                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-14-2005

Johnson v. Ogershok
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-3737




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                                                               NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT

                                     NO. 04-3737
                                  ________________

                                 DETROY JOHNSON,

                                                 Appellant
                                           v.

J.J. OGERSHOK, Department of Corrections, Corrections Unit Manager of Huntingdon
 State Correctional Institution; JANE DOE, Wexford Medical Contracted Employee of
     Huntingdon State Correctional Institution in PA.; JOHN DOE, Wexford Medical
        Contracted Employee of Huntingdon State Correctional Institution in PA.
                    _______________________________________

                    On Appeal From the United States District Court
                        For the Middle District of Pennsylvania
                              (D.C. Civ. No. 02-cv-01525)
                       District Judge: Honorable Malcolm Muir
                    _______________________________________

                Submitted Under Third Circuit L.A.R. 34.1(a)
                              May 18, 2005
  Before: NYGAARD, VAN ANTWERPEN AND STAPLETON, CIRCUIT JUDGES

                                 (Filed June 14, 2005)
                              _______________________

                                     OPINION
                              _______________________

PER CURIAM

      Appellant inmate Detroy Johnson appeals from the District Court’s order granting

summary judgment in favor of J.J. Ogershok in this action challenging the

constitutionality of Pennsylvania’s DNA Detection of Sexual and Violent Offenders Act.
44 Pa. C.S.A. §§ 2301-2336 (DNA Act).1 Appealing pro se, Johnson argues that the

DNA Act violates the Fourth and Fourteenth Amendments because the taking of a blood

sample from prisoners convicted of violent offenses for the purpose of storing DNA in a

database for use by law enforcement and other government officials is an unreasonable

invasion of privacy. He seeks declaratory relief and the expungement of a DNA sample

that was forcibly taken sometime prior to April 9, 2003. He also argues that Defendant

Ogershok unlawfully retaliated against him for refusing to submit a DNA sample. For the

reasons that follow, we will affirm.

                                            I.

       Johnson is an inmate at SCI-Huntingdon, serving seven to twenty years on a

conviction for third degree murder. During a 2000 institutional support parole review,

Johnson was informed that under Pennsylvania’s DNA Act and Department of

Corrections (DOC) Policy, he was not entitled to release unless he provided a blood

sample and would not receive institutional support for his parole. Johnson refused to

provide a sample. Under DOC rules, other types of outside clearance are also barred until

a sample is given. Accordingly, his outside supervised clearance was revoked.

Eventually, a sample was forcibly extracted.2



   1
     1st Sp. Sess. P.L. 1009, No. 14, codified at 42 Pa. C.S.A. §§ 7651.101-7651.1102,
recodified by the Act of Nov. 30, 2004, P.L. 1428, No. 185.
   2
     We are unaware of whether outside clearance was reinstated after the forcible
extraction.

                                            2
       Johnson filed an inmate grievance alleging retaliation by Ogershok for his refusal

to give a DNA sample. His initial grievance and subsequent institutional appeals were

denied because under the DOC Policy VI.L.2.b.(2) the DOC staff “will not initiate . . .

outside clearance . . .” for inmates who refuse to provide a DNA sample. On August 8,

2002, Johnson filed a complaint under 42 U.S.C. § 1983 asserting an as applied challenge

to the DNA Act. He filed an amended complaint several months later. The Defendants

then moved for summary judgment.

       After the motion was briefed, the Ninth Circuit issued its ruling in United States v.

Kincade, 345 F.3d 1095 (9th Cir. 2003), holding unconstitutional the Federal DNA

Analysis Backlog Elimination Act of 2000, 42 U.S.C. §§ 14135-14135e (the Federal

DNA Act).3 The District Court appointed counsel and instructed the parties to brief the

Fourth Amendment issue in light of Kincade.

       In granting the Defendant’s motion for summary judgment, the District Court

rejected Johnson’s arguments that the Fourth Amendment universally prohibits

suspicionless searches to further the normal needs of law enforcement. Specifically, it

held that the purpose of the DNA Act was for identification purposes, and “does not have

as its primary purpose the generation of evidence of criminal wrongdoing.” Johnson v.

Ogershok, No. 02-cv-1525, 9 n.14 (M.D. Pa. July 6, 2004) (report and recommendation).




   3
     Kincade also repudiated Rise v. Oregon, 59 F.3d 1556 (9th Cir. 1995), which
upheld a similar state law.

                                             3
Further, the Court reasoned “[p]ersons who have committed and been convicted of crimes

have forfeited any expectation of privacy in their identity, including the characteristics of

their DNA and hence, have no Fourth Amendment right implicated by the government’s

taking and retaining identifying information.”     Johnson v. Ogershok, No. 02-cv-1525,

slip op. at 7 (M.D. Pa. Aug. 17, 2004) (citing Groceman v. U.S. Dep’t of Justice, 354 F.3d

411, 413-14 (5th Cir. 2004). The Court also rejected his retaliation claim. To the extent

Johnson raises an argument under the Fourteenth Amendment, the District Court did not

address the issue. Johnson appealed and raises the same arguments.4

                                             II.

       While this appeal was pending, we decided United States v. Sczubelek, which held

the Federal DNA Act constitutional under the Fourth Amendment. 402 F.3d at 187.

There we concluded that because the Federal DNA Act “goes well beyond” what would

typically call for a special needs analysis, “it is appropriate to examine the reasonableness

of the taking of the sample under the more rigorous Knights totality of the circumstances

test rather than the Griffin special needs exception.” Id. at 184 (citing United States v.



   4
       We have jurisdiction under 28 U.S.C. § 1291. We exercise plenary review over the
District Court’s resolution of the constitutional issues. See United States v. Sczubelek,
402 F.3d 175, 178 (3d Cir. 2005). We liberally construe Johnson’s pro se brief, and “will
apply the applicable law, irrespective of whether” Johnson specifically mentions it by
name in his brief. See Higgins v. Beyer, 293 F.3d 683, 688 (3d Cir. 2002) (internal
quotations omitted). We also note that one day after the District Court issued its order,
Kincade was reversed by the Ninth Circuit sitting en banc. See United States v. Kincade,
379 F.3d 813 (9th Cir. 2004) cert. denied Kincade v. United States, 125 S. Ct. 1683, 73
U.S.L.W. 3555 (U.S. Mar. 21, 2005) (No. 04-7253).

                                              4
Knights, 534 U.S. 112 (2001); Griffin v. Wisconsin, 483 U.S. 868 (1987)). Applying the

more rigorous reasonableness test, we concluded that the compelling governmental

interest in “accurate criminal investigations and prosecutions” advanced by the Federal

DNA Act outweighs the “minimal” intrusion of a blood test and the minimal privacy

interest retained by criminal offenders in keeping their “physical identity from

government records.” Id. at 184-85.

       Like the Federal DNA Act, the DNA Act involves state action well beyond what is

normally at issue in the special needs context. Therefore, we apply the totality of

circumstances test here. See Knights, 534 U.S. at 118-19. Looking first at the

Commonwealth’s interests, the purposes of the DNA Act as identified by statute and

advanced by the Commonwealth do not differ significantly from those of the Federal

DNA Act upheld in Sczubelek. In both acts, the use of the DNA is largely limited to

assisting law enforcement in the identification and detection of individuals in criminal

investigations and prosecutions. See Sczubelek, 402 F.3d at 185; 42 U.S.C. §

14132(b)(3)(A); 44 Pa. Cons Stat. Ann. § 2318(c). We agree with the District Court that

the Commonwealth’s interests are compelling.

       Next, we cannot identify significant differences in the privacy invasion. Both acts

require that individuals convicted of certain specified offenses and in some form of

custody must submit to a minimally intrusive blood test for the purpose of extracting a

DNA sample. See 42 U.S.C. §§ 14135a(a)(1), (2); 44 Pa. Cons. Stat. Ann. § 2316. Both



                                             5
laws also expressly limit the use of the DNA. See 42 U.S.C. § 14132(b) (limiting use to

law enforcement identification, exculpatory, and judicial purposes); 44 Pa. Cons. Stat.

Ann. § 2318(c) (limiting to law enforcement and humanitarian identification purposes

only). Further, both acts enforce the limitations through criminal sanction, thereby

reducing concerns of broad information disclosures. See 42 U.S.C. § 14135e(c)

(providing criminal penalties for any person who discloses DNA information to

unauthorized sources); 44 Pa. Cons. Stat. Ann. § 2332 (the same). While normally, even

the slightest suspicionless invasion of protected privacy is unconstitutional, see Chandler

v. Miller, 520 U.S. 305, 309 (1997) (highlighting the closely guarded category of

permissible suspicionless searches), Johnson has a substantially reduced expectation of

privacy. As we stated in Sczubelek, incarcerated offenders “cannot reasonably expect to

keep information bearing on their physical identity from the government.” 402 F.3d at

185.

       We do recognize, however, two differences between Sczubelek and the current

matter, but conclude that the distinctions are of no constitutional significance. First,

Sczubelek involved an individual on probation, whereas here, Johnson is incarcerated. In

Sczubelek, we stated that extraction of a probationer’s DNA furthers goals relating to

“probation–rehabilitation . . . .” Sczubelek, 402 F.3d at 186. This rationale is not directly

applicable to Johnson, who might not receive parole or another form of supervised

release. However, we do not believe that this rationale was controlling in Sczubelek.



                                              6
Rather, we held that it is a convicted offender’s greatly reduced expectation of privacy in

his identity that is dispositive. Sczubelek, 402 F.3d at 185 (discussing criminal offenders

generally); see also Groceman, 354 F.3d at 413 (involving an incarcerated offender). The

Commonwealth’s interest in accurately identifying offenders in future criminal

investigations exists irrespective of whether they are on probation or incarcerated.

       A second difference exists not in the facts of the two cases, but in the arguments

presented and addressed. Here, Johnson appears to argue that there exists a qualitative

dimension to the Fourth Amendment–i.e., that the Commonwealth’s interest in supporting

criminal investigations is unreasonable when applied to crimes other than sex offenses

because it is impossible to predict future criminality. Thus, Johnson argues that because

statistically he is not likely to reoffend, the Commonwealth’s interest in investigating and

deterring future crimes is trumped by his retained privacy interests. Johnson’s argument

is unpersuasive.

       Initially, Johnson cites no authority in support of his argument, nor are we able to

find any. Moreover, even assuming that Johnson may be less likely to reoffend than other

offenders, it does not tip the balance in his favor. As we declare above, Johnson’s

minimal expectation of privacy is controlling in this instance. Incarcerated murderers

have an extremely limited expectation of privacy, if any at all, and thus, the

Commonwealth’s compelling interest, even if slightly diminished by the nature of

Johnson’s offense, outweighs Johnson’s privacy rights.



                                              7
       Accordingly, in light of our holding in Sczubelek, we agree with the District Court

that Pennsylvania’s extraction and storage of DNA is not unreasonable under the Fourth

Amendment.5 We now turn to Johnson’s as applied due process argument.

                                              III.

       To the extent Johnson argues that the Fourteenth Amendment’s Due Process

Clause is violated by the taking of his DNA, the argument fails. In Graham v. Connor,

490 U.S. 386 (1989), the Supreme Court explained that where “the Fourth Amendment

provides an explicit textual source of constitutional protection against . . . physically

intrusive governmental conduct, that Amendment, not the more generalized notion of

‘substantive due process,’ must be the guide . . . .” Id. at 395.

       Importantly, Johnson does not argue that his DNA has been improperly used in

violation of his right to medical privacy, see Doe v. Delie, 257 F.3d 309, 318 (3d Cir.

2001). Rather, he presents a generalized claim that the extraction of his DNA is

unconstitutional under the Fourteenth Amendment. It is evident that the Fourth

Amendment governs the constitutionality of searches and seizures. Accordingly,

Johnson’s argument is not cognizable under substantive due process. We now turn

briefly to his retaliation claim.




   5
    We note that several Pennsylvania cases have addressed this issue, in each instance
upholding the DNA Act. See El v. Mechling, 848 A.2d 1094, 1097-98 (Pa. Commw. Ct.
2004); Smith v. Pa. Dep’t of Corr., 829 A.2d 788 (Pa. Commw. Ct. 2003); Dial v.
Vaughn, 733 A.2d 1 (Pa. Commw. Ct. 1999).

                                               8
                                          IV.

       To succeed in a retaliation claim, Johnson must first prove he was engaged in a

constitutionally protected activity. See Rauser v. Horn, 241 F.3d 330, 333 (3d Cir. 2001).

Johnson fails to establish even this first element. He claims that Ogershok unlawfully

restricted outside clearance because of his refusal to submit a DNA sample. Based on the

holding above, Johnson has no constitutional right to resist sampling. See also, Dial, 733

A.2d at 7 (holding the DNA Act constitutional in 1999). The DNA Act mandates that

persons coming under the Act must submit a sample upon request regardless of whether

they were so advised during their trial or guilty plea. 44 Pa. Cons. Stat. Ann. § 2316(d.1).

Because extracting a DNA sample for the purposes outlined in the DNA Act does not

violate the Fourth Amendment, Johnson fails to assert a protected right and his claim

must fail.

                                             V.

       We conclude that as applied to Johnson, Pennsylvania’s DNA Detection of Sexual

and Violent Offenders Act does not violate the Constitution. Further, he fails to prove

unlawful retaliation. Accordingly, the District Court’s order is affirmed.
