                                   PUBLISH


                   UNITED STATES COURT OF APPEALS
Filed 12/2/96
                          FOR THE TENTH CIRCUIT




JASON AARON BOLING,
individually and on behalf of others
similarly situated,

            Plaintiff-Appellant,                      No. 96-1115

v.

ROY ROMER, Governor of the State
of Colorado; ARISTEDES ZAVARAS,
Executive Director of DOC; J.
FRANK RICE, Warden of DOC
Diagnostic Unit; CARL W.
WHITESIDE, Director of Colorado
Bureau of Investigation; John or Jane
Doe (1), Clinical Supervisor Medical
Services DRDC; Jane Doe (2),
Clinical Services staff member,
DRDC; Jane Doe (3), Clinical
Services staff member, DRDC; John
Doe (2), Correctional Officer, DRDC,

            Defendants-Appellees.




                  Appeal from the United States District Court
                          for the District of Colorado
                              (D.C. No. 95-Z-306)
Submitted on the briefs:

Jason Aaron Boling, pro se.

Gale A. Norton, Attorney General, Paul S. Sanzo, First Assistant Attorney
General, Civil Litigation Section, Denver, Colorado, for Defendants-Appellees
Romer, Zavaras and Whiteside.



Before PORFILIO, LOGAN and BRISCOE, Circuit Judges.


LOGAN, Circuit Judge.



      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 constitutionality of Colo. Rev. Stat. § 17-2-

201(5)(g), which requires inmates convicted of an offense involving a sexual

assault to provide the state with DNA samples before their release on parole, and




1
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore
ordered submitted without oral argument.

       One defendant, J. Frank Rice, has never been served with the complaint
and, therefore, is not a party to this action.


                                         -2-
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.

      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

pleadings. Haines v. Kerner, 404 U.S. 519, 520-21 (1972). 3

2
       Although not asserted as a separate claim for relief, plaintiff argues that the
policies adopted by the DOC are inconsistent with the language of Colo. Rev.
Stat. § 17-2-201(5)(g). That argument, however, addresses only state law
concerns and, therefore, does not support plaintiff’s claims for relief under the
federal civil rights statutes. Cf. Nilson v. Layton City, 45 F.3d 369, 372 (10th
Cir. 1995) (“Mere allegations that an official failed to abide by state law will not
suffice to state a constitutional claim.”); see generally, e.g., Jojola v. Chavez, 55
F.3d 488, 492 (10th Cir. 1995) (“Section 1983 created a federal cause of action
for damages to vindicate alleged violations of federal law.”).
3
       In his reply brief plaintiff asserts for the first time that the district court
erred in granting summary judgment before discovery. This court will not address
issues raised for the first time in a reply brief. E.g., Codner v. United States, 17
F.3d 1331, 1332 n. 2 (10th Cir. 1994). In any event, plaintiff’s argument is
foreclosed by his failure to submit to the district court an affidavit, pursuant to
Fed. R. Civ. P. 56(f), specifically indicating that he was unable to oppose the
summary judgment motion without discovery. See, e.g., International Surplus
                                                                            (continued...)

                                           -3-
                                          I

      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.

Colo. Rev. Stat. § 17-2-201(5)(g)(I). The Ninth and 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).




3
 (...continued)
Lines Ins. Co. v. Wyoming Coal Ref. Sys., Inc., 52 F.3d 901, 905 (10th Cir.
1995). More important, the issues in this case are legal, not factual; we are
satisfied that nothing obtained by further discovery could affect the conclusions
we reach on the issues that are presented in this appeal.

                                        -4-
      In Jones, the Fourth Circuit rejected a Fourth Amendment challenge to a

Virginia statute requiring all convicted felons to submit blood samples for DNA

analysis and inclusion in a data bank for future law enforcement purposes. In

reaching that conclusion, the court determined there is no “per se Fourth

Amendment requirement of probable cause, or even a lesser degree of

individualized suspicion, when government officials conduct a limited search for

the purpose of ascertaining and recording the identity of a person who is lawfully

confined to prison.” 962 F.2d at 306. The court relied in part on an inmate’s

diminished expectation of privacy in the prison setting.

      [W]hen a suspect is arrested upon probable cause, his identification
      becomes a matter of legitimate state interest and he can hardly claim
      privacy in it. We accept this proposition because the identification
      of suspects is relevant not only to solving the crime for which the
      suspect is arrested, but also for maintaining a permanent record to
      solve other past and future crimes. This becomes readily apparent
      when we consider the universal approbation of “booking” procedures
      that are followed for every suspect arrested for a felony, whether or
      not the proof of a particular suspect’s crime will involve the use of
      fingerprint identification. Thus a tax evader is fingerprinted just the
      same as is a burglar. While we do not accept even this small level of
      intrusion for free persons without Fourth Amendment constraint, see
      Davis v. Mississippi, 394 U.S. 721, 727, 89 S. Ct. 1394, 1397, 22
      L.Ed.2d 676 (1969), the same protections do not hold true for those
      lawfully confined to the custody of the state. As with fingerprinting,
      therefore, we find that the Fourth Amendment does not require an
      additional finding of individualized suspicion before blood can be
      taken from incarcerated felons for the purpose of identifying them.

Jones, 962 F.2d at 306-07 (footnote omitted). Weighing the minimal intrusion

caused by the blood test against the government’s interest in making a permanent

                                        -5-
identification record of convicted felons for the purpose of resolving future

crimes, the court determined that DNA sampling was reasonable.

      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 in a data bank. 59 F.3d at 1558-59.

The Ninth Circuit first examined 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


                                          -6-
Executives’ Ass’n, 489 U.S. 602, 625 (1989) (blood tests do not “infringe

significant privacy interests”)).

      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.

      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



4
       DNA testing, which is admittedly for future law enforcement
investigations, is less clearly a legitimate penological concern--that is, a concern
addressing the administration and operation of a prison, State ex rel. Juvenile
Dep’t v. Orozco, 878 P.2d 432, 434-35 (Or. Ct. App. 1994); see Rise, 59 F.3d at
1559 (declining to determine whether obtaining DNA samples from inmates for
law enforcement purposes also serves legitimate penological interest).

                                          -7-
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

      Plaintiff’s Fifth Amendment claim, alleging that requiring DNA samples

from inmates amounts to compulsory self-incrimination, fails 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 without due

process or just compensation. See Rise, 59 F.3d at 1562-63 (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


                                         -8-
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).

      In addition, because plaintiff does not dispute defendants’ assertion that

parole in Colorado is discretionary, see generally Mahn v. Gunter, 978 F.2d 599,

600-01 (10th Cir. 1992) (parole for sex offenders, under various Colorado parole

schemes, is discretionary), Colo. Rev. Stat. § 17-2-201(5)(g) does not implicate

any 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).

      Plaintiff argues that defendants violated the Eighth Amendment by

exposing him to possible physical abuse by indicating, in front of other inmates,


                                         -9-
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. See Riddle v. Mondragon, 83 F.3d 1197, 1204-06

(10th Cir. 1996) (citing Farmer v. Brennan, 511 U.S. 825 (1994)).

      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).

      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 In re Welfare of Z.P.B., 474

N.W.2d 651, 653-54 (Minn. Ct. App. 1991).

      In light of the preceding discussion, the district court did not err in

declining to grant plaintiff a preliminary injunction.

      AFFIRMED. All pending motions are DENIED as moot.


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