                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 07-7108



SCOTT LEWIS RENDELMAN,

                                              Plaintiff - Appellant,

          versus


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.     J. Frederick Motz, District Judge.
(1:07-cv-01643-JFM)


Submitted:   November 30, 2007            Decided:   January 22, 2008


Before MICHAEL and SHEDD, Circuit Judges, and WILKINS, Senior
Circuit Judge.


Vacated and remanded by unpublished per curiam opinion.


Scott Lewis Rendelman, Appellant Pro Se.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

           Scott   Lewis    Rendelman,     a   prisoner   at   the   Maryland

Correctional Institution in Hagerstown, filed a 42 U.S.C. § 1983

(2000) action alleging Defendants involuntarily took a DNA sample

from him under the Maryland DNA Collection Act (hereinafter “Act”).

See Md. Code Ann. § 2-501, et seq.             In his complaint, Rendelman

alleged that an unknown Maryland state trooper told him that if he

failed to voluntarily submit a sample, “DCD [Division of Correction

Directive] 20-9 authorize[d] him to collect the sample using

whatever force is necessary. Under threat of force I involuntarily

submitted . . . [i]f DCD 20-9 allows collection by force, it is

invalid.   If allowed by law, it is unconstitutional.”           (ER 6).

           The district court dismissed the action under 28 U.S.C.

§ 1915(e) (2000) without service of process against the Defendants,

noting that the Act was similar to Virginia’s DNA collection act,

citing to our opinions in Ewell v. Murray, 11 F.3d 482 (4th Cir.

1993), and Jones v. Murray, 962 F.2d 302 (4th Cir. 1992).                  On

appeal, Rendelman argues that the district court failed to address

his claim regarding the threatened use of force.

           We   review     de   novo   a   §     1915(e)(2)(B)   dismissal.

De’Lonta v. Angelone, 330 F.3d 630, 633 (4th Cir. 2003) (according

de novo review to § 1915(e)(2)(B)(ii) dismissal for failure to

state a claim).    Allegations in the complaint are to be liberally

construed, and a court should not dismiss a claim for failure to


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state a claim “‘unless after accepting all well-pleaded allegations

in the plaintiff’s complaint as true and drawing all reasonable

factual inferences from those facts in the plaintiff’s favor, it

appears certain that the plaintiff cannot prove any set of facts in

support of his claim entitling him to relief.’”               Id. (quoting

Veney v. Wyche, 293 F.3d 726, 730 (4th Cir. 2002)).

           We   note   that   neither   the   Ewell   nor   Jones   opinions

discussed any use of force to obtain a DNA sample.            Rather, both

cases focused on punishments meted out for refusing to provide a

sample, but did not discuss the forcible extraction of a DNA

sample.   Ewell v. Murray, 11 F.3d at 486-88; Jones v. Murray, 962

F.2d at 303.    Here, despite the district court’s statements to the

contrary,* it is not clear what steps the Defendants would have

taken to forcibly extract a sample from Rendelman.              Maryland’s

decision to use force to extract DNA from prisoners distinguishes

the Act from the Virginia cases relied upon by the district court

to summarily dismiss the action.        Thus, we vacate and remand the

case to the district court to further address this issue, noting

that service of process against Defendants, and an answer to the

complaint, would assist in clarifying the record.




     *
      The district court stated that it had attached DCD 20-9 to
its opinion.    We can find no such attachment in the record,
however.

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          We dispense with oral argument because the facts and

legal contentions are adequately presented in the materials before

the court and argument would not aid the decisional process.



                                             VACATED AND REMANDED




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