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that this opinion should not be published and is not precedent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

                                 1
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).

                                  3
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

                                  4
denial of Soto’s motion for leave to file a second amended

complaint.




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