Rivero-Proenza v. Ashcroft

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT April 9, 2003
Charles R. Fulbruge III
Clerk
No. 02-41430
Summary Calendar
EDUARDO RIVERO-PROENZA,
Petitioner-Appellant,
versus
JOHN ASHCROFT, U.S. ATTORNEY GENERAL;
DORIS MEISNER; KATHLEEN HAWK; ERNEST V. CHANDLER,
Respondents-Appellees.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 1:01-CV-12
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Before JOLLY, HIGGINBOTHAM, AND DAVIS, Circuit Judges.
PER CURIAM:*
Eduardo Rivero-Proenza, an excludable alien who arrived in
the United States in the 1980 Mariel boatlift from Cuba, appeals
the district court’s dismissal of his 28 U.S.C. § 2241 petition,
in which he sought removal from the United States and challenged
the conditions of his confinement. Rivero contends that he is
not asserting a right to parole or challenging the duration of
his confinement per se. Instead, he argues that his continued
*
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that this opinion should not be published and is not precedent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. 02-41430
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confinement is unlawful in light of the fact that he has
designated a place he can be removed to without objection from
anyone. Additionally, Rivero argues that the district court
erred in dismissing his remaining claims for failure to exhaust
his administrative remedies.
To the extent Rivero claims any right to parole or
challenges the duration of his detention per se, he is not
entitled to relief. See Gisbert v. U.S. Atty. Gen., 988 F.2d
1437, 1439 (5th Cir. 1993), amended by Gisbert v. U.S. Atty.
Gen., 997 F.2d 1122 (5th Cir. 1993). The district court did
indeed err by not addressing Rivero’s claim concerning his
continued detention; however, the error was harmless because
Rivero’s claim is frivolous.
Rivero’s conditions of confinement claim is not cognizable
in a 28 U.S.C. § 2241 proceeding. Claims concerning the
conditions of confinement should be brought in a 42 U.S.C. § 1983action and not in a 28 U.S.C. § 2241 proceeding. See Martinez
v. Texas Ct. of Crim. Appeals, 292 F.3d 417, 420 (5th Cir.),
cert. denied, 122 S. Ct. 1992 (2002). An inmate is required to
exhaust his administrative remedies prior to filing a 42 U.S.C.
§ 1983 claim. 42 U.S.C. § 1997e. The record in this case
reveals that there is an administrative remedy procedure in place
to address Rivero’s grievances and that he did not avail himself
of that procedure. Therefore, the district court properly
No. 02-41430
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dismissed Rivero’s claims concerning the conditions of his
confinement for failure to exhaust his administrative remedies.
In light of the foregoing, Rivero’s request for appointment
of counsel on appeal is denied.
JUDGMENT AFFIRMED; MOTION DENIED.