Velasquez v. Woods

Fifth Circuit

Velasquez v. Woods

329 F.3d 420, 2003 U.S. App. LEXIS 8682, 2003 WL 1922872

CourtCourt of Appeals for the Fifth Circuit

DecidedMay 8, 2003

Docket02-11251

StatusPublished

Cited by100 cases

This text of 329 F.3d 420 (Velasquez v. Woods) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Velasquez v. Woods, 329 F.3d 420, 2003 U.S. App. LEXIS 8682, 2003 WL 1922872 (5th Cir. 2003).

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Opinion

PER CURIAM:

Thelonious Velasquez filed a civil rights action challenging the collection of a DNA sample by prison officials for registration in a DNA database pursuant to Tex. Govt. Code § 411.148. Velasquez contended that the determination that he fell within the scope of the statute was based upon erroneous information in his prison records. Velasquez contended that the refusal by the defendants to correct his records had resulted in the denial of his release on parole. Velasquez sought damages and injunctive relief, including the deletion of his DNA sample from the state database.

Velasquez consented to entry of judgment by the magistrate judge. The magistrate judge concluded that Velasquez had failed to allege a violation of a constitutional right. The magistrate judge dismissed the civil rights complaint as frivolous pursuant to 28 U.S.C. §§ 1915A & 1915(e)(2), and 42 U.S.C. § 1997e(c)(l). The magistrate judge dismissed any habeas claims asserted in the complaint without prejudice. Velasquez gave timely notice of his appeal.

We review the magistrate judge’s dismissal of a complaint as frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)(i) for an abuse of discretion. See Harper v. Showers, 174 F.3d 716, 718 & n. 3 (5th Cir.1999). The standard of review of dismissals under 28 U.S.C. § 1915A and 42 U.S.C. § 1997e(c)(l) is de novo. See Ruiz v. United States, 160 F.3d 273, 275 (5th Cir. 1998). Because the magistrate judge referred to all three statutes in dismissing Velasquez’ claims, we review the issues raised on appeal de novo.

Velasquez contends that the compelled collection of a DNA sample from him pursuant to state statute violated his rights under the Fourth Amendment. Every circuit court to consider this issue has held that the collection of DNA samples from felons pursuant to similar statutes does not violate the Fourth Amendment. See Shaffer v. Saffle, 148 F.3d 1180, 1181 (10th Cir.1998) (“while obtaining DNA samples implicates Fourth Amendment concerns, it is reasonable in fight of an inmate’s diminished privacy rights, the minimal intrusion involved, and the legitimate government interest in using DNA to investigate and prosecute crimes”); Rise v. Oregon, 59 F.3d 1556, 1559-62 (9th Cir. 1995) (same); Jones v. Murray, 962 F.2d 302, 306-08 (4th Cir.1992) (same); see also Roe v. Marcotte, 193 F.3d 72, 78-82 (2d Cir.1999) (compelled DNA testing valid under “special needs” exception to warrant requirement). In fight of these persuasive authorities, we hold that the magistrate judge did not err in dismissing this claim as frivolous.

Velasquez contends also that the defendants violated his right to due pro *422 cess by refusing to expunge false information from his prison record. The magistrate judge did not err in concluding that this claim does not involve a violation of a constitutional right. See Johnson v. Rodriguez, 110 F.3d 299, 308 & n. 13 (5th Cir.1997). The judgment is

AFFIRMED.

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PER CURIAM:

Thelonious Velasquez filed a civil rights action challenging the collection of a DNA sample by prison officials for registration in a DNA database pursuant to Tex. Govt. Code § 411.148. Velasquez contended that the determination that he fell within the scope of the statute was based upon erroneous information in his prison records. Velasquez contended that the refusal by the defendants to correct his records had resulted in the denial of his release on parole. Velasquez sought damages and injunctive relief, including the deletion of his DNA sample from the state database.

Velasquez consented to entry of judgment by the magistrate judge. The magistrate judge concluded that Velasquez had failed to allege a violation of a constitutional right. The magistrate judge dismissed the civil rights complaint as frivolous pursuant to 28 U.S.C. §§ 1915A & 1915(e)(2), and 42 U.S.C. § 1997e(c)(l). The magistrate judge dismissed any habeas claims asserted in the complaint without prejudice. Velasquez gave timely notice of his appeal.

We review the magistrate judge’s dismissal of a complaint as frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)(i) for an abuse of discretion. See Harper v. Showers, 174 F.3d 716, 718 & n. 3 (5th Cir.1999). The standard of review of dismissals under 28 U.S.C. § 1915A and 42 U.S.C. § 1997e(c)(l) is de novo. See Ruiz v. United States, 160 F.3d 273, 275 (5th Cir. 1998). Because the magistrate judge referred to all three statutes in dismissing Velasquez’ claims, we review the issues raised on appeal de novo.

Velasquez contends that the compelled collection of a DNA sample from him pursuant to state statute violated his rights under the Fourth Amendment. Every circuit court to consider this issue has held that the collection of DNA samples from felons pursuant to similar statutes does not violate the Fourth Amendment. See Shaffer v. Saffle, 148 F.3d 1180, 1181 (10th Cir.1998) (“while obtaining DNA samples implicates Fourth Amendment concerns, it is reasonable in fight of an inmate’s diminished privacy rights, the minimal intrusion involved, and the legitimate government interest in using DNA to investigate and prosecute crimes”); Rise v. Oregon, 59 F.3d 1556, 1559-62 (9th Cir. 1995) (same); Jones v. Murray, 962 F.2d 302, 306-08 (4th Cir.1992) (same); see also Roe v. Marcotte, 193 F.3d 72, 78-82 (2d Cir.1999) (compelled DNA testing valid under “special needs” exception to warrant requirement). In fight of these persuasive authorities, we hold that the magistrate judge did not err in dismissing this claim as frivolous.

Velasquez contends also that the defendants violated his right to due pro *422 cess by refusing to expunge false information from his prison record. The magistrate judge did not err in concluding that this claim does not involve a violation of a constitutional right. See Johnson v. Rodriguez, 110 F.3d 299, 308 & n. 13 (5th Cir.1997). The judgment is

AFFIRMED.

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329 F.3d 420, 2003 U.S. App. LEXIS 8682, 2003 WL 1922872, Counsel Stack Legal Research, https://law.counselstack.com/opinion/velasquez-v-woods-ca5-2003.

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