                                                        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. 03-10942



     RYAN M WHISENANT

                                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-322-A


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

PER CURIAM:*

     Ryan Whisenant appeals the district court’s Rule 12(b)(6)

dismissal of his 42 U.S.C. § 1983 claims against the City of

Haltom City for wrongful incarceration and unconstitutional

conditions of confinement.1



     *
          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that this opinion should not be published and is not precedent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.
     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.

                                  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.

     Whisenant alleges that he was incarcerated in the Haltom

City jail for fifty days in connection with various misdemeanors.

According to Whisenant, former municipal judge Jack Byno

incarcerated him without informing him of his right to counsel,

providing him with appointed counsel, or holding a hearing to

determine whether Whisenant was able to pay his misdemeanor

fines.   Whisenant argues that the City is responsible for these

alleged constitutional violations because (1) the City had a

policy of incarcerating defendants who were unable to pay

misdemeanor fines without providing them with indigency hearings

or appointing counsel for them, (2) the City ratified Byno’s

actions, and (3) the city council conspired with Byno to

incarcerate indigent defendants in order to extract money from

them.

     The City cannot be liable under § 1983 for having a “policy”

of wrongfully incarcerating indigent defendants because the

                                   2
relevant decisions were made 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).   Similarly,

because the City had no power to control Byno’s judicial actions,

the City cannot be liable for “ratifying” his judicial conduct.

     Whisenant, however, also contends that the City is liable

because the city council conspired with Byno to incarcerate him

and other indigent defendants in order to raise money for the

City.   To state a claim for conspiracy under § 1983, a plaintiff

must allege the existence of (1) an agreement to do an illegal

act and (2) an actual constitutional deprivation.    See Cinel v.

Connick, 15 F.3d 1338, 1343 (5th Cir. 1994).   Whisenant has

alleged an agreement between Byno and the city council to violate

his rights (and the rights of other indigent defenants): “Byno

conspired with the City counsel [sic] to establish procedures

designed to deprive individuals of their constitutional rights to

generate revenues for the City by intimidating accused

individuals to plead guilty, levying unjust fines, refusing to

appoint counsel . . . and throwing citizens in ‘debtor’s prison.”


                                  3
Whisenant Compl. at 4.   Furthermore, by alleging that he was not

given an indigency hearing or provided with appointed counsel

before being incarcerated, Whisenant has alleged actual

deprivations of his constitutional rights.    See Scott v.

Illinois, 440 U.S. 367, 373-74 (1979); Tate v. Short, 401 U.S.

395, 399 (1971).

     The next question is whether the City could be liable under

§ 1983 for this conspiracy.   The City cannot be liable for Byno’s

role in the conspiracy, since Byno was not acting as a municipal

official or lawmaker.    Johnson, 958 F.2d at 94.   But the City can

be held liable for the city council’s part in the conspiracy,

because the city council is the City’s policymaking body and,

consequently, its decisions constitute City policy.     See id.

(defining “official policy”).   Therefore, we hold that Whisenant

has stated a § 1983 claim against the City for his wrongful

incarceration.   Whether the claim will survive a properly

supported motion for summary judgment is not before us.

     Whisenant has failed to state a claim regarding his

conditions of confinement, however, because he has not alleged

that his diet was medically unsafe or nutritionally inadequate.

See Green v. Ferrell, 801 F.2d 765, 771-70 (5th Cir. 1986).

Thus, the district court properly dismissed this claim.

     Accordingly, we REVERSE the district court’s dismissal of

Whisenant’s § 1983 claim against the City for wrongful

incarceration and AFFIRM the district court’s dismissal of

                                  4
Whisenant’s § 1983 claim against the City for unconstitutional

conditions of confinement.




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