United States Court of Appeals,

Fifth Circuit.

No. 91–1951

Summary Calendar.

Glenn JOHNSON, Plaintiff–Appellant,

v.

D. Rook MOORE, III, et al. Defendants–Appellees.

April 10, 1992.

Appeal from the United States District Court for the Northern

District of Mississippi.

Before KING, EMILIO M. GARZA and DeMOSS, Circuit Judges.

KING, Circuit Judge:

Glenn Johnson appeals from the district court's dismissal of

his § 1983 complaint for failure to state a claim upon which relief

can be granted. Johnson sued the city of Holly Springs and D. Rook

Moore, its municipal court judge, alleging that he had been the

victim of the city's policy of sentencing indigent criminal

defendants to jail without benefit of counsel and without a knowing

and intelligent waiver of the right to counsel. The district court

held that Johnson had failed to allege the existence of a municipal

policy, thereby precluding the recovery of damages. The court

further held that Johnson lacked standing to seek declaratory and

injunctive relief against Judge Moore in his individual capacity.

As the district court's decision is grounded in firmly decided

precedent, we affirm the dismissal.

I. BACKGROUND

Glenn Johnson sued D. Rook Moore, I II, a municipal courtjudge, and the city of Holly Springs, Mississippi on October 3,

1990. He alleged that his constitutional rights were violated when

Moore sentenced him to jail "numerous times," including a three-day

jail term on July 25, 1988, and a fiv e-day jail term on July 16,

1990, without representation of counsel or waiver of his right to

an attorney. Johnson complained that Judge Moore's actions

committing him to jail without counsel was part of an official

municipal policy of the city of Holly Springs.

From the city and from Moore in his official capacity, Johnson

a sked for damages for mental anxiety and stress, as well a s for

loss of income, which he allegedly suffered when he was committed

to jail without assistance of counsel. From Moore in his

individual capacity, Johnson sought declaratory and injunctive

relief to prevent him from being incarcerated wit hout counsel in

the future.

The defendants moved to dismiss Johnson's complaint pursuant

to Fed.R.Civ.P. 12(b)(6). They argued that Johnson's claims

against Moore in his official capacity and against the city should

be dismissed because Johnson had not identified a municipal policy

that caused his injuries. They also argued that Johnson's claim

for declaratory and injunctive relief should be dismissed because

no case or controversy existed. The district court granted the

motion on August 27, 1991. Johnson filed a timely notice of

appeal.II. ANALYSIS

A. Municipal Liability

Johnson complains that the court erred when it did not hold

the city liable for its unconstitutional act. In reviewing a Rule

12(b)(6) dismissal, we accept "all well pleaded averments as true

and view them in the light most favorable to the plaintiff."

Rankin v. City of Wichita Falls, 762 F.2d 444, 446 (5th Cir.1985).

The dismissal will not be upheld "unless it appears beyond doubt

that the plaintiff can prove no set of facts in support of his

claim which would entitle him to relief." Id. (quoting Conley v.

Gibson, 355 U.S. 41, 45–4 6, 78 S.Ct. 99, 101–02, 2 L.Ed.2d 80

(1957)).

Liability under 42 U.S.C. § 1983 may not be imposed on a

government entity on a theory of respondeat superior for the

actions of government employees. M onell v. Department of Social

Services, 436 U.S. 658, 690–94, 98 S.Ct. 2018, 2035–37, 56 L.Ed.2d

611 (1978). Local governing bodies may be liable under § 1983,

however, where the alleged unconstitutional activity is inflicted

pursuant to official policy. Id. at 690–91, 98 S.Ct. at 2035–36.

In order to state a claim, therefore, Johnson must set forth facts

which, if true, show that his constitutional rights were violated

as a result of the city's official policy.

Assuming, without deciding, that Johnson was constitutionally

entitled to counsel in connection with his various jailings, weturn to the q uestion whether Judge Moore's actions constituted

official municipal policy. Johnson complains that because Moore

was the final authority on his incarceration, Moore e xecuted

official municipal policy. S ee Pembaur v. City of Cincinnati, 475

U.S. 469, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986). We have defined

official policy as:

1. A policy statement, ordinance, regulation, or decision that

i s officially adopted and promulgated by the municipality' s lawmaking officer s or by an official to whom the lawmakers

have delegated policy-making authority; or

2. A persistent, widespread practice of city officials or

employees, which, although not authorized by officially

adopted and promulgated policy, is so common and well settled

as to constitute a custom t hat fairly represents municipal

policy. Actual or constructive knowledge of such custom must

be attributable to the governing body of the municipality or

to an official to whom that body had delegated policy-making

authority.

Bennett v. City of Slidell, 735 F.2d 861, 862 (5t h Cir.1984) (en

banc), cert. denied, 472 U.S. 1016, 105 S.Ct. 3476, 87 L.Ed.2d 612

(1985).

We have repeatedly held, however, that a municipal judge

acting in his or her judicial capacit y to enforce state law does

n ot act as a municipal official or lawmaker. S ee Big ford v.

Taylor, 834 F.2d 1213, 1221–22 (5th Cir.), cert. denied, 488 U.S.

851, 109 S.Ct. 13 5, 102 L.Ed.2d 108 (1988); C arbalan v. Vaughn,

760 F.2d 662, 665 ( 5th Cir.), c ert. denied, 474 U.S. 1007, 106

S.Ct. 529, 88 L.Ed.2d 461 (1985); F amilias Unidas v. Briscoe, 619

F.2d 391, 404 (5th Cir.1980) (distinguishing judge's administrative

duties, a ctions pursuant to which may constitute county policyunder Monell, from judge's judicial function, in which he or she

effectuates state policy by applying state law).

Johnson does not contend, in his complaint belo w or in his

brief on appeal, that Judge Moore sentenced him to jail pursuant to

the judge's administrative or other non-judicial duties. He argues

only that, under Pembaur, the municipal judge is a final

policymaker whose official actions constitute municipal policy.

This argument ignores the distinction we have consistently drawn

b etween a judge's judicial and administrative duties. Only with

respect to actions taken pursuant to his or her administrative role

can a judge be said to institute municipal policy under Pembaur and

Monell. Johnson's complaint fails to show that his constitutional

rights were violated as a result of the city's official policy.

The district court did not err when it dismissed Johnson's claims

against the city and Judge Moore in his official capacity.

B. Standing

Jo hnson further complains that the court erred when it

dismissed his claim for injunctive and declaratory relief against

Judge Moore in his individual capacity due to lack of standing.

For a plainti ff to demonstrate standing to obtain injunctive

relief, he must show that he "has sustained or is imm ediately in

danger of sustaining some direct injury as the result of the

challenged official conduct and the injury or threat of injury must

be both real and immediate, not conjectural or hypothetical." C ityof Los Angeles v. Lyons, 461 U.S. 95, 102, 103 S.Ct. 1660, 1665, 75

L.Ed.2d 675 (1983) (quotations omitte d). It would require

conjecture or hypothesis to find that Johnson will again act in

such a way as to be arrested on a mis demeanor charge and

incarcerated by Moore wit hout representation of counsel. "Past

exposure to illegal conduct does not in itself show a present case

or controversy

... if unaccompanied by any continuing, present

adverse effects." O 'Shea v. Littleton, 414 U.S. 488, 495–96, 94

S.Ct. 669, 675–76, 38 L.Ed.2d 674 (1974), quoted in Lyons, 461 U.S.

at 102, 103 S.Ct. at 1665. Just as in O 'Shea and Lyons, John son

can show only a distantly speculative possibility that he will

again be subjected to the practice he complains of. Consequently,

he lacks standing to seek injunctive or declaratory relief.

Johnson argues that this case is subject to the "capable of

repetition, but evading review" exception. His argument confuses

the doctrines of standing and mootness. The "capable of

repetition, but evading review" exception applies to some mootness

problems, but is simply inapposite when a plaintiff lacks standing

to seek the requested relief. S ee Nelsen v. King County, 895 F.2d

1248, 1254 (9th Cir.1990). Although the analysis regarding the

likelihood of future harm is similar under both the mootness and

standing doctrine s, see i d., a plaintiff who lacks standing from

the outset of litigation cannot avoid Article III's s tanding

requirement (an element of the case or controversy requirement) by

assert ing an exception developed in the mootness context (a

separate manifestati on of the case or controversy requirement).See also Lyon s, 461 U.S. at 109, 103 S.Ct. at 1669 (discussing

"capable of r epetition" exception in context of mootness, as

opposed to standing).

III. CONCLUSION

We AFFIRM the district court's dismissal of Johnson's

complaint.