     Case: 11-41345     Document: 00512034498         Page: 1     Date Filed: 10/26/2012




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

                                                                            FILED
                                                                         October 26, 2012
                                     No. 11-41345
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

ROBERT TROY MCCLURE,

                                                  Plaintiff-Appellant

v.

TYLER G. BOLES, Officer with Telford Unit,

                                                  Defendant-Appellee


                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 5:11-CV-131


Before SMITH, PRADO, and HIGGINSON, Circuit Judges.
PER CURIAM:*
        Robert Troy McClure, Texas prisoner # 1420457, appeals the district
court’s grant of summary judgment in favor of the defendant and the dismissal
without prejudice of his 42 U.S.C. § 1983 complaint. McClure also filed a motion
for emergency review of his appeal, which this court treats as a motion to
expedite his appeal. See 5TH CIR. RULE 34.5.
        Summary judgment is appropriate “if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 11-41345

as a matter of law.” FED. R. CIV. P. 56(a). We review the grant of a motion for
summary judgment de novo. Carnaby v. City of Houston, 636 F.3d 183, 187 (5th
Cir. 2011). We read all facts and inferences in a light that is most favorable to
the nonmovant. Dillon v. Rogers, 596 F.3d 260, 266 (5th Cir. 2010). However,
a nonmovant may not overcome the summary judgment standard with
conclusional allegations, unsupported assertions, or presentation of only a
scintilla of evidence. Hathaway v. Bazany, 507 F.3d 312, 319 (5th Cir. 2007).
      The district court determined that despite the requirements of 42 U.S.C.
§ 1997e(a), McClure failed to exhaust his administrative remedies before filing
his civil rights complaint.      The evidence in the record supports this
determination. The dates McClure filed his Steps One and Two are immaterial
as to whether he exhausted the prison grievance procedure before he filed suit
because he had to complete both steps before he filed suit in order to have
exhausted his administrative remedies. See Johnson v. Johnson, 385 F.3d 503,
515 (5th Cir. 2004). The summary judgment evidence shows that McClure did
not do so.
      McClure argues that the exhaustion requirement should be excused in his
case because (1) his grievance # 2011171487 was an emergency life
endangerment grievance but no investigation was conducted within three days,
in violation of prison policy and (2) the grievance department interfered with the
grievance procedure when the grievance investigator misinformed him that his
Step One had been returned to him and ordered him to file his Step Two without
his Step One, contrary to prison policy. McClure did not present any evidence
in the district court showing that prison policy that required that a grievance
labeled an emergency life endangerment grievance must be investigated within
three days or that such investigation must include an interview with the
grieving prisoner. Regardless of any misinformation or improper order, McClure
did not allege or demonstrate below that he relied on this conduct to his
detriment and, thus, his estoppel argument is meritless. See Dillon, 596 F.3d

                                        2
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                                 No. 11-41345

at 270. As McClure conceded in the district court, his Step One subsequently
was returned to him and he filed a Step Two that was processed. The district
court did not err in granting summary judgment in favor of the defendants. See
Rule 56(a).
      The district court denied all pending motions when it granted the
defendant’s motion for summary judgment and dismissed the complaint without
prejudice. Because McClure was prohibited from bringing this unexhausted
suit, see § 1997e(a), he has not shown that he was entitled to proceed with these
motions. As this order disposes of McClure’s appeal on the merits, his motion
to expedite the appeal is DISMISSED AS MOOT. The judgment of the district
court is AFFIRMED.




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