Howard-Barrows v. City of Haltom City , 106 F. App'x 906 ( 2004 )

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. 03-10634
JOSLYN HOWARD-BARROWS
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-0900-A
Before KING, Chief Judge, and DeMOSS and STEWART, Circuit Judges.
PER CURIAM:*
Joslyn Howard-Barrows 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
*
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that this opinion should not be published and is not precedent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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of confinement. In addition, Howard-Barrows appeals the district
court’s denial of her motion for leave to 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.
Howard-Barrows alleges that she was confined in the Haltom
City jail for six days without being taken before a magistrate.
Howard-Barrows’s assertions, however, are not sufficient to
impose § 1983 liability on the City because she does not allege
that the City had a policy or custom of preventing detainees from
appearing before a magistrate in a timely manner. Cf. Monell,
436 U.S. at 690-91.
Howard-Barrows also alleges that her Fifth and Sixth
Amendment rights were violated because she was not informed of
her right to counsel or provided with counsel before being
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.
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detained. Because Howard-Barrows does not allege that she was
interrogated, however, the Fifth Amendment is inapplicable. See
Berkemer v. McCarty, 468 U.S. 420, 428-29 (1984). In addition,
because adversary judicial proceedings had not commenced while
Howard-Barrows was detained, her Sixth Amendment right to counsel
is not implicated. See, e.g., United States v. Gouveia, 467 U.S.
180, 188 (1984); Styron v. Johnson, 262 F.3d 438, 447 (5th Cir.
2001). Consequently, the City is not liable under § 1983 for
failing to inform Howard-Barrows of her right to counsel or for
failing to appoint counsel for her. See Priester v. Lowndes
County, 354 F.3d 414, 420 (5th Cir. 2004).
Howard-Barrows further alleges that her Fourteenth Amendment
rights were violated because she was not provided with an
indigency hearing to determine whether she had the means to pay
her misdemeanor fines. The Supreme Court has held that a
defendant may not be sentenced to jail simply because he or she
cannot afford to pay a fine. Tate v. Short, 401 U.S. 395, 397-98
(1971). But, according to Howard-Barrows’s own allegations, she
was never brought to court and sentenced for her misdemeanor
violations. Therefore, her Fourteenth Amendment rights were not
implicated by the lack of an indigency hearing, and the City is
not liable under § 1983 for failing to provide such a hearing.
Howard-Barrows’s remaining allegations require no extended
discussion. Sexual harassment alone does not violate a
detainee’s constitutional rights; thus, Howard-Barrows has no
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claim against the City under § 1983 for any sexual harassment she
suffered while in jail. See 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.”); cf. Austin v. Terhune,
367 F.3d 1167, 1171-72 (9th Cir. 2004). Next, even if Howard-
Barrows 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
Howard-Barrows 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 Howard-Barrows’s
averments do not demonstrate that her Fourteenth Amendment rights
were violated by the conditions of the jail during the six days
she was there. 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
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district court did not abuse its discretion by denying Howard-
Barrows’s motion for leave to file a second amended complaint.
Howard-Barrows had already been permitted to file an amended
complaint, but she 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
Howard-Barrows’s complaint under Rule 12(b)(6) and the district
court’s denial of Howard-Barrows’s motion for leave to file a
second amended complaint.
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