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,

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. No. 96-1115

Appeal from the United States District Court for the District of Colorado (D.C. No. 95-Z-306)1 After examining the briefs and appellate record, th is panel has determined

unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The c ase 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- Submitted on the briefs: Jason Aaron Boling, pro se. Gale A. Norton, Attorney General, Paul S. Sanzo, Fi rst 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 distr ict 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 Col o. Rev. Stat. § 17-2- 201(5)(g), which requires inmates convicted of an o ffense involving a sexual assault to provide the state with DNA samples befor e their release on parole, and2 Although not asserted as a separate claim for relie f, 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, ad dresses 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 fail ed to abide by state law will not suffice to state a constitutional claim.”); see gen erally , e.g. , Jojola v. Chavez , 55 F.3d 488, 492 (10th Cir. 1995) (“Section 1983 creat ed a federal cause of action for damages to vindicate alleged violations of fede ral 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 even t, plaintiff’s argument is foreclosed by his failure to submit to the districtcourt an affidavit, pursuant to Fed. R. Civ. P. 56(f), specifically indicating thathe was unable to oppose the summary judgment motion without discovery. See, e. g. , International Surplus (continued...) -3- the Department of Corrections’ (DOC) policies imple menting that statute. 2 Plaintiff’s principal argument is that the statute violates the Fourth Amendment prohibition against unreasonable searches and seizu res. Plaintiff also argues that the statute violates his rights under the Fifth, Ei ghth, Ninth and Fourteenth Amendments. Summary judgment is appropriate only if there are n o genuinely disputed issues of material fact and, viewing the record in the light most favorable to the nonmoving party, the movant is entitled to judgmentas 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 andliberally construe plaintiff’s pleadings. Haines v. Kerner , 404 U.S. 519, 520-21 (1972). 33 (...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- I The Colorado statute provides: As a condition of parole, the board shall require a ny 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 g enetic markers thereof and to chemical testing of his saliva to de termine the secretor status thereof. Such testing shall occur prior to the offender’s release from incarceration, and the results thereof shall b e 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 an d Fourth Circuits have addressed Fourth Amendment challenges to similar st atutes and concluded that although obtaining blood and/or saliva samples is asearch and seizure implicating Fourth Amendment concerns, the ordinary requirement s of probable cause and a warrant, or at least a showing of individualized su spicion, 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).-5-

In Jones , the Fourth Circuit rejected a Fourth Amendment ch allenge 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 ther e 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 ident ity of a person who is lawfully confined to prison.” 962 F.2d at 306. The court r elied in part on an inmate’s diminished expectation of privacy in the prison setting. [W]hen a suspect is arrested upon probable cause, h is identification becomes a matter of legitimate state interest and h e can hardly claim privacy in it. We accept this proposition because the identification of suspects is relevant not only to solving the cri me for which the suspect is arrested, but also for maintaining a per manent record to solve other past and future crimes. This becomes r eadily apparent when we consider the universal approbation of “book ing” 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 f ingerprinted just the same as is a burglar. While we do not accept even this small level of intrusion for free persons without Fourth Amendmentconstraint, 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 hol d true for those lawfully confined to the custody of the state. As with fingerprinting, therefore, we find that the Fourth Amendment does n ot require an additional finding of individualized suspicion befo re blood can be taken from incarcerated felons for the purpose of i dentifying them.
Jones , 962 F.2d at 306-07 (footnote omitted). Weighing the minimal intrusion caused by the blood test against the government’s i nterest in making a permanent-6-

identification record of convicted felons for the p urpose of resolving future crimes, the court determined that DNA sampling was reasonable. In Rise , the Ninth Circuit upheld a similar but more narro w Oregon statute requiring all inmates convicted of murder or sex of fenses, 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’ se parate interests in the privacy of the DNA information and their interest in bodily in tegrity. Id. at 1559. The Rise court noted that “[t]he information derived from th e blood sample is substantially the same as that derived from fingerprinting--an id entifying marker unique to the individual from whom the information is derived.” Id. at 1559. Noting that “everyday ‘booking’ procedures routinely require ev en the merely accused to provide fingerprint identification, regardless of w hether the investigation of the crime involves fingerprint evidence,” the court con cluded that “[o]nce a person is convicted of one of the felonies included as predic ate 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 identifyin g information derived from the blood sampling.” Id. at 1560. The Rise court then found that although obtaining DNA information requires drawing blood as opposed t o “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 Labor4 DNA testing, which is admittedly for future law enf orcement investigations, is less clearly a legitimate penolo gical concern--that is, a concern addressing the administration and operation of a pr ison, 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 pen ological interest). -7- Executives’ Ass’n , 489 U.S. 602, 625 (1989) (blood tests do not “inf ringe significant privacy interests”)). The Rise court then balanced the minimal intrusion on Fourt h Amendment interests against the legitimate government interes t in identifying and prosecuting murderers and sex offenders, the degree to which gathering the DNA information would advance that interest, “and the severity of t he resulting interference with individual liberty.” 59 F.3d at 1560. Noting “the public’s incontestable interest in preventing recidivism and identifying and prosec uting murderers and sexual offenders, and the likelihood that a DNA bank will advance this interest,” the Ninth Circuit concluded that the statute was consti tutional. Id. at 1562. We are persuaded to reach the same result, with res pect to the statute at issue here, as our sister circuits. We do not relyon any supposition that sex offenders are more likely to be recidivists than ot hers, 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 inm ate convicted of a sex-8-

offense is a search and seizure implicating Fourth Amendment concerns, it is a reasonable search and seizure. This is so in lightof 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 Ame ndment challenge, stating that “plaintiff’s privacy expectation in his body i s further reduced by his incarceration”), cert. denied , 493 U.S. 1059 (1990); the minimal intrusion of saliva and blood tests; and the legitimate governme nt interest in the investigation and prosecution of unsolved and future criminal act s by the use of DNA in a manner not significantly different from the use of fingerprints.
II Plaintiff’s Fifth Amendment claim, alleging that re quiring DNA samples from inmates amounts to compulsory self-incriminati on, 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 testi ng not testimonial evidence). Dismissal of plaintiff’s Ninth Amendment claim as t oo vague and conclusory was also appropriate. Equally unpersuasive are plainti ff’s arguments that defendants unconstitutionally deprived him of a property inter est 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 extract ion of blood for DNA sample; when the only requirement for obtaining DNA sample is conviction of predicate-9-

offense, there would be little of substance to cont est at hearing); Vanderlinden v.
Kansas , 874 F. Supp. 1210, 1216 (D. Kan. 1995) (legislati ve process in enacting legislation affecting general class satisfies proce dural 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 def endants’ assertion that parole in Colorado is discretionary, see generallyMahn 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 co nditioning 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 b efore expiration of valid sentence); cf. Jones , 962 F.2d at 310 (retroactive application to inmat es convicted before passage of statute requiring all inmates to submit DNA samples to extend inmates’ incarceration beyond mandatoryparole date violated Ex Post Facto Clause). Plaintiff argues that defendants violated the Eight h Amendment by exposing him to possible physical abuse by indicati ng, in front of other inmates,-10-

that he had to submit to DNA tests, thus disclosing to those other inmates that plaintiff was a sex offender. Plaintiff’s allegati ons 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 o nly from inmates convicted of sex offenses deprived him of the equal protection of the laws. There is no equal protection violation. A rational relat ionship exists between the government’s decision to classify inmates as convic ted sex offenders and the government’s stated objective to investigate and pr osecute unsolved and future sex crimes. See Rise , 59 F.3d at 1561 (in addressing Fourth Amendment c laim, holding statute’s requirement that all inmates conv icted of murder or sex offenses submit DNA samples bore rational relationship to pu blic interest in identifying and prosecuting murderers and sex offenders). Finally, plaintiff’s assertion that the state mightmisuse the information derived from his DNA samples, when he makes no alle gations 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 injuncti on. AFFIRMED. All pending motions are DENIED as moot.-11-