                                                        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. 03-10634



     JOSLYN HOWARD-BARROWS

                                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-0900-A


Before KING, Chief Judge, and DeMOSS and STEWART, Circuit Judges.

PER CURIAM:*

     Joslyn Howard-Barrows 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



     *
          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that this opinion should not be published and is not precedent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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of confinement.    In addition, Howard-Barrows appeals the district

court’s denial of her motion for leave to 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.

     Howard-Barrows alleges that she was confined in the Haltom

City jail for six days without being taken before a magistrate.

Howard-Barrows’s assertions, however, are not sufficient to

impose § 1983 liability on the City because she does not allege

that the City had a policy or custom of preventing detainees from

appearing before a magistrate in a timely manner.     Cf. Monell,

436 U.S. at 690-91.

     Howard-Barrows also alleges that her Fifth and Sixth

Amendment rights were violated because she was not informed of

her right to counsel or provided with counsel before being


     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.

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detained.    Because Howard-Barrows does not allege that she was

interrogated, however, the Fifth Amendment is inapplicable.       See

Berkemer v. McCarty, 468 U.S. 420, 428-29 (1984).    In addition,

because adversary judicial proceedings had not commenced while

Howard-Barrows was detained, her Sixth Amendment right to counsel

is not implicated.    See, e.g., United States v. Gouveia, 467 U.S.

180, 188 (1984); Styron v. Johnson, 262 F.3d 438, 447 (5th Cir.

2001).    Consequently, the City is not liable under § 1983 for

failing to inform Howard-Barrows of her right to counsel or for

failing to appoint counsel for her.    See Priester v. Lowndes

County, 354 F.3d 414, 420 (5th Cir. 2004).

     Howard-Barrows further alleges that her Fourteenth Amendment

rights were violated because she was not provided with an

indigency hearing to determine whether she had the means to pay

her misdemeanor fines.    The Supreme Court has held that a

defendant may not be sentenced to jail simply because he or she

cannot afford to pay a fine.    Tate v. Short, 401 U.S. 395, 397-98

(1971).    But, according to Howard-Barrows’s own allegations, she

was never brought to court and sentenced for her misdemeanor

violations.    Therefore, her Fourteenth Amendment rights were not

implicated by the lack of an indigency hearing, and the City is

not liable under § 1983 for failing to provide such a hearing.

     Howard-Barrows’s remaining allegations require no extended

discussion.    Sexual harassment alone does not violate a

detainee’s constitutional rights; thus, Howard-Barrows has no

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claim against the City under § 1983 for any sexual harassment she

suffered while in jail.   See 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.”); cf. Austin v. Terhune,

367 F.3d 1167, 1171-72 (9th Cir. 2004).    Next, even if Howard-

Barrows 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

Howard-Barrows 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 Howard-Barrows’s

averments do not demonstrate that her Fourteenth Amendment rights

were violated by the conditions of the jail during the six days

she was there.   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

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district court did not abuse its discretion by denying Howard-

Barrows’s motion for leave to file a second amended complaint.

Howard-Barrows had already been permitted to file an amended

complaint, but she 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

Howard-Barrows’s complaint under Rule 12(b)(6) and the district

court’s denial of Howard-Barrows’s motion for leave to file a

second amended complaint.




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