                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 15-1897
                        ___________________________

                            William Billy Gene Carter

                       lllllllllllllllllllll Plaintiff - Appellant

                                           v.

 Kenny Huterson; Loratea Akers; Vickie Dye; Cynthia Jannaman; Lance Brown;
 Janet Heyer; Sandy Swanson; Angel Lawson; Heather Richards; Alexey Nikitin;
 David R. Hunter; Rhinnia Andrews; Kenneth Hutchason; Loretta Akers; Stanley
                                Lance Brown

                     lllllllllllllllllllll Defendants - Appellees
                                      ____________

                     Appeal from United States District Court
               for the Western District of Missouri - Jefferson City
                                 ____________

                             Submitted: June 16, 2016
                              Filed: August 8, 2016
                                 ____________

Before SMITH, GRUENDER, and BENTON, Circuit Judges.
                          ____________

GRUENDER, Circuit Judge.

      William Carter sued employees of the Missouri Department of Mental Health
(“DMH”) under 42 U.S.C. § 1983. Carter alleged that these defendants violated his
Fourth, Eighth, and Fourteenth Amendment rights by forcibly collecting his
fingerprints, a mouth swab, and a blood sample while he was confined at Fulton
Hospital as a civilly committed sexually violent predator. The district court1
dismissed Carter’s complaint for failure to state a claim. We affirm.

                                           I.

       In 2002, Carter pleaded not guilty by reason of mental disease or defect to
various charges related to the kidnapping and deviate sexual assault of his sixteen-
year-old neighbor. As a result of this plea, Carter was committed to the custody of
the DMH. Carter’s subsequent application for conditional release triggered
mandatory review of his eligibility for involuntary civil commitment under Missouri’s
Sexually Violent Predators Act, Mo. Rev. Stat. § 632.480-513. Pursuant to that
statute, a jury found Carter to be a sexually violent predator, and Carter therefore
remained confined at Fulton State Hospital, a facility under the direction of the DMH.

       In November 2014, Carter filed a complaint under 42 U.S.C § 1983, alleging
that DMH employees working at Fulton State Hospital had violated his rights under
the Fourth, Eighth, and Fourteenth Amendments. The complaint alleged that the
defendants and two Missouri Highway Patrol officers had approached Carter at the
hospital and informed him that they needed his fingerprints, a blood sample, and a
mouth swab. According to the complaint, when Carter refused to cooperate unless
the officers produced a valid search warrant, the officers ordered the defendants to
restrain Carter and obtain the samples. Carter alleged that at that point, all nine staff
members “physically assaulted and attacked” him. He claimed that the attack resulted
in a pulled tendon on his left index finger; a bruise, sprain, and cut on his left middle




      1
       The Honorable Stephen R. Bough, United States District Judge for the
Western District of Missouri.


                                          -2-
finger; and a bruise on his left arm. Carter further alleged that the defendants failed
to provide appropriate medical treatment for these injuries.

       The defendants moved to dismiss Carter’s complaint. They argued that they
did not violate Carter’s Fourth Amendment rights by taking Carter’s fingerprints,
mouth swab, and blood sample because, as a sexually violent predator, Carter was
required to provide these materials under Missouri law. According to section
650.055.1 of the Missouri Revised Statutes, “[e]very individual who . . . [h]as been
determined to be a sexually violent predator . . . shall have a fingerprint and blood or
scientifically accepted biological sample collected for purposes of DNA profiling
analysis.” The defendants further argued that Carter’s assertion that the defendants
employed excessive force failed to state a claim under the Fourth Amendment
because Carter conceded that he resisted the efforts of the highway patrol officers to
obtain his information and because his bare conclusion that he was “physically
assaulted and attacked” was not sufficient to withstand a motion to dismiss. The
defendants also contended that neither the manner in which they obtained the samples
nor any alleged delay in Carter’s receipt of medical treatment violated Carter’s rights
under the Eighth or Fourteenth Amendments. Finally, the defendants argued they
were entitled to qualified immunity because their alleged forcible collection of
Carter’s fingerprints, mouth swab, and blood sample represented conduct that a
reasonable officer would believe is lawful. See James ex rel. James v. Friend, 458
F.3d 726, 730 (8th Cir. 2006).

       The district court granted the defendants’ motion to dismiss. The court found
that the warrantless collection of Carter’s fingerprints, mouth swab, and blood sample
did not violate the Fourth Amendment because this collection represented a
reasonable, minimal intrusion and because Carter had a reduced expectation of
privacy as a civilly committed sexually violent predator. The court also concluded
that Carter failed to plead facts showing that the manner in which the defendants



                                          -3-
collected these materials violated Carter’s rights under the Fourth, Eighth, or
Fourteenth Amendment. Finally, the court ruled that the defendants were entitled to
qualified immunity because Carter failed to state facts demonstrating the violation of
a constitutional right that was clearly established at the time of the alleged violation
and because the defendants’ alleged conduct was reasonable under the circumstances
alleged in the complaint. Carter appeals.

                                            II.

       On appeal, Carter argues only that the district court erred when it dismissed
his claim that the defendants’ warrantless, forcible drawing of his blood to produce
a DNA profile violated his rights under the Fourth Amendment. We review de novo
a district court’s dismissal under Rule 12(b)(6), taking all facts alleged in the
complaint as true. Trooien v. Mansour, 608 F.3d 1020, 1026 (8th Cir. 2010). To
survive a motion to dismiss for failure to state a claim, “a complaint must contain
sufficient factual matter, accepted as true, to state a claim to relief that is plausible on
its face.” Braden v. Wal-Mart Stores, Inc., 588 F.3d 585, 594 (8th Cir. 2009)
(quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). Similarly, defendants seeking
dismissal under Rule 12(b)(6) based on an assertion of qualified immunity “must
show that they are entitled to qualified immunity on the face of the complaint.”
Bradford v. Huckabee, 394 F.3d 1012, 1015 (8th Cir. 2005).

                                            A.

      In appealing the dismissal of his Fourth Amendment claim, Carter first
contends that because he was a civilly committed individual rather than a pre-trial
detainee or a prisoner, the defendants could not collect a blood sample to produce his
DNA profile without first demonstrating individualized suspicion of criminal
wrongdoing and acquiring a search warrant. However, we do not reach the question



                                            -4-
of whether the alleged warrantless collection of Carter’s blood sample violated the
Fourth Amendment because the defendants are entitled to qualified immunity with
respect to this claim. See Pearson v. Callahan, 555 U.S. 223, 240-42 (2009) (holding
that courts have the discretion to recognize an official’s entitlement to qualified
immunity without first deciding whether a constitutional violation took place).

       “Qualified immunity shields government officials from liability for civil
damages for discretionary acts that do not ‘violate clearly established statutory or
constitutional rights of which a reasonable person would have known.’” Moore ex
rel. Moore v. Briggs, 381 F.3d 771, 772 (8th Cir. 2004) (quoting Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982)). Here, the defendants are entitled to qualified
immunity with respect to their alleged taking of Carter’s blood sample because Carter
has failed to demonstrate that, at the time of the events in question, civilly committed
sexually violent predators maintained a clearly established right to be free from the
warrantless drawing of a blood sample to produce a DNA profile. To the contrary,
a reasonable person interpreting the law governing the defendants’ conduct could
have concluded that the Constitution permitted the warrantless collection of this
information from such individuals.

       First, we previously have held that civilly committed individuals “retain the
Fourth Amendment right to be free from unreasonable searches that is analogous to
the right retained by pretrial detainees.” Beaulieu v. Ludeman, 690 F.3d 1017, 1028
(8th Cir. 2012). Shortly after our decision in Beaulieu, the Supreme Court held in
Maryland v. King that the Fourth Amendment does not require authorities to obtain
a warrant before conducting a mouth swab to obtain the DNA profile of a pretrial
detainee. 569 U.S. ---, 133 S. Ct. 1958 (2013). Relying on these two cases, therefore,
the defendants reasonably could have concluded that the Fourth Amendment does not
prohibit the warrantless collection of a civilly committed person’s DNA profile.
Indeed, the defendants have shown that several of the same government interests



                                          -5-
identified in King reasonably could justify the DNA identification of a civilly
committed sexually violent predator, including determining “the [individual]’s future
dangerousness” and the extent he might be “inclined to flee” from confinement. See
id. at 1972-73.

       Second, courts generally have recognized the collection of a blood sample as
a minimally intrusive mechanism for obtaining information from individuals in state
custody. See, e.g., Schmerber v. California, 384 U.S. 757, 771 (1966) (noting that
blood draws involve “virtually no risk, trauma, or pain”); United States v. Amerson,
483 F.3d 73, 84 (2d Cir. 2007) (recognizing that “all the common methods of
obtaining [a] DNA sample” involve only minimal intrusions upon privacy interests);
Rise v. Oregon, 59 F.3d 1556, 1560 (9th Cir. 1995) (“That the gathering of DNA
information requires the drawing of blood rather than inking and rolling a person’s
fingertips does not elevate the intrusion upon the plaintiffs’ Fourth Amendment
interests to a level beyond minimal.”), overruled on other grounds by City of
Indianapolis v. Edmond, 531 U.S. 32 (2000). We acknowledge that the Supreme
Court’s recent decision in Birchfield v. North Dakota may affect our assessment of
the reasonableness of this collection method in future cases. See 579 U.S. ---, 136 S.
Ct. 2160, 2178 (2016) (recognizing that blood draws are more intrusive than other
methods of obtaining information from individuals stopped for drunk driving).
However, because this decision was announced well after the events in question, it
has no implications for our analysis of Carter’s “clearly established” rights. See
Moore, 381 F.3d at 772. Given the state of the law at the time of the alleged events
and his status as a civilly committed sexually violent predator, Carter did not have a
“clearly established” right to be free from the warrantless collection of his blood
sample for the purpose of obtaining his DNA profile. See id. As a result, the district
court did not err when it found that the defendants are entitled to qualified immunity
with respect to this claim. See Bradford, 394 F.3d at 1015.




                                         -6-
                                          B.

       Carter also argues that the district court erred when it ruled that he failed to
allege facts sufficient to state a claim that the force the defendants employed when
taking his blood sample violated his rights under the Fourth Amendment. “The right
to be free from excessive force is a clearly established right under the Fourth
Amendment’s prohibition against unreasonable seizures of the person.” Cook v. City
of Bella Villa, 582 F.3d 840, 849 (8th Cir. 2009) (quoting Moore v. Indehar, 514 F.3d
756, 759 (8th Cir. 2008)). Whether an officer’s use of force is excessive is a question
of whether “the amount of force used was objectively reasonable under the particular
circumstances.” Small v. McCrystal, 708 F.3d 997, 1005 (8th Cir. 2013) (quoting
Brown v. City of Golden Valley, 574 F.3d 491, 496 (8th Cir. 2009)). The use of force
is not excessive where it involves only the level of physical coercion necessary to
execute an otherwise lawful seizure. See Brown, 574 F.3d at 496 (“Fourth
Amendment jurisprudence has long recognized that the right to make an arrest or
investigatory stop necessarily carries with it the right to use some degree of physical
coercion or threat thereof to effect it.” (quoting Graham v. Connor, 490 U.S. 386, 396
(1989))); see also Peña-Borrero v. Estremeda, 365 F.3d 7, 12 (1st Cir. 2004)
(affirming dismissal of excessive force claim in which “the allegations demonstrate[d]
no more than the ‘degree of physical coercion’ typically attendant to an arrest”
(quoting Graham, 490 U.S. at 396)).

       Under this standard, Carter’s bare assertion that all of the defendants
simultaneously “physically assaulted and attacked him” fails to state a claim that
those defendants violated his Fourth Amendment rights. Carter alleges no facts
regarding the “amount of force” involved in this alleged attack, precluding any
inference that such force was not “objectively reasonable under the particular
circumstances.” See Small, 708 F.3d at 1005. Nor do Carter’s allegations regarding
the injuries he sustained permit an inference that the defendants used excessive force.



                                         -7-
See Chambers v. Pennycook, 641 F.3d 898, 906 (8th Cir. 2011) (“The degree of
injury [suffered in an excessive-force case] is certainly relevant insofar as it tends to
show the amount and type of force used.”). To the contrary, the district court
concluded that the injuries Carter alleges—a pulled tendon on his left index finger,
a bruise, sprain, and cut on his left middle finger, and a bruise on his left
arm—resulted from his resistance to the defendants’ efforts to obtain a blood sample.
Cf. Shekleton v. Eichenberger, 677 F.3d 361, 366 (8th Cir. 2012) (recognizing that
“whether the suspect is actively resisting or attempting to evade” an otherwise lawful
arrest is a key factor in determining whether officers employed reasonable force
(quoting Smith v. Kan. City, Mo. Police Dep’t, 586 F.3d 576, 581 (8th Cir. 2009))).
As explained above, the defendants reasonably could have believed that the law
permitted the warrantless collection of Carter’s blood sample. Because Carter alleges
no facts permitting a plausible inference that the defendants employed force in excess
of the physical coercion attendant to overcoming his resistance to this seizure, he fails
to state an excessive-force claim under the Fourth Amendment. See Brown, 574 F.3d
at 495.

                                           III.

         For the foregoing reasons, we affirm the district court’s dismissal of Carter’s
claim.

                         ______________________________




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