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The Honorable Henry L. Jones, Jr., United States Magistrate Judge for the

Eastern District of Arkansas, to whom the case was referred for final disposition by

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 03-1942

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Len Edwin Davis, *

*

Appellant, *

* Appeal from the United States

v. * District Court for the Eastern

* District of Arkansas

Larry Norris, Director, Arkansas *

Department of Correction; G. David * [UNPUBLISHED]

Guntharp, Assistant Director, *

Arkansas Department of Corrections; *

Greg Harmon, Warden, Tucker *

Maximum Security Unit, *

*

Appellees. *

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Submitted: December 30, 2003

Filed: January 22, 2004 

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Before RILEY, McMILLIAN, and SMITH, Circuit Judges.

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PER CURIAM.

Federal inmate Len Edwin Davis appeals (1) the adverse grant of partial

summary judgment entered by the District Court1

 for the Eastern District of
consent of the parties pursuant to 28 U.S.C. § 636(c).

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Arkansas, and (2) the later judgment, following trial, for defendants. For the reasons

discussed below, we affirm the summary judgment order and the judgment. 

Davis brought this 42 U.S.C. § 1983 action against officials at the Arkansas

Department of Correction (ADC) asserting two claims. First, Davis alleged that

defendants attempted to collect a DNA sample from him, while he was housed by

ADC, pursuant to an Arkansas statute mandating DNA collection from inmates

convicted for certain Arkansas sexual or violent offenses. Davis contended that, as

a federal prisoner, the Arkansas DNA collection statute did not apply to him. We

conclude the district court properly granted defendants summary judgment on this

claim. See Meyers v. Neb. Health & Human Servs., 324 F.3d 655, 658-59 (8th Cir.

2003) (de novo review). An incorrect application of the state statute, without more,

is not sufficient to establish a violation of a federal or constitutional right as required

in a section 1983 action. See Collins v. Bellinghausen, 153 F.3d 591, 596 (8th Cir.

1998); Buckley v. Barlow, 997 F.2d 494, 495 (8th Cir. 1993) (per curiam). Further,

defendants would be entitled to qualified immunity from damages from any Fourth

Amendment claim Davis might have intended to assert, because we have not held that

mandatory DNA testing violates the Fourth Amendment. See Latimore v. Widseth,

7 F.3d 709, 712 (8th Cir. 1993) (en banc) (qualified immunity protects government

official from suit, if at time of challenged acts, it was not clearly established that those

actions would violate clearly established law of which reasonable person would have

known), cert. denied, 510 U.S. 1140 (1994). 

Davis’s second claim was that ADC violated his First Amendment rights by

initiating a policy that permitted inmates to keep only five personal photographs in

their cells in retaliation for inmates filing claims against ADC for lost or stolen

photographs. After trial, the district court entered judgment for defendants, and on

appeal, Davis argues the district court erroneously accepted defendants’ testimony
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that the five-photograph limit was enacted for legitimate penological reasons. This

argument, however, merely questions the district court’s determination of defendants’

credibility. See United States v. Harris, 310 F.3d 1105, 1111 (8th Cir. 2002)

(appellate court does not assess credibility of witnesses), cert. denied, 123 S. Ct. 2121

(2003).

Accordingly, we affirm. We also deny Davis’s pending motions for

appointment of counsel and for preparation of a trial transcript at government

expense. 

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