Sparkman v. McFarlin

Decision Date02 May 1979
Docket NumberNo. 76-1706,76-1706
Citation601 F.2d 261
PartiesLinda Kay SPARKMAN and Leo Sparkman, Plaintiffs-Appellants, v. Ora E. McFARLIN, Warren G. Sunday, Harold D. Stump, Individually and as Judge of the Circuit Court of DeKalb County, Indiana, John H. Hines, M.D., John C. Harvey, M.D., Harry M. Covell, M.D., and DeKalb Memorial Hospital, Inc., a corporation, Defendants-Appellees.
CourtU.S. Court of Appeals — Seventh Circuit

Richard H. Finley, Kendallville, Ind., Marjorie Press Lindbloom, Kirkland & Ellis, Chicago, Ill., for plaintiffs-appellants.

Carl J. Suedhoff, Jr., George E. Fruechtenicht, J. A. Bruggeman, and William F. McNagny, Fort Wayne, Ind., for defendants-appellees.



Linda Kay Sparkman brought this damage action pursuant to 42 U.S.C. § 1983 alleging that the defendants acted "in concert" to deprive her of her constitutional rights by sterilizing her without her knowledge or consent. Named as defendants were her mother, the mother's attorney who drafted the petition to sterilize, the state court judge who approved the petition to have a tubal ligation performed, the three doctors who performed or assisted in the sterilization, and the hospital where the surgery was performed. The plaintiff and her husband also asserted pendent state claims for medical malpractice, assault and battery, and for loss by the husband of potential fatherhood.

The district court dismissed the complaint against the state court judge, finding him absolutely immune under the doctrine of judicial immunity. Inasmuch as the plaintiffs sought to hold the private defendants liable on a theory that they conspired with the judge to bring about the allegedly unconstitutional acts, the district court held that the judge being immune, and no other state action being properly alleged, the constitutional claims against the other defendants should also be dismissed. The remaining pendent state claims were dismissed for lack of subject matter jurisdiction. Sparkman v. McFarlin, Civ.No. F 75-129 (N.D.Ind., May 13, 1976).

On appeal, this court reversed the judgment of the district court, holding that the state court judge had acted extrajudicially and that he was not entitled to immunity, and thereby this court revitalized the claims against all the defendants. Sparkman v. McFarlin, 552 F.2d 172 (7th Cir. 1977).

The Supreme Court, concluding that a judge will not be deprived of immunity because the action he took was in error, was done maliciously, or was in excess of his authority, but rather that he will be subject to liability only when he has acted in clear absence of all jurisdiction, determined that the state court judge was vested by Indiana law with the power to entertain and act upon the petition for sterilization and that he was therefore entitled to the benefits of judicial immunity. Stump v. Sparkman, 435 U.S. 349, 98 S.Ct. 1099, 55 L.Ed.2d 331 (1978). Accordingly, the judgment of this court was reversed, and the case was remanded for further proceedings. The Supreme Court said that "we do not decide whether the District Court correctly concluded that the federal claims against the other defendants were required to be dismissed if Judge Stump, the only state agent, was found to be absolutely immune." Id. at 364 n. 13, 98 S.Ct. at 1109 where the Court noted a conflict among the circuits.

Upon remand, under our Circuit Rule 19, all parties have briefed the issue left undecided by the Supreme Court. The defendants seek a Per se rule that "no cause of action is stated against private persons for alleged conspiracies with immune state officials, since such private persons are not conspiring with persons acting under color of state law against whom a valid claim could be stated." Conversely the plaintiffs advance the theory that when private persons act in concert with an immune state official they are subject to liability provided only that a deprivation of rights has occurred.

The judges in regular active service have voted to hear this issue In banc in lieu of consideration by a single panel. The majority of judges in regular active service affirms the judgment of the district court.

FAIRCHILD, Chief Judge, concurring.

I concur with Judge Tone, and would add only the following observation.

In most judicial decisions the judge "agrees" with one or more parties and their counsel. Thus it is easy for a state court loser to fulfill, superficially, the agreement element of conspiracy. Ingenious counsel can readily spell out a claim that a state judicial decision impairs a right that is constitutionally beyond the power of the state or impairs a liberty or property interest without due process. Then the wrongful object element is seemingly fulfilled.

As noted by Judge Sprecher, there is a strong policy reason against lower federal court review of state court proceedings. For this reason, I would build into any principle for the recognition of a § 1983 claim based on a private person's conspiracy with a state judge, a requirement of pleading and proof not only that the private party used the state court proceedings to produce a constitutional wrong, but that there was agreement between the party and judge beyond ordinary request and persuasion by the prevailing party, and that the state court judge invidiously used his office to deprive the § 1983 plaintiff of a federally protected right. See Adkins v. Underwood, 520 F.2d 890, 893 (7th Cir. 1975).

PELL, Circuit Judge, concurring.

I concur in the affirmance in this case because of the lack of requisite particularity in the allegations of conspiracy.

On the pleadings in this case the district court judgment is properly affirmed without any necessity of reaching the issue as to whether under other circumstances there may be a situation where private persons may be held liable under 42 U.S.C. § 1983 even though the only state action was through a person entitled to immunity. Whether or not there should be a Per se rule of no liability as to the private persons in such a situation should be deferred for decision until the issue is before us. It is not now.

BAUER, Circuit Judge, joins in Circuit Judge PELL's concurrence.

SPRECHER, Circuit Judge, concurring.

I concur in the result reached by a majority of the court for the reason that I believe that a private person may become liable under 42 U.S.C. § 1983, although the judge is absolutely immune, if alleged and proved to have conspired with a state judge performing a judicial act to deprive the plaintiff of constitutional rights provided that the conspiracy is alleged with particularity.


In Adickes v. S. H. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970), a white school teacher sued under 42 U.S.C. § 1983 for the defendant's refusal to serve lunch in its restaurant facilities to her while she was in the company of six of her black students and for her arrest upon departure by the Hattiesburg police on a charge of vagrancy. The plaintiff alleged that the defendant and the Hattiesburg police had conspired to deprive her of constitutional rights. The district court entered summary judgment for the defendant on the conspiracy count and the Second Circuit Court of Appeals affirmed.

In reversing the court of appeals, the Supreme Court under the heading of "Conspiracies Between Public Officials and Private Persons Governing Principles," first set forth the elements necessary for a section 1983 1 recovery at 150, 90 S.Ct. at 1604:

The terms of § 1983 make plain two elements that are necessary for recovery. First, the plaintiff must prove that the defendant has deprived him of a right secured by the "Constitution and laws" of the United States. Second, the plaintiff must show that the defendant deprived him of this constitutional right "under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory." This second element requires that the plaintiff show that the defendant acted "under color of law."

See also Flagg Brothers, Inc. v. Brooks, 436 U.S. 149, 155-56, 98 S.Ct. 1729, 56 L.Ed.2d 185 (1978).

The Court concluded that the plaintiff would be entitled to relief "if she can prove that a Kress employee, in the course of employment, and a Hattiesburg policeman somehow reached an understanding" to deny service in the restaurant or to cause her subsequent arrest, saying:

The involvement of a state official in such a conspiracy plainly provides the state action essential to show a direct violation of petitioner's Fourteenth Amendment equal protection rights, whether or not the actions of the police were officially authorized, or lawful; Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961); see United States v. Classic, 313 U.S. 299, 326, 61 S.Ct. 1031, 1043, 85 L.Ed. 1368 (1941); Screws v. United States, 325 U.S. 91, 107-111, 65 S.Ct. 1031, 1038-1040, 89 L.Ed. 1495 (1945); Williams v. United States, 341 U.S. 97, 99-100, 71 S.Ct. 576, 578-579, 95 L.Ed. 774 (1951). Moreover, a private party involved in such a conspiracy, even though not an official of the State, can be liable under § 1983. "Private persons, jointly engaged with state officials in the prohibited action, are acting 'under color' of law for purposes of the statute. To act 'under color' of law does not require that the accused be an officer of the State. It is enough that he is a willful participant in joint activity with the State or its agents," United States v. Price, 383 U.S. 787, 794, 86 S.Ct. 1152, 1157, 16 L.Ed.2d 267 (1966). 2

In holding that it was error to grant summary judgment on the conspiracy count, the Court determined that "(r)espondent here did not carry its burden because of its failure to foreclose the possibility that there was a policeman in the Kress store while petitioner was awaiting service, and that this policeman reached an...

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