United States Court of Appeals

Fifth Circuit

FILED

May 8, 2003

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 02-11251

Summary Calendar

 

THELONIOUS VELASQUEZ,

Plaintiff-Appellant,

versus

S.O. WOODS, Chairman of Classification; EMILY K. TINSLEY, 

Unit Chief of Classification; JOHN BAINES, Director of 

Nurses; DONALD GATLIN, ACP II; NORMA SOUTHERN, Unit 

Grievance Investigator; VAY ENDERS, Medical Records 

Supervisor; M. SNELGROOES, Unit Parole Counselor; 

DEBORAH TAYLOR, Lab Tech,

Defendants-Appellees.

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Appeal from the United States District Court

for the Northern District of Texas

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Before HIGGINBOTHAM, SMITH, and CLEMENT, Circuit Judges.

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
No. 02-11251

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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)(1). 

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)(1) 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
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concerns, it is reasonable in light 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 light 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 process 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.