the wrong address, there is no allegation that Judge Moss knew it to be erroneous.
Various statements were made by John at the January 24th hearing that plaintiff was, in fact, present at the Horsham address and was deliberately concealing herself within to avoid service of notice and to prevent Mr. Celano from exercising his visitation rights. Judge Moss' response to the situation was to direct that a show cause order issue and that a contempt hearing be held three days after personal service. On March 17, 1980, pursuant to a contempt petition filed by John on behalf of Mr. Celano, Judge Moss signed an order directing plaintiff to show cause why she should not be held in contempt. John's Petition again listed plaintiff's address as 20 Harcourt Lane, Horsham, Pennsylvania. Plaintiff claims that she never was served because of this improper address.
On April 8, 1980, Mr. Celano left a message with the Judge's secretary that the police had been told he was not allowed to see his children. Mr. Celano inquired of the secretary whether a bench warrant could be issued. Mr. Celano had no contact with Judge Moss during the April 8 visit. Prior thereto, Judge Moss had been called by Captain Outland of the Horsham Police Department regarding problems of enforcing the Judge's visitation order. Judge Moss told Captain Outland that the matter was being litigated and he was attempting to see if plaintiff would respond to service of the rule to show cause.
Over a month later, on May 19, 1980, based on a sworn petition filed by John on or about the same date, Judge Moss issued a bench warrant for plaintiff's arrest. The petition represented plaintiff's presence at the Horsham address. It contained representations regarding plaintiff's conduct, attitude, and availability, plaintiff's repeated refusals to provide visitation in violation of the court order, counsel's inability to effect service of the petition for contempt upon plaintiff, and plaintiff's past conduct in attempting to avoid service of process. In addition, affidavits of two Horsham Township police officers were attached, stating that the officers had been called by Mr. Celano to 20 Harcourt Lane, Horsham, Pennsylvania, on occasions when plaintiff had refused to grant Mr. Celano visitation rights and that she continued to defy the court order in their presence, even though she was told by them that failure to comply could result in her arrest. One officer's affidavit asserted that in February, 1980, when told of the court order, plaintiff stated to him "that she would never give her babies to the father." Affidavit of Richard Carey. The same police officer told Mr. Celano that he would have to see his lawyer or Judge Moss to try to get an arrest warrant for his wife. At this point, plaintiff was not represented by any counsel of record and had not been in contact with the court, either personally or through counsel, since her appearance at the September 18, 1979 hearing.
Judge Moss, subsequent to issuance of the bench warrant, received letters from John and from Alfred O. Breinig, Jr., Esquire, who represented himself as plaintiff's counsel, indicating that a tentative visitation agreement had been reached. John wrote that he would not oppose either lifting or holding in abeyance of the bench warrant, if, among other things, Breinig would enter his appearance, accept service of the rule to show cause and appear at a hearing on the contempt petition to be scheduled by agreement of counsel. As of that date, Breinig did not promptly enter his appearance or accept service. Judge Moss stated on the record that the bench warrant continued in effect because Breinig had not entered his appearance and because he felt he could not rely upon the letter representations in view of plaintiff's past actions in defiance of a valid existing order. Plaintiff was taken into custody on June 2, 1980, and remained in custody until the following day. As of that time, Mr. Breinig still had not entered his appearance. On June 3, 1980, plaintiff was granted a hearing at which time Judge Moss set forth on the record the events which led up to plaintiff's arrest. He again modified the visitation order. Mr. Breinig entered his appearance for plaintiff at the hearing.
Claiming that the conduct of Mr. Celano and John caused her to be incarcerated in violation of her Fourteenth Amendment liberty interest, plaintiff seeks compensatory and punitive damages as well as costs and attorney fees. Plaintiff also claims that defendants are guilty of false imprisonment under Pennsylvania law.
In Adickes v. S. H. Kress & Co., 398 U.S. 144, 90 S. Ct. 1598, 26 L. Ed. 2d 142 (1970), the Supreme Court described the plaintiff's responsibility in a section 1983 action brought against a private party:
The terms of § 1983 make plain two elements that are necessary for recovery. First, the plaintiff must prove that the defendant has deprived him of a right secured by the "Constitution and laws" of the United States. Second, the plaintiff must show that the defendant deprived him of this constitutional right "under color of any statute, ordinance, regulations, custom, or usage, of any State or Territory." This second element requires that the plaintiff show that the defendant acted "under color of law."
Id. at 150, 90 S. Ct. at 1604 (footnote omitted).
Since plaintiff has clearly alleged the deprivation of a constitutional right, it remains for her to allege facts indicating that the moving defendant, John, acted under color of state law in causing her incarceration.
It is well established that a lawyer representing a client does not act under color of state law for purposes of § 1983 by virtue of being an officer of the court. Polk County v. Dodson, 454 U.S. 312, 102 S. Ct. 445, 446, 70 L. Ed. 2d 509 (U.S.1981); Black v. Bayer, 672 F.2d 309, 317 (3d Cir. 1982); Henderson v. Fisher, 631 F.2d 1115, 1119 (3d Cir. 1980) (per curiam); Arment v. Commonwealth National Bank, 505 F. Supp. 911, 913 (E.D.Pa.1981). Thus, John cannot be held liable under section 1983 for unilateral action which he took on behalf of his client as his private attorney.
The requirement of action under color of law is satisfied, however, when a private person willfully participates in joint action with a state official. Adickes v. S. H. Kress & Co., 398 U.S. 144, 152, 90 S. Ct. 1598, 1605, 26 L. Ed. 2d 142 (1970); Black v. Bayer, 372 F.2d at 320. This is true even when the state official is immune from civil liability.
In Dennis v. Sparks, 449 U.S. 24, 101 S. Ct. 183, 66 L. Ed. 2d 185 (1980), the Supreme Court determined held that a private citizen who conspires with a state court judge to deprive a citizen of his constitutional rights may be held liable under section 1983 notwithstanding the judge's absolute immunity from suit. The court cautioned that "merely resorting to the courts and being on the winning side of a law suit does not make a party a co-conspirator or a joint actor with the judge," but held that since the defendants had specifically alleged the successful bribery of the judge, the private parties were acting under color of state law and the complaint against them could not be dismissed. Id. at 28, 101 S. Ct. at 186.
Thus, in order to proceed to trial, a plaintiff must allege that there existed between the private defendant and the state official an understanding, agreement, or conspiracy to deprive the plaintiff of a federal right.
In Lugar v. Edmondson Oil Co., 639 F.2d 1058 (4th Cir.), cert. granted, 452 U.S. 937, 101 S. Ct. 3078, 69 L. Ed. 2d 951 (1981), the court stated that the concert of action between private actor and state official required to support a finding of section 1983 liability "implies such a usurpation or corruption of official power by the (private party) or surrender of power by the (state official) that the independence of the enforcing official has been compromised to a significant degree and the official powers have become in practical effect shared by the two." Id. at 1069. The degree of participation required on the part of a state court judge was also commented upon by Judge Fairchild in Sparkman v. McFarlin, 601 F.2d 261 (7th Cir. 1979) (per curiam). Noting the strong policy against lower court review of state court proceedings, he stated:
I would build into any principle for the recognition of a § 1983 claim based on a private person's conspiracy with a state judge, a requirement of pleading and proof not only that the private party used the state court proceedings to produce a constitutional wrong, but that there was agreement between the party and judge beyond ordinary request and persuasion by the prevailing party, and that the state court judge invidiously used his office to deprive the § 1983 plaintiff of a federally protected right.