UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 08-8428

SCOTT LEWIS RENDELMAN, 

Plaintiff – Appellant,

v.

SCOTT, DOC Captain, individually and in official capacity; JOHN 

DOE, Maryland State Trooper, individually and in official 

capacity, 

Defendants – Appellees.

Appeal from the United States District Court for the District of 

Maryland, at Baltimore. Andre M. Davis, District Judge. (1:07-

cv-01643-AMD)

Argued: March 25, 2010 Decided: May 19, 2010

Before TRAXLER, Chief Judge, and GREGORY and SHEDD, Circuit 

Judges.

Affirmed by unpublished per curiam opinion.

ARGUED: Stephanie D. Taylor, JONES DAY, Pittsburgh, 

Pennsylvania, for Appellant. Nicholé C. Gatewood, OFFICE OF THE 

ATTORNEY GENERAL OF MARYLAND, Baltimore, Maryland, for 

Appellees. ON BRIEF: Thomas S. Jones, JONES DAY, Pittsburgh, 

Pennsylvania, for Appellant. Douglas F. Gansler, Attorney 

General of Maryland, Baltimore, Maryland, for Appellees.

Unpublished opinions are not binding precedent in this circuit.
2

PER CURIAM:

Scott Lewis Rendelman filed this action under 42 U.S.C. 

§ 1983 alleging that Maryland state officials involuntarily 

obtained a DNA sample from him during his incarceration pursuant 

to the Maryland DNA Collection Act, Md. Code Ann., Public 

Safety, §§ 2-501 et seq. The district court entered summary 

judgment against Rendelman, holding as a matter of law that the 

collection of the sample did not violate his rights under the 

Fourth or Eighth Amendments to the United States Constitution. 

Rendelman now appeals. We affirm.

I

Summary judgment is appropriate “if the pleadings, the 

discovery and disclosure materials on file, and any affidavits 

show that there is no genuine issue as to any material fact and 

that the movant is entitled to judgment as a matter of law.” 

Fed. R. Civ. P. 56(c). The relevant inquiry in a summary 

judgment analysis is “whether the evidence presents a sufficient 

disagreement to require submission to a jury or whether it is so 

one-sided that one party must prevail as a matter of law.” 

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986). 

We review the district court’s order granting summary judgment 

de novo. Jennings v. U.N.C., 482 F.3d 686, 694 (4th Cir. 2007) 

(en banc). In doing so, we generally must view all facts and 
3

draw all reasonable inferences in the light most favorable to 

the nonmoving party. Scott v. Harris, 550 U.S. 372, 378 (2007). 

However, “facts must be viewed in the light most favorable to 

the nonmoving party only if there is a ‘genuine’ dispute as to 

those facts.” Id. at 380 (quoting Fed. R. Civ. P. 56(c)).

A.

The material facts of this case are not disputed. Through 

its DNA Collection Act, the State of Maryland requires 

individuals convicted of certain felonies to provide a DNA 

sample to the Department of Maryland State Police (“DMSP”). See 

generally State v. Raines, 857 A.2d 19, 23-25 (Md. 2004)

(discussing the Act’s provisions). The Maryland Division of 

Correction (“DOC”) has issued a directive titled “DNA Sampling 

of Inmates by the Department of Maryland State Police” (“DCD 20-

9”) that establishes DOC policy and procedure for the collection 

of DNA samples from designated inmates in cooperation with the 

DMSP. DCD 20-9 specifies that DOC’s policy is “to cooperate 

with the DMSP as required by state law in the collection of DNA 

samples from designated inmates to be used for the development, 

maintenance, and operation of a statewide DNA database system 

and repository.” J.A. 39.

DCD 20-9 further states that “[i]t is mandatory for 

designated inmates to provide a DNA sample,” J.A. 39, and it 
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sets forth the consequences of an inmate’s failure to provide a 

sample:

When an inmate refuses to provide a DNA sample as 

required by law, the following actions shall be taken:

a. The staff person ordering the inmate to provide the 

sample shall write a notice of inmate rule violation.

b. A hearing officer will conduct a disciplinary 

hearing in accordance with established procedures. If 

there is a guilty finding, the hearing officer shall 

order the inmate’s visits suspended indefinitely, the 

revocation of all applicable diminution credits, and 

placement on disciplinary segregation in accordance 

with the disciplinary sentencing matrix.

c. The inmate shall be rescheduled by the DMSP to give 

a DNA sample no sooner than 60 days from the date of 

refusal. If the inmate again refuses, staff shall use 

restraints and the minimum amount of necessary force, 

in accordance with DCD 110-23, to ensure that a DNA 

sample can be taken.

d. The warden may elect to place an inmate on 

administrative segregation until a DNA sample is 

obtained.

J.A. 42.

While he was incarcerated in Maryland, Rendelman was within 

the class of felons subject to DNA collection. In August 2006, 

DOC Captain R. Scott was present when a Maryland State Trooper 

attempted to use a cheek swab to obtain a DNA sample from 

Rendelman. Rendelman asked the trooper what would happen if he 

refused, and the trooper responded that DCD 20-9 authorized him 

to use “whatever force is necessary” to collect the sample. 

J.A. 9. Rendelman then submitted to the collection of the 
5

sample. At no time did Rendelman refuse to provide the sample, 

and no force was used against him.

Thereafter, Rendelman filed an administrative complaint in 

which he contended that the collection of the sample was illegal 

because it was obtained by threat of force. DOC denied this 

complaint, concluding that DCD 20-9 allows for the use of force 

when an inmate refuses to provide a DNA sample and that 

Rendelman was “not threatened but simply advised of the 

consequences of refusing to submit a sample.” J.A. 36.

B.

Rendelman then filed this pro se action against Captain 

Scott and the state trooper who obtained the cheek swab seeking 

the return of his DNA sample, destruction of all records 

pertaining to its analysis, nominal damages of $1, and punitive 

damages of $10,000. The district court dismissed the action 

under 28 U.S.C. § 1915(e) without service of process against the 

defendants, concluding that Maryland’s collection of DNA from 

inmates is constitutionally permissible under our decisions in 

Jones v. Murray, 962 F.2d 302 (4th Cir. 1992), and Ewell v. 

Murray, 11 F.3d 482 (4th Cir. 1993).1

 1 In those cases, we upheld the constitutionality of 

Virginia’s DNA collection statute. Notably, the Virginia DNA 

collection statute authorized the taking of blood rather than 

the unquestionably less intrusive cheek swab.

 On appeal, we vacated the 

dismissal order, holding that because neither Jones nor Ewell
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addressed the potential use of force to obtain the DNA (as 

Rendelman alleges), the district court erred in summarily 

dismissing the complaint. Rendelman v. Scott, 267 Fed. Appx. 

207 (4th Cir. 2008).

On remand, Captain Scott was served with the complaint, and 

he moved for dismissal or, alternatively, for summary judgment.2

The district court granted summary judgment in Captain 

Scott’s favor, explaining:

 

Captain Scott argued that (1) the collection of the DNA sample 

did not violate Rendelman’s constitutional rights and (2) he is 

entitled to qualified immunity. Because Captain Scott did not 

make the alleged threat to use force to obtain the DNA sample, 

Rendelman’s claim against him is premised on the fact that he 

did not intervene to stop the cheek swab from occurring.

Plainly, under Jones and Ewell, there is no Fourth 

Amendment impediment in the process of obtaining the 

DNA sample. Thus, there was no constitutional problem 

in Scott’s failure to halt the process. DCD 20-9 

establishes the policy and procedure for collection of 

the DNA sample from designated DOC inmates in 

cooperation with the [DMSP]. It is mandatory for 

designated inmates to provide a sample. Procedures 

are set in place should the inmate refuse to submit to 

the sample. Plaintiff’s protestations to the 

contrary, he was not “threatened with force,” but in 

response to his question, was merely advised of the 

possible consequences of refusing to submit a sample. 

He then submitted to the collection process. 

 2 Because he did not know the trooper’s identity, Rendelman 

sued him as “John Doe.” The trooper has never been served with 

the complaint.
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Plaintiff was neither sanctioned [nor] physically 

restrained, nor was the minimal amount of force 

contemplated in the regulation applied.

Additionally, while the Eighth Amendment prohibits 

cruel and unusual punishment, in order to state such a 

claim, the challenged force must be applied for the 

purpose of causing harm. There are no allegations 

here that any force that might be employed against 

inmates refusing to provide DNA samples would be used 

with the intention of harming the inmates. Therefore, 

the DNA sampling procedure may be enforced in the same 

way as other lawful orders of prison officials. [DCD

20-9] expressly permits the use of minimal force to 

ensure compliance with a lawful order.

J.A. 61-62 (internal footnotes and citations omitted).

II

On appeal, Rendelman concedes that our circuit precedent 

establishes that the State of Maryland had the right to collect 

a DNA sample from him under its DNA collection program. He also 

concedes that the State could have used administrative measures 

to attempt to coerce his compliance if he refused to provide a 

sample. Moreover, he does not assert that force was actually 

used against him to collect his DNA sample or that Captain 

Scott, the only defendant who has been served in this case, made 

the alleged threat to use force.

Nonetheless, Rendelman contends that the district court 

erred in dismissing both of his constitutional claims. He 

argues that regardless of the State’s right to obtain the DNA 

sample from him, the State did not have the right to use, or 
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threaten to use, force to collect the sample. Further, he 

argues that even if the State is allowed to use some level of 

force, the trooper’s “threat” to use “whatever force is 

necessary” to collect the sample is sufficient to state claims 

against Captain Scott under the Fourth and Eighth Amendments.

Having carefully considered the parties’ arguments and the 

controlling legal principles, we hold that the district court 

did not err in granting summary judgment to Captain Scott. Our 

decisions in Jones and Ewell establish that the State had the

right to obtain the DNA sample from Rendelman. Those cases did 

not address the issue of force, but the State’s right to obtain 

the DNA sample from designated inmates must necessarily carry 

with it the right to use a reasonable degree of force that is 

sufficient to ensure compliance. Otherwise, the State’s right 

can be rendered meaningless by an inmate who refuses to grant 

permission for the cheek swab. See generally United States v. 

Bullock, 71 F.3d 171, 175-77 (5th Cir. 1995) (holding that use 

of force to obtain blood and hair samples from a criminal 

suspect for DNA purposes did not violate the Fourth Amendment 

and noting that the suspect had no right to refuse to comply 

with the search warrant); Soto v. Dickey, 744 F.2d 1260, 1267 

(7th Cir. 1984) (“Inmates cannot be permitted to decide which 

orders they will obey, and when they will obey them. Someone 

must exercise authority and control.”).
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Of course, there is a constitutional limit to the amount of 

force that may be used to obtain a DNA sample (just as there is 

in any government search). However, this case does not approach 

that limit as no force was used and the trooper, who was present 

for the sole purpose to obtain a lawful DNA sample, simply 

responded to Rendelman’s question about the consequences of his 

refusal to provide the sample.3

 Based on this record, we find 

that Rendelman has failed to present sufficient evidence to 

establish that his rights under the Fourth or Eighth Amendment 

were violated. See generally Florida v. Jimeno, 500 U.S. 248, 

250 (1991) (“The Fourth Amendment does not proscribe all stateinitiated searches and seizures; it merely proscribes those 

which are unreasonable.”); Whitley v. Albers, 475 U.S. 312, 319 

(1986) (“After incarceration, only the unnecessary and wanton 

infliction of pain . . . constitutes cruel and unusual 

punishment forbidden by the Eighth Amendment.” (citation and 

internal punctuation omitted)).4

 3 Because the State had the right to use force to obtain the 

sample from Rendelman, the trooper had the right to inform 

Rendelman that force could be used. Although Rendelman argues 

that he could have interpreted the trooper’s “threat” to use 

“whatever force is necessary” as meaning force that is 

excessive, we do not believe that interpretation is a reasonable 

inference on this record.

4 Our holding that the trooper’s actions were not improper 

necessarily leads to the conclusion that Captain Scott did 

nothing improper. Alternatively, to the extent that Rendelman 

(Continued)
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III

Based on the foregoing, we affirm the summary judgment.

AFFIRMED

 

seeks monetary damages from him, Captain Scott is entitled to 

summary judgment based on qualified immunity. See Pearson v. 

Callahan, 129 S. Ct. 808, 815 (2009) (“The doctrine of qualified 

immunity protects government officials ‘from liability for civil 

damages insofar as their conduct does not violate clearly 

established statutory or constitutional rights of which a 

reasonable person would have known.’” (citation omitted); 

American Roll-On Roll-Off Carrier, LLC v. P & O Ports Baltimore, 

Inc., 479 F.3d 288, 295 (4th Cir. 2007) (noting that “we may 

affirm a district court's decision for any reason appearing in 

the record”).