United States Court of Appeals

For the Eighth Circuit

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No. 15-1897

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William Billy Gene Carter

lllllllllllllllllllll Plaintiff - Appellant

v.

Kenny Huterson; Loratea Akers; Vickie Dye; Cynthia Jannaman; Lance Brown;

Janet Heyer; Sandy Swanson; Angel Lawson; Heather Richards; Alexey Nikitin;

David R. Hunter; Rhinnia Andrews; Kenneth Hutchason; Loretta Akers; Stanley

Lance Brown

lllllllllllllllllllll Defendants - Appellees

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Appeal from United States District Court 

for the Western District of Missouri - Jefferson City

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 Submitted: June 16, 2016

 Filed: August 8, 2016

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Before SMITH, GRUENDER, and BENTON, Circuit Judges.

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GRUENDER, Circuit Judge.

William Carter sued employees of the Missouri Department of Mental Health

(“DMH”) under 42 U.S.C. § 1983. Carter alleged that these defendants violated his

Fourth, Eighth, and Fourteenth Amendment rights by forcibly collecting his
fingerprints, a mouth swab, and a blood sample while he was confined at Fulton

Hospital as a civilly committed sexually violent predator. The district court

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dismissed Carter’s complaint for failure to state a claim. We affirm.

I.

In 2002, Carter pleaded not guilty by reason of mental disease or defect to

various charges related to the kidnapping and deviate sexual assault of his sixteenyear-old neighbor. As a result of this plea, Carter was committed to the custody of

the DMH. Carter’s subsequent application for conditional release triggered

mandatory review of his eligibility for involuntarycivil commitment under Missouri’s

Sexually Violent Predators Act, Mo. Rev. Stat. § 632.480-513. Pursuant to that

statute, a jury found Carter to be a sexually violent predator, and Carter therefore

remained confined at Fulton State Hospital, a facility under the direction ofthe DMH. 

In November 2014, Carter filed a complaint under 42 U.S.C § 1983, alleging

that DMH employees working at Fulton State Hospital had violated his rights under

the Fourth, Eighth, and Fourteenth Amendments. The complaint alleged that the

defendants and two Missouri Highway Patrol officers had approached Carter at the

hospital and informed him that they needed his fingerprints, a blood sample, and a

mouth swab. According to the complaint, when Carter refused to cooperate unless

the officers produced a valid search warrant, the officers ordered the defendants to

restrain Carter and obtain the samples. Carter alleged that at that point, all nine staff

members “physically assaulted and attacked” him. He claimed that the attack resulted

in a pulled tendon on his left index finger; a bruise, sprain, and cut on his left middle

The Honorable Stephen R. Bough, United States District Judge for the

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Western District of Missouri.

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finger; and a bruise on his left arm. Carter further alleged that the defendants failed

to provide appropriate medical treatment for these injuries. 

The defendants moved to dismiss Carter’s complaint. They argued that they

did not violate Carter’s Fourth Amendment rights by taking Carter’s fingerprints,

mouth swab, and blood sample because, as a sexually violent predator, Carter was

required to provide these materials under Missouri law. According to section

650.055.1 of the Missouri Revised Statutes, “[e]very individual who . . . [h]as been

determined to be a sexually violent predator . . . shall have a fingerprint and blood or

scientifically accepted biological sample collected for purposes of DNA profiling

analysis.” The defendants further argued that Carter’s assertion that the defendants

employed excessive force failed to state a claim under the Fourth Amendment

because Carter conceded that he resisted the efforts of the highway patrol officers to

obtain his information and because his bare conclusion that he was “physically

assaulted and attacked” was not sufficient to withstand a motion to dismiss. The

defendants also contended that neither the manner in which they obtained the samples

nor any alleged delay in Carter’s receipt of medical treatment violated Carter’s rights

under the Eighth or Fourteenth Amendments. Finally, the defendants argued they

were entitled to qualified immunity because their alleged forcible collection of

Carter’s fingerprints, mouth swab, and blood sample represented conduct that a

reasonable officer would believe is lawful. See James ex rel. James v. Friend, 458

F.3d 726, 730 (8th Cir. 2006).

The district court granted the defendants’ motion to dismiss. The court found

that the warrantless collection ofCarter’s fingerprints, mouth swab, and blood sample

did not violate the Fourth Amendment because this collection represented a

reasonable, minimal intrusion and because Carter had a reduced expectation of

privacy as a civilly committed sexually violent predator. The court also concluded

that Carter failed to plead facts showing that the manner in which the defendants

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collected these materials violated Carter’s rights under the Fourth, Eighth, or

Fourteenth Amendment. Finally, the court ruled that the defendants were entitled to

qualified immunity because Carter failed to state facts demonstrating the violation of

a constitutional right that was clearly established at the time of the alleged violation

and because the defendants’ alleged conduct wasreasonable under the circumstances

alleged in the complaint. Carter appeals.

II.

On appeal, Carter argues only that the district court erred when it dismissed

his claim that the defendants’ warrantless, forcible drawing of his blood to produce

a DNA profile violated his rights under the Fourth Amendment. We review de novo

a district court’s dismissal under Rule 12(b)(6), taking all facts alleged in the

complaint as true. Trooien v. Mansour, 608 F.3d 1020, 1026 (8th Cir. 2010). To

survive a motion to dismiss for failure to state a claim, “a complaint must contain

sufficient factual matter, accepted astrue, to state a claim to relief that is plausible on

its face.” Braden v. Wal-Mart Stores, Inc., 588 F.3d 585, 594 (8th Cir. 2009)

(quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). Similarly, defendants seeking

dismissal under Rule 12(b)(6) based on an assertion of qualified immunity “must

show that they are entitled to qualified immunity on the face of the complaint.”

Bradford v. Huckabee, 394 F.3d 1012, 1015 (8th Cir. 2005). 

A.

In appealing the dismissal of his Fourth Amendment claim, Carter first

contends that because he was a civilly committed individual rather than a pre-trial

detainee or a prisoner, the defendants could not collect a blood sample to produce his

DNA profile without first demonstrating individualized suspicion of criminal

wrongdoing and acquiring a search warrant. However, we do not reach the question

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of whether the alleged warrantless collection of Carter’s blood sample violated the

Fourth Amendment because the defendants are entitled to qualified immunity with

respect to this claim. See Pearson v. Callahan, 555 U.S. 223, 240-42 (2009) (holding

that courts have the discretion to recognize an official’s entitlement to qualified

immunity without first deciding whether a constitutional violation took place). 

“Qualified immunity shields government officials from liability for civil

damages for discretionary acts that do not ‘violate clearly established statutory or

constitutional rights of which a reasonable person would have known.’” Moore ex

rel. Moore v. Briggs, 381 F.3d 771, 772 (8th Cir. 2004) (quoting Harlow v.

Fitzgerald, 457 U.S. 800, 818 (1982)). Here, the defendants are entitled to qualified

immunitywith respect to their alleged taking of Carter’s blood sample becauseCarter

has failed to demonstrate that, at the time of the events in question, civilly committed

sexually violent predators maintained a clearly established right to be free from the

warrantless drawing of a blood sample to produce a DNA profile. To the contrary,

a reasonable person interpreting the law governing the defendants’ conduct could

have concluded that the Constitution permitted the warrantless collection of this

information from such individuals. 

First, we previously have held that civilly committed individuals “retain the

Fourth Amendment right to be free from unreasonable searches that is analogous to

the right retained by pretrial detainees.” Beaulieu v. Ludeman, 690 F.3d 1017, 1028

(8th Cir. 2012). Shortly after our decision in Beaulieu, the Supreme Court held in

Maryland v. King that the Fourth Amendment does not require authorities to obtain

a warrant before conducting a mouth swab to obtain the DNA profile of a pretrial

detainee. 569 U.S. ---, 133 S. Ct. 1958 (2013). Relying on these two cases, therefore,

the defendants reasonably could have concluded that the Fourth Amendment does not

prohibit the warrantless collection of a civilly committed person’s DNA profile. 

Indeed, the defendants have shown that several of the same government interests

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identified in King reasonably could justify the DNA identification of a civilly

committed sexually violent predator,including determining “the [individual]’s future

dangerousness” and the extent he might be “inclined to flee” from confinement. See

id. at 1972-73. 

Second, courts generally have recognized the collection of a blood sample as

a minimally intrusive mechanism for obtaining information from individuals in state

custody. See, e.g., Schmerber v. California, 384 U.S. 757, 771 (1966) (noting that

blood draws involve “virtually no risk, trauma, or pain”); United States v. Amerson,

483 F.3d 73, 84 (2d Cir. 2007) (recognizing that “all the common methods of

obtaining [a] DNA sample” involve only minimal intrusions upon privacy interests);

Rise v. Oregon, 59 F.3d 1556, 1560 (9th Cir. 1995) (“That the gathering of DNA

information requires the drawing of blood rather than inking and rolling a person’s

fingertips does not elevate the intrusion upon the plaintiffs’ Fourth Amendment

interests to a level beyond minimal.”), overruled on other grounds by City of

Indianapolis v. Edmond, 531 U.S. 32 (2000). We acknowledge that the Supreme

Court’s recent decision in Birchfield v. North Dakota may affect our assessment of

the reasonableness of this collection method in future cases. See 579 U.S. ---, 136 S.

Ct. 2160, 2178 (2016) (recognizing that blood draws are more intrusive than other

methods of obtaining information from individuals stopped for drunk driving). 

However, because this decision was announced well after the events in question, it

has no implications for our analysis of Carter’s “clearly established” rights. See

Moore, 381 F.3d at 772. Given the state of the law at the time of the alleged events

and his status as a civilly committed sexually violent predator, Carter did not have a

“clearly established” right to be free from the warrantless collection of his blood

sample for the purpose of obtaining his DNA profile. See id. As a result, the district

court did not err when it found that the defendants are entitled to qualified immunity

with respect to this claim. See Bradford, 394 F.3d at 1015. 

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B.

Carter also argues that the district court erred when it ruled that he failed to

allege facts sufficient to state a claim that the force the defendants employed when

taking his blood sample violated his rights under the Fourth Amendment. “The right

to be free from excessive force is a clearly established right under the Fourth

Amendment’s prohibition against unreasonable seizures of the person.” Cook v. City

of Bella Villa, 582 F.3d 840, 849 (8th Cir. 2009) (quoting Moore v. Indehar, 514 F.3d

756, 759 (8th Cir. 2008)). Whether an officer’s use of force is excessive is a question

of whether “the amount of force used was objectively reasonable under the particular

circumstances.” Small v. McCrystal, 708 F.3d 997, 1005 (8th Cir. 2013) (quoting

Brown v. City of Golden Valley, 574 F.3d 491, 496 (8th Cir. 2009)). The use of force

is not excessive where it involves only the level of physical coercion necessary to

execute an otherwise lawful seizure. See Brown, 574 F.3d at 496 (“Fourth

Amendment jurisprudence has long recognized that the right to make an arrest or

investigatory stop necessarily carries with it the right to use some degree of physical

coercion orthreat thereof to effect it.” (quoting Graham v. Connor, 490 U.S. 386, 396

(1989))); see also Peña-Borrero v. Estremeda, 365 F.3d 7, 12 (1st Cir. 2004)

(affirming dismissal of excessive force claimin which “the allegations demonstrate[d]

no more than the ‘degree of physical coercion’ typically attendant to an arrest”

(quoting Graham, 490 U.S. at 396)).

Under this standard, Carter’s bare assertion that all of the defendants

simultaneously “physically assaulted and attacked him” fails to state a claim that

those defendants violated his Fourth Amendment rights. Carter alleges no facts

regarding the “amount of force” involved in this alleged attack, precluding any

inference that such force was not “objectively reasonable under the particular

circumstances.” See Small, 708 F.3d at 1005. Nor do Carter’s allegations regarding

the injuries he sustained permit an inference that the defendants used excessive force. 

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See Chambers v. Pennycook, 641 F.3d 898, 906 (8th Cir. 2011) (“The degree of

injury [suffered in an excessive-force case] is certainly relevant insofar as it tends to

show the amount and type of force used.”). To the contrary, the district court

concluded that the injuries Carter alleges—a pulled tendon on his left index finger,

a bruise, sprain, and cut on his left middle finger, and a bruise on his left

arm—resulted from his resistance to the defendants’ effortsto obtain a blood sample. 

Cf. Shekleton v. Eichenberger, 677 F.3d 361, 366 (8th Cir. 2012) (recognizing that

“whether the suspect is actively resisting or attempting to evade” an otherwise lawful

arrest is a key factor in determining whether officers employed reasonable force

(quoting Smith v. Kan. City, Mo. Police Dep’t, 586 F.3d 576, 581 (8th Cir. 2009))). 

As explained above, the defendants reasonably could have believed that the law

permitted the warrantless collection ofCarter’s blood sample. BecauseCarter alleges

no facts permitting a plausible inference that the defendants employed force in excess

ofthe physical coercion attendant to overcoming his resistance to thisseizure, he fails

to state an excessive-force claim under the Fourth Amendment. See Brown, 574 F.3d

at 495. 

III.

For the foregoing reasons, we affirm the district court’s dismissal of Carter’s

claim.

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