                                                            United States Court of Appeals
                                                                     Fifth Circuit
                                                                   F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT                   November 28, 2006

                                                              Charles R. Fulbruge III
                                                                      Clerk
                              No. 05-40498
                            Summary Calendar



     IAN DAVID SHEFFIELD,

                                                Plaintiff-Appellant,

          versus


     ROSE M. TREVINO; LT. DUNBAR;
     CAPT. OWENS; TEXAS DEPARTMENT
     OF CRIMINAL JUSTICE; JANIE COCKRELL,

                                                Defendants-Appellees.




             Appeal from the United States District Court
                  for the Southern District of Texas
                         USDC No. 2:03-CV-256



Before GARWOOD, DEMOSS, and BENAVIDES, Circuit Judges.

PER CURIAM:*

     Ian David Sheffield (Sheffield), Texas prisoner # 1130389,

appeals the summary judgment in favor of Rose Trevino (Trevino) on

his claim that Trevino violated various constitutional rights in

connection     with   classifying   Sheffield    as   qualifying   for    DNA




     *
      Pursuant to 5TH CIR. R. 47.5 the Court has determined that this
opinion should not be published and is not precedent except under
the limited circumstances set forth in 5TH CIR. R. 47.5.4.
collection.1     Finding no error, we affirm.

     This court reviews the trial court’s granting of summary

judgment de novo, applying the same standard as the district court.

See Mississippi River Basin Alliance v. Westphal, 230 F.3d 170, 174

(5th Cir. 2000).

     As a threshold matter, any claims for monetary damages are

without merit as Sheffield has not alleged more than a de minimis

physical injury.     See 42 U.S.C. § 1997e(e);2 Harper v. Showers, 174

F.3d 716, 718-19 (5th Cir. 1999).         However, as Sheffield seeks

declaratory and injunctive relief, we consider his underlying

constitutional claims.      See Harper, 174 F.3d at 718-19.

     With respect to Sheffield’s “class of one” equal protection

claims   under    the   Fourteenth   Amendment,   the   summary   judgment

evidence shows that Trevino’s decision to register Sheffield for

DNA collection was motivated by a belief that Sheffield had been

convicted of compelling prostitution.         Sheffield admits telling

Trevino that he had been in jail for compelling prostitution.

Accordingly, Sheffield has not shown that “an illegitimate animus



     1
        The district court granted Trevino’s motion for summary
judgment in its Order of Dismissal dated march 16, 2005. The court
entered final judgment of dismissal with prejudice on the same day.

     2
       42 U.S.C. § 1997e(e), “Limitation on recovery,” states: “No
federal civil action may be brought by a prisoner confined in a
jail, prison, or other correctional facility, for mental or
emotional injury suffered while in custody without a prior showing
of physical injury.”

                                     2
or ill-will motivated [] intentionally different treatment from

others similarly situated and that no rational basis existed for

such treatment.”       Shipp v. McMahon, 234 F.3d 907, 916 (5th Cir.

2000), overruled on other grounds by McClendon v. City of Columbia,

305 F.3d 314, 328-29 (5th Cir. 2002).           The district court did not

err in granting summary judgment on this point.

      Sheffield also contends that Trevino was motivated by his

Muslim faith.       Contrary to Trevino’s assertion, Sheffield asserted

this claim in the district court, albeit not until he filed his

objections to the magistrate judge’s report, and the district court

addressed     it.     Nevertheless,     Sheffield    failed   to    submit   any

competent summary judgment evidence that Trevino ordered the DNA

collection     based     on    any    unconstitutional      religious     bias.

Sheffield’s conclusory and unsworn assertions that Trevino became

upset when he informed her that he was Muslim were insufficient to

defeat a motion for summary judgment, particularly given that they

conflicted with Sheffield’s prior accounts of his conversation with

Trevino, in which he failed to mention any religious motivation.

See   Eason    v.    Thaler,   73    F.3d   1322,   1325   (5th    Cir.   1996).

Accordingly, summary judgment was appropriate on this claim.

      Sheffield next contends that the DNA extraction violated his

Fourth Amendment rights.        This claim is without merit in light of

our holding in Velasquez v. Woods, 329 F.3d 420, 421 (5th Cir.

2003).   See also Groceman v. U.S. Dep’t of Justice, 354 F.3d 411


                                        3
(5th Cir. 2004).

     Sheffield also asserts that his Eighth Amendment right against

cruel and unusual punishment was violated.        Sheffield’s vague

Eighth Amendment claims in the district court did not put the issue

sufficiently before the court.    See Vela v. City of Houston, 276

F.3d 659, 678-79 (5th Cir. 2001).    Further, he failed to allege or

demonstrate any injury or use of force sufficient to support an

Eighth Amendment claim.   See Siglar v. Hightower, 112 F.3d 191, 193

(5th Cir. 1997).

     Finally, Sheffield complains that the district court did not

address his claims pursuant to the Racketeer Influenced and Corrupt

Organizations Act (RICO), 18 U.S.C. §§ 1961-1965.      These claims

were first raised in a supplement to Sheffield’s objections to the

magistrate judge’s report.   As the district court did not address

them, we assume that the district court exercised its discretion

not to allow Sheffield to amend his complaint to add these claims.

See United states v. Riascos, 76 F.3d 93, 94 (5th Cir. 1996).

Given the undue delay in bringing these claims, the fact that a

summary judgment motion was pending, and Sheffield’s failure to

show why he could not have brought the claims earlier, the district

court did not abuse its discretion.       See Little v. Liquid Air

Corp., 952 F.2d 841, 846 (5th Cir. 1992).

     For the foregoing reasons, the judgment of the district court

is


                                 4
AFFIRMED.




    5
