* This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3.

** After examining the briefs and appellate record, t he panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2)(c); 10th Cir. R. 34.1(G). The case is therefore ordered submitted w ithout oral argument. 

## F I L E D United States Court of Appeals Tenth Circuit 

### JUN 15 2000 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

DAVID Y. MERRITT, Petitioner-Appellant,

v. No. 00-1129 MICHAEL PUGH, Warden; M. HAWK-SAWYER, Respondents-Appellees. (D.C. No. 00-Z-455) (D. Colo.)

ORDER AND JUDGMENT *

Before BALDOCK , HENRY , and LUCERO , Circuit Judges. **

Petitioner David Y. Merritt, proceeding pro se, fil ed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 in feder al district court challenging his prison disciplinary proceedings and his conditi ons of confinement in federal prison. The district court dismissed the petition without prejudice and denied-2-

Petitioner’s motion to proceed in forma pauperis on appeal. Petitioner appeals the dismissal and renews his motion to proceed in formapauperis on appeal. We exercise jurisdiction pursuant to 28 U.S.C. § 1291. We deny Petitioner’s motions and dismiss the appeal. The issues in Petitioner’s application fall into tw o categories: challenges to prison disciplinary actions and challenges to condi tions of confinement. Regarding the prison disciplinary actions, Petition er alleges that prison officials fabricated incident reports and deprived him of due process in disciplinary hearings in order to divest him of good time credit s. For relief, Petitioner seeks expunction of the incident reports and restoration of the good time credits. Among Petitioner’s complaints about the conditions of confinement are the mental-hospital-like conditions, lack of fresh air, and the lack of access to medical care. Petitioner seeks a prison transfer, more access to sunlight and the outdoors, and possession of dental care tools and e yeglasses. A magistrate judge initially granted Petitioner’s m otion to proceed in forma pauperis. After reviewing the application for a wr it of habeas corpus pursuant to 28 U.S.C. § 2241, the magistrate judge noted that P etitioner’s challenges to the conditions of his confinement do not belong in a § 2241 action, but should be brought under Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics , 403 U.S. 388 (1971). See McIntosh v. United States Parole Comm’n ,-3-

115 F.3d 809, 811-12 (10th Cir. 1997). Accordingly , the magistrate judge construed the application as a civil action for purposes of 28 U.S.C. § 1915 and ordered Plaintiff to submit a new motion to proceed in forma pauperis–including a trust fund account statement–and file an amended pl eading on a different form. Petitioner filed objections to the magistrate judge ’s order to cure deficiencies. He asked the district court to either grant his object ions or dismiss the case immediately so he could appeal. The district court overruled Petitioner’s objection s, denied his § 2241 application, and dismissed his case without prejudi ce. Petitioner filed a motion to proceed in forma pauperis on appeal, indicating tha t although he was aware that at least one of his claims concerned conditions of con finement, he believed that claim was cognizable in a § 2241 petition. The dis trict court denied that motion, noting that Petitioner’s appeal was not taken in good faith. See 28 U.S.C. § 1915(a)(3); Fed. R. App. P. 24(a)(3). After thoroughly reviewing the record on appeal, Pe titioner’s brief, and the district court’s order, we conclude that Petitioner has failed to make a nonfrivolous argument for relief substantially for the reasons set forth in the district court’s order of March 16, 2000. Accordin gly, we deny Petitioner’s motion to proceed in forma pauperis on appeal and dismiss his appeal. See Murphy v. Brooks , No. 97-1175, 1997 WL 796485 at *1 (10th Cir. Dec. 31, 1997)-4-

(unpublished) (affirming the denial of a § 2241 act ion raising conditions of confinement claims). We note that the district cou rt dismissed Petitioner’s application without prejudice, allowing him to re-f ile his claims in compliance with the magistrate judge’s order to cure deficienc ies. MOTION DENIED; APPEAL DISMISSED. Entered for the Court,
Bobby R. Baldock Circuit Judge