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     Diana Christine DYKES, etc., Plaintiff-Appellant, v. A.J.
      HOSEMANN, Jr., etc., Thomas A. Weinberg, etc., Roger Francis
            Dykes, Sr., etc., and Roger Francis Dykes, Jr., etc.,
               Kenneth W. McIntosh, etc., Defendants-Appellees

                                  No. 83-3347

            UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

                                 743 F.2d 1488


                                October 11, 1984

SUBSEQUENT HISTORY:  Petition for Rehearing and Petition for
Rehearing En Banc Granted December 18, 1984.

PRIOR HISTORY: Appeal from the United States District Court for the
Middle District of Florida.

COUNSEL: J. Calvin Jenkins, Jr.; William K. Meyer; Francis B.
Burch; J. Edward Davis, 100 South Charles Street, Baltimore, MD
21201, for Appellant.

   Brian R. Tough, 457 S. Ridgewood Ave., Daytona Beach, FL. for
Appellee.

   Douglas E. Whitney, District Counsel, Dept. of H & R Serv., 400
West Robinson St., Suite 912, Orlando, FL 32801, for Appellee.

   Raymond A. Haas; HAAS, BEEHM & BROWN, P.A. P.O. Box 6511,
Daytona Beach, FL 32022, for Appellee.

   James A. Edwards, P.O. Box 1873, Orlando, FL 32802, for
Appellee.

   Gerald B. Curington, AAG, Suite 1501 The Capital, Tallahassee,
FL 32301, for Appellee.

OPINIONBY: THORNBERRY

OPINION:

   Before GODBOLD, Chief Judge, HILL, Circuit Judge, and THORNBERRY
*, Senior Circuit Judge.

   * Honorable Homer Thonberry, U.S. Circuit Judge for the Fifth
Circuit, sitting by designation.

   THORNBERRY, Senior Circuit Judge:

   In this @ 1983 case, 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 district 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.
    PAGE    3                                  743 F.2d 1488
                     LEXSEE

   I.  Facts

   Diana Dykes and Roger Francis "Buzzy" Dykes, Jr. ("Buzzy") began
experiencing marital difficulties in 1977.  In November 1977, 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 in 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 Brevard County,
Florida Circuit Court judge, telephone 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 "dependence" 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: n1 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.

   n1 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.
    PAGE    4                                  743 F.2d 1488
                     LEXSEE

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.
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 Lofback 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. n2
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. n3 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.

   n2 The applicable statute stated that the petition "shall be
signed by the petitioner under oath stating is good faith in filing
the petition." Fla.Stat. @ 39.05(3) (1977).

   n3 Under the statute, an adjudicatory hearing was required to be
held to determine whether or not the child was "dependent" within
the meaning of @ 36.01(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.

   No summons was ever directed to Diana,  as the statute required,
n4 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.   n4 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
    PAGE    5                                  743 F.2d 1488
                     LEXSEE

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 and
litem, if there be any other than the parents.
Fla.Stat. @ 39.06 (1977).

   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 Hosemann'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. n5

   n5 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.

   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
    PAGE    6                                  743 F.2d 1488
                     LEXSEE

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. n6

   n6 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.

   II.  Section 1983 Analysis

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

   [1] 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
    PAGE    7                                  743 F.2d 1488
                     LEXSEE

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).

   [2-5] 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). "State
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).

   [6, 7] 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, 449 U.S. 24, 101 S. Ct. 183,
186, 66 L. Ed. 2d 185 (1980). Even if the 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.

   [8] 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

   [9] 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 damages n7 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, 80 U.S. 335, 13 Wal. 335, 20 L. Ed. 646
(1871); Randall v. Brigham, 74 U.S. 523, 7 Wal. 523, 19 L. Ed. 285
(1868).The appellants here argue that Judge Hosemann is not immune
because (1) some of the acts complained of
    PAGE    8                                  743 F.2d 1488
                     LEXSEE

are nonjudicial in nature, and (2) his judicial acts were taken in
the clear absence of jurisdiction.

   n7 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, 466 U.S. 522, 104 S.
Ct. 1970, 80 L. Ed. 2d 565 (1984).

   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. n8

   n8 The appellees argue that the appellants failed to raise the
nonjudicial act theory in the district court.  The appellees arre
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.

   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 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].
Id.

   [10] 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 non-judicial 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
violated @ 1983 is properly immune from a damage suit." Id. at 856
n. 9. The Harper court
    PAGE    9                                  743 F.2d 1488
                     LEXSEE

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 Hosemann is not immune from
liability because he acted in the absence of either subject matter
or personal jurisdiction.

   a.  Subject matter jurisdiction

   [11] 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, 80 U.S. 335, 13 Wal. 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.
   [12] 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 1979 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 Hosemann 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
    PAGE   10                                  743 F.2d 1488
                     LEXSEE

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 Hosemann 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.
n9 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).

   n9 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.

   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, 20 L. Ed. 646 (1872).

   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) ("it 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
    PAGE   11                                  743 F.2d 1488
                     LEXSEE

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).

   [13] 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.

   [14] 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 case 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. n10

   n10 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.
    PAGE   12                                  743 F.2d 1488
                     LEXSEE

   When questioned at oral argument, Hosemann'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.

   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.

   [15] 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.

   [16,17] 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.
    PAGE   13                                  743 F.2d 1488
                     LEXSEE

   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.

   [18] 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.

   [19-21] 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. n11 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
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.

   n11 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.

   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
    PAGE   14                                  743 F.2d 1488
                     LEXSEE

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.

   [22-24] 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.

   [25-27]  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).

   [28] 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. n12

   n12 We express no opinion as to the appellees' argument on
representative capacity, which we leave for initial determination
by the district court.
    PAGE   15                                  743 F.2d 1488
                     LEXSEE

   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. n13 The district court agreed with the
appellees.

   n13 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 order; they sought damages for violation of
constitutional rights.

   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 an courts of the state from which
it was issued.  Migra v. Warren City School District Board of
Education, 465 U.S. 75,    , 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:

   When 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 issued
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).

   [29] 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, 465 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.

DISSENTBY: HILL

DISSENT: JAMES C. HILL, Circuit Judge, dissenting.

   This section 1983 action arises as the result of a very
unfortunate dispute between an estranged husband and wife over the
custody of their child.  If there are any  cases where conclusory
allegations of conspiracy and wrongdoing are
    PAGE   16                                  743 F.2d 1488
                     LEXSEE

likely to be made against a judge and other persons involved in the
dispute, they are cases such as this, where the strongest emotions
of both parties are unleashed.  A court must strictly scrutinize
conclusory allegations in a case like this, given the ease with
which they can be made by a disappointed party.

   It is easy to sympathize with appellant Diana Dykes' plight
under the unusual facts of this case.  There is little doubt that
Buzzy Dykes occupied a favorable position in litigating against
Diana in the Florida courts, due to Buzzy's father's position as a
Florida circuit judge.  However, I do not know how the law can
remedy this situation, short of holding that a judge or his family
may not litigate contested issues in court without being subject,
along with the judge that hears the issues, to a charge of
conspiracy.  Thus, although I assume that appellant's allegations
of conspiracy are sufficient to state a claim under section 1983,
I dissent from the majority because it is clear to me that these
allegations are unfounded and without support on the record of this
case; and therefore that the dismissal of all defendants by the
district judge was proper.

   I.  JUDGE HOSEMANN

   In considering judicial immunity, two things must be kept in
mind.  First, immunity is designed to prevent a disgruntled
litigant from hauling a judge into court and requiring him to
justify and defend his decision.  See Beard v. Udall, 648 F.2d
1264, 1269 (9th Cir. 1981). In this respect, a policy determination
has been made that the public interest in ensuring the independence
of the judiciary outweighs the likelihood that a certain number of
bad acts by specific judges will go unpunished.  Second, immunity
is meaningless if it is granted only to those who do nothing wrong.
Judicialimmunity is intended not to protect wrongdoers, but to
protect all judges who undertake to resolve issues thrust upon them
that they are in no position to decline.  However, if immunity is
to amount to anything, there will be immunity for very bad conduct.
A judge may rule incorrectly, or even in bad faith, in which case
there may be a temptation to express strong disapproval of his
actions by finding that he has made himself liable for damages.
This temptation must be resisted.

   It is undisputed that Judge Hosemann erred in granting the
November 22, 1977, temporary custody order based on the dependency.
petition presented to him. However, this error should not deprive
him of judicial immunity under the facts of this case.

   A.  Nonjudicial Acts.

   The majority follows Scott v. Dixon, 720 F.2d 1542 (11th Cir.
1983), and Harper v. Merckle, 638 F.2d 848, 856 n. 9 (5th Cir. UnitB), cert. denied, 454 U.S. 816, 102 S. Ct. 93, 70 L. Ed. 2d 85
(1981) in holding 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" damage suits.  I completely agree,
and write here merely to express displeasure over the majority's
approval of the reasoning of 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), which held the opposite.

   When a judge is approached by a litigant and presented with a
petition, it is his duty to rule on the petition.  In doing so, he
is performing a normal judicial function and is immune from suit,
regardless of the fact that he may have earlier agreed to decide in
favor of one party. n1 Harper v. Merckle, 638
    PAGE   17                                  743 F.2d 1488
                     LEXSEE

F.2d at 856 n. 9, 859;  see Dennis v. Sparks, 449 U.S. 24, 26-27,
101 S. Ct. 183, 185-186, 66 L. Ed. 2d 185 (1980). The Harper case
emphasized the narrow factual circumstances under which a judge's
acts will be found non-judicial and this subject him to liability.
n2 These circumstances are not present in Judge Hosemann's
situation, even if we were to assume that he reached a prior
agreement to rule in favor of Buzzy Dykes. n3

   n1 Judge Hosemann's ruling on the dependency petition satisfies
this circuit's four factor test for a judicial act, in that: (1)
the events involved occurred in Judge Hosemann's chambers; (2) the
controversy centered around the dependency case pending before the
Judge; (3) the confrontation arose directly out of a visit to Judge
Hosemann in his official capacity; and (4) the precise act
complained of, Judge Hosemann's ruling on the petition, is a normal
judicial function.  See Harper v. Merckle, 638 F.2d at 858.

   It is improper and overly formalistic to separate a judge's
prior agreement to decide in favor of one party from the specific
act of ruling on the case itself, as the Rankin court did, 633 F.2d
at 847, because that separates the rationale behind the decision
from the decision itself.  As mentioned earlier, judicial immunity
is intended to protect a judge from being brought into court and
forced to justify each decision that he makes.

   n2 The "exceedingly narrow" holding in Harper was that a judge's
actions are not "judicial acts" only when "it is beyond reasonable
doubt that a judge has acted out of personal motivation and has
used his judicial office as an offensive weapon to vindicate
personal objectives, and it further appears that no party has
invoked the judicial machinery for any purpose at all." 638 F.2d at
859.

   n3 A judge who conspires to rule in favor of a party in a
pending case is a bad judge who is performing improper and
unethical acts; but this should be remedied by impeachment, or at
the following judicial elections, and not by a section 1983 action.

   The grave implication of the Rankin decision is that, based on
conclusory allegations of conspiracy and prior agreements, judges
will often be called into court and examined and cross-examined
about their judicial decisions merely because they were called upon
as judges to deal with unpleasant cases.

   B.  Personal Jurisdiction.

   The majority opinion relies 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) in remanding to the district court to determine
whether Judge Hosemann knew that he lacked personal jurisdiction oracted in the face of clearly valid law expressly depriving him of
personal jurisdiction.  I strongly dissent from this portion of the
opinion, which represents an alarming break with what has generally
been considered necessary to pierce judicial immunity.

   In Stump v. Sparkman, 435 U.S. 349, 98 S. Ct. 1099, 55 L. Ed. 2d
331 (1978), the Supreme Court stated that

   the scope of the judge's jurisdiction must be construed broadly
where the issue is the immunity of the judge.  A judge will not be
deprived of immunity because the action he took was in error, was
done maliciously, or was in
    PAGE   18                                  743 F.2d 1488
                     LEXSEE

excess of his authority; rather, he will be subject to liability
only when he has acted in the "clear absence of all jurisdiction."

   Id. at 356-57, 98 S. Ct. at 1105 (citing Bradley v. Fisher, 80
U.S. (13 Wall.) 335, 351, 20 L. Ed. 646 (1872)). The court further
explained that "[a] judge is absolutely immune from liability for
his judicial acts even if his exercise of authority is flawed by
grave procedural errors," such as the "failure to comply with
elementary principles of procedural due process." Id. at 359, 98 S.
Ct. at 1106.

   The majority opinion in this case goes much farther towards
abrogating judicial immunity than Stump indicates is appropriate.
Indeed, the Rankin holding on personal jurisdiction has been
severely limited by subsequent Ninth Circuit cases, indicating an
almost immediate realization by that circuit that it had gone too
far in Rankin.

   In O'Neil v. City of Lake Oswego, 642 F.2d 367 (9th Cir. 1981),
the Ninth Circuit determined that a pro tem municipal judge's
action in convicting a defendant of contempt (an offense generally
within his court's jurisdiction) without requisite papers to confer
jurisdiction over the particular alleged commission of the offense,
constituted merely an act in excess of jurisdiction, and not an act
in the clear absence of jurisdiction; thus the judge was held
immune from liability.  The court distinguished the situation in
which a judge violates a rule of law expressly depriving it of
jurisdiction (no immunity), from the case where a court merely
fails to "comply with all the [procedural] requirements of a
statute conferring jurisdiction," in which case the judge is still
immune.  Id. at 369-70.In explanation, the court stated that
"fearless decision-making is fostered by granting judges immunity
. . . even when they fail to comport with procedural niceties
necessary to give the court power over the particular matter." Id.

   Beard v. Udall, 648 F.2d 1264 (9th Cir. 1981), involved facts
surprisingly similar to our present case.  Following a divorce
decree under which the father was awarded custody of the children,
the mother moved to another county and began working for a lawyer.
While the children were visiting the mother, the lawyer petitioned
a judge to modify the original divorce decree and to award custody
of the children to the mother.  The judge set a hearing on an order
to show cause and entered a temporary restraining order preventing
the father from removing the children from the county.  Before the
judge could rule on the petition for modification, the father
"kidnapped" the children and took them back to his home.  The
father was then arrested for kidnapping and other felonies, though
never prosecuted.  He brought a @ 1983 action alleging that the
judge, the mother's lawyer, and the sheriff acted to deprive him of
his civil rights.  In particular, he alleged that the judge hadacted in the clear absence of jurisdiction by failing to follow
certain applicable statutory procedural requirements, related to
notice and hearing, n4 before issuing the order to show cause and
the TRO.  Id. at 1268. The Ninth Circuit held that:

   The fact that a judge commits "grave procedural errors" is not
sufficient to deprive a judge of absolute immunity.  Stump, 435
U.S. at 359, 98 S. Ct. at 1106. Thus, even if Beard's allegations
that Judge Greer failed to adhere to the procedural rules
established by the Arizona statutes are true, judicial immunity
precludes Beard from recovering for this alleged wrongful act. Id.
at 1269.
    PAGE   19                                  743 F.2d 1488
                     LEXSEE

   n4 It was alleged in Beard that the judge violated one Arizona
statute requiring a notice and hearing before an order to show
cause on a petition for modification could be issued, and another
statute requiring that a TRO issued without notice "define the
injury and state why it is irreparable and why the order was issued
without notice." Beard, 648 F.2d at 1268 n. 4.

   In our present case, it is undisputed that appellant Diana Dykes
did not receive notice or a hearing prior to the entry of the
November 22, 1977, temporary custody order.  I assume, although it
is certainly not clear, n5 that notice to the mother was required
in order to obtain personal jurisdiction over the child and the
case.  Even so, this is squarely the situation faced in the Beard
case, and analogous to the situation in O'Neil. Although Judge
Hosemann may have proceeded erroneously, the most that can be said
is that he committed a "grave procedural error" by failing to
comply with all of the "procedural niceties" necessary to confer
jurisdiction.  In no respect did he act in such a "clear absence"
of jurisdiction as to deprive him of his judicial immunity.  The
absence of notice and hearing is a flaw in the order itself, to be
corrected on appeal or collateral attack, not by a section 1983
damages action brought against the judge. n6

   n5 Footnote 10 of the majority opinion clearly illustrates that
there is a good deal of uncertainty as to the Florida statutory
requirements for personal jurisdiction in a dependency case.
Florida statutes @ 39.06(7) states that jurisdiction attaches to
the child and the case when a summons is served upon the child or
"a parent," and @ 39.06(1) provides that personal appearance of any
person at a hearing obviates the necessity of serving a summons.
This is a notice requirement, and there is no doubt that Buzzy, who
is "a parent," had actual notice of the dependency proceedings,
whether or not he "constructively" appeared before Judge Hosemann.

   n6 It is interesting to note that Diana never attempted to
appeal the November 22nd order.  Moreover, that order merely
provided for temporary custody, with a full hearing on custody to
be held later.  Diana appeared at a Florida custody hearing before
Judge Muldrew in February, 1978, at which it was determined that
Buzzy would retain temporary custody pending an HRS report on the
parents' suitability as permanent custodians.

   II.  THOMAS WEINBERG

   The majority states the correct standard for granting qualified
immunity to a state executive official, but then fails to consider
the facts of this case in reversing summary judgment, which was
granted on the basis of that immunity.

   The district court opinion granting summary judgment in thiscase sets out Weinberg's statutory duties in the processing of a
dependency petition.  Dykes v. Weinberg, 564 F. Supp. 536, 541-42
(M.D.Fla. 1983). The facts show that Weinberg properly concluded
that the HRS would not initiate a dependency proceeding on behalf
of Buzzy Dykes, and then, as required by the Florida statute, he
advised Buzzy and Judge Dykes that they had a right to file their
own petition.  Weinberg and Kenneth Lofback also assisted the Dykes
in the preparation of the petition and its presentment to Judge
Hosemann; but affidavits from Weinberg and three other HRS
employees state that this was a customary HRS practice, and the
appellant has presented no evidence to the contrary.  Weinberg did
meet with Hosemann and the Dykes to discuss the possibilities for
regaining custody of the child after Diana took the child
    PAGE   20                                  743 F.2d 1488
                     LEXSEE

back to Maryland with her; but again, the HRS affidavits indicate
that the HRS is an arm of the court in juvenile matters, with a
duty to advise the judge when he asks for assistance in a juvenile
case.

   In short, appellant's bald assertions that Weinberg was
participating in a conspiracy are met by undisputed facts which
indicate that Weinberg was merely acting according to his statutory
duty and customary HRS practice and procedure. If there is such a
thing as qualified immunity for a state official, then nothing has
been shown here to pierce it.  Summary judgment was proper.

   III.  ATTORNEY MCINTOSH

   Appellant's only allegations as to McIntosh's participation in
the "conspiracy" is that he planned with Buzzy and Judge Dykes to
use the "illegal and improper" November 22nd custody order, which
he knew or should have known was illegal.  Amended Complaint, P14.
This is probably sufficient to satisfy the "under color of state
law" requirement in section 1983, since this conspiracy allegedly
involved two state agents, Judge Dykes and HRS official Weinberg.
See Dennis v. Sparks, 449 U.S. 24, 101 S. Ct. 183, 66 L. Ed. 2d 185
(1980). However, the complaint sets forth absolutely no acts of
conspiracy or active cooperation between McIntosh and the other
defendants in this case, outside the actions within the normal
attorney-client relationship.

   McIntosh was retained by Buzzy and Judge Dykes around the end of
January, 1978, about two months after the disputed November 22,
1977, order had been entered.  This order was facially valid; it
had never been appealed or held unlawful.  McIntosh, representing
Buzzy, filed a petition in the Florida courts for dissolution of
marriage and custody of Aaron.  It is undisputed that McIntosh
never had any contact with Weinberg, and met Judge Hosemann only at
a February show cause hearing in which he represented Buzzy.
Appellant alleges no other conduct by McIntosh that would lend any
support to her conspiracy claim. Her allegations indicate only that
McIntosh was acting properly as an advocate, using each arsenal at
his disposal. n7

   n7 Most lawyers "conspire" with their clients, in the sense of
discussing and planning the strategy of a case.  There is nothing
alleged here other than this normal planning between an attorney
and his client.

   A lawyer is not required to inquire into the circumstances under
which each facially valid order that he comes into contact with was
issued.  If a lawyer did find out that a previous order favoring
his client was improperly entered he might be justified in refusing
to use the order and recusing from the case.  But if he merelytakes an order sufficient on its face and uses it in advocating his
client's rights, there can be no liability.

   It is unclear whether the district judge dismissed McIntosh for
failure to show state action, for for failure to state a claim.
But it is clear that McIntosh can properly be dismissed for failure
to state a claim, since the complaint is totally devoid of any
allegation setting out an act of conspiracy between McIntosh and
the other defendants, outside of the normal attorney-client
relationship.

   IV.  JUDGE AND BUZZY DYKES
    PAGE   21                                  743 F.2d 1488
                     LEXSEE

   As was the situation with McIntosh, there are sufficient
allegations of cooperation between the Dykes' and the two state
agents in this case to satisfy the "under color of state law"
requirement pursuant to Dennis v. Sparks, 449 U.S. 24, 101 S. Ct.
183, 66 L. Ed. 2d 185 . However, a careful review of the record
indicates that both Judge and Buzzy Dykes are properly entitled to
summary judgment in this case.  Viewing the evidence in the light
most favorable to appellant, there is no genuine issue as to the
existence of a conspiracy. Appellant's allegations in this case
stem merely from the fact that the child's grandfather happened to
be a judge. n8 Murky allegations of a conspiracy, combined with
proof of mere contact between the defendants and the fact of
favorable ruling on the petition at issue, are insufficient to
raise a fact issue for trial on a conspiracy complaint under @
1983. See Cole v. Gray, 638 F.2d 804, 811 (5th Cir.), cert. denied,
454 U.S. 838, 102 S. Ct. 144, 70 L. Ed. 2d 120 (1981). Thus,
summary judgment was properly granted to both Judge and Buzzy
Dykes.

   n8 If a prominent doctor, clergyman or industrialist in Brevard
County had telephoned Judge Hosemann in the same situation, and an
identical set of events had unfolded, it is doubtful that appellant
would have gone very far with her conspiracy claim.  The law should
be no different when a judge's or a lawyer's family is involved in
litigation.  Otherwise, we are effectively holding that a judge or
his family may not litigate contested issues in court without being
subject to a conspiracy charge.

   IV.  CONCLUSION

   In sum, the possibility that Buzzy Dykes may have occupied a
favorable litigating position by virtue of his father's position as
a state court judge is insufficient to sustain a @ 1983 conspiracy
claim against all parties involved in the original lawsuit, where
certain of the defendants were immune to suit, and the underlying
actions of the other defendants do not substantiate the conspiracy
allegations.