Koch

MEMORANDUM *

Plaintiff-Appellant Jack R. Koch seeks damages and injunctive relief under 42 U.S.C. § 1983 for actions taken against him while he was incarcerated by the State of California. He appeals the district court’s grant of Appellees’ motion to dismiss and summary judgment motion. We review de novo a Rule 12(b)(6) dismissal. Terracom v. Valley Nat’l Bank, 49 F.3d 555, 558 (9th Cir.1995). Additionally, we review de novo the district court’s grant of summary judgment. Fed.R.Civ.P. 56; Dietrich v. John Ascuaga’s Nugget, 548 F.3d 892, 896 (9th Cir.2008).

Koch alleges that California state officials (Appellees) violated his constitutional rights — including his Fourth Amendment right to be free of unreasonable searches and seizures — when they forcibly collected his DNA without a warrant, without any suspicion that he had committed additional crimes, and in excess of their statutory authority under California Penal Code § 296. As the facts and procedural history are familiar to the parties, we do not recite them here except as necessary to explain our disposition.

1. Statutory Authority for Koch’s Compulsory DNA Collection

Appellees argue that Koch was convicted under…

concurring in part and dissenting in part:

I agree with my colleagues that the individual defendants are entitled to qualified immunity and that the other claims raised by plaintiff Jack Koch were properly dismissed, but I strongly disagree with the conclusions that the collection of Koch’s DNA violated the Fourth Amendment and that Koch is entitled to destruction of the DNA information.

DNA evidence provides a powerful tool for both incrimination and exoneration, *376 helping the state both to identify the guilty and to clear the innocent. It appears to be far more accurate than eyewitness testimony and fingerprint or other forensic identification evidence. The state’s interest in facilitating the use of DNA evidence, including by expanding the collection and inventory of DNA records from Koch and other convicted felons, is obvious.

The limited privacy intrusion under the circumstances coupled with the substantial state interest in encouraging DNA identification should lead to a conclusion that the Fourth Amendment was not violated. See United States v. Kincade, 379 F.3d 813, 837 (9th Cir.2004) (en banc) (“[T]he DNA profile derived from the defendant’s blood sample establishes…