United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
August 10, 2004
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 03-10631
JANE DOE 5
Plaintiff - Appellant
v.
CITY OF HALTOM CITY, Et Al
Defendants
CITY OF HALTOM CITY
Defendant - Appellee
Appeal from the United States District Court
for the Northern District of Texas
No. 4:02-CV-0770-A
Before KING, Chief Judge, and DeMOSS and STEWART, Circuit Judges.
PER CURIAM:*
Jane Doe No. 5 appeals the district court’s Rule 12(b)(6)
dismissal of her 42 U.S.C. § 1983 claims against the City of
Haltom City for wrongful incarceration, sexual harassment,
invasion of privacy, and unconstitutional conditions of
*
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that this opinion should not be published and is not precedent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.
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confinement. In addition, Doe 5 appeals the district court’s
denial of her motion for leave to file a fourth amended
complaint.1
A plaintiff asserting a claim under § 1983 must “(1) allege
a violation of rights secured by the Constitution of the United
States or laws of the United States; and (2) demonstrate that the
alleged deprivation was committed by a person acting under color
of state law.” Priester v. Lowndes County, 354 F.3d 414, 420
(5th Cir. 2004). In Monell v. Department of Social Services, 436
U.S. 658, 694 (1978), the Supreme Court held that a municipality
could be held liable for an injury under § 1983 if the injury was
caused by a custom or policy of the municipality.
Doe 5 alleges that she was confined in the Haltom City jail
in connection with various misdemeanors without being afforded an
indigency hearing, without being informed of her right to
counsel, and without the benefit of appointed counsel. According
to Doe 5, the City is liable under § 1983 for these alleged
constitutional violations because it had a policy of jailing
inmates, such as her, for misdemeanors, without providing counsel
or determining whether they had the ability to pay their
misdemeanor fines. Assuming that Doe 5 has alleged violations of
her constitutional rights, we conclude that Doe 5’s theory of
1
For purposes of oral argument, this case was
consolidated with twelve similar cases and heard under the name
Drake v. City of Haltom City, No. 03-10594.
2
liability is flawed. The relevant decisions were made, not by a
City policymaker, but by a municipal judge acting in his judicial
capacity. As the Ninth Circuit reasoned in Eggar v. City of
Livingston:
Because [the judge] was functioning as a state judicial
officer, his acts and omissions were not part of a city
policy or custom. A municipality cannot be liable for
judicial conduct it lacks the power to require, control,
or remedy, even if that conduct parallels or appears
entangled with the desires of the municipality.
40 F.3d 312, 316 (9th Cir. 1994) (footnote omitted); see also
Johnson v. Moore, 958 F.2d 92, 94 (5th Cir. 1992).
In the alternative, Doe 5 alleges that the City is liable
because it ratified the municipal judge’s conduct. Because the
municipality did not have the power to control the municipal
judge’s actions, however, it also did not have the power to
ratify them. We, therefore, conclude that the district court
correctly dismissed Doe 5’s wrongful-incarceration claim.2
Doe 5’s remaining claims require no extended discussion.
Verbal sexual harassment does not violate a detainee or inmate’s
constitutional rights; thus, Doe 5 has no claim against the City
under § 1983 for any sexual harassment she suffered while in
jail. See, e.g., Austin v. Terhune, 367 F.3d 1167, 1171-72 (9th
2
On appeal, Doe 5 presents a number of other grounds for
holding the City liable for her alleged wrongful incarceration,
which she did not assert in the district court. We will not
address Doe 5’s new arguments on appeal because we conclude that
no miscarriage of justice will occur by our failure to consider
them. See McDonald’s Corp. v. Watson, 69 F.3d 36, 44 (5th Cir.
1995).
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Cir. 2004); Bender v. Brumley, 1 F.3d 271, 274 n.4 (5th Cir.
1993) (“Mere allegations of verbal abuse do not present
actionable claims under § 1983.”). Next, even if Doe 5 has
alleged a constitutional violation arising out of the video
system’s misuse, she has presented no basis for holding the City
liable because she has not alleged that the misuse arose out of a
City custom or policy. Cf. Monell, 436 U.S. at 690-91. Even if
the jail had a policy of staffing a lone male jailer, as Doe 5
alleges, we held in Scott v. Moore, 114 F.3d 51, 52 (5th Cir.
1997) (en banc), that the Constitution does not require jails
that house female detainees either to staff more than one jailer
at a time or to staff a female jailer. Finally, the City is not
liable under § 1983 for the jail’s policies regarding clothing,
diet, and exercise because Doe 5’s averments do not demonstrate
that her constitutional rights were violated by these policies.
Cf. Hamilton v. Lyons, 74 F.3d 99, 106-07 & n.8 (5th Cir. 1996)
(finding no Fourteenth or Eighth Amendment violation when a
detained parolee “was denied visitation, telephone access,
recreation, mail, legal materials, sheets, and showers for a
three-day period”). Consequently, the district court did not err
by dismissing these claims.
We also conclude that, under the facts of this case, the
district court did not abuse its discretion by denying Doe 5’s
motion for leave to file a fourth amended complaint. Doe 5 was
permitted to file three amended complaints, but failed to remedy
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her pleading deficiencies. Furthermore, she did not seek leave
to file her fourth amended complaint in a timely manner. See
Foman v. Davis, 371 U.S. 178, 182 (1962).
For the foregoing reasons, we AFFIRM the district court’s
dismissal of Doe 5’s complaint under Rule 12(b)(6) and the
district court’s denial of Doe 5’s motion for leave to file a
fourth amended complaint.
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