     Case: 17-40373      Document: 00515013618         Page: 1    Date Filed: 06/27/2019




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

                                                                                FILED
                                    No. 17-40373                            June 27, 2019
                                  Summary Calendar
                                                                           Lyle W. Cayce
                                                                                Clerk
BRIAN RICHARDSON,

                                                 Plaintiff-Appellant

v.

OFFICER JOSHUA MOORE,

                                                 Defendant-Appellee


                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 1:12-CV-359


Before HIGGINBOTHAM, ELROD and DUNCAN, Circuit Judges.
PER CURIAM: *
       Brian Richardson, Texas prisoner # 1619900, appeals the summary
judgment dismissal of his 42 U.S.C. § 1983 complaint for failure to exhaust
administrative remedies. Finding no error we affirm.
       We review the grant of summary judgment de novo, applying the same
standard as the district court. Mississippi River Basin Alliance v. Westphal,
230 F.3d 170, 174 (5th Cir. 2000). A prisoner who wishes to file a § 1983 suit


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 17-40373

for damages against prison officials must exhaust administrative remedies
before doing so. 42 U.S.C. § 1997e(a); Gonzalez v. Seal, 702 F.3d 785, 788 (5th
Cir. 2012); Johnson v. Johnson, 385 F.3d 503, 515 (5th Cir. 2004). The Texas
prison system provides a two-step process for filing grievances, and a prisoner
must pursue a grievance through both steps to satisfy the exhaustion
requirement. Johnson, 385 F.3d at 515. Although Richardson filed a Step 1
grievance, it is undisputed that he did not file a Step 2 grievance within the
time allowed for doing so. Richardson seeks to supplement the record on
appeal with documents purporting to show that he did ultimately file a Step 2
grievance in this matter. That motion is denied. See Theriot v. Parish of
Jefferson, 185 F.3d 477, 491 n.26 (5th Cir. 1999). Even if we accept as true
that Richardson did file a Step 2 grievance in this matter, by doing so in an
untimely manner, he failed to properly exhaust his administrative remedies.
See Woodford v. Ngo, 548 U.S. 81, 89-95 (2006).
      Richardson’s contention that he was not required to file a Step 2
grievance because his Step 1 grievance was referred to the Office of the
Inspector General is without merit. See Aguirre v. Dyer, 233 F. App’x 365, 366
(5th Cir. 2007); Palermo v. Miller, 196 F. App’x 234, 235 (5th Cir. 2006); Garza
v. Wauson, No. 02-10920, 2003 WL 147727, 1 (5th Cir. Jan. 7, 2003); see also
Ballard v. Burton, 444 F.3d 391, 401 & n.7 (5th Cir. 2006) (recognizing that
unpublished decisions issued after January 1, 1996, are not controlling
precedent but may be considered persuasive authority under 5TH CIR.
R. 47.5.4).
      We conclude that the district court did not err in determining that
Richardson failed to exhaust his administrative remedies. We do not consider
Richardson’s argument, raised for the first time on appeal, that the flaws
inherent in the prison system’s grievance process have denied him the



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                                 No. 17-40373

constitutional right to access to the courts. See Leverette v. Louisville Ladder
Co., 183 F.3d 339, 342 (5th Cir. 1999).
      AFFIRMED.




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