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. 03-10650
NAOMI SOTO
Plaintiff - Appellant
v.
CITY OF HALTOM CITY
Defendant - Appellee
Appeal from the United States District Court
for the Northern District of Texas
No. 4:02-CV-1048-A
Before KING, Chief Judge, and DeMOSS and STEWART, Circuit Judges.
PER CURIAM:*
Naomi Soto 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, invasion of privacy, and
unconstitutional conditions of confinement. In addition, Soto
appeals the district court’s denial of her motion for leave to
*
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that this opinion should not be published and is not precedent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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file a second 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.
Soto 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 Soto, the City is liable under § 1983 for these alleged
constitutional violations because it had a policy of jailing
inmates, such as her, for misdemeanor violations, without
providing counsel or determining whether they had the ability to
pay their misdemeanor fines. Assuming that Soto has alleged
violations of her constitutional rights, we conclude that Soto’s
theory of liability is flawed. The relevant decisions were made,
not by a City policymaker, but by a municipal judge acting in his
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
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, Soto 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 Soto’s wrongful-incarceration claim.2
Soto’s remaining claims require no extended discussion.
Even if Soto 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. Similarly, even if Soto’s constitutional rights
were violated when she was allegedly strip searched by male
2
On appeal, Soto 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 Soto’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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guards “without good cause,” Soto has not alleged that the City
had a policy or custom of allowing baseless cross-gender strip
searches. Cf. id. Even if the jail had a policy of staffing a
lone male jailer, as Soto 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 Soto’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 Soto’s
motion for leave to file a second amended complaint. Soto was
permitted to file an amended complaint, but failed to remedy her
pleading deficiencies. Furthermore, she did not seek leave to
file her second amended complaint in a timely manner. See Foman
v. Davis, 371 U.S. 178, 182 (1962).
Accordingly, we AFFIRM the district court’s dismissal of
Soto’s complaint under Rule 12(b)(6) and the district court’s
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denial of Soto’s motion for leave to file a second amended
complaint.
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