Darr v. Wolfe

• Decision Date: 09 July 1985
• Docket Number: No. 85-3056,85-3056
• Citation: 767 F.2d 79
• Parties: Kenneth DARR, Appellant, v. Robert L. WOLFE, individually and in his official capacity as Judge in Warren, Pennsylvania, Prudential Insurance Company, of America individually and as co-conspirator, Jean Barr, individually and as co-conspirator, Cheryl VanTassel, individually and as co-conspirator, and Michael W. VanTassel, individually and as co-conspirator. . Submitted Under Third Circuit Rule 12(6)
• Court: U.S. Court of Appeals — Third Circuit

Page 79

767 F.2d 79

Kenneth DARR, Appellant, v. Robert L. WOLFE, individually and in his official capacity as Judge in Warren, Pennsylvania, Prudential Insurance Company, of America individually and as co-conspirator, Jean Barr, individually and as co-conspirator, Cheryl VanTassel individually and as co-conspirator, and Michael W VanTassel, individually and as co-conspirator.

No. 85-3056.

United States Court of Appeals, Third Circuit.

Submitted Under Third Circuit Rule 12(6)

July 9, 1985.

Decided July 22, 1985.

Kenneth Darr, pro se.

Before SEITZ, HUNTER and MARIS, Circuit Judges.

OPINION OF THE COURT

MARIS, Circuit Judge.

In this civil rights action under 42 U.S.C. Sec. 1983 the plaintiff, a prisoner confined in the state correctional institution at Huntingdon, alleges a conspiracy by defendants, Jean Barr, Cheryl VanTassel and Michael W. VanTassel (herein referred to as the individual defendants) with defendant Robert L. Wolfe, a Common Pleas judge in Warren, Pennsylvania, to deprive him of the custody and guardianship of his two children, a liberty interest to which he is entitled under the Fourteenth Amendment. Further, he asserts that his mother and sister have been denied the right to visit the children. And finally he alleges that the defendant, Prudential Insurance Company, unlawfully paid the proceeds of a $10,000 insurance policy on the life of his deceased wife to the VanTassel defendants who converted the money to their own use. He seeks a declaratory judgment and money damages. The district court dismissed the complaint, without its having been served on the defendants, on the ground that Judge Wolfe was immune from suit, that private citizens cannot be sued under Sec. 1983 for nonstate-related activities and that an "alleged conspiracy of private citizens with immune state official bars an action against the private citizens." Thereupon the plaintiff took the appeal now before us.

The complaint was properly dismissed as to Judge Wolfe on the ground of judicial immunity. Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967). Likewise, it was properly dismissed as to the Prudential Insurance Company since that defendant could not be sued under Sec. 1983 for a nonstate-related activity, the alleged wrongful payment to Michael and Cheryl VanTassel of the proceeds of the insurance policy on the life of plaintiff's deceased wife. The district court went further, however, and dismissed the complaint as to Barr and the VanTassels also, on the ground that an alleged conspiracy of private citizens with an immune state official bars an action against the private citizens under Sec. 1983. In doing so the district court erred.

It is true, of course, that a wrongful act, to be actionable under Sec. 1983, must have been committed "under color of state law." But, as the Supreme Court pointed out in Dennis v. Sparks, 449 U.S. 24, 27-28, 101 S.Ct. 183, 186, 66 L.Ed.2d 185 (1980), private persons jointly engaged with an immune state official in the challenged action are themselves acting under color of state law for the purposes of a Sec. 1983 action. Here, as in the Dennis case, the judicial action of the immune judge, the granting of custody of the plaintiff's children to the VanTassels and guardianship of them to Michael VanTassel, was alleged to be the product of a conspiracy on the part of the individual defendants and the judge. But, said the Supreme Court, "it is of no consequence in this respect that the judge himself is immune from damages liability. Immunity does not change the character of the judge's action or that of his co-conspirators." 449 U.S. at p. 28, 101 S.Ct. at p. 186.

A question remains, however, as to whether the allegations of the complaint concerning the existence of a conspiracy and Judge Wolfe's involvement in it are sufficiently specific to withstand dismissal of the complaint. For it is settled in this circuit that a civil rights complaint under Sec. 1983 must set forth with factual specificity the conduct of defendants alleged to have harmed the plaintiff. Ross v. Meagan, 638 F.2d 646, 650 (3d Cir.1981); Rotolo v. Borough of Charleroi, 532 F.2d 920, 922 (...