                                                                                    United States Court of Appeals
                                                                                             Fifth Circuit
                                                                                           F I L E D
                                                  In the                                 September 28, 2004
                         United States Court of Appeals                                Charles R. Fulbruge III
                                       for the Fifth Circuit                                   Clerk
                                            _______________

                                              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,                   U.S.C. § 1983 action against two unnamed
  Circuit Judges.                                      Baytown, Texas, patrol officers and a munici-
                                                       pal deputy.1 We affirm and remand.
PER CURIAM:*

   We once again consider Larry Herron’s ap-               1
                                                             The district court entered judgment on April
peal of the dismissal, as frivolous, of his 42         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
   *
    Pursuant to 5th Cir. R. 47.5, the court has de-    for a determination of whether Herron delivered his
termined that this opinion should not be published     notice of appeal to prison officials in a timely
and is not precedent except under the limited cir-     manner on or before May 27, 2003. Herron v.
cumstances set forth in 5th Cir. R. 47.5.4.                                                  (continued...)
                       I.                                   arrived, they mistook his “state of
   Herron and his wife were in an automobile                unconsciousness” for intoxication, treated him
accident in which he was injured and his wife               roughly, refused to let him attend to his wife as
was injured seriously enough to render her un-              she was put into an ambulance, and attempted
conscious and require several days of hospital-             to force him to take a field sobriety test. He
ization. Herron alleges that when the police                was arrested and taken to the city jail,
                                                            allegedly without Miranda warnings. At the
   1
                                                            jail, he claims to have complied with the offi-
    (...continued)
                                                            cers’ attempts to give him sobriety tests until
Patrolman #1, 80 Fed. Appx. 946 (5th Cir. 2003).
                                                            the point at which he realized that they were
The district court having determined that Herron
had deposited his notice of appeal by that date, this       conspiring to charge him with a DWI. At the
appeal is properly before us.                               time of his arrest, Herron was on parole from
                                                            a conviction for aggravated sexual assault on
    At the same time Herron filed his notice of             a child. He was charged with DWI and failure
appeal, he filed a pleading labeled an “objection.”         to register as a sex offender.
The district court construed this pleading as a FED.
R. CIV. P. 60(b) motion and granted relief in part.            Herron claims that for several days, while
Its order of June 20, 2003, changed the dismissal           he was incarcerated at the city jail and later the
of Herron’s unexhausted medical care claims to              county jail, various officers refused to inform
without prejudice, and equitably tolled them to             him of his wife’s condition or whereabouts and
allow Herron to exhaust his administrative                  refused his requests for medical attention. He
remedies.                                                   sued pro se and in forma pauperis (“IFP”),
                                                            seeking dismissal of his DWI charge, $500,000
    In his motion for reconsideration, Herron argues
                                                            in compensatory damages for four days of
that the June 20 order superseded the April 24
order. Herron also avers, however, that his “objec-         “psychiatric abuse,” and medical care.
tion” was directed toward his appeal, that he did
not intend to file a rule 60(b) motion, and that the           After ordering a more definite statement
district court was without authority to amend its           from Herron, the district court dismissed his
judgment after his appeal had been noticed.                 claims with prejudice as frivolous because they
Whatever Herron’s intentions, and irrespective of           lacked an arguable basis in law. The court
whether the district court properly construed his           gave three reasons: (1) Herron had failed to
“objection” as a rule 60(b) motion, the district            exhaust his administrative remedies with
court was without jurisdiction to enter its June 20,        regard to his claims of prison conditions, as
2003, order.                                                required by 42 U.S.C. § 1997e(a); (2) Her-
                                                            ron’s claim for mental anguish was barred by
    A notice of appeal divests the district court of        42 U.S.C. § 1997e(e), because he could not
jurisdiction except to take action in aid of the ap-
                                                            demonstrate sufficient physical injury; and
peal. A district court may deny a rule 60(b) mo-
tion on the merits but may not grant rule 60(b)
                                                            (3) the Miranda claim was barred by Younger
relief without authorization from this court. Trav-         abstention.
elers Ins. Co. v. Liljeberg Enters., Inc., 38 F.3d
1404, 1408 n.3 (5th Cir. 1994). Therefore, Her-                                   II.
ron’s motion to reconsider remand has been denied,             A district court may dismiss a prisoner’s
and the operative final judgment is the order of            IFP claims as frivolous pursuant to 28 U.S.C.
April 24, 2003.

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


                                                    3
mental or emotional suffering.2 Moreover, this            would be a clearly established right that would
alleged injury is insufficiently connected to the         benefit this plaintiff.
alleged cause of Herron’s mental suffering, the
“psychiatric abuse” of refusing to inform him                                    C.
of his wife’s condition or whereabouts, to                   The district court dismissed Herron’s Mir-
satisfy § 1997e(e). Therefore, the dismissal as           anda claim based on Younger v. Harris, 401
to Herron’s claim for compensatory damages                U.S. 37, 45 (1971). A federal court cannot in-
was not error.                                            tervene in state criminal matters except in ex-
                                                          traordinary circumstances, which Herron has
   We acknowledge that lawsuits by arrestees,             not established. The district court was correct
detainees, or prisoners who cannot allege a               in its determination that Herron’s Miranda
sufficiently serious physical injury to support           claim was not a proper subject of this lawsuit.
psychological injury are not necessarily barred
altogether by § 1997e(e). Physical injury is a                 In conclusion, the district court committed
predicate to an award of compensatory dam-                no error. We therefore AFFIRM the dismissal
ages for mental or emotional injury; its absence          of Herron’s claims, but we REMAND so that
does not necessarily preclude recovery of, e.g.,          the court can change the dismissal of Herron’s
injunctive relief or nominal damages for                  prison condition claims to one without preju-
constitutional injuries.3                                 dice and can apply equitable tolling if it sees
                                                          fit.
    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


   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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