Mares v. Pueblo County Detention Center et al

Filing 54

RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE that the 34 MOTION to Dismiss filed by Fran Lepage be GRANTED. By Magistrate Judge Nina Y. Wang on 8/31/2017. (Attachments: unpublished case law) (nywlc1)

Williams v. Miller, --- Fed.Appx. ---- (2017)
2017 WL 2438128

2017 WL 2438128
Only the Westlaw citation is currently available.
This case was not selected for
publication in West's Federal Reporter.
See Fed. Rule of Appellate Procedure 32.1
generally governing citation of judicial
decisions issued on or after Jan. 1, 2007.
See also U.S.Ct. of App. 10th Cir. Rule 32.1.
United States Court of Appeals,
Tenth Circuit.
Mario WILLIAMS, Plaintiff-Appellant,
v.
Chad MILLER, Warden; FNU Briggs, Assistant
Warden; FNU Sellers, Health Service Administrator;
FNU Weissman, Prison Doctor; Lt. Battles;
FNU Fox, Chaplain; Corrections Corporation
of America, Inc., Defendants-Appellees.
No. 16-6346
|
Filed June 6, 2017
(D.C. No. 5:14-CV-00061-W) (E.D. Oklahoma)
Attorneys and Law Firms
Mario Williams, Pro Se
Darrell L. Moore, J. Ralph Moore PC, Pryor, OK, for
Defendants-Appellees
Before LUCERO, O'BRIEN, and MORITZ, Circuit
Judges.

ORDER DISMISSING FRIVOLOUS APPEAL AND
IMPOSING A STRIKE UNDER 28 U.S.C. § 1915(g) *
Terrence L. O'Brien, United States Circuit Judge
*1

Mario Williams, an Oklahoma state prisoner

proceeding pro se, 1 filed a 42 U.S.C. § 1983 complaint
against the Corrections Corporation of America (CCA)
and several of its employees (collectively Defendants)
alleging violations of the Religious Land Use and
Institutionalized Persons Act (RLUIPA), his First and
Eighth Amendment 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 from 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 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 their 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 removed from their cells.
Williams claims the group worship 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
*2 The judge decided the prison's prohibition of group
worship by maximum-security inmates “substantially
burdened [Williams'] sincerely-held religious beliefs” but
the decision was justified by “legitimate 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 omitted). He also
concluded the decision was reasonable under the factors
set forth in Turner v. Safley, 482 U.S. 78, 89-91, 107
S.Ct. 2254, 96 L.Ed.2d 64 (1987) (factors to consider
include: (1) whether a rational connection exists between
the prison regulation and the legitimate governmental
interest advanced to justify it; (2) whether alternative
means of exercising the right are available; (3) what
effect accommodating the exercise of the constitutional
right would have on guards and other inmates; and (4)
whether ready, easy-to-implement alternatives exist that
would accommodate the right). He found the decision

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was rationally connected to the safety and security risks
associated with escorting maximum-security inmates to
and from group activities; the policy does not restrict
Williams from exercising his right to worship in his cell;
and Williams had pointed to no alternative that would
accommodate 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 also 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 inmates.
It provides adequate justification for the decision—
allowing maximum-security inmates to participate 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, 107 S.Ct. 2400, 96 L.Ed.2d
282 (1987) (prison regulations requiring inmates working
outside to remain outside 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).
In his reply brief, Williams raises two additional
arguments for the first time on appeal. We need not
consider 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). They are utterly without
merit; we briefly mention them because they reveal how
fatuous unrestrained prisoner litigation can become.
First, he argues Hilligoss' affidavit is hearsay. But it
contains no out-of-court statements. See Fed. R. Evid.
801. Additionally, it satisfies the requirements of Fed. R.
Civ. P. 56(c)(4)—it is made on personal knowledge, sets

out facts that would be admissible in evidence, and shows
he is competent to testify on the matters stated.
Second, he claims prison staff moves maximum-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 inmates
when outside their cells and in a group setting. Nothing in
the record indicates maximum-security inmates shower or
recreate in groups. 6

II. Eighth Amendment Denial of Medical Care
*3 Williams' Eighth Amendment claim concerns 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
required by prison policy. He names Warden Miller
and Theresa Sellers, the prison's Health 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 after arriving at CCF, Williams
complained of finger and right wrist pain resulting from an
injury he suffered in April 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 previous x-rays taken at DCF
after the injury showed no fractures or dislocations and he
denied reinjuring those fingers. His request for repeat xrays 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
performed on June 6. Those x-rays showed fractures to
two fingers. He was sent to Oklahoma University (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 grip strength but the recent
x-rays showed the fractures to be well healed. The doctor
concluded his pain should improve with time.

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On July 23, 2013, a prison doctor treated Williams for
right wrist pain. He ordered x-rays, which were taken
three days later. Those x-rays were normal. Nevertheless,
the doctor gave Williams range of motion exercises,
prescribed an anti-inflammatory, and told him to splint
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 for 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
right wrist. Sellers responded on June 3, directing him to
complete a health care request. The judge concluded such
conduct was not tied to any violation of his constitutional
rights.
On appeal, Williams claims Sellers told him he would be
taken to a local hospital for an MRI. He points to her
June 3 response. He significantly overstates the record.
She simply told him to use the appropriate form to make
the request for an MRI.
*4 Williams also points to Sellers' affidavit in which
she says she “oversee[s] the scheduling of visits between
the 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 observations
hardly satisfies the subjective component of the deliberate
indifference test. See Martinez v. Beggs, 563 F.3d 1082,
1089 (10th Cir. 2009) (subjective component of deliberate
indifference test to satisfy the Eighth Amendment 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).
In any event, without a constitutional violation 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. 2006) (“In order to establish a §
1983 claim against a supervisor for the unconstitutional
acts of his subordinates, a plaintiff must first show the
supervisor's subordinates violated the constitution.”). The
record is clear—the doctors and nurses at CCF did not act

with deliberate indifference in treating Williams' fingers
and right wrist. 9
X-rays taken at DCF following his injury revealed no
fractures. 10 Because Williams had not claimed any reinjury, the medical staff at CCF reasonably relied on those
x-rays. Although later x-rays showed fractures, they did
not reveal when the 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 were serious,
the prison's medical staff clearly acted reasonably in
responding to and treating those needs.

B. Denial of Treatment as Recommended by Warford
for Right Knee and Left Wrist
In late December 2010, over two years before his transfer
to CCF, Williams had an MRI of his right knee. The MRI
showed chondromalacia patella (damage to the cartilage
under the kneecap) and a mild degenerative 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
recommended 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. Williams
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
his symptoms as opposed to treating any underlying
illness.
After his transfer to CCF, Williams requested and received
a support device for his left hand, a knee sleeve to support
his right knee, an elbow sleeve, and a thumb stabilizer. He
was also authorized to sleep on the bottom bunk due to
his history of wrist, elbow, and knee injuries.
*5 In late September 2013, he sent a grievance to Sellers
requesting the treatment recommended by Warford in

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Williams v. Miller, --- Fed.Appx. ---- (2017)
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2011. She denied the request saying she would follow the
more current recommendation.

responsible for providing him medical care as both played
administrative roles at the prison.

Williams claimed Sellers violated the Eighth Amendment
by denying him Warford's recommended treatment. The
judge disagreed, saying Sellers' decision to rely on the
more current diagnosis of William's medical condition
—Reiheld's diagnosis—did not constitute deliberate
indifference, especially because Williams had not shown
any change in his condition since Reiheld's assessment.
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).

Williams tells us prison policy requires staff to notify the
warden 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 have known he
was on a hunger strike. He also claims Miller knew about
the hunger strike because he notified Miller via a “Request
to Staff” on June 3 that prison staff was not sufficiently
monitoring him during his hunger strike.

The only issue Williams raises on appeal is that Sellers
did not indicate what “more current diagnosis” she was
relying on when denying his grievance. (Appellant's Br.
at 14.) That is a far cry from deliberate 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 diagnosis, which came after Warford's
recommendations. 12

C. Failure to Monitor During Hunger Strike
As noted previously, on May 29, 2013, when Williams
did not get the repeat x-rays he wanted, he initiated a
hunger strike at supper. Prison policy requires staff to
escort inmates on a hunger strike to the medical unit for
evaluation. Although a prison nurse checked on Williams
in his cell on June 1 (twice) and June 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

It is doubtful that prison staff violated the prison's hunger
strike policy by not moving Williams to the medical unit
sooner. The 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 for a hunger strike. The policy says an
inmate is considered to be on a hunger 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 seventytwo (72) hours” or “[w]hen staff observe [s] [him] to be
refraining from caloric intake in either solid or liquid form
for a period in excess of seventy-two (72) hours.” (R.
Vol. 2 at 276.) Although Williams said he started the
strike at supper on May 29, the nurse who checked on
him on June 1 (72 hours after his declared hunger strike)
noted he had a large amount of commissary food items

next day when the prison doctor ordered repeat x-rays. 13

under his bed. 14 The record also reveals the security staff
observed Williams eating on June 2. Given the available
food items and the security staff's observations, the prison
staff reasonably believed Williams 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 prison doctor also
visited him.

*6 Williams claims Sellers and Miller violated the Eighth
Amendment by leaving him in his cell during the hunger
strike, contrary to prison policy. The judge found no
evidence that either Sellers or Miller was notified of
the hunger 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

The question though is not whether certain 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 strike. He denied having done so and

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Williams v. Miller, --- Fed.Appx. ---- (2017)
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asked that his vitals be taken to prove it. On June 5,
2013, Miller responded, saying records showed Williams
had taken a lunch and had commissary food items in
his cell. Nevertheless, Miller implemented the hunger
strike protocol. Prison staff took Williams to the medical
unit that day. Moreover, without any connection to the
alleged constitutional violation, Miller's mere response to
Williams' grievance is not enough to establish the personal
participation 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.”).
*7 Finally, neither Sellers nor Miller is liable as a
supervisor because Williams has not shown that their
subordinates committed any constitutional violation.
Merely showing that they may have violated prison
policy is not enough. See Hovater v. Robinson, 1 F.3d
1063, 1068 n.4 (10th Cir. 1993) (“[A] failure to adhere
to administrative regulations does not equate to a
constitutional violation.”); see also Hostetler v. Green,
323 Fed.Appx. 653, 657-58 (10th Cir. 2009) (unpublished)
(noting a defendant's mere violation of a prison regulation
does not equate to a constitutional violation). 15

III. Conclusion
We have purposefully taken pains to lay bare the operative
facts and address all of Williams' arguments (even
providing alternative grounds of resolution for most of
his claims). His appeal comes downs to this—conclusory
arguments lodged against three individuals who had little
or no role in the alleged constitutional violations, other
than to respond to Williams' requests or grievances. The
judges in the district court clearly and meticulously laid it
out. This appeal from the summary judgment makes no
serious effort to explain how the judges erred. Williams is

vainly hoping 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, 109 S.Ct. 1827,
104 L.Ed.2d 338 (1989) (an argument, like a complaint,
“is frivolous where it lacks an arguable basis either in law
or in fact”).
The district judge forewarned this result. He denied
Williams' request to proceed in this appeal without
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.
*8 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 relevant
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”) (emphasis 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
impose a strike under 28 U.S.C. § 1915(g).

All Citations
--- Fed.Appx. ----, 2017 WL 2438128

Footnotes

*

Oral argument would not materially assist 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 unpublished decision, not binding precedent. 10th Cir. R. 32.1(A). Citation to unpublished decisions is
not prohibited. Fed. R. App. 32.1. It is appropriate as it relates to law of the case, issue preclusion and claim preclusion.
Unpublished decisions may also be cited for their persuasive value. 10th Cir. R. 32.1(A). Citation to this order must be
accompanied by an appropriate parenthetical notation B (unpublished). Id.

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5

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10
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12

13

We have liberally construed Williams' pro se filings. Ledbetter v. City of Topeka, Kan., 318 F.3d 1183, 1187 (10th Cir.
2003).
The district judge referred Defendants' summary judgment motion to a magistrate judge for report and recommendation.
The magistrate judge issued a thorough 39-page report recommending the motion be granted. 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 judge's report and recommendation.
The judge declined to exercise supplemental jurisdiction 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 reversing, there is nothing to reinstate.
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 medium-security inmate. His lengthy history of prison misconduct
resulted in his being re-classified to maximum-security.
In his statement of the issues, Williams claims Fox and Miller violated both the First Amendment and RLUIPA by denying
him the opportunity to participate in group worship. However, in the discussion section of his brief, he mentions only the
First Amendment. In any event, as the judge correctly decided, Williams cannot bring individual capacity RLUIPA claims
against Fox and Miller. See Stewart v. Beach, 701 F.3d 1322, 1334-35 (10th Cir. 2012).
The judge provided an alternative reason for entering summary judgment on the First Amendment claim against Miller—
Miller did not personally participate in the alleged constitutional violation because the security staff, not the warden, made
the decision to prohibit maximum-security inmates from participating in group worship. Williams disagrees. He claims his
grievance should 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. Hilligoss initially says the security staff made the decision but
later refers to the reasons the “facility administration” made the decision. (R. Vol. 2 at 287.) The facility's administration
could well include Miller, but it matters not. Even assuming Miller personally participated in the decision, Williams' claim
still fails for the reasons we explained.
We also note Fox's diminutive role in the claimed constitutional violation—only informing Williams of the decision. Nothing
in the record suggests he participated in the decision-making process.
In his statement of the issues, Williams says CCA also violated 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 judge concluded, CCA is not liable where, as here, no individual defendant has
violated the Eighth Amendment. Cf. Trigalet v. City of Tulsa, Okla., 239 F.3d 1150, 1155-56 (10th Cir. 2001) (a municipality
cannot be held liable for the actions of its employees if the employees' actions do not constitute a constitutional violation).
On May 15, 2013, upon transferring to CCF, Williams was asked a series of questions concerning his health. Interestingly,
when asked whether he had any significant injuries, he did not mention his fingers or wrist.
According to her affidavit, Sellers only supervises the prison's nurses and medical records clerks. Therefore, she could
only be liable as a supervisor for the acts of those individuals, not the doctors who treated Williams.
Williams filed a lawsuit against the staff at DCF for the medical care he received there for his fingers and wrist. That suit
is currently on appeal. See Appeal No. 17-7022.
Williams and the judge refer to Warford as a doctor. But the initials after his name, PA-C, indicate he is a certified physician
assistant. Williams also says Warford recommended he have surgery on his left wrist. Not true. He only recommended
referral to a hand specialist.
Williams also makes a conclusory claim that his condition changed while incarcerated at CCF, as evidenced by the
prison providing him a knee sleeve and wrist support. However, providing him support devices does not necessarily
show a change in condition. Another reasonable interpretation is that prison staff 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—
Williams advocated for one method of treatment, but Reiheld prescribed another.
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 received his personal property. He admitted to initiating
the hunger strike to obtain his personal property.
The nurse who checked on him on June 1 reported that Williams told her: “ ‘I have been doing this for twenty years and
I know how to get what I want and I know that medical has to place me in the medical department and keep an eye
on me and I will stay there until the doctor sees me again and I get the x-ray I want.’ ” (R. Vol. 2 at 187.) That same
nurse also allegedly heard him tell another inmate through the vents “that he knows how to manipulate the system to

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15

16

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.
Williams blames prison staff for not removing the food items from his cell, as required by prison policy. But, as explained
below, a defendant's violation of a prison policy does not a constitutional violation make. See Hovater v. Robinson, 1 F.3d
1063, 1068 n.4 (10th Cir. 1993) (“[A] failure to adhere to administrative regulations does not equate to a constitutional
violation.”); see also Hostetler v. Green, 323 Fed.Appx. 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.
Williams also complains the judge erroneously relied on the special report prepared by Defendants. However, it appears
the judge did not 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 medical records, grievances, and Defendants' affidavits were attached
to either the complaint or motion for summary judgment. The judge relied on those items, as did we.
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 circumstances. Frivolous appeals are not among those so
excused because, by definition, they are not potentially meritorious. Neitzke v. Williams, 490 U.S. 319, 324, 109 S.Ct.
1827, 104 L.Ed.2d 338 (1989) (Congress 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 DeBardeleben v. Quinlan, 937 F.2d 502, 505 (10th Cir. 1991) (to proceed ifp on appeal, “an appellant
must show a financial inability 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).

End of Document

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