     Case: 15-41444      Document: 00514011973         Page: 1    Date Filed: 05/30/2017




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

                                    No. 15-41444
                                                                                  Fifth Circuit

                                                                                FILED
                                  Summary Calendar                          May 30, 2017
                                                                           Lyle W. Cayce
EARL RAYMOND MILLION,                                                           Clerk


                                                 Plaintiff-Appellant

v.

DAWN E. GROUNDS; FNU NEAL; FNU CHOAT; D. MOOR, Lieutenant;
MAINTENANCE SUPERVISOR; DIANE MOORE; ALVIE W. KING,

                                                 Defendants-Appellees


                   Appeal from the United States District Court
                        for the Eastern District of Texas
                              USDC No. 5:14-CV-11


Before HIGGINBOTHAM, PRADO, and HAYNES, Circuit Judges.
PER CURIAM: *
       Earl Raymond Million, Texas prisoner # 1170997, appeals the district
court’s judgment granting summary judgment and dismissing his 42 U.S.C.
§ 1983 complaint. With regard to his claim that the appellees were deliberately
indifferent to his safety, he asserts that the appellees’ failure to inspect and
maintain the overhead exhaust system in a shower at the Telford Unit resulted



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 15-41444    Document: 00514011973     Page: 2   Date Filed: 05/30/2017


                                 No. 15-41444

in his sustaining serious injuries when the system fell on him. According to
Million, the appellees are not entitled to immunity under the Eleventh
Amendment or qualified immunity.
      This court reviews a grant of summary judgment de novo, employing the
same standard as the district court. Carnaby v. City of Houston, 636 F.3d 183,
187 (5th Cir. 2011). 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 as a matter of law.” FED. R. CIV. P. 56(a).
      Million’s complaints about the appellees’ conduct while they were
performing their duties as officers employed by the state prison system fall
within the scope of the Eleventh Amendment and, thus, they are entitled to
sovereign immunity. See Frew ex rel. Frew v. Hawkins, 540 U.S. 431, 437
(2004); Mayfield v. Texas Dep’t Of Criminal Justice, 529 F.3d 599, 604 (5th Cir.
2008). To the extent that Million seeks monetary damages from the appellees
in their official capacities, the appellees are entitled to judgment as a matter
of law on the basis of sovereign immunity. Mayfield, 529 F.3d at 604. Insofar
as he is seeking injunctive relief, Million’s claims against the appellees in the
official capacities are moot because he has been transferred to another facility.
See Oliver v. Scott, 276 F.3d 736, 741 (5th Cir. 2002).
      With respect to Million’s Eighth Amendment claim based on deliberate
indifference, appellees Grounds, Neal, Choate, and King raised the defense of
qualified immunity and, therefore, the burden was on Million to show that the
defense did not apply. Jones v. Lowndes Cty, Miss., 678 F.3d 344, 351 (5th Cir.
2012). Viewing the evidence in the light most favorable to Million, he has failed
to show that the appellees possessed facts raising an inference that the exhaust
system presented a substantial risk of harm or that the appellees knowingly
disregarded the risk by failing to inspect and maintain the system. See Farmer



                                       2
    Case: 15-41444    Document: 00514011973     Page: 3   Date Filed: 05/30/2017


                                 No. 15-41444

v. Brennan, 511 U.S. 825, 837 (1994). His conclusional and unsubstantiated
assertions do not demonstrate that the appellees’ conduct rose to the level of
deliberate indifference in violation of the Eighth Amendment and, thus, he has
failed to show that the appellees violated a clearly established constitutional
right. Carnaby, 636 F.3d at 187; Pearson v. Callahan, 555 U.S. 223, 232 (2009).
Their conduct, even if it departed from prison policy or rules, was at most
negligence and not deliberate indifference. See Longoria v. Texas, 473 F.3d
586, 593 n.9 (5th Cir. 2006). Because Million has failed to show that there is a
genuine dispute of material fact regarding the appellees’ entitlement to the
defense of qualified immunity, the district court did not err in granting
summary judgment in the appellees’ favor. Carnaby, 636 F.3d at 187.
      Million also challenges, in a reply brief to appellee Moore’s brief, the
district court’s grant of summary judgment dismissing with prejudice his
retaliation claim against her for failure to exhaust his administrative
remedies. The issue is probably waived, because it was not raised in Million’s
opening brief. See Warren v. Chesapeake Expl., L.L.C., 759 F.3d 413, 420 (5th
Cir. 2014). Even if the issue is properly before us, Million cannot prevail.
      This court reviews a district court’s dismissal of a prisoner’s § 1983
complaint for failure to exhaust de novo. Carbe v. Lappin, 492 F.3d 325, 327
(5th Cir. 2007). Proper exhaustion requires that the prisoner not only pursue
all available avenues of relief but also comply with all administrative deadlines
and procedural rules. Woodford v. Ngo, 548 U.S. 81, 89-93 (2006). The Texas
prison system has a two-step formal grievance process, and “a prisoner must
pursue a grievance through both steps for it to be considered exhausted.”
Johnson v. Johnson, 385 F.3d 503, 515 (5th Cir. 2004). (internal quotations
and citation omitted). Million failed to properly present his retaliation claim
in either grievance step.     Therefore, he failed to satisfy the exhaustion



                                       3
    Case: 15-41444   Document: 00514011973     Page: 4   Date Filed: 05/30/2017


                                No. 15-41444

requirement. See Woodford, 548 U.S. at 83-84. Because Million has not raised
any genuine disputed issue of material fact relevant to the exhaustion issue,
the district court did not err in granting summary judgment dismissing the
retaliation claims with prejudice. Carnaby, 636 F.3d at 187.
     Million has not shown that his case involves exceptional circumstances
that require the appointment of counsel. See Ulmer v. Chancellor, 691 F.2d
209, 212-13 (5th Cir. 1982). His motion for appointment of counsel is DENIED.
     The judgment of the district court is AFFIRMED.




                                      4
