United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 03-1997

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John Clevenger, *

*

Plaintiff-Appellant, *

* Appeal from the United States

v. * District Court for the

* Western District of Missouri.

R. E. Gartner, T. P. McGrail, *

Tricia Ryan, Dora Schriro, *

George A. Lombardi, Ronald Schmitz, *

Rita Swartz, Steven Ochae, *

Dale R. Riley, *

*

Defendants-Appellees. *

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Submitted: September 14, 2004

Filed: December 27, 2004

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Before MORRIS SHEPPARD ARNOLD, BRIGHT, and FAGG, Circuit Judges.

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BRIGHT, Circuit Judge.

Appellant-plaintiff John Clevenger appeals from the district court’s adverse

grant of summary judgment in his pro se civil rights action under 42 U.S.C. § 1983.

Appellees collected a sample of Clevenger’s deoxyribonucleic acid (DNA) for use in

a DNA profiling system pursuant to Missouri’s “DNA Profiling System” statute. For

reversal, Clevenger argues the Missouri DNA profiling statute is unconstitutional

under the Fourth Amendment, and also contends that under the statute his conviction
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does not require a DNA sample. We do not reach the constitutional issue presented

by Clevenger, because the Missouri statute did not authorize the taking of

Clevenger’s blood. Although we determine that the Missouri statute did not authorize

the taking of Clevenger’s blood for DNA purposes, we do not reverse and remand this

case, because the equitable and injunctive relief that Clevenger seeks is no longer

available to him. This court has been advised that the statute in question has been

amended, and the DNA collection statute now includes all felons. Any claim based

on a statutory violation is dismissed without prejudice. We affirm the dismissal of

personal claims against the state employees on immunity grounds. 

I. Background

In June 2000, Clevenger pleaded guilty to attempted murder in the first degree.

The district court sentenced Clevenger to twelve years imprisonment. In July 2000,

while imprisoned at the Western Regional Diagnostic Correctional Center

(Correctional Center), two individuals, Missouri state highway patrol lab technician

Tricia Ryan and correctional officer Steven Ochae, collected a sample of Clevenger’s

DNA for use in a DNA profiling system pursuant to Missouri’s “DNA Profiling

System” statute. The Missouri statute limits collecting DNA samples to those

convicted of violent offenses. Clevenger testified he told Ryan that a 1999

memorandum sent by Ron Schmitz, a Correctional Center official, indicates his

conviction did not fall within the list of crimes requiring a DNA sample. Ryan

verified Clevenger’s name on the list she received from the Department of

Corrections, which indicates the inmates who fall within the purview of the DNA

statute. Ryan then verified Clevenger’s offense by comparing the offense on the list

with the offense code on the Missouri Uniform Law Enforcement System (System).

Clevenger’s offense code on the System showed his offense as “10021991 Murder

1st Degree,” and the Department of Corrections list indicated Clevenger’s offense as

“murder first degree.” After confirming that Clevenger’s offense, as listed on the

System and on the Department of Corrections list, subjected him to DNA sampling,
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Ryan took Clevenger’s blood sample. Clevenger admitted Ryan touched him only

to collect Clevenger’s blood (and DNA sample) and never used physical force.

Clevenger claimed he should not have been subject to the DNA profiling law,

because his conviction is not a violent crime. Clevenger sued the two individuals

who collected the sample, alleging they violated his civil rights when they withdrew

his blood, battered his finger, and refused to allow him to consult with his attorney.

Clevenger also named other State Highway Patrol and Department of Corrections

officials, alleging they refused to remove his DNA sample and related records from

his file. Clevenger also claimed various constitutional violations, including a

violation of his Fourth Amendment right against unreasonable search and seizure.

Clevenger requested damages and removal of his DNA information from all records.

Appellees moved for summary judgment, arguing in part that section 650.055.2

afforded immunity to those who collect DNA samples and they were entitled to

qualified immunity. Appellees noted section 650.055 did not identify attempted

murder as a “violent offense,” however they argued attempted murder should be

deemed a violent offense as it includes substantial steps to carry out murder.

The district court granted summary judgment, concluding Clevenger had not

shown Ryan’s and Ochae’s actions violated his constitutional rights and the two had

statutory immunity, because the Department of Corrections list showed Clevenger’s

conviction as first-degree murder. The district court also determined Clevenger did

not provide evidence that Ryan collecting his blood (and DNA) was anything other

than standard medical procedure, and Clevenger conceded Ryan used no physical

force. The district court also noted that while Eighth Circuit and Missouri courts had

not addressed the issue, “other courts” held constitutional “the practice of DNA

sampling of offenders convicted of attempted murder.” The district court concluded

that appellees’ actions were reasonable and dismissed the case with prejudice. 
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II. Discussion

This court reviews the grant of summary judgment de novo and affirms if the

evidence, viewed in the light most favorable to the nonmoving party, shows there is

no genuine issue of material fact and that the moving party is entitled to judgment as

a matter of law. See Anderson v. Larson, 327 F.3d 762, 767 (8th Cir. 2003).

The district court’s constitutional conclusions regarding the statute itself need

not be addressed. Pursuant to the familiar rubric that courts do not unnecessarily

decide constitutional issues, we must initially resolve the statutory question before

reaching and deciding the constitutional issues. Does Clevenger’s conviction fall

within the statutory definition of a “violent offense,” such that it subjects Clevenger

to the DNA profiling statute? After careful review of the record and applicable

statutes, we conclude that because the statute does not list Clevenger’s conviction as

a “violent offense,” the lab technician and correctional officer improperly collected

a sample of Clevenger’s DNA for use in the DNA profiling system. Accordingly, we

need not address the constitutionality of the statute. We affirm the district court’s

grant of summary judgment insofar as it dismisses Clevenger’s § 1983 claims against

all appellees (state employees) in their personal capacities, because appellees did not

violate a clearly established law.

The Missouri statute, titled “DNA Profiling System,” provides that persons

convicted of a “violent offense under chapter 565 . . . shall have a blood or

scientifically accepted biological sample collected for purposes of DNA profiling

analysis.” Mo. Rev. Stat. § 650.055 (2000 & Supp. 2003). Chapter 565 does not

include Clevenger’s conviction (attempted murder in the first degree). The exclusion

of Clevenger’s conviction from chapter 565 clearly requires the conclusion that

Clevenger’s conviction is not a “violent offense” for purposes of the DNA profiling

statute. 
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Notwithstanding the clear statutory conclusion that Clevenger’s conviction is

not a “violent offense” for purposes of the DNA profiling statute, appellees argue

attempted murder should be deemed a violent offense as it includes substantial steps

to carry out murder. However, according to a September 2000 entry on Clevenger’s

face sheet, appellees had noted that attempted murder in the first degree is not a

“dangerous felony.” In addition, appellees had classified Clevenger as a nonviolent

offender pursuant to Mo. Rev. Stat. § 217.010(11) (2000 & Supp. 2003). The

appellees (state employees) argue that classifying Clevenger’s conviction as not a

“dangerous felony” and classifying Clevenger as a “nonviolent offender” were terms

of art specific to the face sheet and had no bearing on whether Clevenger was

convicted of a violent offense for purposes of the DNA statute. Appellees’ argument

fails when combining their own classification of Clevenger and his conviction with

the “DNA Profiling System” statute’s exclusion of Clevenger’s conviction from the

list of violent offenses requiring a DNA sample for purposes of profiling analysis.

Because the statute does not include Clevenger’s conviction among the list of

“violent offenses” for purposes of the DNA profiling statute, and because appellees’

own classification of Clevenger’s conviction as not a “dangerous felony” and of

Clevenger as a “nonviolent offender,” we determine that the Missouri statute did not

authorize the taking of Clevenger’s blood. We need not, however, reverse and

remand this case to the district court because the statute in question has been

amended, and the DNA collection statute now includes all felons. Thus, no equitable

or injunctive relief would be appropriate for Clevenger in light of the new statute

which now authorizes the taking of a DNA sample from all felons, and Clevenger is

a felon. See Mo. Rev. Stat. § 650.055 (2000 & Supp. 2003), amended by 2004 Mo.

Legis. Serv. S.B. 1000 (West). 

Finally, without addressing the merits of Clevenger’s claim regarding the

constitutionality of Missouri’s DNA profiling statute, we affirm the district court’s

grant of summary judgment insofar as it dismisses Clevenger’s § 1983 claims against
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all appellees in their personal capacities. Qualified immunity shields public officials

from civil liability and suit 

unless (1) their conduct violated a constitutional right of the plaintiffprisoner that was clearly established prior to the time of the alleged acts

of the prison officials; (2) they knew or should have known of the

clearly established right at the time of the violation; and (3) they knew

or should have known that their conduct violated that right.

Brown v. Frey, 889 F.2d 159, 165 (8th Cir. 1989). Here all of the appellees’ actions

were taken in good faith as officials and their actions did not violate any clearly

established law.

III. Conclusion

Accordingly, without reaching the constitutionality of Missouri’s DNA

profiling statute, we dismiss the damage claims against the appellees with prejudice

and dismiss any claims for injunctive relief without prejudice. We affirm the district

court’s grant of summary judgment insofar as it dismisses Clevenger’s § 1983 claims

against all appellees in their personal capacities.

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