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Hill v. McClellan

United States Court of Appeals, Fifth Circuit
Mar 8, 1974
490 F.2d 859 (5th Cir. 1974)

Summary

In Hill v. McClellan, 490 F.2d 859, 860 (5th Cir. 1974), the court pointed out that "a private person alleged to have conspired with a state judge and attorney who are entitled to immunity cannot be held liable, since he is not conspiring with persons acting under color of law against whom a valid claim could be stated.

Summary of this case from Waits v. McGowan

Opinion

No. 73-2686. Summary Calendar.

Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Company of New York et al., 5 Cir., 1970, 431 F.2d 409, Part I.

March 8, 1974.

John E. Hill, pro se.

John L. Hill, Atty. Gen. of Texas, Austin, Tex., for defendants-appellees.

Appeal from the United States District Court for the Western District of Texas.

Before WISDOM, AINSWORTH and CLARK, Circuit Judges.



Appellant Hill, incarcerated in the Texas Department of Corrections, filed a civil rights complaint under 42 U.S.C. §§ 1983 and 1985, alleging that Judge Byron McClellan, Attorney Robert Cummings, and appellant's ex-wife Wilma Hill, conspired to have a default judgment in a divorce, child custody, and property settlement action in a Texas state court entered against him while he was incarcerated and unable to appear in court. He sought damages and an order voiding the state judgment. The district court dismissed the complaint. We affirm.

Judges acting within their jurisdiction and authority are immune from suit under §§ 1983 and 1985. Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967); McAlester v. Brown, 5 Cir., 1972, 469 F.2d 1280; Carter v. Duggan, 5 Cir., 1972, 455 F.2d 1156; Collins v. Moore, 5 Cir., 1971, 441 F.2d 550; Guedry v. Ford, 5 Cir., 1970, 431 F.2d 660; Beard v. Stephens, 5 Cir., 1967, 372 F.2d 685; Carmack v. Gibson, 5 Cir., 1966, 363 F.2d 862; Hanna v. Home Insurance Co., 5 Cir., 1960, 281 F.2d 298, cert. denied, 365 U.S. 838, 81 S.Ct. 751, 5 L.Ed.2d 747, rehearing denied, 366 U.S. 955, 81 S.Ct. 1905, 6 L.Ed.2d 1247; Gay v. Heller, 5 Cir., 1958, 252 F.2d 313.

Lawyers who participate in the trial of private state court litigation are not state functionaries acting under color of state law within the meaning of the Federal Civil Rights Acts; likewise, they are not liable under said Acts. Skolnick v. Martin, 7 Cir., 1963, 317 F.2d 855, 856, cert. denied, 375 U.S. 908, 84 S.Ct. 199, 11 L.Ed.2d 146, rehearing denied, 375 U.S. 960, 84 S.Ct. 440, 11 L.Ed.2d 319; Carmack v. Gibson, supra; Brown v. Dunne, 7 Cir., 1969, 409 F.2d 341; Hanna v. Home Insurance Co., supra.

A private person cannot be held liable under 42 U.S.C. § 1983 unless his wrongful action was done under color of state law or state authority. Further, a private person alleged to have conspired with a state judge and attorney who are entitled to immunity cannot be held liable, since he is not conspiring with persons acting under color of law against whom a valid claim could be stated. Guedry v. Ford, supra, 431 F.2d at 664, and cases cited therein; Brown v. Dunne, supra; Haldane v. Chagnon, 9 Cir., 1965, 345 F.2d 601, 604.

A federal district court has no original jurisdiction to reverse or modify the judgment of a state court. Hanna v. Home Insurance Co., supra, 281 F.2d at 303, and cases cited therein. There is no cause of action under the Civil Rights Act if a case is private litigation in which the state does no more than furnish the forum and has no interest in the outcome. Skolnick v. Martin, supra, 317 F.2d at 857. Only if diversity jurisdiction exists might a federal court, just as a state court, have jurisdiction of a suit in which it is alleged with the particularity required under Rule 9(b), Fed.R.Civ.P., for the statement of a cause of action for fraud. Gay v. Heller, 5 Cir., 1958, 252 F.2d 313. Merely characterizing defendants' conduct as conspiratorial or unlawful does not set out allegations upon which relief can be granted under the Civil Rights Act.

Appellant has not stated a claim for which relief may be granted under 42 U.S.C. §§ 1983 and 1985.

Affirmed.


Summaries of

Hill v. McClellan

United States Court of Appeals, Fifth Circuit
Mar 8, 1974
490 F.2d 859 (5th Cir. 1974)

In Hill v. McClellan, 490 F.2d 859, 860 (5th Cir. 1974), the court pointed out that "a private person alleged to have conspired with a state judge and attorney who are entitled to immunity cannot be held liable, since he is not conspiring with persons acting under color of law against whom a valid claim could be stated.

Summary of this case from Waits v. McGowan

In Hill, the Fifth Circuit held that an attorney who merely represented the plaintiff's ex-wife in a divorce, child custody, and property settlement action in Texas was not acting under color of state law.

Summary of this case from Thompson v. Aland

conspiring to enter a default judgment

Summary of this case from Baer v. Baer
Case details for

Hill v. McClellan

Case Details

Full title:JOHN E. HILL, #225682, PLAINTIFF-APPELLANT, v. BYRON L. McCLELLAN, JUDGE…

Court:United States Court of Appeals, Fifth Circuit

Date published: Mar 8, 1974

Citations

490 F.2d 859 (5th Cir. 1974)

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