                                                         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. 03-10941



     DANIELLE PEDERSON

                                 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-323-A


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

PER CURIAM:*

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that this opinion should not be published and is not precedent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

     Pederson alleges that she was confined in the Haltom City

jail for twenty-eight days before she was taken before a judge.

She argues that the City is responsible because the City has a

policy of permitting illegal detentions.    In the alternative,

Pederson argues that the City is liable because one of its

policymakers knew that she was illegally detained and failed to

release her.   We conclude that, even if Pederson’s constitutional

rights were violated by her detention, she has not alleged

grounds upon which to hold the City liable under § 1983.

     Although Pederson now asserts that she was illegally

detained in accordance with City policy, her complaint contains

no such allegation.    Accordingly, Pederson cannot escape the Rule

12(b)(6) dismissal on this ground.

     Pederson also contends that the City is liable because Jail

Supervisor Nicole Irvin knew of Pederson’s prolonged detention

but failed either to take her before a judge or to release her.

                                   2
A municipality is not liable for the actions of its agents or

employees under a theory of respondeat superior.       Monell, 436

U.S. at 691 (1978).    But, in certain circumstances, a

municipality can be liable for a single action of a municipal

policymaker.    Pembaur v. City of Cincinnati, 475 U.S. 469, 480

(1986).    Under Pembaur, the City may be liable for Irvin’s

failure to take Pederson before a judge or to release her only if

Irvin was the final policymaker for the City regarding those

matters.   See id. at 481-84.

     Whether a person is a final policymaker for a municipality

is a question of state law.        Jett v. Dallas Ind. Sch. Dist., 491

U.S. 701, 737 (1989).    Pederson’s complaint alleges that Irvin

“testified under oath that she shares final policy making

responsibility for the jail with Chief of Police.”       But, even if

Irvin does exercise some de facto final policymaking authority,

that is not enough.     See City of St. Louis v. Praprotnik, 485

U.S. 112, 131 (1988) (plurality opinion); see also Flores v.

Cameron County, 92 F.3d 258, 269-70 (5th Cir. 1996).       Pederson

also must show that the City’s policymakers actually delegated

final policymaking authority to Irvin.       See Jett v. Dallas Ind.

Sch. Dist., 7 F.3d 1241, 1251 (5th Cir. 1993).       This Pederson has

failed to do.   Therefore, we conclude that the City is not liable

for Irvin’s conduct.     See id.

     Pederson next alleges that her constitutional rights were

violated because she was never informed of her right to counsel,

                                     3
provided with counsel, or provided with a hearing to determine

whether she had the means to pay her misdemeanor fines.   We find

that these factual allegations, even if true, do not demonstrate

that Pederson’s constitutional rights were violated;

consequently, Pederson has not stated a claim against the City

under § 1983.

     Pederson’s Fifth and Sixth Amendment rights to counsel did

not attach while she was detained because she was not

interrogated, see Berkemer v. McCarty, 468 U.S. 420, 428-29

(1984), and no adversarial proceedings had commenced against her,

see United States v. Gouveia, 467 U.S. 180, 188 (1984); Styron v.

Johnson, 262 F.3d 438, 447 (5th Cir. 2001).   Moreover, Pederson

has not directed us to any cases holding that a person is

entitled to an indigency hearing before being detained.     Cf. Tate

v. Short, 401 U.S. 395, 399 (1971) (holding that a defendant

cannot be sentenced to jail for failing to pay a fine, when the

defendant does not have the means to pay).

     Similarly, when she finally appeared before the municipal

judge, Pederson’s constitutional rights were not violated by the

judge’s decisions not to appoint counsel and not to conduct an

indigency hearing, because the judge did not sentence her to

serve time in jail.   See Scott v. Illinois, 440 U.S. 367, 373-74

(1979) (holding that “the Sixth and Fourteenth Amendments to the

United States Constitution require only that no indigent criminal

defendant be sentenced to a term of imprisonment unless the State

                                 4
has afforded him the right to assistance of appointed counsel in

his defense (emphasis added)); Tate, 401 U.S. at 399.

     Finally, the City is not liable for Pederson’s conditions of

confinement because the conditions Pederson alleges were not so

bad as to violate her constitutional rights.     Cf. Ruiz v.

Estelle, 679 F.2d 1115, 1152 (5th Cir. 1982); accord Green v.

Ferrell, 801 F.2d 765, 771-72 (5th Cir. 1986).

     Accordingly, we AFFIRM the district court’s dismissal of

Pederson’s complaint under Rule 12(b)(6).




                                5
