Filed: Sep. 28, 2004
Latest Update: Feb. 21, 2020
Summary: 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
Summary: 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 ..
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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termined that this opinion should not be published notice of appeal to prison officials in a timely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).
4
