### IN THE UNI TED STATES COURT OFAPPEALS FOR THE FIF TH CIRCU IT

No. 11-50274 Summary Calendar

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 priso n e r # 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 f

iling 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. 199 7). U n i te d S ta te s C o u rt o f A p p ea l s F i ft h C i rc u i t 

### F I L E D Sep tem ber 2 9, 2 011 Lyle W . Cayce Clerk

Purs uant to 5 T H C IR

. R. 47.5 , the cour t hasd ete rm inedt hat this op inion sho uld not * be publ ish ed and is not pr ece dent excep t unde r the lim ite d cir cum st ance s se t forth in 5 T H C IR

. R. 47.5 .4. Case: 11-50274 Document: 00511617623 Page: 1 Date Filed: 09/29/2011No. 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 de f e n d a nt’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 hav e s h o wn 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. McClu r e a s s e rt s th a t the district co u rt ignored that he had filed suit against the grievance department investigator, D. Fenner, and he argue s that because of Fenner’s interference with his grievances, his failure to exhaust should be excused. In his original complaint, McClu r e 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 a s s e rtion 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 constru e d a s a motion for reconsideration under Federal Rule of Civil Procedure 60(b). Accordingly, w e l a c k jurisdiction to review the denial of that motion. See F E D
. R. AP P
. 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. 19 96). McClure has not shown any error in the magistrate judge’s certif i c a t i on that his appeal is not taken in good faith. See § 1915(a). McClure’s request for IFP status is denied. McClure’s appeal is friv o l o u s , 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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& n.24; 5 T H C I R
. R. 4 2

. 2

. M c C lure’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 u n less 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.

3 Case: 11-50274 Document: 00511617623 Page: 3 Date Filed: 09/29/2011