     Case: 12-40948       Document: 00512385378         Page: 1     Date Filed: 09/25/2013




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

                                                                            FILED
                                                                        September 25, 2013
                                     No. 12-40948
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

CHRISTIAN MCMILLAN,

                                                  Plaintiff-Appellant

v.

DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
CORRECTIONAL INSTITUTIONS DIVISION; GUILLERMO DELAROSA;
JOHN RUPERT; KEVIN WHEAT; JOHN WISENER; AMAHDRICK
CHRISTOPHER; MARIO AVELAR; SEAN HODGES; LARRY MATTHEWS;
TOMMY PHARIS; CHRISTOPHER POOLE; MACHELL RAMBO; MICHAEL
SPIRES; JUAN GONZAEZ; JAMES HANSON; LASHONDRA KNOX; JACOB
MARCUM; KIRK SPRUIELL; BENNIE COLEMAN,

                                                  Defendants-Appellees


                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 6:11-CV-292


Before REAVLEY, JONES, and PRADO, Circuit Judges.
PER CURIAM:*
       Christian McMillan, Texas prisoner # 1651635, appeals the dismissal
without prejudice of his 42 U.S.C. § 1983 complaint for failure to exhaust
administrative remedies, denial of his motions for injunctive relief, and denial

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
    Case: 12-40948     Document: 00512385378     Page: 2   Date Filed: 09/25/2013

                                  No. 12-40948

of his Federal Rule of Civil Procedure 59(e) motion to alter or amend the
judgment. In his complaint, McMillan complained of searches involving sleep-
deprivation and painful restraints.
      We review de novo a dismissal for failure to exhaust administrative
remedies, Powe v. Ennis, 177 F.3d 393, 394 (5th Cir. 1999), and review the
denial of a Rule 59(e) motion to alter or amend a judgment for an abuse of
discretion, Rosenblatt v. United Way of Greater Houston, 607 F.3d 413, 419 (5th
Cir. 2010). While the denial of a temporary restraining order is not appealable
in light of the likelihood of mootness, In re Lieb, 915 F.2d 180, 183 (5th Cir.
1990), we review the denial of a preliminary injunction for an abuse of
discretion, SEC v. First Fin. Group of Tex., 645 F.2d 429, 433 (5th Cir. 1981).
      Prisoners must properly exhaust “such administrative remedies as are
available” prior to filing a § 1983 action concerning prison conditions. 42 U.S.C.
§ 1997e(a); see Jones v. Bock, 549 U.S. 199, 218 (2007). Requests for injunctive
relief are not exempt from the exhaustion requirement, and failure to completely
exhaust prior to filing suit cannot be excused, Gonzalez v. Seal, 702 F.3d 785,
788 (5th Cir. 2012).
      The Texas Department of Justice (TDJC) has a two-step grievance process.
Moussazadeh v. Texas Dep’t of Criminal Justice, 703 F.3d 781, 788 (5th Cir.
2012). The district court determined, sua sponte, that McMillan failed to
properly exhaust his administrative remedies because he filed suit before he
received a response to his Step 2 grievance. Although McMillan asserts that he
exhausted the available administrative remedies by filing an emergency
grievance, he does not point to any TDCJ policy that exempts an emergency
grievance from the two-step grievance process or otherwise indicates that filing
an emergency grievance completes the grievance process.
      To the extent that the district court erred by raising exhaustion sua
sponte, see Jones, 549 U.S. at 216; Gonzalez, 702 F.3d at 788 n.1, the record
otherwise demonstrates that McMillan failed to exhaust his administrative

                                        2
    Case: 12-40948     Document: 00512385378      Page: 3    Date Filed: 09/25/2013

                                  No. 12-40948

remedies by completing the two-step grievance process prior to filing suit, and
we can affirm on any basis that is apparent in the record, see Sojourner T v.
Edwards, 974 F.2d 27, 30 (5th Cir. 1992).
      McMillan’s remaining complaints that the district court made improper
credibility determinations in characterizing his allegations, should have
conducted a hearing to resolve the merits of his motion for a temporary
restraining order, and failed to rule on his motions for injunctive relief are
unavailing. They are predicated on McMillan’s assumption that the district
court could have reached his requests for injunctive relief notwithstanding his
failure to exhaust; the district court correctly denied all pending motions for the
implicit reason that McMillan had failed to exhaust his administrative remedies
prior to filing suit and thus was not entitled to injunctive relief or to proceed in
the instant action.
      The judgment of the district court is AFFIRMED.




                                         3
