                                                                             FILED
                                                                 United States Court of Appeals
                                                                         Tenth Circuit

                    UNITED STATES COURT OF APPEALS                    February 3, 2015
                           FOR THE TENTH CIRCUIT                     Elisabeth A. Shumaker
                                                                         Clerk of Court

VICTOR CORNELL MILLER,

             Plaintiff-Appellant,

v.                                                        No. 14-7016
                                              (D.C. No. 6:11-CV-00352-RAW-SPS)
WADE SCOTT, O.S.P. Chaplain;                               (E.D. Okla.)
ROBERT COMPTON, O.S.P. Food
Service Superintendent; D. D. JOHNS,
O.S.P. Food Service Supervisor; TERRY
CRENSHAW, O.S.P. Warden
Assistant-Designee; CHAD BROWN,
O.S.P. Case Manager III; WILLIAM
TAYLOR, Unit Manager, O.S.P.;
RANDALL WORKMAN, Oklahoma
State Penitentiary Warden; ROBERT
PATTON,* Oklahoma Department of
Corrections, Director; KERRY
MINYARD, ODOC Administrator
Program Officer; CHESTER MASON,
OSP Health Services Administrator;
BEATRICE GLOVER, OSP Security
Officer; JACQUELYN BARNETT,
OSP Security Officer; KEITH
SHERWOOD, OSP Case Manager;
JIM HOBBS, OSP Security Officer;
CLEVELAND SWEET, OSP Security
Officer; ANTHONY ROBERTS, OSP
Security Officer,

             Defendants-Appellees.



*
       In accordance with Fed. R. App. P. 43(c)(2), Robert Patton is substituted for
Justin Jones as a defendant-appellee in this action.
                            ORDER AND JUDGMENT**


Before LUCERO, GORSUCH, and MORITZ, Circuit Judges.


      Victor Miller, an inmate in the Oklahoma Department of Corrections, filed a

lawsuit claiming that prison officials violated his constitutional rights in a variety of

ways. The district court dismissed four of the five counts in Mr. Miller’s complaint

because he failed to exhaust his ODOC administrative remedies. It granted summary

judgment on the remaining count, holding that it was frivolous and should count as a

“strike” under 28 U.S.C. § 1915. It is these rulings Mr. Miller now appeals.

      We have carefully reviewed the record and agree with the district court that

Mr. Miller failed to exhaust his administrative remedies as to Counts I through IV of

his amended complaint. Mr. Miller did begin the grievance process for some of his

claims, but ODOC presented undisputed evidence that he did not complete the final

step — an appeal to ODOC’s Administrative Reviewing Authority (ARA). Appeals

must be mailed to the ARA through the U.S. Postal Service. ODOC presented a

detailed log of every piece of outgoing legal mail from July 29 through December 5,


**
      After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. 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.


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2011, the relevant time period. The log shows no record of Mr. Miller submitting

any letter to the ARA during that time. ODOC also submitted an affidavit from

ODOC officer Kerry Minyard indicating that she had searched the grievance records

maintained in the Administrative Review unit and that office had no record of

Mr. Miller submitting an appeal to the ARA. “At summary judgment, the relevant

inquiry is whether the evidence presents a sufficient disagreement to require

submission to a jury or whether it is so one-sided that one party must prevail as a

matter of law.” Simpson v. Univ. of Colo. Boulder, 500 F.3d 1170, 1179 (10th Cir.

2007) (internal quotation marks omitted). Given Mr. Miller’s failure to respond to or

rebut the Minyard affidavit or the evidence of the outgoing legal mail log, we agree

with the district court that ODOC met its burden to show Mr. Miller did not exhaust

his administrative remedies with respect to his first four claims.

      In his remaining claim, Count V, Mr. Miller alleges that ODOC violated his

constitutional rights when the prison chaplain denied his requests for a Halal or a

Kosher diet. Mr. Miller doesn’t allege a statutory violation under the Religious Land

Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C. § 2000cc-1(a). But even

if he had, the outcome would be the same. It is undisputed that ODOC policy

currently permits prisoners access to Halal or Kosher diets if the prison chaplain

agrees that one or the other is warranted to satisfy the inmate’s sincerely held

religious beliefs. And, according to Mr. Miller’s own complaint, the chaplain

ultimately denied his request only after concluding that Mr. Miller’s voluntary food


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purchases at the prison canteen belied his claim of a sincere religious scruple about

his diet. The district court granted summary judgment to the prison and deemed this

portion of Mr. Miller’s complaint frivolous under § 1915 because, among other

things, Mr. Miller failed to present any evidence tending to rebut the chaplain’s

assessment or tending to show that ODOC burdened his sincerely held religious

beliefs. We can find no fault with this disposition, for all the competent evidence in

this record indeed runs but one way. See Yellowbear v. Lampert, 741 F.3d 48, 54

(10th Cir. 2014) (“When inquiring into a claimant’s sincerity . . . [a court may] ask[]

whether the claimant . . . actually holds the beliefs he claims to hold.”); United States

v. Quaintance, 608 F.3d 717, 721-22 (10th Cir. 2010) (same).

      Mr. Miller argues that the district court abused its discretion by ruling on

ODOC’s motion for summary judgment on Count V while various motions were

pending before the magistrate judge and without giving him notice when his response

to the motion might be due. But the court did give a response due date — fourteen

days after ODOC’s motion was filed — and waited nearly eight months before

ruling. In these circumstances it is hard to see how Mr. Miller’s failure to respond

might be overlooked. Neither was Mr. Miller entitled to proceed before a magistrate

judge once the district court determined his complaint presented no legal claim that

would support relief. A district court is required to dismiss an in forma pauperis

complaint “at any time” once it determines the action is frivolous.

28 U.S.C. § 1915(e)(2)(B)(i).


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      Mr. Miller’s motion for leave to proceed in this court in forma pauperis and

his motion for appointment of counsel are denied and the judgment is affirmed. Mr.

Miller is directed to pay the balance of the filing fee forthwith.

                                                Entered for the Court



                                                Neil M. Gorsuch
                                                Circuit Judge




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