IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 12-40948

Summary Calendar

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

United States Court of Appeals

Fifth Circuit

F I L E D

September 25, 2013

Lyle W. Cayce

Clerk

* 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: 1 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 sleepdeprivation 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).

TheTexas 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: 2 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

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