Whisenant v. City of Haltom City , 106 F. App'x 915 ( 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. 03-10942
RYAN M WHISENANT
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-322-A
Before KING, Chief Judge, and DeMOSS and STEWART, Circuit Judges.
PER CURIAM:*
Ryan Whisenant appeals the district court’s Rule 12(b)(6)
dismissal of his 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that this opinion should not be published and is not precedent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.
Whisenant alleges that he was incarcerated in the Haltom
City jail for fifty days in connection with various misdemeanors.
According to Whisenant, former municipal judge Jack Byno
incarcerated him without informing him of his right to counsel,
providing him with appointed counsel, or holding a hearing to
determine whether Whisenant was able to pay his misdemeanor
fines. Whisenant argues that the City is responsible for these
alleged constitutional violations because (1) the City had a
policy of incarcerating defendants who were unable to pay
misdemeanor fines without providing them with indigency hearings
or appointing counsel for them, (2) the City ratified Byno’s
actions, and (3) the city council conspired with Byno to
incarcerate indigent defendants in order to extract money from
them.
The City cannot be liable under § 1983 for having a “policy”
of wrongfully incarcerating indigent defendants because the
2
relevant decisions were made 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). Similarly,
because the City had no power to control Byno’s judicial actions,
the City cannot be liable for “ratifying” his judicial conduct.
Whisenant, however, also contends that the City is liable
because the city council conspired with Byno to incarcerate him
and other indigent defendants in order to raise money for the
City. To state a claim for conspiracy under § 1983, a plaintiff
must allege the existence of (1) an agreement to do an illegal
act and (2) an actual constitutional deprivation. See Cinel v.
Connick, 15 F.3d 1338, 1343 (5th Cir. 1994). Whisenant has
alleged an agreement between Byno and the city council to violate
his rights (and the rights of other indigent defenants): “Byno
conspired with the City counsel [sic] to establish procedures
designed to deprive individuals of their constitutional rights to
generate revenues for the City by intimidating accused
individuals to plead guilty, levying unjust fines, refusing to
appoint counsel . . . and throwing citizens in ‘debtor’s prison.”
3
Whisenant Compl. at 4. Furthermore, by alleging that he was not
given an indigency hearing or provided with appointed counsel
before being incarcerated, Whisenant has alleged actual
deprivations of his constitutional rights. See Scott v.
Illinois, 440 U.S. 367, 373-74 (1979); Tate v. Short, 401 U.S.
395, 399 (1971).
The next question is whether the City could be liable under
§ 1983 for this conspiracy. The City cannot be liable for Byno’s
role in the conspiracy, since Byno was not acting as a municipal
official or lawmaker. Johnson, 958 F.2d at 94. But the City can
be held liable for the city council’s part in the conspiracy,
because the city council is the City’s policymaking body and,
consequently, its decisions constitute City policy. See id.
(defining “official policy”). Therefore, we hold that Whisenant
has stated a § 1983 claim against the City for his wrongful
incarceration. Whether the claim will survive a properly
supported motion for summary judgment is not before us.
Whisenant has failed to state a claim regarding his
conditions of confinement, however, because he has not alleged
that his diet was medically unsafe or nutritionally inadequate.
See Green v. Ferrell, 801 F.2d 765, 771-70 (5th Cir. 1986).
Thus, the district court properly dismissed this claim.
Accordingly, we REVERSE the district court’s dismissal of
Whisenant’s § 1983 claim against the City for wrongful
incarceration and AFFIRM the district court’s dismissal of
4
Whisenant’s § 1983 claim against the City for unconstitutional
conditions of confinement.
5