                                                                              F I L E D
                                                                       United States Court of Appeals
                                                                               Tenth Circuit
                        UNITED STATES COURT OF APPEALS
                                                                                JUN 5 1998
                                     TENTH CIRCUIT
                                                                           PATRICK FISHER
                                                                                   Clerk

 LOUIS C. FANNON,

          Petitioner-Appellant,
 v.                                                          No. 98-3068
 CHARLES E. SIMMONS, Secretary                         (D.C. No. 98-3027-DES)
 of Corrections; NOLA FULSTON,                                (D. Kan.)
 District Attorney,

          Respondents-Appellees.




                                  ORDER AND JUDGMENT*


Before BALDOCK, EBEL, and MURPHY, Circuit Judges.**




      *
          This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The 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 appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of this
appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore ordered
submitted without oral argument.
       This matter is before the court on Petitioner-Appellant Louis C. Fannon’s

application for a certificate of appealability under 28 U.S.C. § 2253. Fannon seeks to

appeal the district court’s dismissal of his 28 U.S.C.. § 2254 petition for a writ of habeas

corpus. Because we conclude that Fannon has failed to make a substantial showing of a

denial of a constitutional right as required by § 2253, we deny his application and dismiss

the appeal.

       Fannon, an inmate at the Lansing Correctional Facility in Lansing, Kansas, seeks

an immediate release from prison as well as damages for alleged violations of his

constitutional rights. Fannon states that he is a witness in two state capital murder trials,

and claims officials have failed to provide for his safety in confinement. The district

court dismissed Fannon’s habeas petition (while also noting that damages were not

available to him under § 2254) without prejudice for failure to exhaust state

administrative and judicial remedies. See id. § 2254(b)(1)(B).

       A petitioner convicted of a state crime may not appeal a federal district court’s

denial of habeas corpus relief unless the district court or court of appeals grants a

certificate of appealability. Id. § 2253(c)(1)(A). We will not grant such a certificate

unless “the applicant has made a substantial showing of the denial of a constitutional

right.” Id. § 2253(c)(2); see also Hogan v. Zavaras, 93 F.3d 711, 712 (10th Cir. 1996).




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       The district court properly dismissed without prejudice Fannon’s claim for

damages under § 2254. “In the case of a damages claim, habeas corpus is not an

appropriate or available federal remedy.” Preiser v. Rodriguez, 411 U.S. 475, 494 (1973)

(emphasis in original). We likewise conclude the district court properly dismissed

without prejudice Fannon’s claim for release based upon officials’ alleged indifference to

his safety.

       A state prisoner is entitled to relief under § 2254 “only if he is held ‘in custody in

violation of the Constitution or law or treaties of the United States.’” Engle v. Isaac,

456 U.S. 107, 119 (1982). Fannon’s claim that officials have not provided for his safety

in prison does not question the validity of his custody under his original judgment and

sentence for theft. Rather, his claim challenges the conditions of his confinement, which

is more properly cognizable under 28 U.S.C. § 1983. See Northington v. Marin, 102 F.3d

1564, 1567 (10th Cir. 1996) (“Prison officials are liable under the Eighth Amendment for

denying an inmate humane conditions of confinement if the officials know of and

disregard a substantial risk of serious harm to the inmate.”).

       In any event, we are satisfied that at this point Fannon has failed to make a

substantial showing of a denial of a constitutional right as required for issuance of a

certificate of appealability under § 2253. In his petition, Fannon expresses concern for

his safety and nothing more. As of yet his fears are just that--fears. Concern for one’s

safety without more, however, does not rise to a constitutional violation. See Moore v.


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Marketplace Restaurant Inc., 754 F.2d 1336, 1349-50 (7th Cir. 1985) (fear for one’s

safety does not constitute a constitutional violation).

       APPEAL DISMISSED.

                                                   Entered for the Court,



                                                   Bobby R. Baldock
                                                   Circuit Judge




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