The opinion of the court was delivered by: Gabriel W. Gorenstein, Magistrate Judge.
REPORT AND RECOMMENDATION
The plaintiffs in this matter — all convicted felons in New York State prisons — have brought this suit challenging the constitutionality of a New York State statute requiring that a sample of Deoxyribonucleic Acid ("DNA") be taken from each of them and retained as part of a DNA index or database. The plaintiffs assert that the Fourth Amendment bars New York's DNA indexing program. Their suit, brought under 42 U.S.C. § 1983, names as defendants Glenn Goord, Commissioner of the New York State Department of Correctional Services; and Katherine Lapp, Director of the New York State Division of Criminal Justice Services (the "State defendants"). It also names as defendants the company that performs the testing for the DNA index and an employee of that company who drew blood from certain of the plaintiffs, Medilabs, Inc. and Jessica Walsh (hereinafter, "the private defendants").
The plaintiffs have moved for a preliminary injunction. Both sets of defendants have cross-moved for judgment dismissing the complaint. For the reasons stated below, the defendants' motions should be granted and the case dismissed.
No two individuals (except for identical twins) have the same DNA. See generally Thomas M. Fleming, Annotation, Admissibility of DNA Identification Evidence, 84 A.L.R.4th 313 at § 2[b] (1991). In addition, an individual's DNA is the same in every nucleated cell in the body and remains the same throughout life. Id. Thus, DNA makes possible the identification of a specific person "to the practical exclusion of all others" through an analysis of the DNA contained in a cell from that person's body. Id.
All fifty states have enacted some form of statute requiring the maintenance of a DNA databank or index, see Michelle Hibbert, DNA Databanks: Law Enforcement's Greatest Surveillance Tool?, 34 Wake Forest L. Rev. 767, 771 n. 12 (1999) (citing statutes), as has the federal government. 42 U.S.C. § 14131-35. In general, these statutes mandate the extraction of DNA from blood or other tissue samples taken from individuals convicted of felonies in order to maintain information about these individuals' DNA in the databank. In 1994, the New York State Legislature enacted the first version of its statute, which required that individuals convicted of certain assault, homicide, rape and other offenses after January 1, 1996, must provide blood samples to allow for the extraction of the DNA information. 1994 N.Y. Laws, ch. 737, §§ 1, 3. The statute also provided that DNA records contained in the index could be released only in limited situations, mandated the expungement of the record if the conviction was reversed and 2 established penalties for unauthorized disclosure of information contained in the records. Id., § 1.
In 1999, the statute was amended in several ways. First, the legislature expanded the list of offenses to include attempted murder, kidnaping, arson, burglary, any violent felony and certain drug and theft offenses. N.Y. Exec. Law § 995(7)(a)-(b). All of these designated offenses are felonies. The statute also increased the penalty for unauthorized disclosure or use of the DNA records. Id. § 995-f. Finally, it eliminated the requirement that the DNA be taken through a blood sample. Id. § 995-c(3). The new statute was made applicable to any person convicted of a designated offense on or after December 1, 1999. It also applied to persons convicted of some of the offenses (including the offenses for which plaintiffs were convicted) prior to the effective date where the sentence imposed as a result of the conviction had not yet been completed. 1999 N.Y. Laws, ch. 560, § 9.
A newspaper article that plaintiffs have attached to their motion for a preliminary injunction states that "since the law took effect in December 1999, [New York State] has collected 82,000 samples from convicted offenders and registered 53 matches for previously unsolved crimes." Kevin Flynn, Felon's DNA Evidence Leads To His Arrest in a 1999 Rape, N.Y. Times, May 15, 2001, at B3 (reproduced in Notice of Motion for a Preliminary Injunction, filed August 23, 2001 ("Motion for Injunction"), Ex. 4).
The plaintiffs in this case are all convicted felons whose convictions place them within the ambit of the New York statute. Complaint, filed August 23, 2001 ("Complaint"), ¶¶ 3, 9. With the exception of two plaintiffs, Chester Flanders and Cecil Barrow, each has been convicted of a homicide offense. Id., ¶ 9. Plaintiffs John Lewis, Alvaro Sanchez and Luis Mejia have not 3 yet been required to submit their DNA for inclusion in the index and seek to bar the State from doing so. Id. The remaining plaintiffs have each had blood samples taken for inclusion in the index and seek to have the information regarding their DNA expunged. While the plaintiffs do not so allege in their complaint, it is clear from the New York State Department of Correctional Service identification numbers they have provided that each was convicted prior to the 1994 enactment of the statute. Thus the DNA indexing program did not apply to them until the 1999 amendments.
The complaint alleges that the DNA indexing statute violates the plaintiffs' Fourth Amendment right to be free from unreasonable searches and seizures. Complaint, ¶¶ 1, 18. The complaint seeks monetary damages as well as declaratory and injunctive relief. Id. at 6-7.
The complaint was filed pro se on August 23, 2001. On January 17, 2002, the private defendants answered and, on the same date, the State defendants moved to dismiss for failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(6). Plaintiffs' motion for a preliminary injunction was docketed on February 6, 2002, although it bears a file-stamped date of August 23, 2001 (Docket #15).
After review of the papers, the Court sought the appointment of counsel for the plaintiffs. In response to that request, Alexander A. Reinert, Esq., filed a notice of appearance on May 8, 2002. Following a conference held on June 12, 2002, Mr. Reinert chose not to amend the complaint or the motion for preliminary injunction but instead to rely on the plaintiffs' previously-filed papers. Mr. Reinert filed a memorandum of law opposing the motion to dismiss on June 26, 2002. On July 29, 2002, the private defendants moved for judgment on the pleadings 4 pursuant to Fed.R.Civ.P. 12(c). In September 2002, Mr. Reinert submitted additional papers opposing the defendants' motions.
C. Law Applicable to Motions to Dismiss and for Judgment on the Pleadings
A motion for judgment on the pleadings under Rule 12(c) of the Federal Rules of Civil Procedure is evaluated under the same standard as a motion to dismiss under Rule 12(b)(6). See Sheppard v. Beerman, 18 F.3d 147, 150 (2d Cir.) (citing Ad-Hoc Comm. of Baruch Black and Hispanic Alumni Ass'n v. Bernard M. Baruch College, 835 F.2d 980, 982 (2d Cir. 1987)), cert. denied, 513 U.S. 816 (1994). On a motion to dismiss under Fed.R.Civ.P. 12(b)(6), all allegations contained in the complaint are taken as true and all inferences are drawn in the plaintiff's favor. See Papasan v. Allain, 478 U.S. 265, 283 (1986); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1058 (2d Cir. 1993), cert. denied, 513 U.S. 822 (1994); Hertz Corp. v. City of New York, 1 F.3d 121, 125 (2d Cir. 1993), cert. denied, 510 U.S. 1111 (1994). Dismissal is appropriate only where it appears beyond doubt that a plaintiff can prove no set of facts in support of a claim that would entitle the plaintiff to relief. Niagara Mohawk Power Corp. v. FERC, 306 F.3d 1264, 267 (2d Cir. 2002) (citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). In deciding a Rule 12(b)(6) motion, a court may consider only those matters contained in the complaint, documents attached to the complaint, and matters of which the court may take judicial notice. See Valmonte v. Bane, 18 F.3d 992, 998 (2d Cir. 1994); Kramer v. Warner, Inc., 937 F.2d 767, 773 (2d Cir. 1991); CIBC Bank and Trust Co. (Cayman) Ltd. v. Banco Cent. do Brasil, 886 F. Supp. 1105, 1108 (S.D.N.Y. 1995).
D. Claims under 42 U.S.C. § 1983
To state a claim under 42 U.S.C. § 1983, a plaintiff "must allege (1) that the conduct complained of was committed by a person acting under color of state law, and (2) that such conduct deprived the plaintiff of a right, privilege, or immunity secured by the Constitution or laws of the United States." Dwyer v. Regan, 777 F.2d 825, 828 (2d Cir. 1985), modified on other grounds, 793 F.2d 457 (2d Cir. 1986); accord Gomez v. Toledo, 446 U.S. 635, 640 (1980); Dwares v. City of New York, 985 F.2d 94, 98 (2d Cir. 1993). Section 1983 does not in and of itself create any substantive rights; rather the plaintiff must demonstrate a violation of an independent federal constitutional or statutory right. See, e.g., Chapman v. Houston Welfare Rights Org., 441 U.S. 600, 617-18 (1979). The defendants do not dispute that the complaint alleges they were acting under color of state law. Accordingly, the only issue is whether the plaintiffs have alleged the violation of a constitutional right.
A. Law Governing Fourth Amendment Claims
Plaintiffs have essentially one claim: that their constitutional rights were violated when their "blood and DNA was involuntarily extracted from them and placed in the State's DNA identification index, in the absence of a warrant, probable cause or individualized and reasonable suspicion to believe they committed a crime for which their blood or DNA could be used to prosecute them." Complaint, ¶ 18. Defendants do not contest that the taking of DNA samples from plaintiffs against their will constitutes a search and seizure implicating the Fourth Amendment. See State Defendants' Memorandum of Law in Support of Defendants' Motion to Dismiss, dated January 17, 2002 ("State Def. Mem."), at 8; Private Defendants' Memorandum of 6 Law in Support of Defendants' Motion for Judgment on the Pleadings, dated July 26, 2002 ("Private Def. Mem."), at 7. Nor could they. While the drawing of blood has been characterized as "minimally intrusive," see, e.g., Skinner v. Railway Labor Executives' Ass'n, 489 U.S. 602, 624-26 (1989); Winston v. Lee, 470 U.S. 753, 762 (1985); Schmerber v. California, 384 U.S. 757, 771 (1966), "it is obvious that this physical intrusion, penetrating beneath the skin, infringes an expectation of privacy that society is prepared to recognize as reasonable." Skinner, 489 U.S. at 616.
To say that a search or seizure has occurred, however, is only the first step in the inquiry for the Constitution "does not proscribe all searches and seizures, but only those that are unreasonable." Id. at 618-619 (citations omitted). In some instances where a search is not made pursuant to a warrant supported by probable cause, the search may nonetheless be found reasonable if it falls within an exception to the warrant requirement and is supported by "some quantum of individualized suspicion." United States v. Martinez-Fuerte, 428 U.S. 543, 560 (1976). But even individualized suspicion is not always necessary to support a finding that a search or seizure was reasonable. See id. at 560-61; see also Skinner, 489 U.S. at 624 ("individualized suspicion is not a constitutional floor, below which a search must be presumed unreasonable"); National Treasury Employees Union v. Von Raab, 489 U.S. 656, 665 (1989) ("neither a warrant nor probable cause, nor, indeed, any measure of individualized suspicion, is an indispensable component of reasonableness in every circumstance").
Obviously, the DNA indexing program at issue here does not rely on individualized suspicion. The case law regarding the standards to be applied in searches that do not involve individualized suspicion, however, has undergone some evolution in recent years. To best 7 understand the current state of the law and its impact on the disposition of this case, we will describe the non-individualized suspicion case law from a historical perspective. We will divide our consideration into a discussion of (1) Supreme Court cases decided prior to the Second Circuit's decision in Roe v. Marcotte, 193 F.3d 72 (2d Cir. 1999) — the only Second Circuit case to have considered a DNA indexing statute; (2) lower court cases analyzing DNA indexing statutes, including the Second Circuit's decision in Marcotte; and (3) the Supreme Court's post-Marcotte decisions. We will then analyze the constitutionality of New York's indexing statute.
B. Relevant Supreme Court Case Law Prior to the
1999 Decision in Roe v. Marcotte
Prior to 1999, the Supreme Court considered a number of governmental programs or regulations that included as a component a search or seizure in the absence of individualized suspicion. In the 1976 case of Martinez-Fuerte, for example, the Court upheld the suspicionless stop of cars at an immigration checkpoint. The Court found that the constitutionality of the seizure there turned on a balancing of the interests involved. See 428 U.S. at 556-564; accord Brown v. Texas, 443 U.S. 47
, 50-51 (1979) ("Consideration of the constitutionality of [seizures less intrusive than an arrest] involves a weighing of the gravity of the public concerns served by the seizure, the degree to which the seizure advances the public interest, and the severity of the interference with individual liberty.") (suspicionless stop of individual in an alleyway near a "high drug problem area" violated the Fourth Amendment). Subsequently, in Delaware v. Prouse, 440 U.S. 648
(1979), the Court "balanced the public interest against the individual's Fourth Amendment interests," id. at 657, to strike down a discretionary, suspicionless stop of a vehicle to conduct a driver's license and vehicle registration check. In dictum, however, the Court indicated that it would have approved a stop that involved the questioning of all oncoming 8 traffic, id. at 663 — that is, without any discretion on the part of the officer — apparently on the ground that such a stop would serve the State's interest in ensuring that licensing and registration requirements were being observed.
Several years later, a Supreme Court opinion for the first time expressed the concept that, in the cases of a search or seizure without probable cause, a court should conduct a balancing of interests only in those "exceptional circumstances in which special needs, beyond the normal need for law enforcement, make the warrant and probable-cause requirement impracticable." The phrase was first used in Justice Blackmun's concurring opinion in New Jersey v. T.L.O., 469 U.S. 325, 351 (1985), in which the Court upheld a search on less than probable cause of a high school student on school grounds. The "special needs" language was subsequently adopted in a majority opinion in Griffin v. Wisconsin, 483 U.S. 868, 873 (1987), in which the Court upheld a suspicionless search of a probationer's home (though one based on a regulation that permitted such searches only where there were "reasonable grounds" to believe the probationer harbored contraband, id. at 871). In Griffin, the Court reviewed some of its prior case law that permitted searches and seizures in the absence of a warrant or probable cause. Id. at 873. It concluded that these cases — upholding work-related searches of employees' desks and "searches pursuant to a regulatory scheme" **— fit within an exception to the warrant and probable cause requirement because the "special needs" presented in each rendered such a requirement impractical. Id. Consistent with these decisions, it concluded that the supervision of probationers constituted a "`special need' of the State permitting a degree of impingement upon privacy that would not be constitutional if applied to the public at large." Id. at 875. The ...