d ("Title VI") and the laws of the State of Ohio, challenging Ohio's DNA Act, Ohio Revised Code ("O.R.C.") § 2901.07, ("the Act"), which requires the collection and storage of deoxyribonucleic acid ("DNA") specimens from certain individuals. Named as defendants in this action are the former Director of ODRC Reginald Wilkinson, Warden of RCI Pat Hurley, the former Ohio Attorney General Jim Petro and Superintendent of the Ohio Bureau of Criminal Identification and Investigation ("BCI") John Monce, Jr.

With the consent of the parties, 28 U.S.C. § 636(c), this matter is before the Court on Defendants' Motion for Summary Judgment, Doc. No. 61, and on Plaintiff Antoine D. Wilson's Motion for Summary Judgment ("Plaintiff's Motion for Summary Judgment"), Doc. No. 62. For the reasons that follow, Plaintiff's Motion for Summary Judgment is DENIED and Defendants' Motion for Summary Judgment is GRANTED.

I. FACTS

The Act compels persons convicted of certain enumerated felonies and misdemeanors ("offenders") to submit to a DNA specimen collection procedure administered by defendants. See O.R.C. § 2901.07. The Act also requires that the specimens be analyzed to create DNA records or profiles for entry into a computer DNA database operated and maintained by BCI. Id. BCI operates a state laboratory in London, Ohio; it also utilizes private laboratories located throughout Ohio to conduct DNA analyses. Complaint ¶ 17. Both BCI and the private laboratory contractors must meet national standards for DNA testing. Affidavit of Elizabeth Ann Benzinger¹ ("Benzinger Aff.") § III ¶ 5 attached as Exhibit A to Defendants' Motion for Summary Judgment. During the DNA analysis and before the DNA record is stored, all demographic information, including race, is separated from the offender DNA samples. Id.

Offender DNA is stored in the Ohio DNA Index System. Doc. No. 73, Notice of Declaration of Assistant Attorney General Philip A. King at Expert Summary of Dr. Julie A. Heinig ("Heinig Expert Summary")² ¶ 1. Ohio, like all other states, participates in the Federal Bureau of Investigation's ("FBI") Combined DNA Index System ("CODIS"). Id. ¶ 7; Complaint ¶ 28. CODIS operates through the FBI's National DNA Index System ("NDIS"), which enables laboratories participating in the CODIS program to exchange and compare DNA records or profiles on a national level. Id. See also Summary of NDIS Operational Procedures attached as Exhibit B to Defendants' Motion for Summary Judgment. Once an offender's DNA specimen is analyzed and verified through specific procedures the specimen is entered into the Ohio DNA Index System and CODIS and is identified only by its unique identifier number. Benzinger Aff. § III ¶¶ 1-9. Once an offender record is entered into CODIS, it is searched against other DNA records daily at the state level and weekly at the national level. Id. § III ¶ 9.

On October 6, 2003, pursuant to the Act, plaintiffs DNA specimen was collected by swabbing the inside of his mouth for buccal cells. Complaint, ¶ 35; O.R.C. § 2901.07(C). Plaintiffs DNA specimen, like all other samples taken under the Act, was sent for analysis to create a DNA profile and that record was entered into and is stored on CODIS. Id. ¶ 36.

On September 27, 2004, plaintiff filed the instant action. In the Complaint, plaintiff asserts both a facial challenge to the Act and an "as-applied" challenge. Id. ¶¶ 41-92. Plaintiff claims that the original collection of his DNA violated the Fourth, Fifth and Fourteenth Amendments to the United States Constitution and that those violations continue in connection with the storage and maintenance of his DNA record. Id. Plaintiff asks that defendants be compelled to expunge his DNA records from the state and federal databases and to destroy his DNA specimen. Id. pgs. 15-16. Plaintiff also requests a permanent injunction to prevent defendants from conducting further DNA testing on him and to prevent defendants from disclosing his DNA record. Id. pg. 17. Finally, plaintiff requests a declaration that the Act is facially unconstitutional, is unconstitutional as applied to him and is unconstitutional as applied to all African-Americans similarly situated to him. Id.

II. STANDARD OF REVIEW

The standard for summary judgment is well established. This standard is found in Rule 56 of the Federal Rules of Civil Procedure, which provides in pertinent part:

The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.

Fed.R.Civ.P. 56(c). In determining whether there is a genuine issue as to any material fact, the evidence "must be viewed in the light most favorable" to the non-moving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). Summary judgment will not lie if the dispute about a material fact is genuine, "that is, if the evidence is such that a reasonable jury could return a verdict for the non-moving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). However, summary judgment is appropriate if the opposing party "fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The "mere existence of a scintilla of evidence in support of the [opposing party's] position will be insufficient; there must be evidence on which the jury could reasonably find for the [opposing party]." Anderson, 477 U.S. at 252, 106 S.Ct. 2505.

III. ANALYSIS

To prevail on a claim under Section 1983, a plaintiff must establish the violation of a right secured by the federal Constitution or laws by a person acting under color of state law. 42 U.S.C. § 1983; West v. Atkins, 487 U.S. 42, 48, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988); Street v. Corr. Corp. of Am., 102 F.3d 810, 814 (6th Cir. 1996). Because Section 1983 is a method for vindicating federal rights, "not a source of substantive rights" itself, the "first step in any such claim is to identify the specific constitutional right allegedly infringed." Albright v. Oliver, 510 U.S. 266, 271, 114 S.Ct. 807, 127 L.Ed.2d 114 (1994) (citations omitted). There is no dispute that defendants in this action acted under the color of state law. Further, plaintiff alleges that the Act violates the Fourth Amendment's prohibition against unreasonable searches and seizures, the Fifth Amendment's prohibition against self-incrimination, the Due Process Clauses of the Fifth and Fourteenth Amendments and the disparate impact regulations under Title VI.

A. Right to be Free from Unreasonable Searches and Seizures

The Fourth Amendment to the United States Constitution, as applied to the states through the Fourteenth Amendment, provides that "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." U.S. Const. amend. IV. See also Wolf v. Colorado, 338 U.S. 25, 27-28, 69 S.Ct. 1359, 93 L.Ed. 1782 (1949) (the Fourth Amendment is enforceable against the states through the Fourteenth Amendment). The Fourth Amendment does not proscribe all searches and seizures, but only those that are unreasonable. Schmerber v. California, 384 U.S. 757, 768, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966). Reasonable searches, even those performed without a warrant, must ordinarily be based on probable cause. Skinner v. Railway Labor Executives' Ass'n, 489 U.S. 602, 624, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989) (citing New Jersey v. T.L.O., 469 U.S. 325, 340, 105 S.Ct. 733, 83 L.Ed.2d 720 (1985)). However, the Supreme Court has also explained that "neither a warrant nor probable cause, nor, indeed, any measure of individualized suspicion, is an indispensable component of reasonableness in every circumstance." Nat'l Treasury Employees Union v. Von Raab, 489 U.S. 656, 665, 109 S.Ct. 1384, 103 L.Ed.2d 685 (1989). "When the balance of interests precludes insistence on a showing of probable cause, [the United States Supreme Court] usually requires `some quantum of individualized suspicion' before concluding that a search is reasonable." Id. (citing as an example United States v. Martinez-Fuerte, 428 U.S. 543, 560, 96 S.Ct. 3074, 49 L.Ed.2d 1116 (1976)).

In the instant action, the parties agree that the collection of plaintiffs DNA specimen and its subsequent analysis and retention qualify as searches and seizures subject to the protections of the Fourth Amendment. Plaintiffs Motion for Summary Judgment at 15-18; Defendants'...