                                                         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. 03-10675



     CELESTINA DELEON

                                Plaintiff - Appellant

     v.

     CITY OF HALTOM CITY; DEWEY MARKUM, Individually and in his
     official capacity; ROBERT HURLEY, Individually and in his
     official capacity; DAVID AVERITT, Individually and in his
     official capacity; TRAE FOWLER, Individually and in his
     official capacity; JOHN WILLIAMS, Individually and in his
     official capacity; TRACY HENDERSON, Individually and in his
     official capacity; PHILLIP JENNINGS, Individually and in his
     official capacity; JACK BYNO, Individually and in his
     official capacity

                                Defendants - Appellees



          Appeal from the United States District Court
               for the Northern District of Texas
                       No. 4:02-CV-1045-A


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

PER CURIAM:*

     Celestina DeLeon appeals the district court’s dismissal of

her suit against the City of Haltom City, its city council


     *
          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that this opinion should not be published and is not precedent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
members (in their individual and official capacities), and former

municipal judge Jack Byno.1    DeLeon alleges that she was

incarcerated by former municipal judge Byno for misdemeanors,

without being provided an indigency hearing, without being

informed of her right to counsel, and without having counsel

appointed for her.2

     On appeal, DeLeon argues that the City is liable3 because

(1) its final decisionmakers likely knew that she was wrongfully

incarcerated; (2) the City had a policy of incarcerating indigent

defendants for misdemeanors, in violation of their constitutional

rights; (3) the city council ratified Byno’s conduct; and (4) the

city council conspired with Byno to wrongfully incarcerate

indigent persons.     DeLeon’s first three theories of municipal

liability are inadequate under the facts of this case.       Former

municipal judge Byno, not the City, made the decisions not to

provide DeLeon with an indigency hearing, not to inform her of

her right to counsel, and not to appoint counsel for her.       We

     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
          DeLeon’s complaint alleges that her constitutional
rights were also violated during her incarceration. She does
not, though, appeal the district court’s dismissal of these
claims.
     3
          In addition to damages, DeLeon’s complaint sought
declaratory and injunctive relief. DeLeon, however, lacks
standing to seek prospective relief. See Johnson v. Moore, 958
F.2d 92, 94-95 (5th Cir. 1992). Consequently, we will only
consider DeLeon’s claims for damages.

                                   2
reject the contention that the City had the power to set judicial

policy for a municipal judge, such as Byno, or that it could have

ratified a municipal judge’s judicial conduct, even if its

policymakers knew of the judge’s conduct and approved of it.       See

Eggar v. City of Livingston, 40 F.3d 312, 316 (9th Cir. 1994);

see also Johnson, 958 F.2d at 94.

     DeLeon also contends that the City is liable because her

incarceration was part of a conspiracy between Byno and the city

council.    DeLeon’s complaint states, in a conclusory fashion,

that “the individual Defendants conspired to violate the civil

rights of DeLeon . . . and to deprive her[ of] equal protection

under the law.”4   This statement is clearly insufficient to put

the defendants on notice of her claims; it does little more than

state legal conclusions.    DeLeon’s factual allegations, found

elsewhere in her complaint, do not support her theories.     She

does not allege that Byno had any sort of agreement with members

of the city council.    Her factual allegations regarding Byno and

the city council, rather, are that “[a]fter receiving numerous

complaints from citizens about Byno, the City Council gave him a

raise.”    DeLeon Compl. at 14.   But this does not support a


     4
          DeLeon’s complaint originally included class
allegations, wherein she made additional allegations regarding
the conspiracy between Byno and the city council. DeLeon’s class
allegations were, however, dismissed by the district court
because DeLeon failed to move for certification of a class within
ninety days of filing her complaint. DeLeon does not challenge
this dismissal on appeal.

                                   3
conclusion that Byno and city council members had an agreement

beforehand to violate DeLeon’s civil rights or to deprive her of

equal protection under the law.       See Cinel v. Connick, 15 F.3d

1338, 1343 (5th Cir. 1994) (holding that a plaintiff bringing a

§ 1983 conspiracy suit must allege the existence of an agreement

to commit an illegal act); Green v. State Bar of Tex., 27 F.3d

1083, 1089 (5th Cir. 1994) (holding that a plaintiff bringing a

§ 1985(3) conspiracy suit must allege the existence of an

agreement to deprive the plaintiff of the equal protection of the

laws).   Consequently, we find that the district court correctly

dismissed DeLeon’s conspiracy claims under § 1983 and § 1985(3).5

     DeLeon also seeks to hold individual city council members6

responsible for her incarceration.      She argues that their

liability stems either from their ratification of Byno’s conduct

or from their conspiracy with Byno.      But city council members

could not “ratify” Byno’s conduct because Byno was not a

subordinate of the city council and city council members had no


     5
          In any event, DeLeon has not stated a claim under
§ 1985(3) because she alleges that the conspiracy was motivated
by bias towards the poor, but the Supreme Court has held that
§ 1985(3) does not reach conspiracies motivated by bias towards
others on account of their economic status. United Bhd. of
Carpenters & Joiners of Am., Local 610 v. Scott, 463 U.S. 825,
837 (1983).
     6
          A suit against city council members in their official
capacities is, in reality, a suit against the City. See Kentucky
v. Graham, 473 U.S. 159, 166 (1985). Thus, the preceding
analysis regarding the City’s liability applies to DeLeon’s
official-capacity claims against city council members.

                                  4
authority to control Byno’s judicial actions.   Cf. Eggar, 40 F.3d

at 316.   Furthermore, as explained above, DeLeon’s allegations

regarding a conspiracy between Byno and the city council are

inadequate because she does not aver that the parties had an

agreement before the fact to violate her rights.   Consequently,

the district court properly dismissed DeLeon’s claims against the

members of the city counsel in their individual capacities.

     Finally, we hold that the district court correctly dismissed

DeLeon’s claims against Byno in his individual capacity.7    Byno’s

actions were judicial in nature and, in performing these actions,

Byno did not act in the clear absence of all jurisdiction.    Thus,

Byno is protected from liability by absolute judicial immunity.

See Holloway v. Walker, 765 F.2d 517, 522-25 (5th Cir. 1985);

Sparks v. Duval County Ranch Co., 604 F.2d 976, 979-80 (5th Cir.

1979) (en banc), aff’d sub nom. Dennis v. Sparks, 449 U.S. 24

(1980).

     Accordingly, we AFFIRM the district court’s Rule 12(b)(6)

dismissal of DeLeon’s suit.




     7
          DeLeon does not appeal the dismissal of her claims
against Byno in his official capacity.

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