     Case: 11-50274     Document: 00511617623         Page: 1     Date Filed: 09/29/2011




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                        September 29, 2011
                                     No. 11-50274
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

ROBERT TROY MCCLURE,

                                                  Plaintiff-Appellant

v.

JERRY SANCHEZ, also known as Sanchez,

                                                  Defendant-Appellee


                   Appeals from the United States District Court
                         for the Western District of Texas
                              USDC No. 5:09-CV-164


Before DAVIS, SMITH, and PRADO, Circuit Judges.
PER CURIAM:*
        Robert Troy McClure, Texas prisoner # 1420457, has filed a motion for
leave to proceed in forma pauperis (IFP) on appeal from the summary judgment
dismissal of his 42 U.S.C. § 1983 complaint for failure to exhaust administrative
remedies. By filing such a motion, McClure is challenging the magistrate judge’s
certification, pursuant to 28 U.S.C. § 1915(a)(3) and Federal Rule of Appellate
Procedure 24(a), that any appeal would not be taken in good faith. See Baugh
v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997).

       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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                                  No. 11-50274

      A prisoner must properly exhaust the prison grievance procedure before
he may file a § 1983 suit against prison officials. 42 U.S.C. § 1997e(a); Woodford
v. Ngo, 548 U.S. 81, 93, 95 (2006). McClure makes a conclusional assertion that
the defendant’s claim that he failed to exhaust is incorrect. However, he does
not argue that he timely filed both Step 1 and 2 grievances regarding the alleged
August 3, 2007, incident, as required by the Texas prison grievance procedure.
See Johnson v. Johnson, 385 F.3d 503, 515 (5th Cir. 2004). His argument that
he could have shown that he suffers post traumatic stress disorder if he had
been allowed discovery does not address the magistrate judge’s reasons for
granting the defendant’s motion for summary judgment and for dismissing the
appeal--McClure’s failure to exhaust.
      McClure asserts that the district court ignored that he had filed suit
against the grievance department investigator, D. Fenner, and he argues that
because of Fenner’s interference with his grievances, his failure to exhaust
should be excused. In his original complaint, McClure asserted simply that
Fenner “failed to protect” and “failed to uphold due process of law.” He did not
assert that Fenner or anyone else interfered with the grievance process. He
raised that assertion for the first time in his “objections” to the magistrate
judge’s judgment. However, McClure did not file a notice of appeal from the
magistrate judge’s denial of his objections to the judgment, which the magistrate
judge construed as a motion for reconsideration under Federal Rule of Civil
Procedure 60(b). Accordingly, we lack jurisdiction to review the denial of that
motion. See FED. R. APP. P. 4(b)(1)(A)(vi), (B)(ii); see also Bowles v. Russell, 551
U.S. 205, 214 (2007); Williams v. Chater, 87 F.3d 702, 704-06 (5th Cir. 1996).
      McClure has not shown any error in the magistrate judge’s certification
that his appeal is not taken in good faith. See § 1915(a). McClure’s request for
IFP status is denied. McClure’s appeal is frivolous, see Howard v. King, 707
F.2d 215, 219-20 (5th Cir. 1983), and it is dismissed, see Baugh, 117 F.3d at 202



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                                  No. 11-50274

& n.24; 5TH CIR. R. 42.2. McClure’s motion for the appointment of appellate
counsel is denied.
      The dismissal of this appeal as frivolous counts as a strike for purposes of
§ 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996). We
caution McClure that if he accumulates three strikes under § 1915(g), he will not
be able to proceed IFP in any civil action or appeal filed while he is incarcerated
or detained in any facility unless he “is under imminent danger of serious
physical injury.” § 1915(g).
      MOTION FOR IFP DENIED; MOTION FOR APPOINTMENT OF
COUNSEL DENIED; APPEAL DISMISSED; SANCTION WARNING ISSUED.




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