Silva v. Reese

* 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that this opinion should not be published and is not precedent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.
United States Court of Appeals
Fifth Circuit
F I L E D
December 10, 2003
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 03-40871
Conference Calendar
JOSE ERIC SILVA,
Petitioner-Appellant,
versus
CONSTANCE REESE, Warden,
Respondent-Appellee.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 1:03-CV-263
--------------------
Before DAVIS, EMILIO M. GARZA, and DENNIS, Circuit Judges.
PER CURIAM:*
Jose Eric Silva, federal prisoner # 20105-148, appeals the
district court’s dismissal without prejudice of his 28 U.S.C.
§ 2241 habeas petition for failure to exhaust his administrative
remedies. The district court construed his petition as a civil
rights action because Silva is challenging the conditions of his
confinement. See Carson v. Johnson, 112 F.3d 818, 820 (5th Cir.
1997).

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No. 03-40871
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As the district court correctly held, whether Silva’s
petition is construed as a habeas petition or a civil rights
action, he was required to exhaust his prison administrative
remedies prior to seeking relief in the federal court, and the
record reflects that he failed to do so. See Rourke v. Thompson,
11 F.3d 47, 49 & n.6 (5th Cir. 1993).
On appeal, Silva has not addressed the district court’s
dismissal of his petition for failure to exhaust. Because Silva
has failed to contest the district court’s conclusion that he has
failed to exhaust administrative remedies, any challenge to such
conclusion is abandoned. See Brinkmann v. Dallas County Deputy
Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987); Yohey v.
Collins, 985 F.2d 222, 224-25 (5th Cir. 1993); FED. R. APP.
P. 28(a)(9). The dismissal of his petition without prejudice is
AFFIRMED.

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