                    United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 03-1942
                                   ___________

Len Edwin Davis,                      *
                                      *
            Appellant,                *
                                      * Appeal from the United States
      v.                              * District Court for the Eastern
                                      * District of Arkansas
Larry Norris, Director, Arkansas      *
Department of Correction; G. David    *      [UNPUBLISHED]
Guntharp, Assistant Director,         *
Arkansas Department of Corrections; *
Greg Harmon, Warden, Tucker           *
Maximum Security Unit,                *
                                      *
            Appellees.                *
                                 ___________

                             Submitted: December 30, 2003

                                 Filed: January 22, 2004
                                  ___________

Before RILEY, McMILLIAN, and SMITH, Circuit Judges.
                            ___________

PER CURIAM.

    Federal inmate Len Edwin Davis appeals (1) the adverse grant of partial
summary judgment entered by the District Court1 for the Eastern District of

      1
       The Honorable Henry L. Jones, Jr., United States Magistrate Judge for the
Eastern District of Arkansas, to whom the case was referred for final disposition by
Arkansas, and (2) the later judgment, following trial, for defendants. For the reasons
discussed below, we affirm the summary judgment order and the judgment.

        Davis brought this 42 U.S.C. § 1983 action against officials at the Arkansas
Department of Correction (ADC) asserting two claims. First, Davis alleged that
defendants attempted to collect a DNA sample from him, while he was housed by
ADC, pursuant to an Arkansas statute mandating DNA collection from inmates
convicted for certain Arkansas sexual or violent offenses. Davis contended that, as
a federal prisoner, the Arkansas DNA collection statute did not apply to him. We
conclude the district court properly granted defendants summary judgment on this
claim. See Meyers v. Neb. Health & Human Servs., 324 F.3d 655, 658-59 (8th Cir.
2003) (de novo review). An incorrect application of the state statute, without more,
is not sufficient to establish a violation of a federal or constitutional right as required
in a section 1983 action. See Collins v. Bellinghausen, 153 F.3d 591, 596 (8th Cir.
1998); Buckley v. Barlow, 997 F.2d 494, 495 (8th Cir. 1993) (per curiam). Further,
defendants would be entitled to qualified immunity from damages from any Fourth
Amendment claim Davis might have intended to assert, because we have not held that
mandatory DNA testing violates the Fourth Amendment. See Latimore v. Widseth,
7 F.3d 709, 712 (8th Cir. 1993) (en banc) (qualified immunity protects government
official from suit, if at time of challenged acts, it was not clearly established that those
actions would violate clearly established law of which reasonable person would have
known), cert. denied, 510 U.S. 1140 (1994).

        Davis’s second claim was that ADC violated his First Amendment rights by
initiating a policy that permitted inmates to keep only five personal photographs in
their cells in retaliation for inmates filing claims against ADC for lost or stolen
photographs. After trial, the district court entered judgment for defendants, and on
appeal, Davis argues the district court erroneously accepted defendants’ testimony


consent of the parties pursuant to 28 U.S.C. § 636(c).
                                            -2-
that the five-photograph limit was enacted for legitimate penological reasons. This
argument, however, merely questions the district court’s determination of defendants’
credibility. See United States v. Harris, 310 F.3d 1105, 1111 (8th Cir. 2002)
(appellate court does not assess credibility of witnesses), cert. denied, 123 S. Ct. 2121
(2003).

      Accordingly, we affirm. We also deny Davis’s pending motions for
appointment of counsel and for preparation of a trial transcript at government
expense.
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