Herron v. Patrolman #1, et al

United States Court of Appeals
Fifth Circuit
F I L E D
September 28, 2004
Charles R. Fulbruge III
Clerk
In the
United States Court of Appeals
for the Fifth Circuit
_______________
m 03-20590
_______________
LARRY LEONARD HERRON,
Plaintiff-Appellant,
VERSUS
PATROLMAN #1; PATROLMAN #2; DEPUTY,
Defendants-Appellees.
_________________________
Appeal from the United States District Court
for the Southern District of Texas
m 02-CV-3415
_________________________
Before SMITH, WIENER, and PICKERING,
Circuit Judges.
PER CURIAM:*
We once again consider Larry Herron’s ap-
peal of the dismissal, as frivolous, of his 42
U.S.C. § 1983 action against two unnamed
Baytown, Texas, patrol officers and a munici-
pal deputy.1 We affirm and remand.
* Pursuant to 5th Cir. R. 47.5, the court has de-
termined that this opinion should not be published
and is not precedent except under the limited cir-
cumstances set forth in 5th Cir. R. 47.5.4.
1 The district court entered judgment on April
24, 2003. Herron’s notice of appeal was filed on
June 2, more than 30 days after the entry of judg-
ment. We remanded this case to the district court
for a determination of whether Herron delivered his
notice of appeal to prison officials in a timely
manner on or before May 27, 2003. Herron v.
(continued...)

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I.
Herron and his wife were in an automobile
accident in which he was injured and his wife
was injured seriously enough to render her un-
conscious and require several days of hospital-
ization. Herron alleges that when the police
arrived, they mistook his “state of
unconsciousness” for intoxication, treated him
roughly, refused to let him attend to his wife as
she was put into an ambulance, and attempted
to force him to take a field sobriety test. He
was arrested and taken to the city jail,
allegedly without Miranda warnings. At the
jail, he claims to have complied with the offi-
cers’ attempts to give him sobriety tests until
the point at which he realized that they were
conspiring to charge him with a DWI. At the
time of his arrest, Herron was on parole from
a conviction for aggravated sexual assault on
a child. He was charged with DWI and failure
to register as a sex offender.
Herron claims that for several days, while
he was incarcerated at the city jail and later the
county jail, various officers refused to inform
him of his wife’s condition or whereabouts and
refused his requests for medical attention. He
sued pro se and in forma pauperis (“IFP”),
seeking dismissal of his DWI charge, $500,000
in compensatory damages for four days of
“psychiatric abuse,” and medical care.
After ordering a more definite statement
from Herron, the district court dismissed his
claims with prejudice as frivolous because they
lacked an arguable basis in law. The court
gave three reasons: (1) Herron had failed to
exhaust his administrative remedies with
regard to his claims of prison conditions, as
required by 42 U.S.C. § 1997e(a); (2) Her-
ron’s claim for mental anguish was barred by
42 U.S.C. § 1997e(e), because he could not
demonstrate sufficient physical injury; and
(3) the Miranda claim was barred by Younger
abstention.
II.
A district court may dismiss a prisoner’s
IFP claims as frivolous pursuant to 28 U.S.C.
1(...continued)
Patrolman #1, 80 Fed. Appx. 946 (5th Cir. 2003).
The district court having determined that Herron
had deposited his notice of appeal by that date, this
appeal is properly before us.
At the same time Herron filed his notice of
appeal, he filed a pleading labeled an “objection.”
The district court construed this pleading as a FED.
R. CIV. P. 60(b) motion and granted relief in part.
Its order of June 20, 2003, changed the dismissal
of Herron’s unexhausted medical care claims to
without prejudice, and equitably tolled them to
allow Herron to exhaust his administrative
remedies.
In his motion for reconsideration, Herron argues
that the June 20 order superseded the April 24
order. Herron also avers, however, that his “objec-
tion” was directed toward his appeal, that he did
not intend to file a rule 60(b) motion, and that the
district court was without authority to amend its
judgment after his appeal had been noticed.
Whatever Herron’s intentions, and irrespective of
whether the district court properly construed his
“objection” as a rule 60(b) motion, the district
court was without jurisdiction to enter its June 20,
2003, order.
A notice of appeal divests the district court of
jurisdiction except to take action in aid of the ap-
peal. A district court may deny a rule 60(b) mo-
tion on the merits but may not grant rule 60(b)
relief without authorization from this court. Trav-
elers Ins. Co. v. Liljeberg Enters., Inc., 38 F.3d
1404, 1408 n.3 (5th Cir. 1994). Therefore, Her-
ron’s motion to reconsider remand has been denied,
and the operative final judgment is the order of
April 24, 2003.

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§1915(e)(2)(B)(i). We review such a dismissal
for abuse of discretion. Harper v. Showers,
174 F.3d 716 (5th Cir. 1999).
A.
“This Court reviews de novo a district
court’s dismissal of a § 1983 suit for failure to
exhaust administrative remedies pursuant to 42
U.S.C. § 1997e.” Days v. Johnson, 322 F.3d
863, 866 (5th Cir. 2003). Section 1997e(a)
provides that “[n]o action shall be brought
with respect to prison conditions under section
1983 of this title, or any other Federal law, by
a prisoner confined in any jail, prison, or other
correctional facility until such administrative
remedies as are available are exhausted.”
Herron admits that he has not exhausted the
administrative remedies available at either of
the jails. He argues, however that he did not
exhaust the jail grievance procedures because
it would have been futile, because the city and
county procedures were not suitable to decide
the federal issues that formed the basis of his
complaint, that the grievance procedures were
not meaningful, that monetary relief was not
available, and that he was no longer
incarcerated in the city jail.
These reasons are unavailing, because “it is
not for the courts to inquire whether adminis-
trative procedures satisfy ‘minimum acceptable
standards’ of fairness and effectiveness.”
Alexander v. Tippah County, Miss., 351 F.3d
626 (5th Cir. 2003) (citing Booth v. Churner,
532 U.S. 731, 740 n. 5 (2001)). “Exhaustion
is now mandatory, ‘irrespective of the forms of
relief sought and offered through adminis-
trative avenues.’” Days, 322 F.3d at 866
(quoting Booth, 532 U.S. at 739, 741 n.6
(2001)). Therefore, the district court did not
err in dismissing Herron’s claims for failure to
exhaust administrative remedies.
Although the June 20 order was ineffective,
we consider the district court’s willingness to
dismiss Herron’s claims without prejudice and
apply equitable tolling to allow him to exhaust
his administrative remedies, along with our
history of doing so in similar cases. See, e.g.
Clifford v. Gibbs, 298 F.3d 328, 333 (5th Cir.
2002); Wright v. Hollingsworth, 260 F.3d 357,
358 (5th Cir. 2001). Accordingly, on the issue
of jail conditions, we remand for further pro-
ceedings not inconsistent with this opinion.
B.
The district court dismissed Herron’s claims
of mental anguish and “psychiatric abuse”
pursuant to 42 U.S.C. § 1997e, which
provides that “[n]o federal civil action may be
brought by a prisoner confined in jail, prison or
other correctional facility for mental or
emotional injury suffered while in custody
without a prior showing of physical injury.”
“Relying on our Eighth Amendment jurispru-
dence, we have determined that the ‘physical
injury’ required by § 1997e(e) must be more
than de minimus [sic], but need not be signifi-
cant.” Harper, 174 F.3d at 719 (citing Sigler
v. Hightower, 112 F.3d 191 (5th Cir. 1997)
(finding that where a guard twisted a pris-
oner’s arm and twisted his ear, resulting in
bruising and soreness for three days, the injury
was de minimis and would not support a claim
for mental or emotional suffering)).
Even if Herron’s complaint is liberally con-
strued regarding his claim for compensatory
damages, the only possible claim of physical
injury is rough handling, which resulted in a
temporary increase of pain in his already in-
jured neck. As in Sigler, this is at most a de
minimis injury that will not support a claim of

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mental or emotional suffering.2 Moreover, this
alleged injury is insufficiently connected to the
alleged cause of Herron’s mental suffering, the
“psychiatric abuse” of refusing to inform him
of his wife’s condition or whereabouts, to
satisfy § 1997e(e). Therefore, the dismissal as
to Herron’s claim for compensatory damages
was not error.
We acknowledge that lawsuits by arrestees,
detainees, or prisoners who cannot allege a
sufficiently serious physical injury to support
psychological injury are not necessarily barred
altogether by § 1997e(e). Physical injury is a
predicate to an award of compensatory dam-
ages for mental or emotional injury; its absence
does not necessarily preclude recovery of, e.g.,
injunctive relief or nominal damages for
constitutional injuries.3
Herron alleges that defendants maliciously
inflicted psychological pain by refusing, for
four days, to inform him of the condition of
his seriously injured wife. Although such con-
duct, if true, is not acceptable, this is not the
appropriate occasion to decide whether this
can state a constitutional violation, because in-
junctive relief is inapposite here, and Herron
has given no indication that he seeks nominal
damages. His claim, instead, is for $500,000
in compensatory damages. Moreover, even if,
hypothetically, we were to say that the failure
to inform Herron of his wife’s situation was a
constitutional violation, that by no means
would be a clearly established right that would
benefit this plaintiff.
C.
The district court dismissed Herron’s Mir-
anda claim based on Younger v. Harris, 401
U.S. 37, 45 (1971). A federal court cannot in-
tervene in state criminal matters except in ex-
traordinary circumstances, which Herron has
not established. The district court was correct
in its determination that Herron’s Miranda
claim was not a proper subject of this lawsuit.
In conclusion, the district court committed
no error. We therefore AFFIRM the dismissal
of Herron’s claims, but we REMAND so that
the court can change the dismissal of Herron’s
prison condition claims to one without preju-
dice and can apply equitable tolling if it sees
fit.
2 For the same reason, Herron’s allegations are
insufficient to state a claim for excessive use of
force.
3 See, e.g., Harper v. Showers, 174 F.3d 716
(5th Cir. 1999); Oliver v. Scott, 276 F.3d 736, 747
n.20 (5th Cir. 2002); Ryland v. Shapiro, 708 F.2d
967, 976 (5th Cir. 1983).

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