UNITED STATES CO URT OF APPEALS TENTH CIRCUIT

MARIO WILLIAMS, Plaintiff - Appellant,

v. CHAD MILLER, Warden; FNU BRIGGS, Assistant Warden; F NU SELLERS, Health Service Administrator; FNU WEISSMAN, Prison Doctor; LT. BATTLES; FNU FOX, Chaplain; CORRECTIONS CORPORATION OF AMERICA, INC., Defendants - Appellees. No. 16-6346 (D.C. No. 5:14- CV-00061-W) (E.D. Okla.)

ORDER DISMISSING FR IVOLOUS APPEAL AND IMPOSING A STRIKE UNDER 28 U.S.C. § 1915(g) *

Before LUCERO , O’BRIEN , and MORITZ , Circuit Judges.

Mario Williams, an Oklahoma stat e prisoner proceeding pro se, 1 filed a 42 U.S.C.

* Oral argument would not materially assi st the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G ). We have decided this case on the briefs. This order is an unpublishe d decision, not binding prece dent. 10th Cir. R. 32.1(A). Citation to unpublished decisions is not prohibited. Fed. R. Ap p. 32.1. It is appropriate as it relates to law of the case, issue pr eclusion and claim preclusion. Unpublished decisions may also be cited for their persuasi ve value. 10th Cir. R. 32.1(A). Citation to this order must be accompanied by an appropriate parenthetical notation

B (unpublished). Id

. FILED United States Court of Appeals Tenth Circuit 

### June 6, 2017
Elisabeth A. Shumaker Clerk of Court- 2 - § 1983 complaint against the Co rrections Corporation of Am erica (CCA) and several of its employees (collectively De fendants) alleging violations of the Religious Land Use and Institutionalized Persons Act (RLUIPA), hi s First and Eighth Am endment rights, and Oklahoma law. The district judge dismissed some of the claims against some of the defendants and granted summary judgment to the remaining defendants on the remaining claims. Williams appeals only fro m the entry of summary judgment. 2 His appeal is limited to two claims—violations of the First and Eighth Amendments. 3 We dismiss this frivolous appeal.
I. First Amendment Free Exercise Claim On May 15, 2013, the Oklahoma Department of Corrections (ODOC) transferred Williams to the Cimarron Correctional Facility (CCF), which CCA operates pursuant to a contract with the ODOC. He was placed in the maximum-security housing unit at CCF. 4 Williams is a Muslim. He requested to participate in Jumu’ah, the Muslim

1 We have liberally construed Williams’ pro se filings. Ledbetter v. City of Topeka, Kan. , 318 F.3d 1183, 11 87 (10th Cir. 2003). 2 The district judge referred Defend ants’ summary judgment motion to a magistrate judge for report and recommendation. The magistrate judge issued a thorough 39-page report recommending the motion be gran ted. After de novo review, the district judge adopted the recommendation in toto. As a result, we draw the district judge’s conclusions from the magistrate ju dge’s report and recommendation. 3 The judge declined to exercise supplemental juri sdiction over Williams’ state law claims. Williams asks that if we reverse any part of the judgment, we reinstate his state law claims. Since we are not reve rsing, there is nothing to reinstate. 4 The ODOC has three levels of custody—minimum, medium, and maximum security. Maximum-security is for high-risk inmates. Williams entered ODOC custody in June 1994 after being convicted of first- degree murder and sentenced to life without parole. He was previously classified as a me dium-security inmate. His lengthy history of prison misconduct resulted in his bei ng re-classified to maximum-security.- 3 - congregate services, but the prison does not allow maximum-security inmates to participate in group worship (or any group activities for that matter) because they are high-risk inmates, especially when outside thei r cells. As a result, to protect prison staff and other inmates, these inmates are restricted to their cells 23 hours a day and must be handcuffed and escorted by staff any time they are rem oved from their cells. Williams claims the group wors hip policy violates the Free Exercise Clause of the First Amendment. He named Arthur Fox, the prison’s chaplain, and Chad Miller, the warden, as defendants. 5 The judge decided the prison’s prohibition of group worship by maximum-security inmates “substantially burdene d [Williams’] sincerely-held religious beliefs” but the decision was justified by “leg itimate penological interests” —prison security and the safety of prison staff and other inmates. See Kay v. Bemis , 500 F.3d 1214, 1218 (10th Cir. 2007) (quotation marks om itted). He also conclude d the decision was reasonable under the factors set forth in Turner v. Safley , 482 U.S. 78, 89-91 (1987) (factors to consider include: (1) whether a rational conn ection exists between the prison regulation and the legitimate governmental interest advanced to justif y it; (2) whether alternative means of exercising the right are available; (3) what effect accommodating the exercise

5 In his statement of the issues, Williams claims Fox and Mille r violated both the First Amendment and RLUIPA by denying him the opportunity to participate in group worship. However, in the discussion secti on of his brief, he mentions only the First Amendment. In any event, as the judg e correctly decided, Williams cannot bring individual capacity RLUIPA cl aims against Fox and Miller. See Stewart v. Beach , 701 F.3d 1322, 1334-35 (10th Cir. 2012).- 4 - of the constitutional right woul d have on guards and othe r inmates; and (4) whether ready, easy-to-implement alternatives exist that would accommodate the right). He found the decision was rationally connected to the sa fety and security risks associated with escorting maximum-security inmates to and from group ac tivities; the policy does not restrict Williams from exercising his right to worship in his cell; and Williams had pointed to no alternative that would accommoda te his right at de minimis cost to the prison’s security and safety concerns. Williams objects. According to him, the record does not give “a precise weight of the cost that the Defendants would have to pay in order to run group service for the maximum inmates.” (Op. Br. at 11-12.) He al so suggests the stated penological interests are speculative, exaggerated, and post-hoc rationalizations. He is mistaken. The record contains the affidavit of John Hilligoss, currently the Chief of Unit Management at CCF and a member of CCF’s security staff who made the decision to deny group worship to maximum-security inmate s. It provides adequate justification for the decision—allowing maximum- security inmates to particip ate in group worship would have a serious impact on (1) prison security , (2) the safety of prison staff and other inmates, and (3) prison resources. See O’Lone v. Estate of Shabazz , 482 U.S. 342 (1987) (prison regulations requiring inmates working outside to remain out side all day did not violate the First Amendment’s Free Exercise Clause even though the regulations resulted in Muslim inmates missing Jumu’ah). The stated penological interests are neither speculative nor exaggerated. See Hammons v. Saffle , 348 F.3d 1250, 1254-55 (10th Cir. 2003) (maintaining prison order and safety is a legitimate penological interest).- 5 - In his reply brief, Williams raises two a dditional arguments for the first time on appeal. We need not c onsider these arguments. See Gutierrez v. Cobos , 841 F.3d 895, 902 (10th Cir. 2016) (“[A] party waives issues and arguments raised for the first time in a reply brief.”) (quotation marks omitted). Th ey are utterly without merit; we briefly mention them because they reveal how fa tuous unrestrained prisoner litigation can become. First, he argues Hilligoss’ affidavit is he arsay. But it contains no out-of-court

statements. See Fed. R. Evid. 801. Ad ditionally, it satisfies the requirements of Fed. R. Civ. P. 56(c)(4)—it is made on personal kn owledge, sets out facts that would be admissible in evidence, and show s he is competent to testif y on the matters stated. Second, he claims prison staff moves maxi mum-security inmates out of their cells for daily showers and recreation. According to him, it would take no more staff to escort them to group services. However, the security staff’s concern was not simply a lack of resources to move maximum-security inmates. Its main concern was the high risk these inmates pose to prison staff and other inmate s when outside their cells and in a group setting. Nothing in the record indicates maxi mum-security inmates sh ower or recreate in
groups. 6

6 The judge provided an alternative r eason for entering summary judgment on the First Amendment claim against Miller—Mille r did not personally participate in the alleged constitutional violation because the security staff, not th e warden, made the decision to prohibit maximum- security inmates from partic ipating in group worship. Williams disagrees. He claims his grievance sh ould have alerted Miller to the matter. He also claims the Hilligoss affidavit puts Miller as a part of the security staff who made the decision. The affidavit is ambiguous. Hillig oss initially says the se curity staff made the- 6 - II. Eighth Amendment Deni al of Medical Care Williams’ Eighth Amendment claim concer ns the medical treatment he received at CCF for his fingers, wrists, and right knee . He also alleges he was not adequately supervised during his hunger strike, as re quired by prison policy. He names Warden Miller and Theresa Sellers, the prison’s Hea lth Services Administrator, as defendants. 7 However, his claim against Miller is limited to the hunger strike.
A. Denial of Medical Treatment for Fingers and Right Wrist In May 2013, shortly afte r arriving at CCF, Williams complained of finger and right wrist pain resulting from an injury he suffered in Apr il 2013 while working out at Davis Correctional Facility (DCF) (where he was housed before being transferred to CCF). 8 He wanted repeat x-rays on his fingers, even though previo us x-rays taken at

decision but later refers to the reasons the “facility administration” made the decision. (R. Vol. 2 at 287.) The f acility’s administrati on could well include Miller, but it matters not. Even assuming Miller pers onally participated in the de cision, Williams’ claim still fails for the reasons we explained. We also note Fox’s diminutive role in the claimed constitu tional violation—only informing Williams of the decision. Nothing in the record sugg ests he participated in the decision-making process. 7 In his statement of the issues, Willia ms says CCA also vi olated the Eighth Amendment by not providing necessary medical care. However, in the discussion section of his brief, his Eighth Amendment claim is limited to complaints about the acts of Sellers and Miller. Nevertheless, as the judg e concluded, CCA is not liable where, as here, no individual defendant has vi olated the Eighth Amendment. Cf. Trigalet v. City of Tulsa, Okla. , 239 F.3d 1150, 1155-56 ( 10th Cir. 2001) (a munici pality cannot be held liable for the actions of its employees if the employees’ actions do not constitute a constitutional violation). 8 On May 15, 2013, upon transferring to CCF, Williams was asked a series of questions concerning his health. Intere stingly, when asked whether he had any significant injuries, he did not mention his fingers or wrist.- 7 - DCF after the injury showed no fractures or dislocations and he de nied reinjuring those fingers. His request for repeat x-rays was denied, but he was undeterred. He initiated a hunger strike on May 29 in an attempt to force the issue. His tactics worked; repeat x-rays were pe rformed on June 6. Those x-ra ys showed fractures to two fingers. He was sent to Oklahoma Univers ity (OU) Medical Center in mid-July for further x-rays and was seen at OU Medical Clinic. An OU doctor noted some loss of range of motion and decreased gr ip strength but the recent x-ra ys showed the fractures to be well healed. The doctor concluded hi s pain should impr ove with time. On July 23, 2013, a pris on doctor treated Williams for right wrist pain. He ordered x-rays, which were taken three days later. T hose x-rays were normal. Nevertheless, the doctor gave Williams range of motion exercises, prescribed an antiinflammatory, and told him to sp lint the wrist when active. Williams alleged Sellers did not provide proper medical treatment for his fingers and right wrist in violation of the Eighth Amendment. The judge decided the only action Sellers took with regard to his medical care fo r his fingers and right wrist was to respond to Williams’ May 31 “Request to Staff.” In that request, Williams asked to be sent to a local hospital for an MRI on his fingers and ri ght wrist. Sellers re sponded on June 3, directing him to complete a health care re quest. The judge concluded such conduct was not tied to any violation of his constitutional rights. On appeal, Williams claims Se llers told him he would be taken to a local hospital for an MRI. He points to her June 3 response . He significantly ov erstates the record. She simply told him to use the appropriate form to make the request for an MRI.- 8 - Williams also points to Sellers’ affidav it in which she says she “oversee[s] the scheduling of visits between th e inmates and [the prison’s] doctors” and states her belief, based on her own observations and Williams’ medical records, that staff members were attentive to his requests and medical condition. (R. Vol. 2 at 270.) Merely overseeing scheduling and making observatio ns hardly satisfies the s ubjective component of the deliberate indifference test. See Martinez v. Beggs , 563 F.3d 1082, 1089 (10th Cir. 2009) (subjective component of deliberate indiffere nce test to satisfy the Eighth Amendment requires a defendant to know of an excessive ri sk to an inmate’s health and to disregard that risk by failing to take reas onable measures to abate it). In any event, without a constitutional viol ation by her subordinates, Sellers cannot be held liable as their supervisor. See Serna v. Colo. Dep’t of Corrs. , 455 F.3d 1146, 1151 (10th Cir. 2016) (“In orde r to establish a § 1983 claim against a supervisor for the unconstitutional acts of his subordinates, a pl aintiff must first show the supervisor’s subordinates violated the cons titution.”). The record is clear—the doctors and nurses at CCF did not act with deliberate indifference in treating Williams’ fi ngers and right wrist. 9 X-rays taken at DCF following his injury revealed no fractures. 10 Because Williams had not claimed any re-injury, th e medical staff at CCF reasonably relied on those x-rays. Although later x-rays showed fractures, they did not reveal when the

9 According to her affidavit, Sellers only supervises the prison’s nurses and medical records clerks. Therefore, she could onl y be liable as a supervisor for the acts of those individuals, not the doctors who treated Williams. 10 Williams filed a lawsuit against the st aff at DCF for the medical care he received there for his fingers and wrist. That suit is curr ently on appeal. See Appeal No. 17-7022.- 9 - fractures occurred but did show them to be well healed. As to his right wrist, x-rays were taken three days after he reported pain. The x -rays came back negative. Nevertheless, he was provided pain medication, exercises, and splints. Charitably assuming his medical needs we re serious, the prison’s medical staff clearly acted reasonably in responding to and treating those needs. B. Denial of Treatment as Recomme nded by Warford for Right Knee and Left Wrist In late December 2010, over two years be fore his transfer to CCF, Williams had an MRI of his right knee. The MRI show ed chondromalacia pate lla (damage to the cartilage under the kneecap) and a mild degene rative narrowing of the knee. In March 2011, Travis Warfold, a certified physician assistant, saw Williams concerning his knee and left wrist. Warford prescribed ice, an exercise program, and anti-inflammatory medication for his knee. He also recommende d Williams be seen by a hand specialist for his left wrist. 11 In August 2011, Dr. Mark Reiheld, a prison doctor at DCF, saw Williams for knee and wrist pain. Reiheld told Williams to proceed with the exercises previously recommended and to continue taking Motrin. W illiams wanted to see an orthopedist, but Reiheld refused his request because he had no operative problem and treatment would be symptomatic, i.e., directed at relieving hi s symptoms as opposed to treating any

11 Williams and the judge refe r to Warford as a doctor. But the initials after his name, PA-C, indicate he is a certified physicia n assistant. Williams also says Warford recommended he have surgery on his left wrist. Not true. He only recommended referral to a hand specialist.- 10 - underlying illness. After his transfer to CCF, Williams request ed and received a support device for his left hand, a knee sleeve to support his right kn ee, an elbow sleeve, and a thumb stabilizer. He was also authorized to sleep on the botto m bunk due to his histor y of wrist, elbow, and knee injuries. In late September 2013, he sent a grie vance to Sellers requesting the treatment recommended by Warford in 2011. She denied the request saying she would follow the more current recommendation. Williams claimed Sellers violated th e Eighth Amendment by denying him Warford’s recommended treatment. The judge di sagreed, saying Sellers’ decision to rely on the more current diagnosis of William’s medical condition—Reiheld’s diagnosis—did not constitute deliberate indifference, espe cially because Williams had not shown any change in his condition since Reiheld’s assess ment. Williams merely disagreed with the recommended course of treatment, which is not enough to state an Eighth Amendment violation. See Callahan v. Poppell , 471 F.3d 1155, 1160 (10th Cir. 2006) (prisoners do not have an Eighth Amendment right to a particular course of treatment). The only issue Williams raises on appeal is that Sellers did not indicate what “more current diagnosis” she wa s relying on when denying his grievance. (Appellant’s Br. at 14.) That is a far cry from deliberat e indifference to a serious medical need. See Martinez , 563 F.3d at 1088-89. Moreover, it is obvious that she was relying on Reiheld’s- 11 - diagnosis, which came after Warford’s recommendations. 12
C. Failure to Monitor During Hunger Strike As noted previously, on Ma y 29, 2013, when Williams did not get the repeat xrays he wanted, he initiated a hunger strike at supper. Prison po licy requires staff to escort inmates on a hunger strike to the me dical unit for evaluation. Although a prison nurse checked on Williams in hi s cell on June 1 (twice) and Ju ne 4, he was not escorted to the medical unit until June 5, 2013, when he fell and hit his head during prayers in his cell. He ended the strike the next day when the prison doctor ordered repeat x-rays. 13
Williams claims Sellers and Miller viol ated the Eighth Amendment by leaving him in his cell during the hunger strike, cont rary to prison policy. The judge found no

12 Williams also makes a conclusory cl aim that his cond ition changed while incarcerated at CCF, as evid enced by the prison providing him a knee sleeve and wrist support. However, providing him support devi ces does not necessarily show a change in condition. Another reasonable in terpretation is that prison sta ff was simply responding to his current complaints. No one denies he complained about knee and wrist pain. The dispute is over the course of treatment—Willia ms advocated for one method of treatment, but Reiheld prescribed another. 13 This was not the first time Williams resorted to a hunger strike as a manipulation tactic. On the morning of May 18, 2013, he declared a hunger strike only to cancel it later that day once he receive d his personal property. He admitted to initiating the hunger strike to obtain his personal property. The nurse who checked on hi m on June 1 reported that W illiams told her: “‘I have been doing this for tw enty years and I know how to ge t what I want and I know that medical has to place me in the medical departme nt and keep an eye on me and I will stay there until the doctor sees me ag ain and I get the x-ray I want.’” (R. Vol. 2 at 187.) That same nurse also allegedly hear d him tell another inmate thro ugh the vents “that he knows how to manipulate the system to get what he wants and eventually medical will get tired of dealing with him and give him what he want[s].” ( Id .) That is the hallmark of a petulant child.- 12 - evidence that either Sellers or Miller wa s notified of the hung er strike. Without knowledge, they could not have acted with deliberate indifference to his medical needs. Martinez , 563 F.3d at 1089 (subjective component of deliberate indifference test requires a defendant to know of an excessive risk to an inmate’s health and to disregard that risk by failing to take reasonable measures to abate it). Moreover, neither of them was personally responsible for prov iding him medical care as bot h played administrative roles at the prison. Williams tells us prison policy requires sta ff to notify the ward en and the Health Services Administrator when it observes an inmate to be on a hunger strike. Therefore, he says, Sellers and Miller knew or should ha ve known he was on a hunger strike. He also claims Miller knew about the hunger stri ke because he notified Miller via a “Request to Staff” on June 3 that prison staff was not sufficiently monitoring him during his hunger strike. It is doubtful that prison staff violated the prison’s hunger strike policy by not moving Williams to the medical unit sooner. Th e policy requires staff to escort an inmate to the Health Services Department and to notify the Health Services Administrator and the Warden if the inmate meets the criteria fo r a hunger strike. The policy says an inmate is considered to be on a hunge r strike when he “communicates to the staff and is observed by the staff to be refraining from caloric intake in either solid or liquid form for a period of time, ordinarily in excess of seventy-two (72) hours” or “[w]he n staff observe[s] [him] to be refraining from caloric intake in either solid or liquid form fo r a period in excess of seventy-two (72) hours.” (R. Vo l. 2 at 276.) Although Williams said he started the strike- 13 - at supper on May 29, the nurse who chec ked on him on June 1 (72 hours after his declared hunger strike) noted he had a larg e amount of commissary food items under his bed. 14 The record also reveals the security staff observed W illiams eating on June 2. Given the available food items and the secur ity staff’s observations, the prison staff reasonably believed Willia ms did not satisfy the hunger strike criteria until June 5 (72 hours after June 2) at the earliest. At that time, staff moved him to the medical unit and regularly monitored him. A pr ison doctor also visited him. The question though is not whether certai n prison staff violated prison policy but rather whether Sellers and Miller violated the Eighth Amendment. As the judge decided, even assuming his medical need was serious, Williams cannot show they acted with a sufficiently culpable state of mind. That is because other than claiming Sellers should have known because staff was required to tell her, there is no evidence she in fact knew. As to Miller, Williams did send him a “Request to Staff” on June 3 complaining of false reports that he had eaten during his hunger st rike. He denied having done so and asked that his vitals be taken to prove it. On Ju ne 5, 2013, Miller responded, saying records showed Williams had taken a lunch and had commissary fo od items in his cell. Nevertheless, Miller implemente d the hunger strike protocol. Prison staff took Williams

14 Williams blames prison staff for not rem oving the food items from his cell, as required by prison policy. But, as explained below, a defendant’s viola tion of a prison policy does not a constitu tional violation make. See Hovater v. Robinson , 1 F.3d 1063, 1068 n.4 (10th Cir. 1993) (“[A] failure to a dhere to administrative regulations does not equate to a constitutional violation.”); see also Hostetler v. Green , 323 F. App’x 653, 657-58 (10th Cir. 2009) (unpublished) (noting a defendant’s mere violation of a prison regulation does not equate to a constitutional violation). He also suggests those food items belonged to his cellmate. Convenient, but hardly convincing.- 14 - to the medical unit that day. Moreove r, without any connection to the alleged constitutional violation, Miller’s mere respon se to Williams’ grievance is not enough to establish the personal par ticipation necessary to state a § 1983 claim. Gallagher v. Shelton , 587 F.3d 1063, 1069 (10th Cir. 2009) (“[A] denial of a grievance, by itself without any connection to the violation of constitutional rights alleged by plaintiff, does not establish personal participation under § 1983.”). Finally, neither Sellers nor Miller is liabl e as a supervisor because Williams has not shown that their subordinates committe d any constitutional vi olation. Merely showing that they may have violat ed prison policy is not enough. See Hovater v. Robinson , 1 F.3d 1063, 1068 n.4 (10th Cir. 1 993) (“[A] failure to adhere to administrative regulations does not e quate to a constitutional violation.”); see also Hostetler v. Green , 323 F. App’x 653, 657 -58 (10th Cir. 2009) (u npublished) (noting a defendant’s mere violation of a prison regu lation does not equate to a constitutional violation). 15
III. Conclusion We have purposefully take n pains to lay bare the operative facts and address all of Williams’ arguments (even provid ing alternative grounds of resolution for most of his claims). His appeal comes downs to this —conclusory arguments lodged against three

15 Williams also complains the judge erroneously relied on the special report prepared by Defendants. Howe ver, it appears the judge did no t rely on the report because none of the parties did so. (R. Vol. 2 at 319 n.2.) Indeed, the special report mainly outlined Williams’ grievances whereas his medi cal records, grievances, and Defendants’ affidavits were attached to either the co mplaint or motion for su mmary judgment. The judge relied on those items, as did we.- 15 - individuals who had little or no role in the a lleged constitutional viola tions, other than to respond to Williams’ requests or grievances. The judges in the district court clearly and meticulously laid it out. This appeal from th e summary judgment makes no serious effort to explain how the judges erre d. Williams is vainly hopi ng to find a better fishing hole while using the same old bait. Because this appeal is frivolous, we DISMISS it. See Neitzke v. Williams , 490 U.S. 319, 325 (1989) (an argument, like a co mplaint, “is frivolous where it lacks an arguable basis either in law or in fact”). The district judge fo rewarned this result. He deni ed Williams’ request to proceed in this appeal withou t prepaying the fees ( in forma pauperis or ifp ). See 28 U.S.C. § 1915(a). He concluded: “[E] ven assuming Williams lacks the financial ability to pay the required filing fees, . . . Williams will not be able to present a reasoned, nonfrivolous argument on the law and facts in support of his contention that the Court erred when it entered judgment on November 15, 2016. Williams’ appeal therefore is not taken in good faith.” 16 (D. Ct. Doc. 93 at 2.) See 28 U.S.C. § 1915(a)(3). The judge was right.

16 The payment of filing and docketing fees is required in nearly all appeals, criminal as well as civil. See 28 U.S.C. §§ 1913, 1917. However, there is an important exception; we excuse prepayment of fees to prevent forfeiture of potentially meritorious appeals because of a person’s impecunious ci rcumstances. Frivolous appeals are not among those so excused because , by definition, they are not potentially meritorious. Neitzke v. Williams , 490 U.S. 319, 324 (1989) (Congre ss enacted § 1915(a) “to ensure that indigent litigants have meaningful access to the federal courts”; however, at the same time it recognized “a litigant whose filing fees and court costs are assumed by the public, unlike a paying litigant, lacks an economic incentive to refrain from filing frivolous, malicious, or repetitive lawsuits”); see also DeBardel eben v. Quinlan , 937 F.2d 502, 505 (10th Cir. 1991) (to proceed ifp on appeal, “an appellant must show a financial inability- 16 - We have fully addressed the issues Williams has frivolously raised, rendering moot his renewed request to proceed ifp on appeal. Accordingly, the motion is DENIED , but that does not end the matter. The releva nt statute does not permit litigants to avoid payment of fees; only prepayment of those fees. See 28 U.S.C. § 1915(a) (allowing courts to authorize the commencement of a civil or criminal suit or appeal “without prepayment of fees or security thereof”) (emphasi s added). All filing and docketing fees ($505.00) are due and payable to the Clerk of the District Court. Because we have dismissed this appeal as frivolous, we impos e a strike under 28 U.S.C. § 1915(g).

Entered by the Court:

Terrence L. O’Brien United States Circuit Judge

to pay the required filing fees and the existence of a reasoned, nonfrivolous argument on the law and facts in support of the issues raised on appeal”) (emphasis added).