# Roosevelt Simmons v. K. Cimock

> Court of Appeals for the Eleventh Circuit · August 14, 2014 · 576 F. App'x 967

URL: https://www.frixlaw.com/law-library/cases/3049156

## Case

- **Full name:** Roosevelt SIMMONS, Plaintiff-Appellant, v. K. CIMOCK, Unit Manager, FNU Williams, Captain, D.B. Drew, Defendants-Appellees
- **Court:** Court of Appeals for the Eleventh Circuit
- **Decided:** August 14, 2014
- **Citations:** 576 F. App'x 967
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Judges:** Jordan, Rosenbaum, Black
- **Nature of suit:** NEW
- **Cited by:** 1 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/3049156

## How later opinions describe it (automated extraction)

- affirming dismissal of Bivens claim alleging defendants illegally took plaintiff’s DNA sample when “defendants were acting within the scope of their authority in obtaining a DNA sample”

## Opinion text

Case: 13-13392 Date Filed: 08/14/2014 Page: 1 of 3

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
________________________

No. 13-13392
Non-Argument Calendar
________________________

D.C. Docket No. 5:12-cv-00315-WTH-PRL

ROOSEVELT SIMMONS,

Plaintiff-Appellant,

versus

K. CIMOCK,
Unit Manager,
FNU WILLIAMS,
Captain,
D.B. DREW,

Defendants-Appellees.

________________________

Appeal from the United States District Court
for the Middle District of Florida
________________________

(August 14, 2014)

Before JORDAN, ROSENBAUM and BLACK, Circuit Judges.

PER CURIAM:
Case: 13-13392 Date Filed: 08/14/2014 Page: 2 of 3

Roosevelt Simmons, a federal prisoner proceeding pro se, appeals the

district court’s dismissal of his civil rights complaint filed pursuant to Bivens v. Six

Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971),

alleging that the defendants, various prison officials and staff, illegally took a

sample of his DNA shortly after the commencement of his incarceration. Upon

review, 1 we affirm.

The district court did not err in dismissing the complaint with prejudice

pursuant to Rule 12(b)(6) because the defendants were acting within the scope of

their authority in obtaining a DNA sample, see 42 U.S.C. § 14135a; 28 C.F.R.

§ 28.12, and Simmons has failed to show that the defendants’ actions violated any

clearly-established constitutional rights, see Andujar v. Rodriguez, 486 F.3d 1199,

1202-03 (11th Cir. 2007). Simmons argues the defendants should have sought to

obtain his DNA sample closer to his release date rather than shortly after his arrival

at the prison, but he has not shown any authority establishing this rule, nor has he

shown that a violation of this rule amounts to a constitutional violation sufficient to

support a claim under Bivens, 403 U.S. at 397. Accordingly, the defendants are

entitled to qualified immunity from Simmons’ claim, and the district court did not

err in dismissing the complaint. Moreover, the district court did not err in

1
We review de novo the grant of a motion to dismiss under Fed. R. Civ. P. 12(b)(6) for
failure to state a claim, accepting the complaint’s allegations as true and construing them in the
light most favorable to the plaintiff. Spain v. Brown & Williamson Tobacco Corp., 363 F.3d
1183, 1187 (11th Cir. 2004).

2
Case: 13-13392 Date Filed: 08/14/2014 Page: 3 of 3

dismissing without leave to amend because Simmons never requested leave to

amend his complaint to remedy any deficiencies, see Access Now, Inc. v. Sw.

Airlines Co., 385 F.3d 1324, 1331 (11th Cir. 2004), and because the record gives

no indication that an amendment would not have been futile, see Corsello v.

Lincare, Inc., 428 F.3d 1008, 1014 (11th Cir. 2005).

AFFIRMED.

3

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/3049156. Public record. Not legal advice.