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that this opinion should not be published and is not precedent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

                                  3
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

                                 4
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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