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

_______________

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 appeal of the 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* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published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 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 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 May 27, 2003. Herron v.

(continued...)
2

I.

Herron and his wife were in an automobile

accident in which he was injured and his wife

wasinjured 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 himattend 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 officers’ 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 wasincarcerated at the city jail and later the

county jail, various officers refused to inform

himof his wife’s condition or whereabouts and

refused his requests for medical attention. He

sued pro se and in forma pauperis (“IFP”),

seeking dismissalofhis 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 asfrivolous 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) Herron’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 “objection” 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 appeal. A district court may deny a rule 60(b) motion on the merits but may not grant 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 operative final judgment is the order of

April 24, 2003.
3

§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 undersection

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 admitsthat 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 administrative proceduressatisfy‘minimumacceptable

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 ofthe forms of

relief sought and offered 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 wasineffective,

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 (5thCir. 2001). Accordingly, on the issue

of jail conditions, we remand for further proceedings 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 jurisprudence, 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. Hightower, 112 F.3d 191 (5th Cir. 1997)

(finding that where a guard twisted a prisoner’s arm and twisted his ear, resulting in

bruising and sorenessfor 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 construed 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 injured neck. As in Sigler, this is at most a de

minimis injury that will not support a claim of
4

mentalor emotionalsuffering.2 Moreover, this

alleged injury isinsufficiently connected to the

alleged cause of Herron’smentalsuffering, 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 byarrestees,

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 damagesfor mentalor emotionalinjury; its absence

does not necessarilypreclude recoveryof, 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

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

appropriate occasion to decide whether this

can state a constitutionalviolation, because injunctive 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 Miranda claim based on 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 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 prejudice 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).