Marty W. Thomas, a state prisoner in the Northeast Correctional Complex (NECX), brings this pro se civil rights action for declaratory and equitable relief under 42 U.S.C. § 1983, challenging the constitutionality of Tennessee's mandatory DNA (deoxyribonucleic acid) collection statute and implementing correctional policy, which applies to persons convicted of felony offenses. The parties have filed cross-motions for summary judgment; related supplements, responses, and replies; and various other motions. [Docs. 51, 52, 54, 60, 61, 62, 63, 4, 65, 66, 67, 68, 69 and 70].
I. The Summary Judgment Motions
As an initial matter, the plaintiff objects to the defendants' use of his deposition as support for their summary judgment motion. Relying on Rule 32(a) of the Federal Rules of Civil Procedure, he argues that he received only one day's advance notice of the deposition; that such notice was not reasonable; and that taking his deposition on such short notice deprived him of the opportunity to contact an attorney to represent him and to prepare to be deposed. He asks that the defendants be prohibited from using his deposition.
First of all, the plaintiff's reliance on Rule 32(a) is misplaced because, as he himself recognizes, the rule excludes by its own terms depositions taken with leave of court and because his deposition was so taken. Fed. R. Civ. P. 30(a)(2).*fn1 Secondly, the Rules do not contain a particular minimum-notice period for depositions; all that is really required is that the notice be reasonable in light of the circumstances of the individual case. Hart v. United States, 772 F.2d 285, 286 (6th Cir. 1985).
Secondly, the plaintiff does not elaborate on his bare allegation that he could not prepare for his deposition in the allotted time-frame. The Court sees no indication in the deposition itself that the plaintiff was not prepared for it. Nor does he claim that he actually intended to contact an attorney to represent him during the deposition. Certainly, there is nothing in the record to show that he has requested counsel to be appointed in this case. Also, according to information he supplied in a sworn affidavit, he is indigent-not a salutary financial condition for one seeking to obtain legal representation in the private sector. Furthermore, it does not appear that the plaintiff was inconvenienced, since he gave a telephonic deposition from the prison where he is confined, or that he had a scheduling conflict, in view of his status as an inmate.
Given these circumstances, the use of the plaintiff's deposition in this case is entirely proper and consistent with the federal rules governing discovery depositions. Therefore, his "Motion to Object" to the use of his deposition will be DENIED.
Pursuant to Fed. R. Civ. P. 56(c), summary judgment is appropriate only where "there is no genuine issue as to any material fact and ... the moving party is entitled to judgment as a matter of law." The Court must view the evidence and proper inferences made thereto in favor of the non-moving party. Matsushito Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 578 (1986). The moving party bears the burden to demonstrate through pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, that there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). However, once a motion for summary judgment is made and supported, the non-moving party must present specific facts showing that there is a genuine issue for trial. Fed. R. Civ. P. 56(e). The inquiry as to whether an issue is "genuine" is concerned with whether the evidence is so one-sided that one party must prevail as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). When considering cross-motions for summary judgment, a court must evaluate each motion on its own merit and draw inferences against the party whose motion is being assessed. In re Markowitz, 190 F.3d 455, 463 n.6 (6th Cir. 1999).
The factual scenario which follows was taken from the plaintiff's pleadings.
On February 12, 2004, defendant Nurse Nelma Wagner came to the plaintiff's unit at NECX to extract a sample of the plaintiff's blood for the purpose of submitting it for DNA analysis and for subsequent inclusion in a DNA database. The plaintiff refused to provide a sample, explaining that his DNA was already on record, since his DNA fingerprint had been used at trial to connect him to a rape victim and, ultimately, to convict him of committing several sexual offenses.*fn2 He was then shown a copy of the state's DNA collection statute, see Tenn. Code. Ann. § 40-35-321, which requires a court or the TDOC commissioner (with respect to inmates in TDOC's custody whose DNA has not been submitted previously under the statutory scheme) to order a biological specimen from persons convicted of a felony offense for DNA analysis.*fn3 Again, the plaintiff refused, this time protesting that the convicting trial court had not ordered him to provide a DNA specimen.*fn4 Subsequently, he was shown a copy of Tennessee Department of Correction Policy No. 113.92, titled "DNA Specimen Collection and Documentation." This policy provides, in relevant part, that the institutional health administrator is responsible for ensuring that biological specimens are collected from inmates; that those who refuse to give the specimen will be issued a disciplinary write-up; and that such inmates will forfeit behavior credits until they agree to furnish the specimen. Despite the policy, the plaintiff still refused to permit defendant Nurse Wagner to take a blood sample.
At some point, defendant Jerry Gentry, NECX's Health Administrator, arrived in the plaintiff's unit*fn5 and advised the plaintiff that, if he continued to refuse to give a blood sample, he would receive a disciplinary write-up; would go to the "hole;" and would forfeit good time credits. Defendant Gentry also warned that, until the plaintiff agreed to give the blood specimen, he would lose the opportunity to earn other sentencing credits and would never get out of prison. Finally, defendant Gentry stated that he would call employees in the laboratory of the Tennessee Bureau of Investigation, who would come to NECX and forcibly take the blood sample from the plaintiff.
The plaintiff evaluated his options, one of which as he saw it, was to give the sample and then attack the constitutionality of the statute in a federal lawsuit (obviously, he elected to pursue this option) and, thereafter, signed a consent form ...