Hansen v. Ahlgrimm, 73-1603

• Decision Date: 08 July 1975
• Docket Number: No. 73-1603,73-1603
• Citation: 520 F.2d 768
• Parties: Jerome B. HANSEN, Plaintiff-Appellant, v. John C. AHLGRIMM and Harley Brown, Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 768

520 F.2d 768

Jerome B. HANSEN, Plaintiff-Appellant, v. John C. AHLGRIMM and Harley Brown, Defendants-Appellees.

No. 73-1603.

United States Court of Appeals, Seventh Circuit.

Argued April 24, 1974.

Decided July 8, 1975.

Robert E. Sutton, Milwaukee, Wis., for plaintiff-appellant.

Dennis J. Flynn, Corp. Counsel, Racine County, Harley Brown, Racine, Wis., for defendants-appellees.

Before FAIRCHILD, Chief Judge, CUMMINGS and PELL, Circuit Judges.

FAIRCHILD, Chief Judge.

Plaintiff-appellant Jerome B. Hansen appeals from the district court's order dismissing his complaint for failure to state a claim on which relief could be granted.

The action was commenced pursuant to the provisions of the Civil Rights Act, 42 U.S.C. § 1983, to obtain relief against defendant Ahlgrimm, a duly elected judge of the County Court of Racine County, Wisconsin, and the defendant Brown, a private attorney licensed to practice law in the state of Wisconsin. Jurisdiction was founded on 28 U.S.C. § 1343. Specifically, the complaint alleged that Judge Ahlgrimm entered a divorce judgment against plaintiff and wife on October 21, 1970, awarding a substantial financial settlement to the wife; that, while appeal of this judgment was pending, Attorney Brown, representing plaintiff's wife, prosecuted an Order to Show Cause before Judge Ahlgrimm requesting entry of an order requiring plaintiff to pay the sum awarded in the divorce decree or face arrest and imprisonment; that Brown prosecuted the Order to Show Cause without legal basis and for the purpose of forcing plaintiff to forfeit his appellate rights under peril of imprisonment and to deprive him of his liberty without due process of law; that Judge Ahlgrimm entered the requested order and subsequently caused a warrant to issue for the arrest and imprisonment of plaintiff for failure to comply; that these judicial actions were taken without jurisdiction of the laws of Wisconsin; and that, at all times pertinent, Brown and Judge Ahlgrimm acted in concert under color of state law. Plaintiff sought an order declaring that the acts of defendants violated rights, privileges and immunities secured by the Constitution and a judgment against defendants in the amount of $5,000 compensatory damages and $200,000 punitive damages.

On November 14, 1973, this Court, in an unpublished order issued in response to defendant's motion for affirmance without oral argument under Circuit Rule 22, affirmed the district court's dismissal of plaintiff's damage claims against Judge Ahlgrimm, concluding that "defendant Ahlgrimm had jurisdiction to enter the order complained of (under Wisconsin law) and that he is therefore immune to suit for damages." ¹ Thus, we are presented with the limited issues of the propriety of the district court's dismissal of plaintiff's claims for declaratory relief against Judge Ahlgrimm and damages and declaratory relief against Attorney Brown.

I. Declaratory Relief Against Judge Ahlgrimm

It is clear, as a matter of general principle, that declaratory and injunctive relief against a judge are not barred by the existence of judicial immunity from damages under the Civil Rights Act. Nicholson v. Board of Com'rs. of Alabama State Bar Ass'n., 338 F.Supp. 48, 52, n. 4 (3-judge court) (M.D.Ala. 1972); cf. Boyd v. Adams, 513 F.2d 83, 86-87 (7th Cir. 1975); Jacobson v. Schaefer, 441 F.2d 127, 130 (7th Cir. 1971). The granting of declaratory relief, however, is discretionary, Public Affairs Associates, Inc. v. Rickover, 369 U.S. 111, 112, 82 S.Ct. 580, 7 L.Ed.2d 604 (1962), and is clearly precluded in the absence of any actionable live case or controversy. Golden v. Zwickler, 394 U.S. 103, 108, 89 S.Ct. 956, 22 L.Ed.2d 113 (1969). An examination of the record in the instant proceeding persuades us that there was no error in dismissing the prayer for declaratory relief against the defendant Judge Ahlgrimm.

The complaint is predicated expressly and exclusively upon 42 U.S.C. § 1983. Fairly read, it charges that certain judicial actions of defendant Ahlgrimm were taken without authorization by Wisconsin law and caused a deprivation of plaintiff's constitutional rights. The prayer for relief seeks a declaration to that extent and actual and punitive damages. Thus, we are not presented with a case in which declaratory judgment will serve some purpose, such as a declaration of the unconstitutionality of certain specifically enumerated statutes authorizing the complained of action. See e. g., Nicholson v. Board of Com'rs. of Alabama State Bar Ass'n, supra, 338 F.Supp. at 51. Rather, from the face of the pleadings, we conclude that the declaratory relief portion of plaintiff's prayer is no more than an implicit predicate to his request for damages. Since we have previously found Judge Ahlgrimm to be immune from the damage claim asserted, we fail to ascertain any remaining case or controversy to be resolved by declaratory judgment.

II. Claims Asserted Against Defendant Brown

Plaintiff's complaint also sought damages and declaratory relief against defendant Brown, a private attorney representing plaintiff's former wife in the state divorce proceedings. In order to state a claim under 42 U.S.C. § 1983, it is necessary for the plaintiff to allege facts which show: (1) that the defendant acted under color of state law or authority; and (2) that the defendant has deprived the plaintiff of a right, privilege or immunity secured by the Constitution and laws of the United States. We conclude that the complaint against defendant Brown was properly dismissed for failure of the plaintiff to establish that the complained of actions were under color of state law or authority. Whether the complaint sufficiently spells out a claim of deprivation of a federal constitutional right is dubious, but need not be reached

It is established that a private attorney, while participating in the trial of private state court action, is not acting under color of state law. Skolnick v. Martin, 317 F.2d 855, 857 (7th Cir. 1963), cert. denied, 375 U.S. 908, 84 S.Ct. 199, 11 L.Ed.2d 146; Jones v. Jones, 410 F.2d 365, 366 (7th Cir. 1969). Plaintiff, through conclusory allegations, sought to avoid this result by asserting that defendant Brown acted "in...