                                                                       F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                      January 31, 2007
                                    TENTH CIRCUIT                   Elisabeth A. Shumaker
                                                                        Clerk of Court

 LEVI LUG INB YH L,

          Plaintiff - Appellant,
                                                        No. 06-7053
 v.                                                 (D.C. No. 04-CV-187)
                                                        (E.D. Okla.)
 C ORREC TIO N S C OR PO RA TION OF
 AM ERICA ; CH AR LES RAY ; BILL
 BO YD; RO BERT EZELL; BU CK S,
 M rs.; D AV ID BR OWN ; D U A N
 B AK ER ; JO H N SO N , C hief; FINNLY,
 Captain,

          Defendants - Appellees.



                              OR D ER AND JUDGM ENT *


Before KELLY, M cKA Y, and LUCERO, Circuit Judges. **


      Plaintiff-Appellant, Levi Luginbyhl, an Oklahoma state inmate appearing

pro se, appeals from the district court’s order granting summary judgment on his

42 U.S.C. § 1983 civil rights complaint. Because M r. Luginbyhl failed to respond

      *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
      **
         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(G). The case is therefore ordered submitted without oral argument.
to the Defendants’ motion for summary judgment, and the facts alleged in the

motion establish that M r. Luginbyhl failed to exhaust the appropriate

administrative remedies, we affirm.

      M r. Luginbyhl filed his amended complaint on M arch 15, 2004. In the

complaint, M r. Luginbyhl alleged that: (1) his due process rights were violated

when he was transferred by the Oklahoma D epartment of Corrections to the

privately operated D avis Correctional Facility (“Davis”), (2) that while he w as a

prisoner at Davis, he was discriminated against, denied a place to pray, denied a

kosher diet, and denied the right to purchase outside items from a kosher vendor,

(3) that he was transferred by the Oklahoma Department of Corrections to Davis

where he was held illegally, (4) that while housed illegally at Davis, he was

denied due process and subjected to racketeering, (5) that while we was housed at

Davis there was a conspiracy to subject him to discrimination, deny his religious

freedoms, deny him access to the courts, deny him a kosher diet, and to deny him

access to kosher vendors, all in violation of 42 U.S.C. § 1985, and (6) that the

prison policies utilized by the D efendants at Davis violated due process because

they were not certified under the Administrative Procedures A ct.

      The Defendants filed a motion for summary judgment on January 11, 2005,

arguing that M r. Luginbyhl’s entire complaint should be dismissed because he

had failed to exhaust the applicable administrative remedies for all of his claims

as required by the Prison Litigation Reform Act. See 42 U.S.C. § 1997(e); Jones

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v. Bock, – S. Ct. –, 2007 W L 135890, at *13-16 (January 22, 2007). The

Defendants attempted to serve M r. Luginbyhl with their motion, but failed

because mailings to M r. Luginbyhl’s listed prison address were returned. The

Defendants notified the district court of their inability to serve M r. Luginbyhl.

No further proceedings occurred until September 22, 2005, when M r. Luginbyhl

supplied the district court with a change of address. That same day, the district

court issued a minute order directing M r. Luginbyhl to respond to the motion for

summary judgment within ten days. The order and the Defendants’ motion for

summary judgment were mailed to M r. Luginbyhl at his updated address. M r.

Luginbyhl failed to respond within ten days and, on October 12, 2005, the district

court issued a minute order granting the D efendants’ motion for summary

judgment and dismissing the complaint. M r. Luginbyhl did not respond for nearly

six months, until, on April 7, 2006, he filed a motion to reopen, to reconsider, or

to appeal, which the district court construed as a notice of appeal. 1

      Ordinarily, the time for appeal would have long since passed, but it did not

      1
         Attached to the motion was a copy of a response to the D efendant’s
motion for summary judgment which M r. Luginbyhl claimed he sent to the
district court on October 3, 2005. W hether or not M r. Luginbyhl actually sent the
response on October 3, it did not contest any of the facts asserted in the motion
for summary judgment, and it did not counter the Defendant’s argument that all of
M r. Luginbyhl’s claims were unexhausted. Subsequently, on M ay 10, 2006, M r.
Luginbyhl filed a second motion to reopen and to appeal out of time (Doc. 40)
and a motion for summary judgment, fast and speedy trial, and a request for
judgment on the merits of his exhaustion claims (Doc. 41), both of w hich w ere
out of time as a notice of appeal had already been filed. The district court did not
rule on these motions.

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begin to run until 150 days after the district court’s O ctober 12, 2005, minute

order because no Fed. R. Civ. P. 58(a)(1) separate judgment was entered. Fed. R.

Civ. P. 58(b)(2). Thus, on M arch 20, 2006, M r. Luginbyhl had 30 days to file a

notice of appeal, Fed. R. App. P. 4(a)(1)(A), so his April 7, 2006, filing is timely.

      In Reed v. N ellcor Puritan Bennett, 312 F.3d 1190 (10th Cir. 2002), we

held that a party’s failure to respond to a motion for summary judgment, in and of

itself, is not a legally sufficient basis on which to grant the motion and enter

judgment against that party. Id. at 1195. Instead, a district court wishing to grant

summary judgment as a sanction for failure to respond must perform an explicit

analysis of the factors set forth in M eade v. Grubbs, 841 F.2d 1512, 1519-20

(10th Cir. 1988). See Issa v. Comp USA, 354 F.3d 1174, 1177 (10th Cir. 2003).

Nevertheless, pursuant to local rules, a party may, by failing to offer a timely

response, waive the right to respond or to controvert the facts asserted in a motion

for summary judgment. Reed, 312 F.3d at 1195. Thus, a district court may, as an

alternative to granting summary judgment as a sanction for failure to respond,

grant summary judgment if the uncontroverted facts in the motion meet the

requirements of Fed. R. Civ. P. 56(c)–if they demonstrate that no material issues

of fact remain and that the moving party is entitled to judgment as a matter of

law. Id.

      It is not clear from the district court’s minute order whether it granted the

Defendants’ motion for summary judgment as a sanction for failure to respond or

                                         -4-
whether it actually evaluated the motion under the Rule 56(c) standard. Either

way, the district court did not offer any analysis. W hen presented with the same

scenario in cases past, we have remanded to the district court for an explicit

analysis of the M eade factors or an explicit analysis of the unconstested facts

under the Rule 56(c) standard. See, e.g., M urray v. City of Tahlequah, 312 F.3d

1196, 1200 (10th Cir. 2002); Fields v. Corr. Corp. of Am., No. 04-6348, 2006 W L

991100, at *2 (10th Cir. Apr. 17, 2006) Nevertheless, “[w]e may affirm the

district court on any grounds for which there is a record sufficient to permit

conclusions of law, even grounds not relied upon by the district court.” Lippoldt

v. Cole, 468 F.3d 1204, 1219 (10th Cir. 2006).

      Having reviewed the Defendants’ motion for summary judgment, the

uncontroverted facts alleged therein establish that M r. Luginbyhl failed to exhaust

all his claims because he never appealed any of them to the Oklahoma

Department of Corrections as required by Oklahoma D epartment of Corrections

Inmate G rievance Procedure, # 090124. Although M r. Luginbyhl argued in his

second motion to reopen and to appeal out of time (Doc. 40) that his failure to

exhaust was attributable to his inability to subpoena the records of complaints and

other actions of prison officials, none of these unsworn arguments creates a

genuine issue of material fact, and, regardless, these arguments were never

presented to the district court until after jurisdiction was transferred to this court.

See Howard v. M ail-W ell Envelope Co., 150 F.3d 1227, 1229 (10th Cir. 1998).

                                          -5-
Because E.D. Okla. R. 7.1(c) mandates that failure to respond to a motion for

summary judgment “will constitute a confession of the matters raised by the

pleadings,” the district court would be bound to consider only the facts alleged in

the Defendants’ motion for summary judgment on remand. As already noted,

given the Defendants’ reliance on the affirmative defense of lack of exhaustion,

M r. Luginbyhl’s claims cannot proceed because they were not properly exhausted.

See 42 U.S.C. § 1997(e). As such, it would be a waste of judicial resources to

issue a perfunctory and futile remand to the district court. See Comm. for First

Amendment v. Campbell, 962 F.2d 1517, 1525 (10th Cir. 1992).

      A FFIR ME D.

                                       Entered for the Court


                                       Paul J. Kelly, Jr.
                                       Circuit Judge




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