                                                                              United States Court of Appeals
                                                                                       Fifth Circuit
                                                                                     F I L E D
                     IN THE UNITED STATES COURT OF APPEALS
                                                                                      June 28, 2005
                                 FOR THE FIFTH CIRCUIT
                                                                                 Charles R. Fulbruge III
                                                                                         Clerk

                                       No. 04-41286
                                     Summary Calendar



       ALVIN CHARLES DUNCAN,

                                                            Plaintiff-Appellant,

               versus


       O. PEREZ, Garza West Unit;
       BALLARD, Unit Health Administrator,
       Garza West Unit; WALLACE, Chief of
       Classification, Garza West Unit,

                                                            Defendants-Appellees.




               Appeal from the United States District Court
                    for the Southern District of Texas
                           USDC No. 2:04-CV-377



Before GARWOOD, JOLLY, and CLEMENT, Circuit Judges.

PER CURIAM:*

       Alvin Charles Duncan, a prisoner of the Texas Department of

Criminal Justice proceeding pro se and in forma pauperis, brought

this 42 U.S.C. § 1983 suit against three employees of the facility

       *
        Pursuant to 5TH CIR. R. 47.5 the Court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR. R.
47.5.4.

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where he was temporarily incarcerated.      Duncan, who is suing the

three defendants in their individual capacities, alleged in his

complaint that his Fourth, Fifth, Eighth, and Fourteenth Amendment

rights were violated when he was ordered to surrender a blood

sample for inclusion in a DNA database. The district court, before

the   defendants   were   ever   served,   adopted   the   report   and

recommendation of the magistrate judge and sua sponte dismissed

Duncan’s suit with prejudice under 28 U.S.C. § 1915(e)(2)(B)(ii)

for failure to state a claim.     Duncan appeals and we affirm.

      Duncan, while on parole from confinement under a prior Texas

felony conviction, was convicted in a Texas court in June 2002 of

burglary of a building on or about September 27, 2001, and was

sentenced to five years’ imprisonment, and his parole was revoked

and he was returned to the Texas prison system.        As part of his

readmission to the Texas prison system, he underwent a mandatory

physical exam, including an ordinary blood test required under

Texas law for the purpose of maintaining a DNA database.      See TEX.

GOV’T CODE ANN. § 411.148(a) (as effective September 1, 2001).

Duncan initially refused to submit to the blood test but relented

when he was told that his blood would be taken by force.

      We review a dismissal under 28 U.S.C. § 1915(e)(2)(B)(ii) de

novo under the same standard used for FED. R. CIV. P. 12(b)(6).     Hart

v. Harrison, 343 F.3d 762, 763-64 (5th Cir. 2003).         To state a

claim in an individual capacity suit under section 1983, a claimant


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must allege the violation of a clearly established constitutional

right by a person acting under color of law.        See, e.g., Saucier v.

Katz, 121 S. Ct. 2151 (2001).

     Duncan has not alleged the violation of any constitutional

right, much less a clearly established one.              As a preliminary

matter, to the extent that any constitutional claim exists, it is

solely by way of the Fourteenth Amendment because Duncan has sued

state actors.    See, e.g., Albright v. Oliver, 114 S. Ct. 807, 832

n. 28 (1994).    His Fourth Amendment claim, as incorporated by the

Fourteenth, fails because the collection of blood from prisoners

for a DNA database is constitutional.         Groceman v. U.S. Dept. of

Justice, 354 F.3d 411, 413-14 (5th Cir. 2004); Velasquez v. Woods,

329 F.3d 420, 421 (5th Cir. 2003).       His Fifth Amendment claim fails

because it merely duplicates his Fourteenth Amendment claim.            His

Eighth Amendment claim, as incorporated by the Fourteenth, fails

because there is no allegation in his complaint that his blood was

extracted as an “unnecessary and wanton infliction of pain.”

Wilson v. Seiter, 111 S. Ct. 2321, 2323 (1991) (quotation marks,

citation, and emphasis omitted). Blood tests “involve[s] virtually

no risk, trauma or pain.”        Skinner v. Railway Labor Executives’

Ass’n, 489 U.S. 602, 625 (1989). Finally, his Fourteenth Amendment

claim   fails   because   the   allegations   of   his   complaint   cannot

plausibly be characterized as anything other than a violation of

the Fourth Amendment, which, as just noted, is not a viable claim.


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     The district court’s dismissal constitutes a strike for the

purposes of the three-strikes provision of 28 U.S.C. § 1915(g).

See generally Adepegba v. Hammons, 103 F.3d 383 (5th Cir. 1996).

Duncan is cautioned that once he accumulates three strikes he will

not be permitted to proceed in forma pauperis in any civil action

or appeal while he is incarcerated or detained in any facility

unless he is in imminent danger of serious physical injury.

                           Conclusion

     For the foregoing reasons, the judgment of the district

court is

                            AFFIRMED.




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