*

 This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and collateral estoppel. This court

generally disfavors the citation of orders and judgments; nevertheless, an order

and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.

** After examining the briefs and the appellate record, this three-judge

panel has determined unanimously that oral argument would not be of material

assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th

Cir. R. 34.1.9. The cause is therefore ordered submitted without oral argument.

F I L E D

United States Court of Appeals

Tenth Circuit

APR 2 1998

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

BOJIDAR GEROGIEV BAKALOV,

Petitioner - Appellant,

vs.

O. LANE McCOTTER,

Respondent - Appellee.

No. 97-4023

(D.C. No. 96-CV-706)

(D. Utah)

ORDER AND JUDGMENT*

Before PORFILIO, KELLY, and HENRY, Circuit Judges.**

Mr. Bakalov, an inmate appearing pro se, appeals from the dismissal of his 

habeas corpus petition pursuant to 28 U.S.C. § 2254. He sought relief from an

inmate disciplinary hearing officer’s finding that he sexually assaulted another

inmate. In addition to challenging the hearing officer’s finding and resulting

30-day sanction on due process grounds, he also challenged the conditions of his
- 2 -

confinement. 

The magistrate judge determined that Mr. Bakalov’s action sounded under

42 U.S.C. § 1983, and concluded that Mr. Bakalov could not proceed in forma

pauperis because he had filed at least three prior civil actions that had been

dismissed as frivolous or failing to state a claim. See 28 U.S.C. § 1915(g); see

also Mapp v. Dovala, Nos. 97-8050, 97-8072, 97-8106, 1998 WL 116179, at *1

(10th Cir. Mar. 17, 1998). The magistrate judge recognized that an inmate could

file a § 1983 action in forma pauperis if the inmate “is under imminent danger of

serious physical injury,” 28 U.S.C. § 1915(g), but necessarily concluded that such

was not the case. Thus, the magistrate judge recommended that the petition be

dismissed and that if Mr. Bakalov still wanted to bring a § 1983 action he would

be required to pay the full filing fee. The district court agreed and Mr. Bakalov

appealed. The district court denied him a certificate of probable cause. See 28

U.S.C. § 2253.

The district court correctly classified this action as arising under § 1983

because it is simply not a collateral attack on the fact or duration of Mr.

Bakalov’s confinement. See Wolff v. McDonnell, 418 U.S. 539, 554-55 (1974);

Preiser v. Rodriguez, 411 U.S. 475, 499-500 (1973). Section 1983 is of little

assistance to Mr. Bakalov, however, because his sanction does not appear to

implicate due process, see Sandin v. Connor, 515 U.S. 472, 485 (1995), and his
- 3 -

primary claim is barred under Edwards v. Balisok, 117 S. Ct. 1584, 1589 (1997),

because it implies the invalidity of the disciplinary hearing officer’s finding and

sanction. With regard to the remaining conditions-of-confinement claims, the

district court did not abuse its discretion in evaluating the petition and concluding

that Mr. Bakalov was not under imminent danger of serious physical injury. See

Denton v. Hernandez, 504 U.S. 25, 33 (1992). Thus, the district court did not err

in dismissing the petition and requiring Mr. Bakalov to pay the $120.00 filing fee

in advance if he wished to proceed under § 1983.

APPEAL DISMISSED. All pending motions are DENIED. This appeal is

frivolous under 28 U.S.C. § 1915(g) and therefore constitutes a “prior occasion”

within the meaning of that section. 

Entered for the Court

Paul J. Kelly, Jr.

Circuit Judge