Groceman v. US Dept of Justice, et al

United States Court of Appeals
Fifth Circuit
F I L E D
January 6, 2004
Charles R. Fulbruge III
Clerk
In the
United States Court of Appeals
for the Fifth Circuit
_______________
m 02-10810
Summary Calendar
_______________
JEFFREY DEAN GROCEMAN AND BRADLEY WILLIAM GROCEMAN,
Plaintiffs-Appellants,
VERSUS
UNITED STATES DEPARTMENT OF JUSTICE;
UNITED STATES BUREAU OF PRISONS;
FEDERAL BUREAU OF INVESTIGATION,
Defendants-Appellees.
_________________________
Appeal from the United States District Court
for the Northern District of Texas
m 3:01-CV-1619-G
_________________________
Before SMITH, DEMOSS, and STEWART,
Circuit Judges.
PER CURIAM:
Jeffrey Groceman and Bradley Groceman
are incarcerated pursuant to convictions for
armed bank robbery and conspiracy to commit
armed bank robbery. They sued three federal
entities to enjoin them from collection and re-
tention of samples of their DNA pursuant to
the DNA Analysis Backlog Elimination Act of
2000 (the “DNA Act”), 42 U.S.C. §§ 14135-
14135e (2001 Supp.) The DNA Act calls for
“collection and use of DNA identification in-
formation from certain Federal offenders,”
including persons such as these plaintiffs, who
were convicted of the qualifying offense of
bank robbery. 42 U.S.C. 14135a(d)(1)(E).
DNA samples collected under the statute are

-- 1 of 3 --

2
intended for inclusion in the Combined DNA
Index System (“CODIS”), a database main-
tained by the FBI.
Plaintiffs alleged that the collection of the
DNA sample was a violation of their Fourth
Amendment right against unreasonable search-
es and seizures. The district court dismissed
the complaint under FED. R. CIV. P. 12(b)(6)
for failure to state a claim. Subsequently,
several DNA samples were taken from plain-
tiffs for inclusion in the CODIS database.
A rule 12(b)(6) order is reviewed de novo.
A court may not dismiss a complaint pursuant
to rule 12(b)(6) “unless it appears beyond
doubt that the plaintiff can prove no set of
facts in support of his claim which would en-
title him to relief.” Conley v. Gibsom, 355
U.S. 41, 45-46 (1957).
The extraction of blood from a prisoner to
collect a DNA sample implicates Fourth
Amendment rights.1 Nonetheless, collection of
DNA from prisoners under the DNA Act is
reasonable under the Fourth Amendment. Our
decision is informed by Valasquez v. Woods,
329 F.3d 420 (5th Cir. 2003) (per curiam),
finding a similar Texas DNA collection pro-
gram constitutional. In Valasquez, we ac-
cepted the reasoning that although collection
of DNA samples from prisoners implicates
Fourth Amendment concerns, such collections
are reasonable in light of an inmate’s dimin-
ished privacy rights, the minimal intrusion in-
volved, and the legitimate government interest
in using DNA to investigate crime.1 Id. at
421.
Valasquez is in accord with both reason and
Supreme Court precedent. Courts may con-
1 See Skinner v. Ry. Labor Executives Ass’n,
489 U.S 602, 616 (“We have long recognized that
a ‘compelled intrusio[n] into the body for blood’ .
. . must be deemed a Fourth Amendment search.”).
1 In Valasquez, 329 F.3d at 421, we noted that,
at the time of that decision, every circuit court to
consider the issue of DNA collection from inmates
under similar statutes had found that they did not
violate the Fourth Amendment. The Ninth Circuit
has since diverged in its assessment of the issue,
holding that inmates have a reasonable expectation
of privacy against the collection of DNA samples
and that the DNA Act does not fulfill a non-crime
prevention need to satisfy the “special needs”
exception to the warrant requirement. United
States v. Kincade, 345 F.3d 1095, 1104-13 (9th
Cir. 2003) (applying “special needs” exception to
warrant requirement and holding that “immediate
purpose” of DNA Act is law enforcement).
The Tenth and Second Circuits have ruled that
although inmates have a reasonable expectation of
privacy against collection of DNA samples, the
“special needs” exception to the warrant require-
ment is satisfied by DNA collection statutes. Unit-
ed States v. Kimler, 335 F.3d 1146, 1146 (10th
Cir. 2003), cert. denied, 2003 U.S. LEXIS 9142
(U.S. Dec. 8, 2003) (No. 03-7285); Roe v. Mar-
cotte, 193 F.3d 72, 78-82 (2d Cir. 1999). The
Fourth Circuit maintains, as we did in Valasquez,
that inmates do not have a reasonable expectation
of privacy against DNA collections similar to those
described in the DNA Act. Jones v. Murray, 962
F.2d 302, 306-07 (4th Cir. 1992) (“While we do
not accept even this small level of intrusion for free
persons without Fourth Amendment constraint . .
. the same protections do not hold true for those
lawfully confined to the custody of the state. As
with fingerprinting, therefore, we find that the
Fourth Amendment does not require an additional
finding of individualized suspicion before blood
can be taken from incarcerated felons for the
purpose of identifying them.”) (citations omitted.).

-- 2 of 3 --

3
sider the totality of circumstances, including a
person’s status as an inmate or probationer, in
determining whether his reasonable expecta-
tion of privacy is outweighed by other factors.
See United States v. Knights, 534 U.S. 112,
119 (2001); see also Ohio v. Robinette, 519
U.S. 33, 39 (1996). Though, like fingerprint-
ing, collection of a DNA sample for purposes
of identification implicates the Fourth Amend-
ment, persons incarcerated after conviction
retain no constitutional privacy interest against
their correct identification. See United States
v. Sanders, 477 F.2d 112, 113 (5th Cir. 1973);
see also Jones v. Murray, 962 F.2d 302, 306
(4th Cir. 1992). The DNA Act, accordingly,
does not violate the Fourth Amendment, and
its application does not infringe these plain-
tiffs’ constitutional rights.
The district court did not err in dismissing
the claim. The judgment is AFFIRMED.

-- 3 of 3 --