               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT

                          __________________

                             No. 95-50785
                           Summary Calendar
                          __________________


JOHN WESLEY PATTON,

                                       Plaintiff-Appellant,

versus

MIKE M. MACHADO, Judge;
TANYA PALCER; JOHN DOE,
Assistant D.A.,

                                       Defendants-Appellees.



                        - - - - - - - - - -
           Appeal from the United States District Court
                 for the Western District of Texas
                       USDC No. SA-95-CV-672
                        - - - - - - - - - -
                           March 12, 1996
Before DAVIS, BARKSDALE and DeMOSS, Circuit Judges.

PER CURIAM:*

     John Wesley Patton argues that the district court abused its

discretion in dismissing his complaint as frivolous because he is

seeking injunctive relief rather than monetary damages.    He also

argues that the district court abused its discretion in imposing

a sanction order.

     We have reviewed the record, the opinion of the district

court, and the brief, and find that the dismissal of the


     *
        Pursuant to Local Rule 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that this opinion should not be published and is not precedent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 Local Rule
47.5.4.
                           No. 95-50785
                                -2-

complaint as frivolous should be affirmed, although in part for

reasons other than those stated by the district court.

     Patton's complaint, because it seeks only injunctive relief

challenging the constitutionality of his confinement, is

necessarily construed as a petition for habeas corpus.     See

McGrew v. Texas Bd. of Pardons and Paroles, 47 F.3d 158, 161 (5th

Cir. 1995).   Patton must therefore exhaust state remedies before

seeking relief in federal court.   Id.

     The district court's reliance on the doctrine of absolute

immunity was inappropriate because Patton's complaint sought

injunctive relief only, not damages.     See Chrissy F. by Medley v.

Mississippi Dep't of Pub. Welfare, 925 F.2d 844, 850 (5th Cir.

1991) (absolute immunity does not apply to suits for declaratory

or injunctive relief).

     The dismissal of the 42 U.S.C. § 1983 suit is AFFIRMED.

Insofar as Patton's complaint seeks to set aside his conviction

or sentence, the dismissal is modified to be a DISMISSAL WITHOUT

PREJUDICE, based on Patton's failure to exhaust his state

remedies.   The district court's order imposing sanctions is also

AFFIRMED.
