                                                                              F I L E D
                                                                       United States Court of Appeals
                                                                               Tenth Circuit
                        UNITED STATES COURT OF APPEALS
                                                                              DEC 11 2003
                                    TENTH CIRCUIT
                                                                           PATRICK FISHER
                                                                                   Clerk

 ALVIN D. ESNAULT, JR.,

          Plaintiff-Appellant,
 v.                                                          No. 03-1153
 BRIAN BURNETT, Exec. Director Colo.                     (D.C. No. 02-B-54)
 Dept. of Corrections; ROBERT                              (D. Colorado)
 FURLONG, Warden, Sterling
 Correctional Facility; CAPTAIN
 JEMMERSON, Sterling Correctional
 Facility; JERRY GASKO, Assistant
 Director, Colo. Dept. of Corrections; J.
 OLSEN, Case Manager, Sterling
 Correctional Facility; E. KING, Case
 Manager, Sterling Correctional Facility,

          Defendants-Appellees.




                                 ORDER AND JUDGMENT*


Before KELLY, BRISCOE, and LUCERO, Circuit Judges.


      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of this


      *
        This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered

submitted without oral argument.

       Plaintiff Alvin D. Esnault, Jr., appearing pro se, appeals the district court's entry of

summary judgment in favor of defendants in his 42 U.S.C. § 1983 civil rights action. We

exercise jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.

                                              I.

       Esnault was convicted of first degree arson and second degree assault and is

incarcerated at the Sterling Correctional Facility. Colo. Rev. Stat. § 16-11-102.3 requires

that such offenders submit to collection of a biological substance sample at least 30 days

prior to discharge or release from custody. If an inmate refuses, the Colorado Department

of Corrections is authorized to obtain the sample by reasonable force. Id. Esnault refused

to sign a “Notification of Lawful Order for DNA Testing.” Correctional officers ordered

him to report to the medical department for testing, where Esnault again refused to sign

the notification but stated he would not resist. Esnault's blood sample was drawn without

use of force.

       Esnault filed his § 1983 action alleging defendants violated his First, Eighth, and

Fourteenth Amendment rights, the ex post facto clauses of the United States and Colorado

Constitutions, and the takings clause of the Colorado Constitution. He sought

compensatory and punitive damages and declaratory and injunctive relief. The district

court adopted the recommendation of the magistrate judge and granted summary


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judgment in favor of defendants.

                                             II.

       We review the grant of summary judgment de novo. See Sealock v. Colorado, 218

F.3d 1205, 1209 (10th Cir. 2000). To state a successful claim under § 1983, a complaint

must allege facts that, if assumed to be true, would demonstrate the defendants deprived

the plaintiff of a right secured by federal law while acting under color of state law.

Adickes v. S.H. Kress & Co., 398 U.S. 144, 150 (1970).

       Esnault contends defendants Brian Burnett, Jerry Gasko, and Robert Furlong were

responsible for the acts of their employees and should not have been dismissed as parties.

Under § 1983, when a defendant is sued in his individual capacity, the complaint must

allege facts that show the defendant personally participated in the alleged violation.

Bennett v. Passic, 545 F.2d 1260, 1262-63 (10th Cir. 1976). Consistent with this rule,

this court has held that a supervisor cannot be held liable for his employees' actions based

solely on his supervisory position. Jenkins v. Wood, 81 F.3d 988, 994 (10th Cir. 1996).

Rather, there must be some affirmative link between the alleged deprivation and the

supervisor's control or failure to supervise. Meade v. Grubbs, 841 F.2d 1512, 1527 (10th

Cir. 1988). Here, Esnault failed to allege any facts that showed personal participation on

the part of defendants Burnett, Gasko, or Furlong.

       Esnault also contends his First Amendment claim of the right to petition the court

for redress of his grievances should not have been dismissed. To prevail on this claim,


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Esnault must demonstrate an actual injury to his ability to pursue a non-frivolous legal

claim. Lewis v. Casey, 518 U.S. 343, 351-52 (1996); Cosco v. Uphoff, 195 F.3d 1221,

1224 (10th Cir. 1999). There was no evidence presented to support a claim for denial of

access, i.e., there is no evidence that defendants hindered Esnault's efforts to pursue a

legal claim.

       Esnault contends that drawing his blood without his consent constituted an

unlawful taking of a property interest without just compensation, in violation of the

Colorado Constitution. It is well established that a claim cannot be brought under § 1983

for an alleged violation of state law. Malek v. Haun, 26 F.3d 1013, 1016 (10th Cir.

1994). Further, this court has stated that the takings clause does not provide prisoners

with protection against unwanted DNA testing. See Boling v. Romer, 101 F.3d 1336,

1341 (10th Cir. 1996).

       Next, Esnault contends the district court erred in dismissing his Eighth

Amendment claim that the unauthorized taking of DNA constituted cruel and unusual

punishment. There are two primary requirements for proving an actionable violation of

the Eighth Amendment. First, an inmate must demonstrate that the deprivation suffered

was “objectively,” “sufficiently serious.” Wilson v. Seiter, 501 U.S. 294, 298 (1991).

Second, the inmate must establish that prison officials had a sufficiently culpable state of

mind in allowing the deprivation to take place. Id. at 302-03. In prison-conditions cases,

that state of mind is one of “deliberate indifference” to inmate health or safety. Id.


                                              4
Esnault failed to present any evidence establishing that defendants disregarded an

excessive risk to his health or safety and the facts do not support the subjective

“deliberate indifference” requirement. See Boling, 101 F.3d at 1341 (dismissing Eighth

Amendment claim against state officer where state officer drew blood to establish DNA

data bank).

       Esnault contends the district court erred in dismissing his Eighth Amendment

excessive force claim. To prevail on this claim, Esnault must show that the force used

exceeded contemporary standards of decency. Hudson v. McMillian, 503 U.S. 1, 6-7

(1992); Mitchell v. Maynard, 80 F.3d 1433, 1440 (10th Cir. 1996). Here, it is undisputed

that force was not used.

       Esnault also contends the district court erred in dismissing his Fourteenth

Amendment due process claims. We first conclude that Esnault's procedural due process

rights were not violated because the due process clause does not require a hearing before

the involuntary extraction of blood for DNA sampling. See Boling, 101 F.3d at 1340-41.

As regards Esnault's substantive due process rights, we agree with the district court that

the claim should be dismissed, but we would resolve the issue on different grounds. As

we recently explained in the context of a claim to be free from unauthorized medical

examinations, “where a particular Amendment provides an explicit textual source of

constitutional protection against a particular sort of government behavior, that

Amendment, not the more generalized notion of substantive due process, must be the


                                              5
guide for analyzing these claims.” Dubbs v. Head Start, Inc., 336 F.3d 1194, 1203 (10th

Cir. 2003). In United States v. Kimler, 335 F.3d 1132, 1146 (10th Cir. 2003), we held

that the right to be free from unwanted DNA testing implicates a Fourth Amendment

right. We therefore analyze Esnault's substantive due process claim by first determining

whether the Fourth Amendment affords him the right to be free from compelled

collection of a blood sample for DNA testing. In Kimler, we held that laws compelling

the collection of DNA from prisoners fall under the special needs exception to the Fourth

Amendment's warrant requirement. Kimler requires dismissal of this claim for failure to

state a substantive due process claim.

       Finally, Esnault contends the taking of blood violated the ex post facto clause

because the law did not become effective until after he was convicted and impermissibly

increased the punishment for his crimes beyond that imposed by the sentencing court.

This issue is foreclosed by our ruling in Shaffer v. Saffle, 148 F.3d 1180, 1182 (10th Cir.

1998), where we held statutes that require offenders to provide DNA samples have a

“legitimate, non-penal legislative purpose” and therefore “do not run afoul of the Ex Post

Facto Clause.” See Jamison v. People, 988 P.2d 177. 180 (Colo. App. 1999) (holding

state statutes requiring convicted sex offenders released from custody to submit to

chemical blood testing did not violate ex post facto clauses of federal and state

constitutions because intent of statute is remedial, not punitive); see also Gilbert v. Peters,

55 F.3d 237, 238-39 (7th Cir. 1995) (general DNA law requiring blood samples from


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prisoners are not penal in nature and do not violate ex post facto clause); Jones v. Murray,

962 F.2d 302, 309 (4th Cir. 1992) (same).

       AFFIRMED. All pending motions are DENIED.

                                          Entered for the Court

                                          Mary Beck Briscoe
                                          Circuit Judge




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