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

### JUL 14 1998 

### PATRICK FISHER Clerk 

### PUBLISH UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

DOUGLAS CHARLES SHAFFER, Plaintiff-Appellant,

v. JAMES SAFFLE, Acting Director of the Oklahoma Department of Corrections; BOBBY BOONE, 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, No. 97-7107

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.1 After examining the briefs and appellate record, th is panel has determined

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

-2- 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 provi de a DNA sample pursuant to Oklahoma law violates his constitutional rights. S pecifically, 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 PostFacto Clause. The case was referred to a magistrate judge, who dismissed i t 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 bylawyers.” Hall v. Bellmon , 935 F.2d 1106, 1110 (10th Cir. 1991). Dismissal fo r 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.-3-

The Oklahoma statutes at issue establish a DNA Offe nder Database in which DNA samples from individuals convicted of spe cified offenses are collected and maintained for the purpose of identif ying and prosecuting perpetrators of “sex-related crimes, violent crimes , or other crimes in which biological evidence is recovered.” Okla. Stat. tit74, § 150.27a(A) (1996). Mr. Shaffer was convicted of second degree murder in vi olation of Okla. Stat. tit. 21, § 701.8, which is an enumerated offense to which th e DNA Database provisions apply. Prisoners like Mr. Shaffer, who were convic ted 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 unde r 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 h eld that while obtaining DNA samples implicates Fourth Amendment c oncerns, it is reasonable in light of an inmate’s diminished privacy rights, the minimal intrusion involved, and the legitimate government interest in using DNAto investigate and prosecute crimes. See Schlicher, 103 F.3d at 942-43; Boling , 101 F.3d at 1340. We2 Mr. Shaffer has complied with the statute and prov ided a DNA sample.

He seeks injunctive relief requesting that the samp le 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 h e was forced to violate his religious tenets. -4- rejected the Fifth Amendment self-incrimination cla im because DNA samples are not testimonial in nature. Id. We see no meaningful basis upon which to distinguish those cases and we accordingly reject M r. Shaffer’s argument based on these Amendments. Mr. Shaffer also contends that application of the s tatutes 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 t o deny his faith and condemn him to eternal damnation. 2 He argues that the state has not shown a substant ial interest in implementing the statute sufficient to outweigh his religious rights, and that he is entitled to an exception from the statut e’s application. “[T]he Supreme Court [has] held that a law that is religion-neutra l and generally applicable does not violate the Free Exercise Clause even if it inc identally 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 suc h 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 decis ions barring application of a3 Mr. Shaffer also brought a claim under the Religio us Freedom Restoration

Act. As the court below pointed out, the Supreme C ourt recently held that the Act’s restrictions on state and local government ac tions 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 pre cluded. -5- neutral, generally applicable law under the First A mendment have been cases involving “the Free Exercise Clause in conjunction with other constitutional protections,” id. at 881, a situation not present here. Mr. Shafferdoes not contend the statute here is not neutral or generall y 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 clai m for denial of his First Amendment rights. See Thiry , 78 F.3d at 1496. 3 Mr. Shaffer argues in addition that applying the st atute to him violates the Ex Post Facto Clause because the law became effecti ve after he was convicted. Other circuits have upheld similar statutes againstthe same challenge, holding that because such statutes have a legitimate, non-p enal 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 re ject 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 add ressed a situation in which the legislature had not stated its intent with respect to the retroactive-6-

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. St at. tit. 22, § 991a, see Okla. Stat. tit. 74, § 150.27a(D) (1997), which in turn r equires 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 h as thus expressed its intent that the statute apply to prisoners like Mr. Shaffer, an d the Ex Post Facto Clause is not implicated by that application. The order dismissing this action is AFFIRMED

.