101 F.3d 1336 (10th Cir. 1996), 96-1115, Boling v. Romer

Docket Nº:96-1115.
Citation:101 F.3d 1336
Party Name: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 Medi
Case Date:December 02, 1996
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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Page 1336

101 F.3d 1336 (10th Cir. 1996)

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 (4),

Correctional Officer, DRDC, Defendants-Appellees.

No. 96-1115.

United States Court of Appeals, Tenth Circuit

December 2, 1996

        Rehearing Denied Jan. 17, 1997.

Page 1337

[Copyrighted Material Omitted]

Page 1338

        Jason Aaron Boling, pro se.

        Gale A. Norton, Attorney General, Paul S. Sanzo, First Assistant Attorney General, Civil Litigation Section, Denver, CO, 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 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, 92 S.Ct. 594, 595-96, 30 L.Ed.2d

Page 1339

652 (1972). 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, --- U.S. ----, 116 S.Ct. 1554, 134 L.Ed.2d 656 (1996); Jones v. Murray, 962 F.2d 302 (4th Cir.), cert. denied, 506 U.S. 977, 113 S.Ct. 472, 121 L.Ed.2d 378 (1992).

        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...

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