                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                December 10, 2003

                                                         Charles R. Fulbruge III
                                                                 Clerk
                            No. 03-40871
                        Conference Calendar



JOSE ERIC SILVA,

                                    Petitioner-Appellant,

versus

CONSTANCE REESE, Warden,

                                    Respondent-Appellee.

                         --------------------
            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).



     *
        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that this opinion should not be published and is not precedent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.
                           No. 03-40871
                                -2-

     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.
