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     Diana Christine DYKES, et al., Plaintiffs-Appellants, 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., Defendants-Appellees
                                  No. 83-3347
            UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
                                783 F.2d 1000
                              March 3, 1986, Filed

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

OPINION:   [*1000]   Before GODBOLD, Chief Judge, HILL, Circuit
Judge, and THORNBERRY *, Senior Circuit Judge.

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

   ON REMAND FROM EN BANC COURT, ON PETITIONS FOR REHEARING

   PER CURIAM:

   The en banc court decided the judicial immunity issue, 776 F.2d
942, and remanded the case to this panel for such further
consideration as the panel deems appropriate.

   Pursuant to petitions for rehearing filed by defendants other
than Judge Hosemann, the panel has reconsidered its decision.

   The petition for rehearing of Kenneth W. McIntosh is GRANTED and
with respect to him the judgment of the district court is AFFIRMED.

   The petitions for rehearing of Roger Francis Dykes, Roger
Francis Dykes, Jr., and Thomas A. Weinberg are DENIED.

   The opinion of the panel, 743 F.2d 1488, is REINSTATED except to
the extent that it decided the issue of Judge Hosemann's judicial
immunity and decided the issue of McIntosh's appeal, and the
dissent of Judge Hill is reinstated except to the extent that it
concerns Judge Hosemann and Kenneth W. McIntosh.

CONCURBY: HILL (In Part)

DISSENTBY: HILL (In Part)

DISSENT: HILL, Circuit Judge, concurring in part and dissenting in
part:

   I concur in the court's order insofar as it affirms the decision
of the district court with respect to appellants Hosemann and
McIntosh. I dissent from the remainder of the order.

    PAGE   42                               783 F.2d 1000, *1000
                     LEXSEE   I recognize that my opinion dissenting from the panel opinion in
this case has been reinstated, except to the extent that it
addresses the appeals of Judge Hosemann and Kenneth W. McIntosh. I
adhere to what I wrote then and offer the following additional
comments.

   The panel opinion, which has been reinstated insofar as it
concerns the other appellants, discusses in only a cursory and
conclusory fashion the voluminous deposition   [*1001]   testimony
and other materials on which the district judge relied when he
found that there was no genuine conflict in the facts and granted
summary judgment in favor of all of the defendants. The district
court carefully reviewed somewhere in the neighborhood of 1,000
pages of deposition testimony and extensive affidavits and
concluded that the undisputed facts did not support the plaintiffs'
conclusory allegations of a conspiracy to violate their
constitutional rights. My review of the record persuades me that
the district judge was correct.

   Regarding appellee Weinberg, the panel opinion finds him not to
have addressed satisfactorily appellants' contention that Weinberg
acted as part of the alleged conspiracy. The majority observes that
he could be held liable on such a theory "if he reached an
understanding with the other appellees to violate Diana's
constitutional rights." Dykes v. Hosemann, 743 F.2d 1488, 1498
(1984). It is further observed that Weinberg, on his day off,
conferred with Buzzy Dykes; that HRS official Kenneth Lofback (who
worked under Winberg) felt that it would not be proper for HRS to
file a dependency petition under the circumstances of the case;
that Weinberg was present before Judge Hosemann when Buzzy Dykes
and Judge Dykes sought some relief from Diana's violation of the
custody order and otherwise discussed the situation. The
uncontroverted evidence shows that when Buzzy sought the aid of HRS
in instituting a dependency proceeding, Lofback did indeed conclude
that the department ought not proceed. He called on Weinberg,
however, his superior, for a second opinion, and Weinberg came into
Lofback's office. There, instead of formulating a conspiracy to use
HRS to aid Buzzy, Weinberg agreed with Lofback that the
circumstances did not justify intervention by the department. HRS
does not presume to judge, however, whether an applicant is likely
to succeed in a dependency petition. As is the duty of the
department, Weinberg advised Buzzy that he might file a petition on
his own and showed Buzzy how to complete a form petition.
Conspirators might have falsified the information on that petition.
Weinberg did not do so. The information that had been given to the
department, which Weinberg had deemed insufficient to justify
action on his part, was faithfully and accurately transcribed onto
the petition.

   Later, when a custody order had been entered by Judge Hosemann
vesting temporary custody in Buzzy, Diana spirited the child away
to Maryland. The meeting that is said in the panel opinion to
constitute evidence supporting appellants' allegations of a
conspiracy was an application by Buzzy to the judge who had grantedthe temporary custody order for relief from its violation. Judge
Hosemann sent for Weinberg, whose department, by statute, must
consult with domestic relations judges in custody matters, to
advise the judge whether Maryland had enacted a uniform child
custody act. Weinberg did not know, but he undertook to find out
and inform the judge of what he discovered. Judge Hosemann
apparently wished to learn whether a custody order issued by a
Florida court would be recognized in Maryland. As I read the panel
opinion, we hold these undisputed facts to make out a case of
conspiracy to deprive Diana of her constitutional rights sufficient
to submit the case against Weinberg to the jury. I do not agree.

 PAGE   43                               783 F.2d 1000, *1001
                  LEXSEE

   Regarding Judge Dykes, Buzzy's father, the panel observes that
the judge did some legal research and made some notes on the law
that might have been helpful to his son in petitioning for custody
or some other relief. The panel opinion then states that "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." 743 F.2d at 1498. The
court thus states that if a father assists his son in seeking
redress from the courts, that fact, in combination with something
else as yet unstated, makes out a case of conspiracy on his part to
deprive Diana's constitutional rights. I do not agree.

   [*1002]   Regarding Buzzy Dykes, the panel opinion observes that
Buzzy went to Weinberg and provided him with the information upon
which a dependency petition was sought; that he went to the judge
who had granted him custody of his son when Diana spirited the
child away; and that when Judge Hosemann issued an order that he
hoped would be respected by the Maryland courts in this dispute,
Buzzy took the order to Maryland and regained physical custody of
the child. As I read the court's opinion, we hold that if a
litigant takes these steps in furtherance of litigation he has
commenced, a case is made out that is sufficient to allow a jury to
find him a member of a conspiracy to deprive one of her civil
rights. I do not agree.

   In my view, the reinstated portions of the panel opinion fail to
indicate with sufficient precision where the majority believes the
district court erred in its sifting and analysis of the depositions
and affidavits in the record. I fear that this is because the panel
majority may have been moved more by the hyperbolic allegations of
the plaintiffs' complaint (as opposed to the evidence in the
record) than the opinion admits. The unfortunate result of our
decision, as I apprehend it, is that if the evidence presented to
the district judge and, on this appeal, to us is presented at
trial, the district judge would be bound by the law of this case to
submit that evidence to a jury. If that is to be the result of our
decision, I believe we owe the parties and the district judge a
better explanation than we have so far provided of what evidence wehave discovered, overlooked by the district judge, that, in our
judgment, creates a conflict which, if resolved in appellants'
favor, would authorize a plaintiffs' verdict. I find none.

   Criminal conspiracy has been said to be the "darling of the
modern prosecutor's nursery." Harrison v. United States, 7 F.2d
259, 263 (2d Cir.1925) (L. Hand, J.). See also Krulewitch v. United
States, 336 U.S. 440, 453-54, 69 S. Ct. 716, 723, 93 L. Ed. 790
(1949) (Jackson, J., concurring). We have now found counsel's
sweeping assertions of dark conspiratorial conduct, supported by
facts evidencing nothing more than the reasonable efforts of one
litigant to prevail over his opponent and the proper discharge, by
a public official, of the duties imposed upon him by law,
sufficient to make out a claim for relief under section 1983. I
fear that, as a result, the prosecutor's "darling" will become the
civil litigator's "dearest."

   I dissent.