# Dykes v. Hosemann

> Court of Appeals for the Eleventh Circuit · November 18, 1985 · 776 F.2d 942

URL: https://www.frixlaw.com/law-library/cases/8936176

## Case

- **Full name:** Diana Christine DYKES v. A.J. HOSEMANN, Jr., etc., Thomas A. Weinberg, etc., Roger Francis Dykes, Sr., etc., Roger Francis Dykes, Jr., etc., and Kenneth W. McIntosh, etc.
- **Court:** Court of Appeals for the Eleventh Circuit
- **Decided:** November 18, 1985
- **Citations:** 776 F.2d 942; 54 U.S.L.W. 2297
- **Precedential status:** Published
- **Opinion:** Concurring in part by Tjoflat
- **Judges:** Anderson, Clark, Fay, Godbold, Hatchett, Henderson, Hill, Johnson, Kravitch, Ney, Tjoflat, Vance
- **Cited by:** 112 later opinions in the Frix Law Library

## Citator (automated)

- **Yellow flag:** Modified by Dykes v. Hosemann, 783 F.2d 1000 (1986).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/8936176

## How later opinions describe it (automated extraction)

- explaining that “even a judge who is approached as a judge by a party [and conspires with such party] to violate [another party’s federal constitutional rights] is properly immune from a damage suit brought under section 1983” and stating that a contrary holding would mean tha…
- holding that the issuance of a temporary order of child custody constitutes a judicial function
- explaining in a parenthetical that “[w]here a court has some subject-matter jurisdiction, there is sufficient jurisdiction for immunity purposes.” (quoting Adams v. McIlhany, 764 F.2d 294, 298 (5th Cir. 1985))
- explaining that the mere allegation of a conspiracy with a party to the controversy underlying a judicial act does not strip a judge of immunity for claims relating to that act
- rejecting the argument that a judge acted in the “clear absence of all jurisdiction” when he issued an erroneous ruling: that a judge’s ruling may have been in error “does not affect the fact that it was within his power to make that determination.”

## Opinion text

TJOFLAT, Circuit Judge,
concurring in part and dissenting in part in which FAY and ANDERSON, Circuit Judges, join:
I join in the majority’s affirmance of the district judge’s dismissal of Judge Hosemann from this case because I find that, in addition to being immune from a section 1983 suit, Parratt v. Taylor, 451 U.S. 527 , 101 S.Ct. 1908 , 68 L.Ed.2d 420 (1981), mandates that the suit against him be dismissed. I dissent, however, from the majority’s remand of the ease as to the other appellees because I also read Parratt as requiring that the claims against the remaining appellees be dismissed, as well.
I view this ease as an ordinary abuse of process claim. Diana complains that Buzzy, with the aid of the other appellees, deliberately used a dependency proceeding for a purpose for which it was not designed, i.e., to deprive her of her parental right to the shared custody of her child and to deprive the child of the benefit of such custody. Since Aaron was not a dependent child, 1 Buzzy could not properly invoke Florida’s child dependency law to obtain his custody. Buzzy’s appropriate recourse under Florida law, if he wanted to obtain sole custody of Aaron, was to sue Diana for divorce and request the court to award him temporary (pending the litigation) and permanent custody of the child. See Fla.Stat. § 61.13 (1977).
Florida law provides that the deliberate use of a legal procedure, whether criminal or civil, for a purpose for which it was not designed constitutes a tort, abuse of process. See Bothmann v. Harrington, 458 So.2d 1163, 1169 (Fla.Dist.Ct.App.1984) (an abuse of process action exists when there is “use of the process for an immediate purpose other than that for which it was designed”) (emphasis in original) (citing Restatement (Second) of Torts § 682 comment 6 (1977) and W. Prosser, Handbook of the Law of Torts § 121 (4th ed. 1971)); Gause v. First Bank of Marianna, 457 So.2d 582, 584 (Fla.Dist.Ct.App.1984); Peckins v. Kaye, 443 So.2d 1025, 1026 (Fla.Dist.Ct.App.1983); McMurray v. U-Haul Co., 425 So.2d 1208 , 1209 n. 1 (Fla.Dist.Ct.App.1983) (“In order to sustain an action for abuse of process two elements are essential, (1) the existence of an ulterior motive; and (2) an act in the use of process other than such as would be proper in the regular prosecution of the charge.”) (quoting Farmers Gin Co. v. Ward, 73 N.M. 405, 406 , 389 P.2d 9, 11 (1964)). 2
*951 If Diana’s factual allegations are true, Buzzy and those who conspired with him are liable to her, in her individual and representative capacities, in money damages for the injuries she and Aaron sustained. Diana has not sued them for abusing Florida’s dependency procedure, however. Rather, invoking section 1983 she seeks compensation for such injuries under the theory that the State of Florida denied her and Aaron the due process of law guaranteed them by the fourteenth amendment. 3 Her theory is foreclosed by Parratt .
In Parratt , Nebraska prison officials failed to follow normal procedures for receipt of packages mailed to prisoners and lost a prisoner’s hobby kit. The prisoner sued the officials under section 1983 to recover the value of the lost hobby kit, alleging that the officials, acting for the state, had deprived him of his property without due process of law in violation of the fourteenth amendment. 4 The district court entered summary judgment for the prisoner, and the court of appeals affirmed. The Supreme Court, noting that the fourteenth amendment protects only against deprivations without due process of law, focused on the question of what process was due the prisoner. Parratt, 451 U.S. at 537 , 101 S.Ct. at 1914 . The Court first observed that the prison officials’ action was random and not sanctioned by the state. Because the state could not have anticipated such random activity, it would have been impossible for the state to have provided the prisoner any process, such as a hearing, prior to the deprivation. Nebraska law, however, did provide the prisoner a make-whole damages remedy. Finding that the damages remedy was all the process the state could have provided him under the circumstances, the Court concluded that the prisoner had not been deprived of his property without due process of law. Id. at 541-44 , 101 S.Ct. at 1916-17 .
Parratt thus stands for the proposition that, where state law provides a make-whole damages remedy to a person whose property has been taken or destroyed by the random tortious conduct of a state agent, the state has accorded that person all the process he is due under the fourteenth amendment due process clause simpliciter. In other words, Parratt treats the claimant as if he had already been compensated in full by the state for his loss and therefore accorded due process.
Parratt has been extended by the better reasoned opinions to apply to deprivations of liberty as well as property interests. See, e.g., Wilson v. Beebe, 770 F.2d 578, 584 (6th Cir.1985) (en banc); Thibodeaux v. Bordelon, 740 F.2d 329, 337-38 (5th Cir.1984); Daniels v. Williams, 720 F.2d 792, 794-96 (4th Cir.1983); Ellis v. Hamilton, 669 F.2d 510, 515 (7th Cir.), cert. denied, 459 U.S. 1069 , 103 S.Ct. 488 , 74 L.Ed.2d 631 (1982); Rutledge v. Arizona Board of Regents, 660 F.2d 1345, 1352 (9th Cir.1981), aff'd on other grounds, 460 U.S. 719 , 103 S.Ct. 1483 , 75 L.Ed.2d 413 (1983). But see Brewer v. Blackwell, 692 F.2d 387, 394 (5th Cir.1982). Certainly Parratt’s reasoning is unaffected by which fourteenth amendment interest is deprived. A state’s inability to provide predeprivation process, because the action of the state employee was unauthorized and random, exists regardless of which due process interest is involved. Furthermore, adequate damages remedies may be available not only for property interests but also for liberty and life interests. See Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 395 , 91 S.Ct. 1999, 2004 , 29 L.Ed.2d 619 (1971) (“[historically damages have been regarded as the ordinary remedy for an invasion of personal interests in liberty”); Thibodeaux v. Bordelon, 740 F.2d at 338 . Finally, the Court in Parratt implicitly acknowledged the applicability of its rationale to deprivations of *952 liberty interests by its discussion of Ingraham v. Wright, 430 U.S. 651 , 97 S.Ct. 1401 , 51 L.Ed.2d 711 (1977). Ingraham was a section 1983 class action brought on behalf of school children who alleged a deprivation of liberty without due process of law when their public school teachers paddled them for disciplinary reasons without providing them a prior hearing. The Court acknowledged the children’s liberty interest but noted that an adequate damages remedy, in the form of a suit for the tort of assault and battery, existed in state law. Recognizing that a hearing prior to each school paddling was impractical, the Court concluded that the state remedy was the only process required. Ingraham, 430 U.S. at 674-82 , 97 S.Ct. at 1414-18 . By drawing on Ingraham , the Court indicated that Parratt was designed to apply to liberty interests such as those involved in this case.
In my view, Parratt requires the dismissal of this section 1983 suit. This case tracks Parratt in all its essential elements: (1) appellants seek money damages; 5 (2) only violations of fourteenth amendment due process simpliciter rights are alleged; 6 and (3) the act of which appellants complain, the appellees’ misuse of Florida’s dependency law, 7 was, to the extent of the state’s involvement through Judge Hosemann, random conduct not sanctioned by the state. Quite to the contrary, the state condemned such conduct by subjecting appellees Buzzy Dykes, Judge Dykes, Thomas Weinberg, and Kenneth McIntosh to possible tort liability in the form of a damages action for abuse of process and Judge Hosemann to possible criminal liability, see Fla.Stat. § 839.25 (1983), 8 discipline (including removal from office), see Fla. Const, art. V, § 12, or impeachment, see Fla.Const. art. Ill, § 17. In addition, Judge Hosemann’s dependency order was subject to modification or vacation (if, for example, Diana, after^ learning of the order’s entry appeared to contest it), see Fla.Stat. § 39.-11(3) (1977), or reversal on appeal, see Fla. Stat. § 39.14 (1) (1977).
Appellants might argue that Parratt does not foreclose their suit against Judge Hosemann because the state, in applying its doctrine of judicial immunity, 9 failed to provide them a make-whole damages remedy against him. In short, the state has not *953 accorded the process appellants are due. The rationale of Parratt is based upon an inquiry into what process is due. With respect to Judge Hosemann, then, the question is whether Florida’s immunization of judges from suit and the corresponding absence of a tort remedy for judicial wrongs provides an injured party less process than he is due. I find that it does not.
Courts have consistently upheld the use of judicial immunity in section 1983 suits. See Dennis v. Sparks, 449 U.S. 24, 27 , 101 S.Ct. 183, 186 , 66 L.Ed.2d 185 (1980); Supreme Court v. Consumers Union of the United States, Inc., 446 U.S. 719, 734-35 , 100 S.Ct. 1967, 1976 , 64 L.Ed.2d 641 (1980); Stump v. Sparkman, 435 U.S. 349, 355-56 , 98 S.Ct. 1099, 1104 , 55 L.Ed.2d 331 (1978). In Pierson v. Ray, 386 U.S. 547, 554-55 , 87 S.Ct. 1213, 1218 , 18 L.Ed.2d 288 (1967), the Court found no indication that Congress, in enacting section 1983, intended to eliminate the doctrine of judicial immunity. These cases clearly imply that judicial immunity is constitutionally permissible and that the resulting absence of an action for money damages to remedy a judge’s tortious conduct does not violate the injured party’s due process rights. See also Martinez v. California, 444 U.S. 277, 281-83 , 100 S.Ct. 553, 557-58 , 62 L.Ed.2d 481 (1980) (state does not deny due process simply by granting reasonable tort immunity to state entities and officials). This being so, a state accords an injured party all of the process he is due even though it immunizes its judges from suit. See Rittenhouse v. DeKalb County, 764 F.2d 1451, 1456-58 (11th Cir.1985) (involving statutorily created municipal immunity). Because Florida’s immunization of Judge Hosemann from tort damages did not violate appellants’ due process rights, Parratt requires that the section 1983 suit against him be dismissed.
In summary, Parratt mandates this section 1983 suit be dismissed as to all of the appellees. This should not be surprising for, when a state provides all the process possible, it is difficult to interpret the fourteenth amendment as requiring more.
. The child was obviously not dependent. See ante p. 944 n. 2.
. See also Cline v. Flagler Sales Corp., 207 So.2d 709, 711 (Fla.Dist.Ct.App.1968) (per curiam):
In an action for abuse of process it is not essential to show a termination of the proceeding in favor of the person against whom the process was issued and used, or to show want of probable cause or malice. The cause of action consists of the willful or intentional misuse of process; a willful and intentional misuse of it for some wrongful and unlawful object, or ulterior purpose not intended by the law to effect.
. The fourteenth amendment due process clause provides that no state may "deprive any person of life, liberty, or property, without due process of law.”
. The officials’ action was alleged to be negligent. 451 U.S. at 530 , 101 S.Ct. at 1910. The Court’s analysis in Parratt , however, has been extended to intentional deprivations. See Hudson v. Palmer, - U.S. -, 104 S.Ct. 3194, 3203-04 , 82 L.Ed.2d 393 (1984).
. Where injunctive rather than monetary relief is sought, Parratt does not apply. In such a situation the suit is normally brought prior to the deprivation, thereby putting the state on notice of the acts its employees plan to take. State resistance to the granting of injunctive relief serves to sanction its employees’ acts making postdeprivation remedies insufficient under Parratt’s rationale to satisfy the requirements of due process.
. Appellants allege no substantive constitutional claims. As the panel stressed, "appellants only argue that their rights to procedural due process were violated by the appellees individually and as a part of a conspiracy, and have apparently abandoned their equal protection and substantive due process claims.”
. The "color of state law” component of section 1983 may be satisfied by a showing that a judicial act of the defendant judge resulted from a corrupt conspiracy involving the judge and private parties. Although the judge may be immune from suit, the private parties who conspired with him act "under color of state law” for purposes of section 1983 suits. See Dennis v. Sparks, 449 U.S. 24, 27-29 , 101 S.Ct. 183, 186-87 , 66 L.Ed.2d 185 (1980).
. Judge Hosemann’s alleged conduct could also result in the loss of his employment benefits. See Fla.Stat. § 112.3173 (Supp.1984).
. See Herskowitz v. Nesbitt, 419 So.2d 418, 419 (Fla.Dist.Ct.App.1982) (per curiam); Rivello v. Cooper City, 322 So.2d 602, 607 (Fla.Dist.Ct.App.1975).
One must distinguish between the judicial immunity a state judge would raise in defense of an abuse of process suit and the immunity he would interpose in defense of a section 1983 suit. In the former instance, the scope of immunity would be determined by state law. In the latter case, federal law must be applied. In Owen v. City of Independence, 445 U.S. 622, 638 , 100 S.Ct. 1398, 1409 , 63 L.Ed.2d 673 (1980), the Supreme Court in addressing the issue of immunity in a section 1983 context, stated:
In each of these cases [involving immunity from section 1983 liability], our finding of § 1983 immunity "was predicated upon a considered inquiry into the immunity historically accorded the relevant official at common law and the interests behind it." ... Where the immunity claimed by the defendant was well established at common law at the time § 1983 was enacted, and where its rationale was compatible with the purposes of the Civil Rights *953 Act, we have construed the statute to incorporate that immunity.
(quoting Imbler v. Pachtman, 424 U.S. 409, 421 , 96 S.Ct. 984, 990 , 47 L.Ed.2d 128 (1976)). As the Court had previously noted: “ 'A construction of [§ 1983] which permitted a state immunity defense to have controlling effect would transmute a basic [constitutional] guarantee into an illusory promise; and the supremacy clause of the Constitution insures that the proper construction may be enforced____ The immunity claim raises a question of federal law.’ ” Martinez v. California, 444 U.S. 277 , 284 n. 8, 100 S.Ct. 553 , 558 n. 8, 62 L.Ed.2d 481 (1980) (quoting Hampton v. Chicago, 484 F.2d 602 , 607 (7th Cir.1973) (citation omitted), cert. denied, 415 U.S. 917 , 94 S.Ct. 1413 , 39 L.Ed.2d 471 (1974)).
In the case of judicial immunity of federal judges one could argue that the doctrine is grounded in article III of the Constitution and it therefore could not be subject to statutory modification. In an effort to ensure the independence of the judiciary, the framers of the Constitution, in article III, section 1, provided that federal judges enjoy life tenure and mandated that their compensation not be diminished. The doctrine of judicial immunity achieves the same end; by insulating judges from monetary liability for their judicial acts in a case over which they had subject matter jurisdiction, the doctrine frees judges from certain pressures that may inappropriately affect their administration of justice and further secures the independence of the judiciary. Indeed, the Court in Randall v. Brigham, 74 U.S. (7 Wall.) 523, 537 , 19 L.Ed. 285 (1869), hinted at the constitutional underpinnings of the doctrine by describing judicial immunity in conjunction with a judge’s life tenure:
In the United States, judicial power is vested exclusively in the courts. The judges administer justice therein for the people, and are responsible to the people alone for the manner in which they perform their duties. If faithless, if corrupt, if dishonest, if partial, if oppressive or arbitrary, they may be called to account by impeachment, and removed from office____ But responsible they are not to private parties in civil actions for their judicial acts, however injurious may be those acts, and however much they may deserve condemnation____
The Court’s decision in Pierson v. Ray is not to the contrary. That case held that Congress did not intend to abolish the judicial immunity of state judges in enacting section 1983. 386 U.S. at 554-55 , 87 S.Ct. at 1218 . This does not suggest that Congress could abolish the judicial immunity of federal judges, as section 1983 does not apply to such judges and the protection accorded federal judges under article III does not extend to state judges.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8936176. Public record. Not legal advice.