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United States Court of Appeals,
Fifth Circuit.
No. 911951
Summary Calendar.
Glenn JOHNSON, PlaintiffAppellant,
v.
D. Rook MOORE, III, et al. DefendantsAppellees.
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, III, a municipal court

judge, 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 five-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
asked for damages for mental anxiety and stress, as well as 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 without 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, 4546, 78 S.Ct. 99, 10102, 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. Monell v. Department of Social
Services, 436 U.S. 658, 69094, 98 S.Ct. 2018, 203537, 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 69091, 98 S.Ct. at 203536.
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, we

turn to the question whether Judge Moore's actions constituted
official municipal policy. Johnson complains that because Moore
was the final authority on his incarceration, Moore executed
official municipal policy. See 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
is officially adopted and promulgated by the municipality's
lawmaking officers 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 that 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 (5th 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 capacity to enforce state law does
not act as a municipal official or lawmaker. See Bigford v.
Taylor, 834 F.2d 1213, 122122 (5th Cir.), cert. denied, 488 U.S.
851, 109 S.Ct. 135, 102 L.Ed.2d 108 (1988); Carbalan v. Vaughn,
760 F.2d 662, 665 (5th Cir.), cert. denied, 474 U.S. 1007, 106
S.Ct. 529, 88 L.Ed.2d 461 (1985); Familias Unidas v. Briscoe, 619
F.2d 391, 404 (5th Cir.1980) (distinguishing judge's administrative
duties, actions pursuant to which may constitute county policy

under 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 below 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
between 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
Johnson 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 plaintiff to demonstrate standing to obtain injunctive
relief, he must show that he "has sustained or is immediately 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." City

of Los Angeles v. Lyons, 461 U.S. 95, 102, 103 S.Ct. 1660, 1665, 75
L.Ed.2d 675 (1983) (quotations omitted). It would require
conjecture or hypothesis to find that Johnson will again act in
such a way as to be arrested on a misdemeanor charge and
incarcerated by Moore without 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, 49596, 94
S.Ct. 669, 67576, 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, Johnson
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. See 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 doctrines, see id., a plaintiff who lacks standing from
the outset of litigation cannot avoid Article III's standing
requirement (an element of the case or controversy requirement) by
asserting an exception developed in the mootness context (a
separate manifestation of the case or controversy requirement).

See also Lyons, 461 U.S. at 109, 103 S.Ct. at 1669 (discussing
"capable of repetition" exception in context of mootness, as
opposed to standing).
III. CONCLUSION
We AFFIRM the district court's dismissal of Johnson's
complaint.