Dykes v. Hosemann

743 F.2d 1488

• Court: Court of Appeals for the Eleventh Circuit
• Decided: October 11, 1984
• Docket: No. 83-3347
• Status: Published

Opinions

THORNBERRY, Senior Circuit Judge:

In this § 1983 ease, appellant Diana Christine Dykes (“Diana”) alleges in essence that the appellees acted to deprive her of her constitutional right to raise her , , .. ,. child without due process of law. The dis- , . , , .. . , . , , trict court dismissed the suits against two . „ . . . of the appellees and granted the other three appellees’ motions for summary judgment. We reverse and remand to the district court for further proceedings.

T p ,

Diana Dykes and Roger Francis “Buzzy” Dykes, Jr. (“Buzzy”) began experiencing marital difficulties in 1977. In November i977( Buzzy took the couple’s only child, three-year-old Aaron Matthew Dykes (“Aaron”), the other appellant, from their Pennsylvania home to the Florida home of Buzzy’s father and stepmother, Judge Roger F. Dykes (“Judge Dykes”) and Alpine Dykes. The circumstances of this incident are ™ disPute-

What happened next is not altogether clear either. The appellants contend that Buzzy and Judge Dykes formulated a plan to obtain a colorable court order awarding custody of Aaron to Buzzy. According to the appellants, Judge Dykes, who is a Bre-vard County, Florida Circuit Court judge, telephoned Judge Anthony Hosemann, Jr., (“Judge Hosemann”), another Brevard County Circuit Court judge then assigned to the Juvenile Court, for advice. Judge Hosemann suggested that Buzzy come to him with a “dependency” petition, and referred Judge Dykes to the Florida Department of Health and Rehabilitative Services (“HRS”), the state social service agency in charge of dependent and delinquent children.

On the evening of November 21, Judge Dykes and Buzzy went to an HRS office and requested assistance in filing a dependency petition. The agency official on duty there, Kendrick Lofback, explained that the Juvenile Court’s authority to award custody was restricted to dependent or delinquent children, and Aaron did not qualify:¹

I told them that I wouldn’t be able to help them, you know, that what we had to offer wasn’t relevant to their situation, that they needed to get a lawyer and have something done through Circuit Court.

Lofback Deposition at 14.

According to Lofback, Judge Dykes persisted in the request, and Lofback called his supervisor, Thomas Weinberg, at home, to discuss the matter. Weinberg and Lof-back finally agreed to go along with the petition, as long as it was not officially sponsored by HRS. Weinberg concedes that he might have told Lofback to help with the petition because Judge Dykes was a judge.

The next morning Weinberg presented a petition on behalf of Buzzy to Judge Hosemann, alleging as a basis for seeking custody the “real danger” that Diana might try to “abduct” Aaron. Buzzy had signed the petition and Weinberg had notarized it, although Weinberg admits that he did not administer an oath to Buzzy.² Buzzy waited outside Judge Hosemann’s chambers while Weinberg presented the petition. Judge Hosemann signed the order finding Aaron to be a “dependent child” and awarded custody to Buzzy without any receipt of evidence.³ Judge Hosemann admits that he had no basis for awarding custody of Aaron to Buzzy other than the fact that his father was a judge and the fact that the petition was presented by an HRS official.

No summons was ever directed to Diana, as the statute required,⁴ nor was Diana ever informed prior to the November 22 proceeding that a custody order would be sought. Buzzy did call Diana after he had obtained the order and inform her that he had a court order preventing Aaron’s removal from Florida. Diana did not believe him because she had consulted an attorney who had told her that a court could not award custody or prevent a child’s removal from a state unless a divorce action had been commenced.

Shortly after the dependency proceeding, Buzzy, Diana, and Aaron got back together briefly. They closed up their Pennsylvania apartment, returned to Florida, and moved in with Judge Dykes and his second wife, Alpine. They soon moved again, this time in with Buzzy’s mother, Judge Dykes’ ex-wife Marilu.

On approximately January 23, 1978, Diana traveled with Aaron from Florida to her parents’ home in Maryland. The circumstances of this move are in dispute.

After Diana left Florida, the Dykes family retained an attorney, Kenneth McIntosh, to help secure Aaron’s return to Florida. A meeting was held between Buzzy, Judge Dykes, Judge Hosemann, Weinberg, and another HRS employee in Judge Hosem-ann’s chambers on January 23, 1978. The group allegedly formulated a plan to bring Aaron back to Florida.

The next day, in accordance with the plan, Buzzy filed a petition for dissolution of marriage in Brevard County Circuit Court. The dissolution case was assigned to Judge Muldrew, another judge on the Brevard County Circuit Court bench. Judge Muldrew issued three orders ex parte: one granting temporary custody of Aaron to Buzzy and two Requests for Assistance to the Maryland juvenile authorities. Judge Hosemann also issued an ex parte order for Aaron’s return and requesting the assistance of Maryland authorities. All four orders were based upon and referred to Judge Hosemann’s original November 22, 1977 custody order. Each judge ordered Diana to appear in a different court on February 13, 1978 at 10:30 a.m.

On January 30, armed with the Florida orders, Buzzy flew to Maryland and proceeded to the Maryland Circuit Court, where he obtained a custody order requiring Diana to surrender Aaron. That night, accompanied by a Baltimore County Deputy sheriff, Buzzy went to Diana’s parents’ home, picked up Aaron, and returned to Florida. This was the first time that Diana received formal notice of the November 1977 custody adjudicated by Judge Hosemann.⁵

In February 1978, Diana flew to Florida to be with Aaron and to appear at the custody hearing before Judge Muldrew. On February 22, 1978, Judge Muldrew ordered HRS to do a social investigation of both parents’ suitability as custodians; the study was to be completed within 60 days. The report, which made no custody recommendation, was finally completed almost nine months later, only after Diana’s counsel had filed a contempt motion against HRS based on the delay. During all this time, Buzzy had custody of Aaron.

On August 15, 1978, Judge Muldrew issued a final judgment of dissolution of marriage. On February 22,1979, he granted a permanent custody of Aaron to Buzzy. One of the primary reasons cited by Judge Muldrew for his decision was the fact that Buzzy had been the custodial parent during the past year.

Subsequently, Diana sought post-judgment relief, including the right to take post-trial discovery, on the grounds of judicial impropriety and undue influence in the custody proceedings. All these motions were denied. After her state appeals were denied, she filed this § 1983 action.

In Diana’s original complaint, both she and her son Aaron were named as plaintiffs. The four-count complaint alleged deprivation of the plaintiffs’ constitutional rights in violation of 42 U.S.C. §§ 1983 and 1985 by appellees Judge Hosemann, Judge Dykes, Buzzy Dykes, Thomas Weinberg, Kenneth McIntosh, and Alpine Dykes. Specifically, she claimed that the appellees, individually, and as part of a conspiracy, deprived her of custody of Aaron in violation of her procedural and substantive due process rights and her right to equal protection under the Fifth and Fourteenth Amendments. Chief Judge George C. Young dismissed this original complaint for failure to comply with Federal Civil Rule of Procedure 8(a). The plaintiffs then filed an amended complaint against all previously named defendants except Alpine Dykes.

The district court dismissed the § 1985 actions for lack of an allegation of class-based animus. The appellants do not appeal this decision. The district court also dismissed Aaron as a party plaintiff on the grounds that he had not suffered any damages. The claim against Judge Hosemann was dismissed on the grounds of judicial immunity, and the claim against McIntosh was dismissed for lack of state action and insufficient allegations. The trial court also granted motions for summary judgment filed by Judge Dykes, Buzzy, and Weinberg. Diana and Aaron appeal all these orders.⁶

II. Section 1983 Analysis

At the outset, we address the basis for the appellants’ rather novel claim under 42 U.S.C. § 1983.

Section 1983 provides in pertinent part:

§ 1983. Civil action for deprivation of rights

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress____

Two primary issues in a § 1983 action are (1) whether the defendants violated the plaintiffs’ constitutional rights, and (2) whether such violation was under color of state law. Scott v. Dixon, 720 F.2d 1542, 1545 (11th Cir.1983); Brown v. Miller, 631 F.2d 408, 410 (5th Cir.1980).

The gravamen of Diana’s complaint and her basis for appeal is that her parental rights were terminated without notice and a hearing by means of an official act of a judge, which was the product of a corrupt conspiracy between the judge and the other appellants. Diana correctly points out that “the relationship of love and duty in a recognized family unit is an interest in liberty entitled to constitutional protection.” Lehr v. Robertson, 463 U.S. 248, 103 S.Ct. 2985, 2991, 77 L.Ed.2d 614 (1983). “[Sjtate intervention to terminate [such a] relationship ... must be accomplished by procedures meeting the requisites of the Due Process Clause.” Id., quoting Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 1393, 71 L.Ed.2d 599 (1982). At a minimum, due process requires timely notice, in advance of a hearing in which parents’ rights to custody are at stake. Application of Gault, 387 U.S. 1, 87 S.Ct. 1428, 1447, 18 L.Ed.2d 527 (1967). Furthermore, “before a person is deprived of a protected interest, he must be afforded an opportunity for some kind of hearing, ‘except for extraordinary situations where some valid governmental interest is at stake that justified postponing the hearing until after the event.’ ” Smith v. Organization of Foster Families for Equality and Reform, 431 U.S. 816, 97 S.Ct. 2094, 2111, 53 L.Ed.2d 14 (1977), quoting Boddie v. Connecticut, 401 U.S. 371, 379, 91 S.Ct. 780, 786, 28 L.Ed.2d 113 (1971).

The “color of state law” component of § 1983 may be satisfied by showing that an official act of a defendant judge was the product of a corrupt conspiracy involving the judge and other private parties. Dennis v. Sparks, 101 S.Ct. 183, 186 (1980). Even if th£ judge himself is held to be absolutely immune from suit (see section IIB infra), the private parties who conspire with the judge act under color of state law for § 1983 purposes. Id. at 187.

Here, Diana alleges, and the other parties do not dispute, that Diana was not given notice or a hearing before the dependency adjudication deprived her of custody of Aaron. She also alleges that the dependency adjudication was the product of a corrupt conspiracy between a judge and private parties. We conclude that Diana has at least stated a § 1983 procedural due process claim. Accordingly, we address seriatim the appellees’ liability for that claim.

III. The Appellees’ Liability

A. Judge Hosemann

The claim against Judge Hosemann was dismissed on the grounds of absolute judicial immunity. It is well established that judges are immune from lawsuits for damages⁷ for all judicial acts not taken in the clear absence of jurisdiction. Stump v. Sparkman, 435 U.S. 349, 98 S.Ct. 1099, 55 L.Ed.2d 331 (1978); Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967); Bradley v. Fisher, 13 Wall. 335, 20 L.Ed. 646 (1871); Randall v. Brigham, 7 Wall. 523, 19 L.Ed. 285 (1868). The appellants here argue that Judge Hosemann is not immune because (1) some of the acts complained of are nonjudicial in nature, and (2) his judicial acts were taken in the clear absence of jurisdiction.

1. Nonjudicial Acts

The appellants do not contend that Judge Hosemann’s participation in the dependency proceeding was not a “judicial act.” Rather, they maintain that Judge Hosemann’s implicit or explicit agreement prior to the dependency proceeding to grant Buzzy custody was a nonjudicial act.⁸

In Stump v. Sparkman, the Supreme Court discussed with approval the Fifth Circuit standard for what constitutes a judicial act for purposes of judicial immunity. 98 S.Ct. at 1107, citing McAlester v. Brown, 469 F.2d 1280, 1282 (1972). The Court stated that:

... the factors determining whether an act by a judge is a “judicial” one relate to the nature of the act itself, i.e., whether it is a function normally performed by a judge, and to the expectations of the parties, i.e., whether they dealt with the judge in his judicial capacity.

Id.

The appellants rely on Rankin v. Howard, 633 F.2d 844 (9th Cir.1980), cert. denied 451 U.S. 939, 101 S.Ct. 2020, 68 L.Ed.2d 326 (1981), where that court concluded that a judge’s private, prior agreement to decide in favor of one party is not a judicial act. Id. at 847. Applying the Stump definition of “judicial act,” the Rankin court reasoned:

Although a party conniving with a judge to predetermine the outcome of a judicial proceeding may deal with him in his “judicial capacity,” the other party’s expectation, i.e., judicial impartiality, is actively frustrated by the scheme. In any event, the agreement is not “a function normally performed by a judge.” It is the antithesis of the “principled and fearless decision-making” that judicial immunity exists to protect. See Pierson v. Ray, 386 U.S. 547, 554, 87 S.Ct. 1213, 1217, 18 L.Ed.2d 288 (1967); Gregory v. Thompson, 500 F.2d [59] at 63 [9th Cir.1974].

While it could be urged that the Rankin reasoning is persuasive, it appears that this circuit has, at least in dicta, rejected Rankin’s conclusion concerning the nonjudicial character of prior agreements. In Harper v. Merckle, 638 F.2d 848 (5th Cir. Unit B), cert. denied 454 U.S. 816, 102 S.Ct. 93, 70 L.Ed.2d 85 (1981), this court stated, “we note that even a judge who is approached as a judge by a party for the purpose of conspiring to violate § 1983 is properly immune from a damage suit.” Id. at 856 n. 9. The Harper court relied on Dennis v. Sparks, 449 U.S. 24, 101 S.Ct. 183, 66 L.Ed.2d 185 (1980), where the Supreme Court stated in reference to the dismissal of a judge alleged to have conspired with private parties: “The courts below concluded that the judicial immunity doctrine required dismissal of the § 1983 action against the judge who issued the challenged injunction, and as the case comes to us, the judge has been properly dismissed from the suit on the immunity grounds.” Id. at 186. Subsequently, the Eleventh Circuit, in dismissing a claim against a court clerk on the grounds of judicial immunity, held that immunity would be assured despite the appellants’ assertion that the court clerk and another defendant conspired with one another or reached an understanding about the judicial act to be performed. Scott v. Dixon, 720 F.2d 1542, 1546-47 (11th Cir.1983). Although we think the Rankin opinion is well-reasoned on this point, we follow Scott, and hold that even advance agreements between a judge and other parties as to the outcome of a judicial proceeding do not pierce a judge’s immunity from suits for damages.

2. Absence of Jurisdiction

The appellants also argue that Judge Ho-semann is not immune from liability because he acted in the absence of either subject matter or personal jurisdiction.

a. Subject matter jurisdiction

It is clear that a judge who acts in the absence of subject matter jurisdiction may be held liable for his judicial acts. Stump v. Sparkman, 435 U.S. 349, 98 S.Ct. 1099, 55 L.Ed.2d 331 (1978); Bradley v. Fisher, 13 Wall. 335, 20 L.Ed. 646 (1872). The rationale for this limitation on judicial immunity is set out in Bradley v. Fisher and reiterated in Stump v. Sparkman: “Where there is clearly no jurisdiction over the subject-matter any authority exercised is a usurped authority, and for the exercise of such authority, when the want of jurisdiction is known, no excuse is permissible.” Stump, 98 S.Ct. at 1104 n. 6, quoting Bradley, 13 Wall, at 351, 20 L.Ed. 646. Stump also points out that subject matter jurisdiction must be broadly construed where the issue is a judge’s immunity, and notes a distinction between lack of jurisdiction and excess of jurisdiction. 98 S.Ct. at 1105. Illustrative of a clear lack of subject matter jurisdiction would be a situation where a probate judge, with jurisdiction only over wills and estates, would try a criminal case. The probate judge would not be immune from suit. On the other hand, if a judge of a criminal court convicted a defendant of a nonexistent crime, he would merely be acting in excess of his jurisdiction and would be immune. Id. at n. 7, citing Bradley, 13 Wall, at 352, 20 L.Ed. 646.

In the instant case, the appellants’ argument regarding lack of subject matter jurisdiction is that because Aaron could not qualify as a “dependent” under Florida law, see note 1 supra, and accompanying text, Judge Hosemann was without jurisdiction over the case. This argument must fail. Section 39.02 of the 1977 Florida Statutes states that, “The circuit court shall have exclusive original jurisdiction of proceedings in which a child is alleged to be dependent or delinquent____” There is no question that Judge Hosemann was a circuit court judge, and that the petition presented to Judge Hosemann on November 22, 1977 alleged that Aaron was a “dependent” child. Accordingly, Judge Ho-semann had subject matter jurisdiction of the case. Whether or not Judge Hosemann erred in his determination that Aaron was a “dependent” child is irrelevant to the issue of whether Judge Hosemann had subject matter jurisdiction to make such a determination. See Stump v. Sparkman, 435 U.S. 349, 98 S.Ct. 1099, 1106, 55 L.Ed.2d 331 (1978); Scott v. Hayes, 719 F.2d 1562, 1566-67 (11th Cir.1983).

b. Personal jurisdiction

Although we conclude that Judge Ho-semann had subject matter jurisdiction to enter the order complained of, the appellants also contend that Judge Hosemann did not have personal jurisdiction to enter the order, and that such lack of personal jurisdiction abrogated his judicial immunity.

This is a question of first impression in the Eleventh Circuit.⁹ Only the Ninth Circuit has thoroughly addressed this issue. Rankin v. Howard, 633 F.2d 844 (9th Cir.1980), cert. denied, 451 U.S. 939, 101 S.Ct. 2020, 68 L.Ed.2d 326 (1981). But cf. Green v. Maraio, 722 F.2d 1013 (2d Cir.1983); Martin v. Aubuchon, 623 F.2d 1282 (8th Cir.1980).

In Rankin, the parents of a member of the Unification Church instituted guardianship proceedings in a Kansas probate court as part of a “deprogramming” plan. The judge granted the guardianship petition in an ex parte hearing without notice to the son, even though the son was then a resident of Missouri, a fact allegedly known by the judge. Subsequently, the son was lured away from his Missouri home and taken to Arizona for nine days of “deprogramming.” He escaped and sued his parents, the deprogrammers, the lawyer involved, and the Kansas judge in a § 1983 action.

In regard to whether absence of personal jurisdiction would abrogate judicial immunity, the Rankin court reasoned:

When the Supreme Court first formulated the “clear absence” standard, ... it stated that the principle of immunity applied when there was “jurisdiction of both subject and person.” Bradley v. Fisher, 80 U.S. (13 Wall.) 335, 352 (1872), 20 L.Ed. 646.

An absence of personal jurisdiction may be said to destroy “all jurisdiction” because the requirements of subject matter and personal jurisdiction are conjunctional. Both must be met before a court has authority to adjudicate the rights of parties to a dispute.

If a court lacks jurisdiction over a party, then it lacks “all jurisdiction” to adjudicate that party’s rights, whether or not the subject matter is properly before it. See, e.g., Kulko v. Superior Court, 436 U.S. 84, 91, 98 S.Ct. 1690, 1696, 56 L.Ed.2d 132 (1978) (“[i]t has long been the rule that a valid judgment imposing a personal obligation or duty in favor of the plaintiff may be entered only by a court having jurisdiction over the person of the defendant”) (citations omitted)... Because the limits of personal jurisdiction constrain judicial authority, acts taken in the absence of personal jurisdiction do not fall within the scope of legitimate decisionmaking that judicial immunity is designed to protect. See Gregory v. Thompson, 500 F.2d at 63. We conclude that a judge who acts in the clear and complete absence of personal jurisdiction loses his judicial immunity.

Id. at 848-849 (footnotes omitted).

We agree with the Rankin court’s analysis. We point out in addition, that the rationale for the limitation on judicial immunity when subject matter jurisdiction is lacking applies with equal force when personal jurisdiction is lacking. In Bradley v. Fisher, the court stated that where there is no jurisdiction over the subject matter, any authority exercised is a usurped authority. 13 Wall, at 351, 20 L.Ed. 646. Although the modern conception of personal jurisdiction generally refers to due process, see, e.g., International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945), the foundation of personal jurisdiction has always been a court’s power to act. McDonald v. McBee, 243 U.S. 90, 37 S.Ct. 343, 61 L.Ed. 608 (1917); Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565 (1878). When a court acts without personal jurisdiction, its authority is as much a usurped authority as when the court acts without subject matter jurisdiction.

We also agree with the Rankin court that immunity for judicial acts in the clear absence of jurisdiction is lost only if the judge knows that he lacks jurisdiction, or acts in the face of clearly valid statutes or case law expressly depriving him of jurisdiction. See 633 F.2d at 849. Issues of jurisdiction are often complex, and judges should be free to decide them without concern that their errors may subject them to liability.

In the instant case, the federal district court judge assumed that a court which had subject matter jurisdiction did not act in the clear absence of jurisdiction. The court refused to reconsider its ruling when the appellants introduced Rankin as new authority. Because the issues of whether Judge Hosemann knew he lacked personal jurisdiction or acted in the face of clearly valid statutes or ease law expressly depriving him of jurisdiction are matters for initial determination in the district court, we reverse the order dismissing the claim against Judge Hosemann and remand to the district court for further proceedings not inconsistent with this opinion.¹⁰

B. Thomas Weinberg

The district court granted summary judgment to Florida Health and Rehabilitative Services official Thomas Weinberg because it found that as a state executive official he was entitled to qualified immunity-

The standard for such qualified immunity is set out in Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982):

... government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.

Id. at 2738. See also Zeigler v. Jackson, 716 F.2d 847, 849 (11th Cir.1983). Where an individual official would be expected to know that certain conduct would violate statutory or constitutional rights he should be made to hesitate. Harlow v. Fitzgerald, 102 S.Ct. at 2739; Scott v. Dixon, 720 F.2d 1542, 1548 (11th Cir.1983).

Weinberg does not argue that he should not be expected to know that adjudicating Diana’s right to custody without notice to her would violate her constitutional rights. Instead, he asserts that he just did his job and that at any rate it was not his duty to notify Diana of the dependence proceeding. His position is that he did not deprive the appellants of any constitutional rights.

However, Weinberg does not adequately address the appellants’ contention that Weinberg acted as part of a conspiracy to deprive the appellants of their constitutional rights. To show a conspiracy to violate § 1983, the appellants must show that the appellees “reached an understanding” to violate their rights. Adickes v. S.H. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 1605, 26 L.Ed.2d 142 (1970); Dennis v. Sparks, 449 U.S. 24, 101 S.Ct. 183, 66 L.Ed.2d 185 (1980); Crowe v. Lucas, 595 F.2d 985 (5th Cir.1979). See also Cole v. Gray, 638 F.2d 804 (5th Cir.), cert. denied, 454 U.S. 838, 102 S.Ct. 144, 70 L.Ed.2d 120 (1981). Even if it was not Weinberg’s personal statutory duty to notify Diana, he could be held liable on a conspiracy theory if he reached an understanding with the other appellees to violate Diana’s constitutional rights.

Summary judgment is inappropriate where the record, examined in the light most favorable to the party opposing the motion shows any material facts in dispute. Adickes v. S.H. Kress & Co., 90 S.Ct. at 1609. Weinberg’s participation in the petition process on his day off, the testimony of HRS official Kenneth Lofback concerning the propriety of a dependency proceeding under the circumstances of the case, the meeting between Weinberg, Judge Dykes, Buzzy and Judge Hosemann in Judge Hosemann’s chambers to formulate a plan to regain physical custody of Aaron and other evidence in the record at least indicates that fact issues exist as to whether Weinberg took part in a conspiracy to violate the appellants’ constitutional rights. Accordingly, summary judgment for Weinberg is reversed.

C. Judge Dykes and Buzzy Dykes

The district court granted summary judgment in favor of Judge Dykes because his actions constituted normal grandfatherly concern rather than action under color of state law. However, as previously discussed {see section IIA supra), the requisite element of action under color of state law for § 1983 purposes is provided by Judge Hosemann’s alleged participation in the alleged conspiracy, whether or not Hosemann is held to be immune from suit. Dennis v. Sparks, 101 S.Ct. at 186.

The appellants have presented documentary evidence in the form of Judge Dykes’ notes both before and after the custody order, from which inferences can be drawn that Judge Dykes was the instigator of the dependency petition and the plan to regain physical custody of Aaron by means of the original order. These notes, in addition to other testimonial and circumstantial evidence in the record convince us that triable fact issues exist as to Judge Dykes' participation in a conspiracy to deprive the appellants of their constitutional rights.

As to Buzzy Dykes, the district court concluded that the undisputed facts failed to show that Buzzy was a willful participant in joint action with the other defendants.¹¹ To the contrary, we find sufficient evidence that Buzzy participated in joint action with the other appellants. He gave Weinberg the information for the dependency petition, he met with several of the appellants in Judge Hosemann’s chambers to plan how to regain custody of Aaron, and he flew to Maryland with all the court orders and picked up Aaron. The real question is whether there was a conspiracy to violate the appellants’ constitutional rights. Because a jury could draw inferences of a conspiracy from the evidence presented, we hold that the summary judgment in favor of Buzzy was unwarranted.

D. Attorney McIntosh

The district court dismissed attorney Kenneth McIntosh as a party defendant on the basis that, Judge Hosemann already having been immunized, McIntosh did not act under color of state law. As previously discussed (see section IIA supra), private parties who conspire with an immune judge in connection with the judge’s official acts are acting under color of state law and may be held liable under § 1983. Dennis v. Sparks, 102 S.Ct. at 186. Accordingly, the ground upon which the district court rested its dismissal of McIntosh is erroneous.

However, the district court also mentioned in passing on attorney McIntosh’s motion to dismiss that he did not think that there were sufficient allegations against McIntosh. On appeal, McIntosh argues that we should affirm the district court on this basis.

With regard to a motion to dismiss for failure to state a claim, a § 1983 complaint should not be dismissed unless it appears that the plaintiff can prove no set of facts which would entitle him to relief. Doe v. Public Health Trust of Dade County, 696 F.2d 901, 907 (11th Cir.1983) (Hatchett, J., specially concurring); Richardson v. Fleming, 651 F.2d 366, 368 (5th Cir.1981). For purposes of testing sufficiency of the complaint, the allegations of the complaint must be taken as true. Richardson, 651 F.2d at 368. Furthermore, private attorneys alleged to have conspired with immune state officials may be held liable under § 1983. Id. at 371. Here, the appellants allege that the appellees, including McIntosh, conspired to utilize the allegedly illegal November 22, 1977 custody order to obtain permanent custody of Aaron, and that McIntosh knew or should have known that that order was improper and illegal. Taking these allegations as true, we hold that if proven, they could entitle the appellants to § 1983 relief against McIntosh. Accordingly, dismissal of the appellants’ complaint against McIntosh is reversed.

IV. Other Issues

A. Dismissal of Aaron as a plaintiff

The district court dismissed Aaron as a plaintiff sua sponte because of the court’s conclusion that Aaron had suffered no damages. This ruling was made from the bench without motion, briefing or argument, in response to a different motion to dismiss Aaron as a plaintiff on the grounds that Diana was not a proper person to sue as Aaron’s next friend while Buzzy was his legal guardian. Diana and Aaron appeal this dismissal.

Damages for mental and emotional stress caused by the denial of procedural due process may be awarded in a § 1983 action. Carey v. Piphus, 435 U.S. 247, 264, 98 S.Ct. 1042, 1052, 55 L.Ed.2d 252 (1978). Absent proof of actual injury, nominal damages may be awarded. Id. at 266-67, 98 S.Ct. at *1053-1054. Punitive damages may be awarded in a § 1983 action even without a showing of actual loss by the plaintiff if the plaintiff’s constitutional rights have been violated. McCulloch v. Glasgow, 620 F.2d 47, 51 (5th Cir.1980).

In the instant case, Diana testified in her deposition that Aaron suffered emotional distress as a result of being deprived of his mother’s care and companionship. If Aaron’s constitutional rights were violated, he might have been entitled to nominal damages even without proof of actual injury. Because an issue of material fact remained as to whether Aaron suffered damages, his dismissal as a plaintiff on this ground was error.¹²

B. Res Judicata

The appellees argue that the appellants have litigated or have had the opportunity to litigate their due process claims in state court and that therefore they should be precluded from reasserting them in federal court.¹³ The district court agreed with the appellees.

A recent Supreme Court case holds that a state court judgment has the same claim preclusive effect in a § 1983 suit in federal court as that judgment would have in courts of the state from which it was issued. Migra v. Warren City School District Board of Education, — U.S. -, -, 104 S.Ct. 892, 898, 79 L.Ed.2d 56 (1984). Furthermore, both sides agree that a recent Florida case clearly sets forth Florida law on claim preclusion. Albrecht v. State, 444 So.2d 8 (Fla.1984). There the Florida Supreme Court stated:

[W]hen the second suit is between the same parties, but based upon a different cause of action from the first, the prior judgment will not serve as an estoppel except as to those issues actually litigated and determined in it____ Therefore, if the cause of action is not the same there will be no estoppel as to those issues which could have been litigated in the previous action. The determining factor in deciding whether the cause of action is the same is whether the facts or evidence necessary to maintain the suit are the same in both actions.

Id. at 12 (citations omitted).

As in Migra, it is not apparent whether the district court in the instant case applied state or federal law in concluding that “the state decisions would seem to put this matter to rest ____” Therefore, like the Migra court, we remand to the district court for initial interpretation and application of Florida law on this point. See Migra, — U.S. at -, 104 S.Ct. at 899.

V. Conclusion

We reverse the district court’s judgments as to each of the appellees and remand for further proceedings not inconsistent with this opinion. The appellees’ requests for attorney fees are accordingly DENIED.

REVERSED and REMANDED.

1 . Under Florida law then in effect, a "dependent child" was a defined term:

(8) "Dependent child" means a child who:

(a) Has been abandoned by his parents or other custodians.

(b) For any reason, is destitute or homeless.

(c) Has not proper parental support, maintenance, care, or guardianship.

(d) Because of the neglect of his parents or other custodians, is deprived of education as required by law, or of medical, psychiatric, psychological, or other care necessary for his well-being.

(e) Is living in a condition or environment such as to injure him or endanger his welfare.

(f) Is living in a home which, by reason of the neglect, cruelty, depravity, or other adverse condition of a parent or other person in whose care the child may be, is an unfit place for him.

(g) Is surrendered to the Department of Health and Rehabilitative Services or a licensed child-placing agency for purpose of adoption.

(h) Has persistently run away from his parents or legal guardian.

(i) Being subject to compulsory school attendance, is habitually truant from school. Fla.Stats. § 39.01(8) (1977).

In 1978, the Florida State Legislature revised Chapter 39 and it became known as the Florida Juvenile Justice Act, with new sections effective October 1, 1978.

2 . The applicable statute stated that the petition "shall be signed by the petitioner under oath stating his good faith in filing the petition.” Fla.Stat. § 39.05(3) (1977).

3 . Under the statute, an adjudicatory hearing was required to be held to determine whether or not the child was "dependent" within the meaning of § 39.01(8). Fla.Stat. § 39.09(1) (1977). The determination of dependency was permissible only upon a preponderance of the evidence. Id. at § 39.09(1 )(b). Furthermore, once a child had been adjudicated a dependent, the court was required to hold a disposition hearing, at which it was to consider a predisposition study presented by an agent of HRS. Id. at § 39.-09(3). Here, the adjudication and the disposition were combined into one hearing where no evidence was presented.

4 . The statute provided:

(2) Upon the filing of a petition containing allegations of facts which, if true, would constitute the child therein named a dependent child, delinquent child, or a child in need of supervision, and upon the request of the petitioner, the clerk or deputy clerk shall issue a summons.

(3) The summons shall require the person on whom it is served to appear for a hearing at a time and place specified. The time shall not be less than twenty-four hours after service of the summons. If the child is not detained by an order of the court, the summons shall require the custodian to produce the child at the said time and place. A copy of the petition shall be attached to the summons.

(4) The summons shall be directed to, and shall be served upon, the following persons:

(a) [The child if delinquent];

(b) The parents; and

(c) The legal custodians, actual custodians, and guardians ad litem, if there be any other than the parents.

Fla.Stat. § 39.06 (1977).

5 . By the time Diana received formal notice of the November 1977 custody order, her 30-day period for appealing the order under § 39.14(1) of the Florida Statutes had elapsed.

6 . On appeal, the appellants only argue that their rights to procedural due process were violated by the appellees individually and as part of a conspiracy, and have apparently abandoned their equal protection and substantive due process claims.

7 . We note that the Supreme Court this term has held that judicial immunity is not a bar to prospective injunctive relief against a judicial officer. Pulliam v. Allen, — U.S.-, 104 S.Ct. 1970, 80 L.Ed.2d 565 (1984).

8 . The appellees argue that the appellants failed to raise the nonjudicial act theory in the district court. The appellees are mistaken. The appellants raised the nonjudicial act theory in a Motion for Reconsideration of the Order Dismissing Judge Hosemann in Light of New Authorities. The district court denied this motion on June 3, 1981, and the appellants noted an appeal of this denial.

9 . The Supreme Court in Stump v. Sparkman acknowledged that Judge Stump may have committed "grave procedural errors” when he ordered a 15-year-old "somewhat retarded” girl sterilized on the petition of her mother but without notice to or appointment of an attorney ad litem for the girl. 98 S.Ct. at 1106. However, as the Rankin court noted, the Supreme Court did not explicitly consider whether Judge Stump acted in the clear absence of personal jurisdiction or whether such action would be protected by judicial immunity. 633 F.2d at 848.

10 . Judge Hosemann argued in his brief that Florida statutes required only personal jurisdiction over the child Aaron in dependency cases. He based this argument on § 39.06(7), which provided:

(7) The jurisdiction of the court shall attach to the child and the case when the summons is served upon the child, a parent or legal or actual custodian of the child...

Although no summons was served on anyone in the case, Hosemann pointed to § 39.06(1), which stated:

(1) Personal appearance of any person in a hearing before the court shall obviate the necessity of serving process on that person.

According to Hosemann, the fact that Buzzy's name was on the petition and Buzzy’s presence outside the judge's chambers constituted constructive appearance, obviating the need for service on Buzzy, and attaching the jurisdiction of the court to the case.

When questioned at oral argument, Hosem-ann’s attorney seemed to concede that personal jurisdiction over Diana was necessary for the entry of the custody order, and that it did not exist.

11 . The district court also held as a matter of law that Diana’s constitutional rights had not been violated since Buzzy told her that he had a court order preventing Aaron's removal from Florida. In light of the lack of formal notice to Diana before entry of the order, and Diana’s testimony that she did not believe Buzzy, we cannot hold such "notice" constitutionally adequate as a matter of law. (See section II supra.)

The Dykes cite Thompson v. Bass, 616 F.2d 1259 (5th Cir., cert. denied, 449 U.S. 983, 101 S.Ct. 399, 66 L.Ed.2d 245 (1980)), for the proposition that failure to give proper notice can be cured by subsequent proceedings in which adequate notice and hearings are provided. We note first of all that this circuit has not applied the Thompson case to situations other than employee terminations. Furthermore, in this § 1983 action, the question of whether Diana was injured as a result of the November 1977 custody order, or whether the subsequent custody proceedings did cure the original lack of notice, is one for the jury. In this context, we point out that all court orders in the state custody proceedings were based on and referred to the original November 1977 order, and that the final custody order was based largely on the fact that because of the original order Buzzy had already had custody of Aaron for a year.

12 . We express no opinion as to the appellees’ argument on representative capacity, which we leave for initial determination by the district court.

13 . Appellees Weinberg and Hosemann also argue that because federal courts do not have jurisdiction to review, modify, or nullify an order of a state court, the federal district court was without jurisdiction in the instant case. This argument is without merit. The appellants did not seek to have the federal district court review a state court order; they sought damages for violation of constitutional rights.