United States Court of Appeals

Fifth Circuit



## FILED

September 28, 2004

Charles R. Fulbruge III

Clerk 

## In the 

# United States Court of Appeals

for the Fifth Circuit

_______________



### m 03-20590

_______________



### L ARRY 

### L

EONARD 

### H ERRON



### ,

Plaintiff-Appellant,

VERSUS



### P ATROLMAN 

### #1; P ATROLMAN 

### #2; D EPUTY



### ,

Defendants-Appellees.

_________________________

Appeal from the United States District Court

for the Southern District of Texas



### m 02-CV-3415

_________________________

Before S MITH , W IENER , and P ICKERING

, Circuit Judges.

P ER C URIAM : *

We once again consider Larry Herron’s appeal o f t he dismissal, as frivolous, of his 42 U.S.C. § 1983 action against two unnamed

Baytown, Texas, patrol officers and a municipal deputy. 1 We affirm and remand.

* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published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. 1 T he 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 judgment. 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 M ay 27, 2003. H erron v.

(continued...)2 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 unconscious and require several days of hospitalization. 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 for c e him to take a field sobriety test. He

was arrested and taken to the ci t y jail,

allegedly without Miranda warn ings. At the

jail, he claims to have complied with the o fficers’ a t t empts to give him sobriety tests until

the point at which he r ealized that they were

conspiring to charge him with a DWI. At the

time of his arrest, Herron was on parole from

a conviction for agg ravated 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 compensator y 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

ga ve three reasons: (1) Herron had failed to

exhaus t his administrative remedies with

regard to his claims of prison co nditions, as

required by 42 U.S.C. § 1997e(a) ; (2) Herron’s c laim for mental anguish was barred by

42 U.S.C. § 1997e(e), be cause he could not

demonstrate sufficient physical injur y; 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 th e sa me time Herron filed his notice of

appeal, he filed a pleading labeled an “objection.”

The district court construed this pleading as a F ED

. R. C IV

. 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 prejudi ce, and equitably tolled them to

allow Herron to exhaust his administrative

remedies.

In his m otion for reconsideration, Herron argues

that the June 20 order superseded the April 24

order. Herron also avers, however, that his “objection” was directed toward his ap peal, 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.

Whateve r Herron’s intentions, and irrespective of

whether the d i strict 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 ai d of the appeal. A district court may deny a rule 60(b) motion on the merits but may not gra nt rule 60(b)

relief without authorization from this court. Travelers Ins. Co. v. Liljeberg Enters., Inc.

, 38 F.3d

1404, 1408 n.3 (5th Cir. 1994). Therefore, Herron’s motion to reconsider remand has been denied,

and the o per ative final judgment is the order of

April 24, 2003.3

§1915(e)(2)(B)(i). We review such a dismissal

fo r abuse of discretion. H arper 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

ex haust administrative remedies pursuant to 42

U.S.C. § 1997e.” Days v. Johnson , 322 F.3d

863, 866 (5th Cir . 2003). Secti on 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 fac ility until such administrative

remedies as are available are exhausted.”

Herron admits that he has not exhausted the

adminis t rat ive 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 t he basis of his

complaint, that the grievance procedures were

not meanin gful, that monetary relief was not

available, and that h e was no longer

incarcerated in the city jail.

These reasons are unavailing, because “it is

not for the courts to inquire whether administ rative procedures satisfy ‘minimum ac ceptable

standards’ of f

airness 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 an d o ffered through administrative 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 s i milar cases. S ee, e.g.

Clifford v. Gibbs, 298 F.3d 328, 333 (5th Cir.

2002); Wright v. Hollingsw orth

, 260 F.3d 357,

358 (5th Cir. 2001). Accordingly, on the issue

of jail conditions, we remand for further proceedings not inconsistent with this opinion.

B.

The di strict court dismissed Herron’s claims

of mental anguish and “psychiatric abuse”

pursuant to 42 U.S.C. § 19 9 7e, which

provides that “[n]o federal civil action may be

brought by a prisoner confined in jail, prison or

other correc t io nal facility for mental or

emot io nal injury suffered while in custody

without a prior showing of physical injury.”

“Relying on our Eighth Amendment jurispruden ce, we have determined that the ‘physical

injury’ required by § 1997e(e) must be more

than de minimus [sic], but need not be significant.” Harper , 174 F.3d at 719 (citing Sigler

v. Hightow er

, 112 F.3d 191 (5th Cir. 19 97)

(finding that where a

guard twisted a prisoner’ 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 construe d regarding his claim for compensatory

damages, the only poss ible claim of physical

injury is rough handling, which resulted in a

temporary

increase of pain in his already injured neck. As in S igler

, this is at most a d e

minimis injury that will not support a claim of4

mental or emotional suffering. 2 Moreover, this

alleged injury is insufficient ly connected to the

alleged cause of Herron’s mental suffering, the

“psychiatric a buse” of refusing to inform him

o f 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 canno t allege a

sufficiently serious physic al injury to support

psychological injury are not necessarily barred

altogether by § 1997e(e). Physical injury is a

pre dicat e to an award of compensatory damages 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

inflict ed psychological pain by refusing, for

four days , t o inform him of the condition of

his seriously injured wife. Although such conduct, if true, is not acceptable, this is not the

appropriate occasion to decide whether this

can state a constitutional violation, because injunctive relief is inapposite he re, 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 b y no means would be a clearly established right that would

benefit this plaintiff.

C.

The district court dismissed Herron’s Miranda claim based o n Younger v. Harris , 401

U.S. 37, 45 (1971). A federal court cannot intervene in state criminal matters except in extraordinary circumstances, which Herron has

not established. The district court was correct

in its determinatio n that Herron’s M iranda

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 prejudice and can apply equitable toll ing if it sees

fit.

2 For the same reason, Herron’s allegations are

insuffici ent to state a claim for excessive use of

force.

3 See, e.g., Harper v. Show e rs

, 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).