                    United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                  ___________

                                  No. 03-1997
                                  ___________

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.     *
                                  ___________

                            Submitted: September 14, 2004
                               Filed: December 27, 2004
                                ___________

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

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
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.



                                          -4-
        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

                                         -5-
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 plaintiff-
       prisoner 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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