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

                                                FILED
                                                                  April 30, 2009
                                No. 08-50286
                             Conference Calendar             Charles R. Fulbruge III
                                                                     Clerk

JAMES MCHENRY

                                           Petitioner-Appellant

v.

FIELD OFFICER FNU MANOR; FIELD LIEUTENANT FNU RIGAMONTI;
DANNY DUBBERLY; MS FNU EGAN; PA FNU SMITH; MS FNU BUCANNON

                                           Defendants-Appellees


                 Appeal from the United States District Court
                      for the Western District of Texas
                           USDC No. 6:06-CV-141


Before JONES, Chief Judge, and JOLLY and ELROD, Circuit Judges.
PER CURIAM:*
      James McHenry, Texas prisoner # 455597, 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, McHenry is challenging the district court’s
certification, pursuant to 28 U.S.C. § 1915(a)(3) and Federal Rule of Appellate




      *
      Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
                                  No. 08-50286

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).
      The Prison Litigation Reform Act requires a prisoner to exhaust his
administrative remedies before he may file a § 1983 suit against prison officials.
42 U.S.C. § 1997e(a); Johnson v. Johnson, 385 F.3d 503, 515 (5th Cir. 2004). We
review de novo a district court’s summary judgment dismissal of a § 1983
complaint. Walker v. Epps, 550 F.3d 407, 410 (5th Cir. 2008).
      With their motion for summary judgment, the defendants presented
evidence that McHenry failed to complete the Texas Department of Criminal
Justice’s grievance process with regard to any of the grievances he submitted
complaining of the events underlying his § 1983 complaint. McHenry presented
nothing in district court, either in his response to the summary judgment motion
or in his Federal Rule of Civil Procedure 59(e) motion, to raise a genuine issue
of material fact as to whether he had exhausted his administrative remedies.
      For the first time on appeal, McHenry has submitted copies of Step 1 and
Step 2 grievances that he contends he submitted to prison authorities. McHenry
argues that prison authorities interfered with his attempts to exhaust his
administrative remedies by improperly returning the documents unprocessed.
We “will not ordinarily enlarge the record on appeal to include material not
before the district court.” United States v. Flores, 887 F.2d 543, 546 (5th Cir.
1989). In any event, the documents do not raise a genuine issue of material fact
as to whether McHenry exhausted his administrative remedies. See Woodford
v. Ngo, 548 U.S. 81, 90-91, 93-94 (2006) (holding that a prisoner must comply
with all procedural rules to exhaust his administrative remedies).
      McHenry has not established that the district court erred by granting
summary judgment in favor of the defendants. Thus, he has not demonstrated
that he will raise a nonfrivolous issue on appeal. See § 1915(a). McHenry’s
request for IFP status is denied. Because his appeal is frivolous, see Howard v.



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                                 No. 08-50286

King, 707 F.2d 215, 219-20 (5th Cir. 1983), it is dismissed as frivolous. See
Baugh, 117 F.3d at 202 & n.24; 5 TH C IR. R. 42.2.
      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 McHenry 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).
      IFP DENIED; APPEAL DISMISSED; SANCTION WARNING ISSUED.




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