### I N THE UNI TED STATES COURT OF APPEALS FOR THE FI F TH CI RCUI T

No. 12-40948 Summary Calendar

CHRISTIAN MCMILLAN, Plaintiff-Appellant

v. D I R E C T O R , T E X A S D E P A R T M E N T O F C R I M I N A L J U S T I C E , CORRECTIONAL INSTITUTIONS DIVISION; GUILLERMO DELAROSA; JOHN RUPERT; K EVIN WHEAT; JOHN WISENER; AMAHDRICK CHRISTOPHER; MARIO A VELAR; SEAN HODGES; LARRY MATTHEWS; T O M MY 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: * Christia n McMillan, Texas prisoner # 1651635, appeals the dismissal without prejudice of his 42 U.S.C. § 1983 complaint f or f a i l u re to exhaust administrative remedies, denial of his motions for injunctive relief, and denial U n i t e d S t a te s C o u rt o f A p p e al s

F i f t h C i rc u i t 

### F I L E D Septem ber 25, 2013 Ly l e W . Cay ce Clerk

* Purs uant to 5 T H C I R

. R

. 47. 5, the court has d eterm ined that this op inion should not be p ublis hed and is not p reced ent excep t und er the lim ited circum s tances s et forth in 5 T H C I R

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of h is Federal Rule of Civil Procedure 5 9(e) motion to alter or am e n d t he judgment. In his complaint, McMillan complained of searches involving sleepdeprivation and painful restraints. W e r e v i ew d e novo a dismissal f or failure to exhaust administrativ e remedies, Po w e v. Ennis , 177 F.3d 393, 394 (5th Cir. 1 999), and review the denial of a Rule 59(e) motion to alter or a mend a judgment for a n abuse of discretion, Rosenblatt v. United Way of Greater Houston , 607 F.3d 413, 419 (5th Cir. 2 010). Wh ile the denial of a temporary r e straining o rder is not appealable in light of the likelihood o f m o o t n e s s , In re Lieb , 915 F.2d 180, 183 (5th Cir. 1990), we review the denial of a p reliminary injunction f or a n abuse of discretion, SEC v. First Fin. Group of Tex. , 645 F.2d 429, 433 (5th Cir. 1981). Prisoners must properly exhaust “ s u c h administrative remedies as are available” prior to filing a § 1983 a ction 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 excu s e d , G o nzalez v. Seal , 702 F.3d 785, 788 (5th Cir. 2012). Th e T e x a s D e p art m ent o f Justice (TDJC) has a two-step grievance pro c e s s . Mous s aza d eh v. Texas Dep’t of Criminal J ustice , 703 F.3d 781, 788 ( 5th Cir. 2012). The district court determined, s u a s p o n te, that McMillan failed to properly exhaust h is admi n istrative remedies b ecause he filed suit before he received a response to his Step 2 grievance. Although M cMillan asserts that he exhausted the available administrative remedies by f iling an emergency gr i e v a n c e , h e does not point to any TDCJ policy that exempts an emergency grievance from the two-step grievance p r ocess or otherwise i n dicates that filing an emergency grievance completes the grievance process. To the extent that the district court erred b y raising e xhaus t i o n s ua sponte , s ee J

ones , 549 U.S. at 216; Gonzalez , 702 F.3d at 7 88 n.1, the record otherwise demonstrates that McMillan failed to e xhaust his administrative
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remedies by completing the two-step grievance process prior t o f iling suit, and

we c an affirm on a ny basis that is apparent in the record, s ee Sojourner T v. Edwards , 974 F.2d 27, 30 (5th Cir. 1992). McMillan’s remainin g complaints that the district court made i mproper credibility determinations in characteri z i n g his allegations, should have

c o n d ucted a hearing to resolve the merits of his motion for a temporary restraining order, and f ailed to rule on hi s motions f or injunctive relief are unavailing. They are predicated on McMilla n ’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 M cMillan had failed to exhaust his administrative remedies prior to filing suit a nd thus was not entitled to injunctive relief o r 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