                                                                        F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit

                                   PUBLISH                               JUL 14 1998

              UNITED STATES COURT OF APPEALSPATRICK FISHER
                                                 Clerk
                       TENTH CIRCUIT



 DOUGLAS CHARLES SHAFFER,

       Plaintiff-Appellant,

 v.

 JAMES SAFFLE, Acting Director of
 the Oklahoma Department of
 Corrections; BOBBY BOONE,
                                                       No. 97-7107
 Warden of the Mack Alford
 Correctional Center; MARCUS
 POGUE Medical Services
 Administrator of the Mack Alford
 Correctional Center; WILLIS VIEUX,
 Chief of Security of the Mack Alford
 Correctional Center,

       Defendants-Appellees,


                   Appeal from the United States District Court
                      for the Eastern District of Oklahoma
                            (D.C. No. 96-CV-610-P)


Submitted on the Briefs:

Douglas Charles Shaffer, Pro Se.

W.A. Drew Edmondson, Attorney General of Oklahoma, and Tracy Folsom
Milner, Assistant Attorney General, for Defendants-Appellees.
Before SEYMOUR, Chief Judge, BRORBY and BRISCOE, Circuit Judges.


SEYMOUR, Chief Judge.



      Douglas C. Shaffer, a pro se state prisoner, brought this action under 42

U.S.C. § 1983 asserting that requiring him to provide a DNA sample pursuant to

Oklahoma law violates his constitutional rights. Specifically, Mr. Shaffer alleges

that the operation of the state statutes denies him his rights under the First,

Fourth, and Fifth Amendments, and under the Ex Post Facto Clause. The case

was referred to a magistrate judge, who dismissed it for failure to state a claim

upon which relief can be granted under Fed. R. Civ. P. 12(b)(6). Mr. Shaffer

appeals and we affirm. 1

      “A pro se litigant’s pleadings are to be construed liberally and held to a less

stringent standard than formal pleadings drafted by lawyers.” Hall v. Bellmon,

935 F.2d 1106, 1110 (10th Cir. 1991). Dismissal for failure to state a claim is

proper only when it is clear beyond doubt that the complaint, viewed most

favorably to the plaintiff, cannot be read to state a valid claim. Id. at 1109-10.



      After examining the briefs and appellate record, this panel has determined
      1

unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9.


                                          -2-
      The Oklahoma statutes at issue establish a DNA Offender Database in

which DNA samples from individuals convicted of specified offenses are

collected and maintained for the purpose of identifying and prosecuting

perpetrators of “sex-related crimes, violent crimes, or other crimes in which

biological evidence is recovered.” Okla. Stat. tit 74, § 150.27a(A) (1996). Mr.

Shaffer was convicted of second degree murder in violation of Okla. Stat. tit. 21,

§ 701.8, which is an enumerated offense to which the DNA Database provisions

apply. Prisoners like Mr. Shaffer, who were convicted of an enumerated offense

and are in custody after July 1, 1996, must provide a sample prior to release. See

Okla. Stat. tit. 22, § 991a(I) (1997).

      Mr. Shaffer argues that requiring him to comply with the statutes violates

his rights under the Fourth and Fifth Amendments. This court recently upheld

similar state statutes against challenges both under the Fourth Amendment, see

Schlicher v. (NFN) Peters, I & II, 103 F.3d 940 (10th Cir. 1996); Boling v.

Romer, 101 F.3d 1336, 1340 (10th Cir. 1996), and under the Fifth Amendment,

see id. In rejecting the Fourth Amendment challenge, we held that while

obtaining DNA samples implicates Fourth Amendment concerns, it is reasonable

in light of an inmate’s diminished privacy rights, the minimal intrusion involved,

and the legitimate government interest in using DNA to investigate and prosecute

crimes. See Schlicher, 103 F.3d at 942-43; Boling, 101 F.3d at 1340. We


                                         -3-
rejected the Fifth Amendment self-incrimination claim because DNA samples are

not testimonial in nature. Id. We see no meaningful basis upon which to

distinguish those cases and we accordingly reject Mr. Shaffer’s argument based

on these Amendments.

      Mr. Shaffer also contends that application of the statutes to him violated his

rights under the Free Exercise Clause of the First Amendment because it forced

him to submit to a practice that will require him to deny his faith and condemn

him to eternal damnation. 2 He argues that the state has not shown a substantial

interest in implementing the statute sufficient to outweigh his religious rights, and

that he is entitled to an exception from the statute’s application. “[T]he Supreme

Court [has] held that a law that is religion-neutral and generally applicable does

not violate the Free Exercise Clause even if it incidentally affects religious

practice.” Thiry v. Carlson, 78 F.3d 1491, 1496 (10th Cir. 1996) (citing

Employment Div., Dep’t of Human Resources v. Smith, 494 U.S. 872, 878-79

(1990)). In so doing, the Court concluded that such laws may be enforced even

absent a compelling governmental interest. See Smith, 494 U.S. at 882-885. In

addition, the Court pointed out that the only decisions barring application of a


      2
        Mr. Shaffer has complied with the statute and provided a DNA sample.
He seeks injunctive relief requesting that the sample be destroyed, as well as
damages for the pain and suffering incurred when he was physically forced to
comply and for the mental suffering incurred when he was forced to violate his
religious tenets.

                                         -4-
neutral, generally applicable law under the First Amendment have been cases

involving “the Free Exercise Clause in conjunction with other constitutional

protections,” id. at 881, a situation not present here. Mr. Shaffer does not

contend the statute here is not neutral or generally applicable, nor has he alleged

the statute was applied to him differently because of his religious beliefs.

Accordingly, Mr. Shaffer has failed to state a claim for denial of his First

Amendment rights. See Thiry, 78 F.3d at 1496. 3

      Mr. Shaffer argues in addition that applying the statute to him violates the

Ex Post Facto Clause because the law became effective after he was convicted.

Other circuits have upheld similar statutes against the same challenge, holding

that because such statutes have a legitimate, non-penal legislative purpose, they

do not run afoul of the Ex Post Facto Clause under these circumstances. See Rise

v. State of Oregon, 59 F.3d 1556, 1562 (9th Cir. 1995); Gilbert v. Peters, 55 F.3d

237, 238-39 (7th Cir. 1995). We agree. We also reject Mr. Shaffer’s argument

that the statute is not to be applied retroactively under Landgraf v. USI Film

Prods., 511 U.S. 244 (1994). In that case, the Court addressed a situation in

which the legislature had not stated its intent with respect to the retroactive


      3
        Mr. Shaffer also brought a claim under the Religious Freedom Restoration
Act. As the court below pointed out, the Supreme Court recently held that the
Act’s restrictions on state and local government actions affecting religion are
unconstitutional, see City of Boerne v. Flores, 117 S. Ct. 2157 (1997), and Mr.
Shaffer’s claim under that statute is therefore precluded.

                                         -5-
application of the provisions at issue. See id. at 255-63. Here, to the contrary,

the statute governing the establishment of the DNA database directs that DNA

samples are to be taken in accordance with Okla. Stat. tit. 22, § 991a, see Okla.

Stat. tit. 74, § 150.27a(D) (1997), which in turn requires samples from anyone in

custody after July 1, 1996, who was convicted of a specified offense, see Okla.

Stat. tit. 22, § 991a(I) (1997). The legislature has thus expressed its intent that

the statute apply to prisoners like Mr. Shaffer, and the Ex Post Facto Clause is not

implicated by that application.

      The order dismissing this action is AFFIRMED.




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