United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT May 8, 2003
Charles R. Fulbruge III
Clerk
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.