concurring.
I concur in the result reached by a majority of the court for the reason that I believe that a private person may become liable under 42 U.S.C. § 1983, although the judge is absolutely immune, if alleged and proved to have conspired with a state judge performing a judicial act to deprive the plaintiff of constitutional rights provided that the conspiracy is alleged with particularity.
I
In Adickes v. S. H. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970), a white school teacher sued under 42 U.S.C. § 1983 for the defendant’s refusal to serve lunch in its restaurant facilities to her while she was in the company of six of her black students and for her arrest upon departure by the Hattiesburg police on a charge of vagrancy. The plaintiff alleged that the defendant and the Hattiesburg police had conspired to deprive her of constitutional rights. The district court entered summary judgment for the defendant on the conspiracy count and the Second Circuit Court of Appeals affirmed.
In reversing the court of appeals, the Supreme Court under the heading of “Conspiracies Between Public Officials and Private Persons — Governing Principles,” first set forth the elements necessary for a section 19831 recovery at 150, 90 S.Ct. at 1604:
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, regulation, custom, or usage, of any State or Territory.” This second element requires that the plaintiff show that the defendant acted “under color of law.”
See also Flagg Brothers, Inc. v. Brooks, 436 U.S. 149, 155-56, 98 S.Ct. 1729, 56 L.Ed.2d 185 (1978).
The Court concluded that the plaintiff would be entitled to relief “if she can prove that a Kress employee, in the course of employment, and a Hattiesburg policeman somehow reached an understanding” to deny service in the restaurant or to cause her subsequent arrest, saying:
The involvement of a state official in such a conspiracy plainly provides the state action essential to show a direct violation of petitioner’s Fourteenth Amendment equal protection rights, whether or not the actions of the police were officially authorized, or lawful; Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961); see United States v. Classic, 313 U.S. 299, 326, 61 S.Ct. 1031, 1043, 85 L.Ed. 1368 (1941); Screws v. United States, 325 U.S. 91, 107-111, 65 S.Ct. 1031, 1038-1040, 89 L.Ed. 1495 (1945); Williams v. United *264States, 341 U.S. 97, 99-100, 71 S.Ct. 576, 578-579, 95 L.Ed. 774 (1951). Moreover, a private party involved in such a conspiracy, even though not an official of the State, can be liable under § 1983. “Private persons, jointly engaged with state officials in the prohibited action, are acting ‘under color’ of law for purposes of the statute. To act ‘under color’ of law does not require that the accused be an officer of the State. It is enough that he is a willful participant in joint activity with the State or its agents,” United States v. Price, 383 U.S. 787, 794, 86 S.Ct. 1152, 1157, 16 L.Ed.2d 267 (1966).2
In holding that it was error to grant summary judgment on the conspiracy count, the Court determined that “[rjespon-dent here did not carry its burden because of its failure to foreclose the possibility that there was a policeman in the Kress store while petitioner was awaiting service, and that this policeman reached an understanding with some Kress employee that petitioner not be served.” Id. 398 U.S. at 157, 90 S.Ct. at 1608. The Court again repeated that the fact to be alleged and proved was “that the policeman and a Kress employee had a ‘meeting of the minds’ and thus reached an understanding that petitioner should be refused service.” Id. at 158, 90 S.Ct. at 1609.
The first element necessary for a recovery under § 1983 is the allegation and proof of the deprivation of a constitutional right. In view of our ultimate determination that the second element, “under color of law,” has not been properly alleged, we need not reach the question of whether a constitutional deprivation has been alleged.3
The second element necessary for a recovery under § 1983 is the allegation of acts performed either under color of law or as state action. Private institutions and private persons, without more, obviously do not expose themselves to § 1983 liability. In order to become liable, they must be shown to have some “nexus” or connection with the state, one of its governmental entities, or a state official. We have recently explored the nexus needed to be shown and concluded that a private institution must be receiving state affirmative support, acting as a state instrumentality or as a joint participant with a state, or performing a traditionally sovereign function. Batt v. Marion Heights, Inc., 586 F.2d 59 (7th Cir. 1978).
Private persons must either be involved in a conspiracy with, jointly engaged with, or a willful participant in joint activity with a state or its official in order to be exposed to § 1983 liability. The specific nexus required in Adickes was that the private party “reached an understanding” through a meeting of the minds with the police officer.
II
A large number of court of appeals cases hold simply, and without any extended discussion, that a private person alleged to have conspired with a state judge who is entitled to immunity cannot be held liable since the private person did not conspire with persons acting under color of law *265against whom a valid claim could be stated.4 Several other court of appeals cases reject the per se rule that a conspiracy cannot exist between private persons and immune judges or court officials.5 Most of these cases place heavy reliance upon Adickes and Price.
The Seventh Circuit has in the past often avoided establishing either a per se rule that no claim can ever be stated against private parties alleged to have conspired with immune judicial officials or the per se rule that a conclusory allegation of conspiracy is sufficient in itself to save a complaint from dismissal. The following cases all involved the affirmance of the dismissal of a civil rights claim, involving for the most part immune judges or judicial officers, for failure to allege the conspiracy with sufficient specificity:
Davis v. Foreman, 251 F.2d 421, 422 (7th Cir.), cert. denied, 356 U.S. 974, 78 S.Ct. 1137, 2 L.Ed.2d 1148 (1958) (“The Civil Rights Act does not protect one from invasion of private rights by individual action . unless two or more persons conspire . . .. [T]he complaint totally fails to allege any facts which would confer jurisdiction . . ..”).
Johnson v. Stone, 268 F.2d 803, 804 (7th Cir. 1959) (“She also complains that defendants conspired . . .. Her factual allegations do not support her conclusory statements.”).
Duzynski v. Nosal, 324 F.2d 924, 926, 931 (7th Cir. 1963) (“It is alleged that these lay defendants engaged in a conspiracy . The complaint, when stripped of its conclu-sory and irrelevant allegations, taken in connection with the exhibits attached to it, in our judgment states no action upon which relief could be granted . . ..”).
Kamsler v. Zaslawsky, 355 F.2d 526, 527 (7th Cir. 1966) (“Plaintiff sets out no facts in his complaint on which tó base his conclu-sory statements . . .. He lists alleged improprieties . and attributes these to a conspiracy between defendants and unnamed public officials, no further details being given.”).
Dieu v. Norton, 411 F.2d 761, 763 (7th Cir. 1969). (“Assuming, arguendo, that plaintiff is attempting to allege an actionable conspiracy within the reach of § 1983, supra, the complaint must fall. At best, the complaint does nothing more ‘than merely state vague and conclusory allegations respecting the existence of a conspiracy’ without showing any ‘overt acts which defendants engaged in which were reasonably related to the promotion of the claimed conspiracy.’ ”).
The latest Seventh Circuit cases affirming the dismissal of § 1983 cases alleging conspiracies between private persons and immune state court judges or judicial officials can likewise be correlated and synthesized if in each case the alternative ground of lack of particularity in pleading the conspiracy is accepted as the decisive ground.
In French v. Corrigan, 432 F.2d 1211 (7th Cir. 1970), cert. denied, 401 U.S. 915, 91 S.Ct. 890, 27 L.Ed.2d 814 (1971), after setting forth the conclusory conspiracy allegation, the court said that “[ojbviously, this allegation is conclusory and of no aid to plaintiff absent allegations as to the acts committed by defendants in pursuance of the alleged conspiracy.” Id. at 1213.
*266In Hansen v. Ahlgrimm, 520 F.2d 768 (7th Cir. 1975), the court said:
Plaintiff, through conclusory allegations, sought to avoid this result by asserting that defendant Brown acted “in concert” with Judge Ahlgrimm, concededly a state official, presumably by seeking the complained of Order to Show Cause and the issuance of the arrest warrant for failure to comply. .
In view of the ordinary • contacts of counsel and court incident to litigation, it may be questioned whether these allegations are sufficiently specific to constitute a claim of actionable conspiracy for the purpose of 42 U.S.C. § 1983. At most, the complaint does no more than “ ‘merely state vague and conelusionary allegations respecting the existence of a conspiracy’ without showing any ‘overt acts which defendants engaged in which were reasonably related to the promotion of the claimed conspiracy.’ ” [Citing the Dieu case, supra.]
Id. at 770.
Finally in Grow v. Fisher, 523 F.2d 875, 879 (7th Cir. 1975), we said:
In sum, we conclude that entirely apart from Fisher’s immunity, the simple con-clusionary allegation that various private torts were committed “in concert” with a state official was not sufficient to cause the private tort-feasors to be acting under color of state law, nor was there any showing that the individuals violated any constitutional rights of the plaintiff.
Other Seventh Circuit cases affirming the dismissal of § 1983 cases seeking to allege conspiracies between private parties and immune judges were based on the failure of the plaintiff to allege any deprivation of constitutional rights and did not reach the issue of properly pleading the conspiracy. Campo v. Niemeyer, 182 F.2d 115 (7th Cir. 1950); Johnson v. Stone, 268 F.2d 803 (7th Cir. 1959); Meier v. State Farm Mutual Automobile Insurance Co., 356 F.2d 504 (7th Cir.) cert. denied, 385 U.S. 875, 87 S.Ct. 151, 17 L.Ed.2d 102 (1966); Brown v. Dunne, 409 F.2d 341, 344 (7th Cir. 1969); Jones v. Jones, 410 F.2d 365 (7th Cir. 1969), cert. denied, 396 U.S. 1013, 90 S.Ct. 547, 24 L.Ed.2d 505 (1970).
Aside from one or two references in Seventh Circuit cases which seem to approve the per se rule that a private person cannot be held liable for conspiring with immune judges,6 this circuit has disposed of the issue upon the requisite particularity in alleging a conspiracy without the necessity of a firm commitment to the per se rule. To the small extent that such commitment exists, I would disavow it. The conferral of immunity upon the judge-defendant does not destroy the judicial state action which the judge may have performed. See generally Robinson v. Bergstrom, 579 F.2d 401, 404 (7th Cir. 1978) (State action issue addressed prior to immunity issue). If the factual particulars of a conspiracy can be alleged, private persons may be exposed to § 1983 liability by conspiring with absolutely, immune judges.
This insistence on some factual pleading to support the alleged conspiracy is consistent with this circuit’s well-established rule that facts must also support the closely related allegation of state action, notwithstanding any conspiracy, under § 1983. In Cohen v. Illinois Institute of Technology, 524 F.2d 818 (7th Cir. 1975), cert. denied, 425 U.S. 943, 96 S.Ct. 1683, 48 L.Ed.2d 187 (1976), Judge (now Justice) Stevens, in considering the proper pleading of an institutional nexus, said
The facts set forth in the complaint do not support the conclusion that defendants acted under color of state law in their discrimination against plaintiff. Nevertheless, plaintiff argues that since she has alleged the necessary ultimate conclusion in the language of the statute, the complaint should not be dismissed before she has completed discovery which may reveal some nexus between the State of Illinois and defendants’ wrongful conduct. .
We agree that plaintiff is entitled to the fullest opportunity to adduce evi*267dence in support of her claim. But she is not entitled to a trial, or even to discovery, merely to find out whether or not there may be a factual basis for a claim which she has not made.
Id. at 827. See also Batt v. Marion Heights, 586 F.2d 59 (7th Cir. 1978). A mere conclu-sory allegation of conspiracy, as for “state action,” does not satisfy the command of Fed.R.Civ.P. 8(a)(2) that the plaintiff plead “a short and plain statement of the claim showing that the pleader is entitled to relief ..”7
III
The Seventh Circuit approach of avoiding a per se rule either for or against private party-immune judge conspiracies seems to satisfy most of the policy considerations which motivate both per se rules. There are several policy arguments which can be relied upon to prevent recovery for conspiracies with immune officials.
The first is that frivolous civil rights actions should be discouraged. Second, the federal courts, under the guise of civil rights, should not monitor and furnish a remedy for each losing party in every state court proceeding, particularly when the state merely furnishes the forum, has no interest in the outcome, and the state judge does no more than preside over a case presented to him by performing discretionary acts, judicial functions and the normal duties of his office. Third, private persons who are victims of, or witnesses to, a crime should not be discouraged from reporting the crime or from following the advice of a prosecuting attorney as to whether to lodge a formal complaint against, or to appear as a witness against, the perpetrator. Similarly, in civil matters, private persons should not be discouraged from or penalized for seeking the aid or judicial approval of a court before embarking upon activities of ambiguous legality. This is particularly important since it can be presumed that if the action is unconstitutional the judge will be more likely to prevent it than the individual engaging in self-help will be to refrain from engaging in it. Fourth, permitting conspiracies to be claimed which include immune judges may expose a judge to the time-consuming effort and chilling effect of submission to discovery and the appearance as a witness. Finally, if a judge condones a particular course of conduct, it seems manifestly unfair that the judicial expert should be immunized from attack but that the untutored lay person should be vulnerable to costly attack for participating in the same activity as the judge.
There are of course other policy arguments favoring recovery from private co-conspirators. If a judge should, for example, accept a bribe for performing a judicial act which deprives a person of constitutional rights or should reach an express understanding with another person to violate the constitutional rights of a third person, a remedy should exist against the briber or conspirator regardless of the judge’s immunity. It would be illogical to dispense immunity to state actors and then extend that immunity to private persons conspiring with them, narrowing civil rights relief to direct state action only. Civil rights cases should be disposed of by case-to-case attention and not swept away by broad per se immunity. If in any particular case competing policy considerations exist, the federal court should be able to balance all such considerations in reaching its result.
The Seventh Circuit rule discussed in Part II is flexible enough to accommodate and mediate all of the policy considerations on both sides of the question. By adhering to a fairly strict standard for pleading and proving a conspiracy, the rule prevents the chilling of judicial or private action caused by the time and expense of defending frivolous suits, and restricts liability to those situations where a competing interest — the *268need to vindicate violated constitutional rights — clearly exists.
IV
There can be no question that all the defendants here, except the judge, could not themselves be considered to be state actors. The attorney who drafted the petition for authorization to sterilize the plaintiff was not thereby acting under color of state law within the meaning of the Civil Rights Act. Dieu v. Norton, 411 F.2d 761, 763 (7th Cir. 1969); Jones v. Jones, 410 F.2d 365, 366 (7th Cir. 1969), cert. denied, 396 U.S. 1013, 90 S.Ct. 547, 24 L.Ed.2d 505 (1970); Meier v. State Farm Mutual Automobile Insurance Co., 356 F.2d 504, 505 (7th Cir.), cert. denied, 385 U.S. 875, 87 S.Ct. 151, 17 L.Ed.2d 102 (1966); Sarelas v. Porikos, 320 F.2d 827, 828 (7th Cir. 1963), cert. denied, 375 U.S. 985, 84 S.Ct. 519, 11 L.Ed.2d 473 (1964); Skolnick v. Martin, 317 F.2d 855, 856-57 (7th Cir.), cert. denied, 375 U.S. 908, 84 S.Ct. 199, 11 L.Ed.2d 146 (1963). Further, there are no allegations in the complaint that the hospital or three defendant doctors who performed or assisted in the sterilization were state actors. Cf. Downs v. Sawtelle, 574 F.2d 1, 6-10 (1st Cir. 1978). Nor was the plaintiff’s mother alleged to be a state actor. The only state actor in this array of defendants was the immunized judge. This status was unequivocally established by the Supreme Court’s holding that the sterilization petition was a judicial act. Thus, if any of the other defendants are liable under § 1983 it can only be by virtue of having engaged in a conspiracy with the judge, or more specifically, by having “reached an understanding” with the judge to engage in a course of action that would deprive the plaintiff of her constitutional rights. See Adickes v. S. H. Kress & Co., 398 U.S. at 152, 90 S.Ct. 1598.
The complaint contained 33 numbered paragraphs. One paragraph alleged that the actions of the defendants “in concert and with the common goal and result of sterilizing” the plaintiff, deprived her of her constitutional rights.8 Two other paragraphs alleged that the doctor who performed the sterilization operation did so “with the knowledge, approval, acquiescence, aid and assistance of each of the other defendants.”9
Under the eases discussed in Part II, this was insufficient. It is not sufficient to allege that the defendants merely acted in concert or with a common goal. There must be allegations that the defendants had directed themselves toward an unconstitutional action by virtue of a mutual understanding. Even were such allegations to be made, they must further be supported by some factual allegations suggesting such a “meeting of the minds.” The complaint here obviously does not meet these requirements.
. 42 U.S.C. § 1983 provides:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any Slate or Territory, 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 injured in an action at law, suit in equity, or other proper proceeding for redress.
. 398 U.S. at 152, 90 S.Ct. at 1605. Although the Price case, relied on in Adickes, was a criminal proceeding under 18 U.S.C. § 242 the Court in Price determined that
“Under color” of law means the same thing in § 242 that it does in the civil counterpart of § 242, 42 U.S.C. § 1983 . . .. In cases under § 1983, “under color” of law has been consistently treated as the same thing as the “state action” required under the Fourteenth Amendment.
United States v. Price, 383 U.S. 787, 794 n. 7, 86 S.Ct. 1152, 1157, 16 L.Ed.2d 267 (1966).
. The complaint alleged that “a tubal ligation had been performed on Linda Kay Sparkman which would permanently prevent her from becoming pregnant and permanently deprive her of the natural rights of motherhood.” (par. 20). In Cox v. Stanton, 529 F.2d 47, 49 (4th Cir. 1975), the alleged deprivation of rights rested on the allegation that the plaintiff was permanently sterilized and that the state welfare agency had petitioned the Eugenics Board to authorize a doctor to perform a tubal ligation, “which is usually reversible,” but instead he performed “an irreversible bilateral salpin-gectomy sterilization.” See also, Briley v. State of California, 564 F.2d 849 (9th Cir. 1977) (castration); Downs v. Sawtelle, 574 F.2d 1 (1st Cir. 1978) (sterilization).
. Third Circuit: Waits v. McGowan, 516 F.2d 203, 205 (1975); Fifth Circuit: Guedry v. Ford, 431 F.2d 660, 664 (1970) (adopting district court opinion); Hill v. McClellan, 490 F.2d 859, 860 (1974); Humble v. Foreman, 563 F.2d 780, 781 (1977); Perez v. Borchers, 567 F.2d 285, 287 (1978); Sixth Circuit: Kurz v. Michigan, 548 F.2d 172, 175 (1977), cert. denied, 434 U.S. 972, 98 S.Ct. 526, 54 L.Ed.2d 462 (1977); Ninth Circuit: Haldane v. Chagnon, 345 F.2d 601, 604-05 (1965); Briley v. California, 564 F.2d 849, 858 (1977); Tenth Circuit: Bottone v. Lindsley, 170 F.2d 705, 707 (1948), cert. denied, 336 U.S. 944, 69 S.Ct. 810, 93 L.Ed. 1101 (1949).
. First Circuit: Kermit Const. Corp. v. Banco Credito Y Ahorro Ponceno, 547 F.2d 1, 3 (1976) ; Slotnick v. Staviskey, 560 F.2d 31, 33 and n. 1 (1977), cert. denied, 434 U.S. 1077, 98 S.Ct. 1268, 55 L.Ed.2d 783 (1978) (Coffin, C. J., separate opn.); Second Circuit: Fine v. City of New York, 529 F.2d 70, 75 (1975); Third Circuit: Jennings v. Shuman, 567 F.2d 1213, 1220 (1977) . Cf. United States v. Lester, 363 F.2d 68, 74 (6th Cir. 1966); Downs v. Sawtelle, 574 F.2d 1, 15-16 (1st Cir. 1978).
. French v. Corrigan, 432 F.2d at 1214; Hansen v. Ahlgrimm, 520 F.2d at 770.
. Inasmuch as most civil rights conspiracies can be likened to a conspiracy to defraud a person of his constitutional rights, some courts have applied the language of Fed.R.Civ.P. 9(b) that “[i]n all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity.” See Lee v. Alabama, 364 F.2d 945 (5th Cir. 1966); Mac-Kenna v. Ellis, 263 F.2d 35, 38 (5th Cir. 1959).
. Paragraph 30 provided:
The actions of Defendants, Ora E. McFar-lin, Warren G. Sunday, Harold D. Stump, John H. Hines, M.D., John C. Harvey, M.D., Harry M. Coveil, M.D. and DeKalb Memorial Hospital, Inc., in concert and with the common goal and result of sterilizing Linda Kay Sparkman, deprived said Linda Kay Spark-man of her constitutional and statutory rights to privacy, to the equal protection of the laws and to not be deprived of life or property without the due process of law. The concerted action was taken against Linda Kay Sparkman because of her sex, her marital status and of her allegedly low mental ability, all in violation of 42 U.S.C. § 1985(3).
. Paragraphs 24 and 27.