UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

 

VICTOR CORNELL MILLER, 

 Plaintiff-Appellant, 

v. 

WADE SCOTT, O.S.P. Chaplain; 

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. 

No. 14-7016 

(D.C. No. 6:11-CV-00352-RAW-SPS) 

(E.D. Okla.)

 

 

*

 In accordance with Fed. R. App. P. 43(c)(2), Robert Patton is substituted for 

Justin Jones as a defendant-appellee in this action. 

FILED 

United States Court of Appeals 

Tenth Circuit 

February 3, 2015

Elisabeth A. Shumaker 

Clerk of Court

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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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