                             UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.
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

                                             2
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



                                          3
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


                                         4
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                On appeal, we vacated the

dismissal order, holding that because neither Jones nor Ewell

       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.


                                            5
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

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.

     The    district   court   granted    summary      judgment      in   Captain

Scott’s favor, explaining:

     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.


                                      6
       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

                                         7
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.”).

                                             8
       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 state-

initiated       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)
                                                    9
                              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”).


                               10
