No. 96-1115.United States Court of Appeals, Tenth Circuit.
Filed December 2, 1996. Rehearing Denied January 17, 1997.
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Jason Aaron Boling, pro se.
Gale A. Norton, Attorney General, Paul S. Sanzo, First Assistant Attorney General, Civil Litigation Section, Denver,
Appeal from the United States District Court for the District of Colorado
Before PORFILIO, LOGAN and BRISCOE, Circuit Judges.
LOGAN, Circuit Judge.
[1] Plaintiff Jason Aaron Boling appeals from the district court’s order granting summary judgment against him on his 42 U.S.C. § 1983, 1985, and 1988 claims.[1] Plaintiff challenged the requires inmates convicted of an offense involving a sexual assault to provide the state with DNA samples before their release on parole, and the Department of Corrections’ (DOC) policies implementing that statute.[2] Plaintiff’s principal argument is that the statute violates the Fourth Amendment prohibition against unreasonable searches and seizures. Plaintiff also argues that the statute violates his rights under the Fifth, Eighth, Ninth and Fourteenth Amendments. [2] Summary judgment is appropriate only if there are no genuinely disputed issues of material fact and, viewing the record in the light most favorable to the nonmoving party, the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Carl v. City of Overland Park, 65 F.3d 866, 868 (10th Cir. 1995). We review the district court’s decision de novo and liberally construe plaintiff’s pleading. Haines v. Kerner, 404 U.S. 519, 520-21, 92 S. Ct. 594, 595-96,Page 1339
30 L.Ed.2d 652 (1972.)[3]
I.
[3] The Colorado statute provides:
As a condition of parole, the board shall require any offender convicted of an offense for which the factual basis involved a sexual assault as defined in part 4 of article 3 of title 18, C.R.S., to submit to chemical testing of his blood to determine the genetic markers thereof and to chemical testing of his saliva to determine the secretor status thereof. Such testing shall occur prior to the offender’s release from incarceration, and the results thereof shall be filed with and maintained by the Colorado bureau of investigation. The results of such tests shall be furnished to any law enforcement agency upon request.
Fourth Circuits have addressed Fourth Amendment challenges to similar statutes and concluded that although obtaining blood and/or saliva samples is a search and seizure implicating Fourth Amendment concerns, the ordinary requirements of probable cause and a warrant, or at least a showing of individualized suspicion, are not applicable. See Rise v. Oregon, 59 F.3d 1556 (9th Cir. 1995), cert. denied, 116 S.Ct. 1554
(1996); Jones v. Murray, 962 F.2d 302 (4th Cir.), cert. denied, 506 U.S. 977
(1992).
minimal intrusion caused by the blood test against the government’s interest in making a permanent identification record of convicted felons for the purpose of resolving future crimes, the court determined that DNA sampling was reasonable.
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[8] In Rise, the Ninth Circuit upheld a similar but more narrow Oregon statute requiring all inmates convicted of murder or sex offenses, or certain related crimes, to submit DNA samples for inclusion the plaintiffs’ separate interests in the privacy of the DNA information and their interest in bodily integrity. Id. at 1559. The Rise court noted that “[t]he information derived from the blood sample is substantially the same as that derived from fingerprinting — an identifying marker unique to the individual from whom the information is derived.” Id. at 1559. Noting that “everyday `booking’ procedures routinely require even the merely accused to provide fingerprint identification, regardless of whether the investigation of the crime involves fingerprint evidence,” the court concluded that “[o]nce a person is convicted of one of the felonies included as predicate offenses under [the Oregon statute], his identity has become a matter of state interest and he has lost any legitimate expectation of privacy in the identifying information derived from the blood sampling.” Id. at 1560. The Rise court then found that although obtaining DNA information requires drawing blood as opposed to “inking and rolling a person’s fingertips,” id., that difference does not render the intrusion on Fourth Amendment interests more than minimal. Id. (citing Skinner v. Railway Labor Executives’ Ass’n, 489 U.S. 602, 625 (1989) (blood tests do not “infringe significant privacy interests”)). [9] The Rise court then balanced the minimal intrusion on Fourth Amendment interests against the legitimate government interest in identifying and prosecuting murderers and sex offenders, the degree to which gathering the DNA information would advance that interest, “and the severity of the resulting interference with individual liberty.”59 F.3d at 1560. Noting “the public’s incontestable interest in preventing recidivism and identifying and prosecuting murderers and sexual offenders, and the likelihood that a DNA bank will advance this interest,” the Ninth Circuit concluded that the statute was constitutional. Id. at 1562. [10] We are persuaded to reach the same result, with respect to the statute at issue here, as our sister circuits. We do not rely on any supposition that sex offenders are more likely to be recidivists than others, nor, as the district court did, on the penological interests within the prison.[4] We do rely upon the specific relevance of DNA evidence to prove sexual assaults. Thus we hold that while obtaining and analyzing the DNA or saliva of an inmate convicted of a sex offense is a search and seizure implicating Fourth Amendment concerns, it is a reasonable search and seizure. This is so in light of an inmate’s diminished privacy rights, see Dunn v. White, 880 F.2d 1188, 1195 (10th Cir. 1989) (in upholding AIDS testings against inmates’ Fourth Amendment challenge, stating that “plaintiff’s privacy expectation in his body is further reduced by his incarceration”), cert. denied, 493 U.S. 1059(1990); the minimal intrusion of saliva and blood tests; and the legitimate government interest in the investigation and prosecution of unsolved and future criminal acts by the use of DNA in a manner not significantly different from the use of fingerprints.
II.
[11] Plaintiff’s Fifth Amendment claim, alleging that requiring DNA because DNA samples are not testimonial in nature. See Lucero v. Gunter, 17 F.3d 1347, 1350 (10th Cir. 1994) (urine samples used for drug testing not testimonial evidence). Dismissal of plaintiff’s Ninth Amendment claim as too vague and conclusory was also appropriate. Equally unpersuasive are plaintiff’s arguments that defendants unconstitutionally deprived him of a property interest in his blood
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(Due Process Clause does not require hearing before involuntary extraction of blood for DNA sample; when the only requirement for obtaining DNA sample is conviction of predicate offense, there would be little of substance to contest at hearing); Vanderlinden v. Kansas, 874 F. Supp. 1210, 1216 (D. Kan. 1995) (legislative process in enacting legislation affecting general class satisfies procedural due process to which those members of affected class entitled); cf. Dunn, 880 F.2d at 1198 (where court had approved, in general, blood testing of inmates for AIDS, inmates were not entitled to individual due process hearings).
[12] In addition, because plaintiff does not dispute defendants’ assertion that parole in Colorado is discretionary, see generally Mahn offenders, under various Colorado parole schemes, is discretionary), liberty interest protected by due process by conditioning parole on an inmate’s submission of DNA samples. See Greenholtz v. Inmates of Neb. Penal Correctional Complex, 442 U.S. 1, 7 (1979) (convicted individual has no constitutional right to be conditionally released before expiration of valid sentence); cf. Jones, 962 F.2d at 310 (retroactive application to inmates convicted before passage of statute requiring all inmates to submit DNA samples to extend inmates’ incarceration beyond mandatory parole date violated Ex Post Facto Clause). [13] Plaintiff argues that defendants violated the Eighth Amendment by exposing him to possible physical abuse by indicating, in front of other inmates, that he had to submit to DNA tests, thus disclosing to those other inmates that plaintiff was a sex offender. Plaintiff’s allegations are insufficient to state a valid Eighth Amendment claim. Farmer v. Brennan, 511 U.S. 825 (1994)). [14] Plaintiff further asserts that taking DNA samples only from inmates convicted of sex offenses deprived him of the equal protection of the laws. There is no equal protection violation. A rational relationship exists between the government’s decision to classify inmates as convicted sex offenders and the government’s stated objective to investigate and prosecute unsolved and future sex crimes. See Rise, 59 F.3d at 1561 (in addressing Fourth Amendment claim, holding statute’s requirement that all inmates convicted of murder or sex offenses submit DNA samples bore rational relationship to public interest in identifying and prosecuting murderers and sex offenders). [15] Finally, plaintiff’s assertion that the state might misuse the information derived from his DNA samples, when he makes no allegations of any specific misuse, fails to state a justiciable controversy. See [16] In light of the preceding discussion, the district court did not err in declining to grant plaintiff a preliminary injunction. [17] AFFIRMED. All pending motions are DENIED as moot.One defendant, J. Frank Rice, has never been served with the complaint and, therefore, is not a party to this action.