Sparkman v. McFarlin

PER CURIAM.

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.

*262 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.