join dissenting:
Judges Wisdom, Godbold, and Tjoflat decided this case correctly at the panel level, 588 F.2d 124, 5 Cir. That decision should not now be overturned by the en banc court.1
The majority concedes, as it must, that judges are absolutely immune to civil damage suits for judicial acts done within their jurisdiction, Bradley v. Fisher, 1872, 80 U.S. (13 Wall.) 335, 20 L.Ed. 646. The same absolute immunity applies to state prosecutors, Imbler v. Pachtman, 1976, 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128.2
Bradley v. Fisher, supra, was a case, in overheated times, growing out of the unsuccessful prosecution of John H. Suratt for complicity in the murder of President Lincoln. We feel that the en banc majority has failed to give full recognition to the teachings of that case. It was there held:
“[The Judge] cannot be subjected to responsibility for it in a civil action, however erroneous the act may have been, and however injurious in its consequences it may have proved to the plaintiff. For it is a general principle of the highest importance to the proper administration of justice that a judicial officer, in exer*984cising the authority vested in him, shall be free to act upon his own convictions, without apprehension of personal consequences to himself (emphasis added). Li- • ability to answer to every one who might feel himself aggrieved by the action of the judge, would be inconsistent with the possession of this freedom, and would destroy that independence without which no judiciary can be either respectable or useful.”
80 U.S. at 347.
The High Court not only said that the judges are immune to suits for pecuniary damages. The Court said that a judge shall be free to act “without apprehension of personal consequences”. Being dragged through a civil suit among private individuals in which the judge’s integrity is the indispensable jurisdictional issue cannot. be anything but a personal consequence which the en banc majority now allows in contravention to Bradley.
Bradley went on to hold that the purity of judicial motives, even judicial corruption, cannot be the subject of judicial inquiry in a civil suit. It noted that:
“If civil actions could be maintained in such cases against the judge, because the losing party should see fit to allege in his complaint that the acts of the judge were done with partiality, or maliciously, or corruptly, the protection essential to judicial independence would be entirely swept away. Few persons sufficiently irritated to institute an action against a judge for his judicial acts would hesitate to ascribe any character to the acts which would be essential to the maintenance of the action.”
80 U.S. at 348.
Bradley was recently reaffirmed in Stump v. Sparkman, 435 U.S. 349, 98 S.Ct. 1099, 55 L.Ed.2d 331 (1978). It was argued in Stump that the judge should be denied immunity “because of the tragic consequences of [his] actions”, 98 S.Ct. at 1108, but the Supreme Court reaffirmed that a judicial officer should be free of “ ‘apprehension of personal consequences to himself’ ” [citing Bradley], 98 S.Ct. at 1108.
We believe that judges may not be attacked collaterally in a damage suit among private parties where, as in a § 1983 case, jurisdiction depends on the establishment by a preponderance of the evidence that the judge acting within his jurisdiction nevertheless acted conspiratorily and corruptly.
There is no merit in the argument that in the case presently before us the judge is not a party defendant. The functions of his office and his performance therein are indispensably necessary to the continuation of the action. To say that he is not being sued is a pretense.
What the en banc Court is doing here is to abrogate state judicial or prosecutorial immunity if the plaintiffs allege a conspiracy under a § 1983 cause of action.
Although they cannot be sued directly, this en banc opinion allows state judges and state prosecutors to be sued indirectly, seriously breaching absolute judicial immunity. We must dissent.
The destruction of many a massive dike began with a very small leak. Jurispruden-tially, this is just such a case, and the newly announced doctrine has been reached without precedent to support it; indeed, the majority summarily overrules prior precedents — “ We can and we do ” (emphasis added). By this indirection the Court now plants a land mine under every state judge and prosecutor in this Circuit, to be detonated at the whim and caprice of any unhappy state court litigant. And it makes no difference, apparently, that such litigants in meritorious cases have available state remedies against the private defendants.
The majority asserts at p. 980, that this unprecedented step is mandated by the need to deal with “unredressed wrong”, but that protestation cannot stand examination. There is not the slightest hint that damage suit redress was unavailable under Texas law against the private defendants.3
*985The majority concedes at p. 980, that “[ejvery trial (or appeal) in state courts, civil or criminal, carries the potential for a conspiracy claim, one that the judge . . . acted in knowing concert to deny federal rights protected by § 1983”.
That is exactly the fatal defect in this majority decision, and it should have been recognized that state prosecutors are also being shoved off the ledge.
In seeking, quite lamely we think, to minimize the impact of what is being done here, the majority opines that the obligation of a judge to testify in such cases “is comparatively insignificant”, as if this were the only danger to which judges and prosecutors are now about to be subjected. But this is a very small portion of the iceberg.
If there is anything a judge ought to prize and that the public demands, it is his judicial integrity. It is commonly accepted that a judge must not only avoid evil but he must avoid even the appearance of it. Under this decision any state judge or any state prosecutor may have that integrity besmeared by any individual who has lost a case and who knows how to charge enough misconduct to withstand a motion to dismiss, however without merit the complaint may be.
The Supreme Court has consistently recognized the existence of an interest in reputation which cannot be infringed without the invocation of due process requirements. The Court articulated this principle most clearly in Wisconsin v. Constantineau, 400 U.S. 433, 91 S.Ct. 507, 27 L.Ed.2d 515 (1971), by asserting that “[wjhere a person’s good name, reputation, honor, or integrity is at stake because of what the government is doing to him, notice and an opportunity to be heard are essential”. Id. at 437, 91 S.Ct. at 510. The High Court reaffirmed this concept in Goss v. Lopez, 419 U.S. 565, 95 S.Ct. 729, 42 L.Ed.2d 725 (1975), requiring a hearing for students suspended from high school. The Court noted that the charges of misconduct upon which the suspensions were based “could seriously damage the students’ standing with their fellow pupils and their teachers as well as interfere with later opportunities for higher education and employment”. Id. at 575, 95 S.Ct. at 736. See, also, Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). The Court in rejecting the claim for a due process hearing noted that this Would be a “different case” if the State had made charges against the plaintiff which “might seriously damage his standing and associations in his community”.
In Codd v. Velger, 429 U.S. 624, 97 S.Ct. 882, 51 L.Ed.2d 92 (1977), the Court recognized that an allegation that the plaintiff, a trainee policeman, had attempted to commit suicide, if false, would place such a stigma upon the plaintiff’s reputation that due process procedures would be required under the Fourteenth Amendment.
In suits such as that now allowed by the majority for the first time in the history of this Court, how can the judge or the prosecutor defend himself? He is not a party defendant, so he is not entitled to trial participation as a party litigant. He might arrange active participation by surrendering th'e cornerstone of his judicial independence in a motion to intervene as a defendant. If he goes to that extreme (which if consistently followed would greatly harm the judiciary as an institution) he most likely would have to employ counsel, presumably at his own expense, suffering the consequent pecuniary punishment, if nothing else.
If the judge or the prosecutor does not become a party defendant, how can he *986guarantee himself the right to testify in behalf of his vindication? Who will call him as a witness? Who will examine and cross-examine witnesses? Could he ask for jury instructions? Would he be allowed to make an argument to the jury? Must the judge stand helpless while the most vital need and the most precious possession of the judiciary is damaged, possibly destroyed, by private parties to a private damage suit which could not have been brought directly against him ?
Does our jurisprudence contemplate that in those cases where a judge has absolute immunity to a suit for money damages he may nevertheless have his judicial character and reputation irreparably splotched by a verdict from six jurors in a suit to which he could not have been made a party? We do not think so.
Although the majority attempts it, are judges to be equated with agents of foreign powers? Are judges to be equated with policemen who have only qualified immunity?
Neither do we consider the necessity for a state judge or prosecutor to appear as a witness in a private suit for money damages to be as inconsequential as the majority appraises it. Cases have a way of being delayed for a long time, continued from time to time. The state judge or prosecutor may have an important case which demands speedy attention. At the beck and call of private litigants he is immobilized, or, at least, forced into delays which may hamper justice.
THIS OPINION VIOLATES FEDERAL PRINCIPLES
Although the considerations already stated should be enough to affirm the dismissal of this complaint, there is a far more serious reason for not invading the absolute judicial immunity of state judges and state prosecutors.
Regardless of how diligently we may try to avoid the issue, the cold fact is that this decision makes state judges and state prosecutors personally answerable in federal court to private litigants for their state judicial or prosecutorial acts.
Of course, the legal correctness of such judicial actions may be reviewed as to federal constitutional questions in a number of ways, but the point is that in those instances the legal merits of the action are being reviewed, a matter of no personal consequence to the judge or prosecutor as to how the case may ultimately turn out.
MAJORITY RATIONALE CONFLICTS WITH THE DECISIONS OF OTHER CIRCUITS
Not only is the en banc opinion of this court harmful to basic policies underlying judicial immunity and insensitive to the delicate balance between state and federal courts, it is also contrary to what has been the clear weight of authority in the Federal Courts of Appeals. With the exception of the First Circuit,4 all Circuit Courts that have explicitly considered the question have concluded that a private defendant cannot be held liable under § 1983 for conspiring with a state actor if the state actor himself is immune.5
*987The cases enunciating this rule begin with the Ninth Circuit’s oft-quoted decision in Haldane v. Chagnon, 9 Cir., 1965, 345 F.2d 601. In Haldane, plaintiff charged that two judges of the Superior Court of California, the bailiff of one of the judges, and two licensed attorneys were involved in a broad-based conspiracy to deny him various constitutional rights. The Ninth Circuit affirmed the lower court’s order of dismissal against the judges and the bailiff on the ground of judicial immunity. It then affirmed the dismissal as to the attorneys with the following language:
With the elimination of the defendant judges and bailiff from the case, claims against the defendant attorneys under the Civil Rights Act cannot be stated. The attorneys were not State officers, and they did not act in conspiracy with a State officer against whom appellant could state a valid claim. It follows that they did not, and could not, commit the alleged wrongful acts “under color of state law or authority”; hence, they are not subject to liability under the “Civil Rights Act.” Id. at 604.05. (Emphasis added).
The Ninth Circuit has adhered to this rule in the recent cases of Sykes v. Department of Motor Vehicles, 9 Cir., 1974, 497 F.2d 197; and Briley v. California, 9 Cir., 1977, 564 F.2d 849.6
In addition to the Ninth Circuit, the same rule has been adopted by the Third,7 Sixth, and Seventh Circuits.8 See, e. g., Hazo. v. Geltz, 3 Cir., 1976, 537 F.2d 747; Waits v. McGowan, 3 Cir., 1975, 516 F.2d 203; Kurz v. Michigan, 6 Cir., 1977, 548 F.2d 172; Hansen v. Ahlgrimm, 7 Cir., 1975, 520 F.2d 768; French v. Corrigan, 7 Cir., 1970, 432 F.2d 1211; Brown v. Dunne, 7 Cir., 1969, 409 F.2d 341. See also Sparkman v. McFar-lin, 7 Cir., 601 F.2d 261, 1979.
In the Fifth Circuit, the above rule has been firmly established since the 1970 case of Guedry v. Ford, 5 Cir., 1970, 431 F.2d 660. After Guedry, the rule has been followed in Slavin v. Curry, 5 Cir., 1978, 574 F.2d 1256, modified on other grounds, 583 F.2d 779; Perez v. Borchers, 5 Cir., 1978, 567 F.2d 285; Humble v. Foreman, 5 Cir., 1977, 563 F.2d 780; and Hill v. McClellan, 5 Cir., 1974, 490 F.2d 859. A rule of law so firmly established should not be lightly overturned.
*988Detractors of the rule argue that, however firmly established, there was never an adequate rationale to sustain it, and in any event it cannot withstand rigorous analysis. We refute such contentions.
The policy rationale supporting the rule should be self-evident to anyone familiar with the burgeoning number of § 1983 suits and aware of the impact of this phenomenon on our federal judicial system. Today’s opinion alters dramatically the relationship between state and federal courts. Henceforth, anyone dissatisfied with the result of litigation in state court can allege a “conspiracy” sufficient to obtain federal court review of his claim.9 As one court put it:
“This action is a clear attempt, despite plaintiff’s assertion to the contrary, to obtain a review and a retrial of the State Court proceedings. The fact that a defeated litigant is prepared to charge a ‘conspiracy’ recklessly or otherwise and recite in haec verba the language of the Civil Rights Act does not give a right of review in the Federal Courts. To uphold the claim here advanced upon such con-clusory allegations ‘would open the door wide to every aggrieved litigant in a state court proceedings, and set the federal courts up as an arbiter of the correctness of every state decision.’
“This case demonstrates forcibly the wisdom of the public policy which grants immunity to judicial and other officials for acts performed in the discharge of their duties. If in circumstances such as this defendants may be made to answer for their determinations, not only would the independence of the judiciary be undermined, but a ready means would be at hand to paralyze the entire judicial system.”
French v. Corrigan, 7 Cir., 1970, 432 F.2d 1211, 1213-14 (quoting Morgan v. Sylvester, D.C., 125 F.Supp. 380, aff’d, 2 Cir., 220 F.2d 758, cert. den., 350 U.S. 867, 76 S.Ct. 112, 100 L.Ed. 768).
Judge Sprecher, in his concurring opinion in Sparkman v. McFarlin, 7 Cir., 601 F.2d 261 at 267, 1979, sets forth quite clearly the policy considerations supporting the rule now abandoned by this court:
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 riot 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 *989attack for participating in the same activity as the judge.10
Today’s majority opinion spends little time with such policy considerations. The opinion notes that “[mjischievous damage suits of this sort license the ill-disposed to require judges to appear and testify,” but concludes that any such burden will be “comparatively insignificant.” Majority opinion at p. 980. Once having given this slight nod toward the policy problems inherent in its holding, the majority spends the rest of its time demonstráting that its decision is analytically palatable.
We doubt that the practical impact of this decision properly may be termed as “comparatively insignificant.” Today’s decision affords an opportunity for state prisoners possessing sufficient pen and ink to allege a conspiracy between a judge, a prosecutor, and “whatever other participants the pleader’s fancy may light upon.” Majority opinion at p. 980. If the petitioner can drum up sufficient allegations to withstand a motion to dismiss, he can now effectively hail a state judge or prosecutor before federal court in the course of suing “private” parties.
The history of cases in our own Circuit should be instructive as to the probable impact of the majority’s decision on the flow of prisoner appeals to this court. Of the five cases in this Circuit cited earlier as applying the immunity rule, four were brought by incarcerated or indicted plaintiffs. Slavin v. Curry, 5 Cir., 1978, 754 F.2d 1256, modified on other grounds 583 F.2d 779; Perez v. Borchers, 5 Cir., 1978, 567 F.2d 285, Humble v. Foreman, 5 Cir., 1977, 563 F.2d 780; Hill v. McClellan, 5 Cir., 1974, 490 F.2d 859.
Apparently the majority is, in fact, aware of the potential its opinion has for opening the door to frivolous conspiracy claims. Somewhat offhandedly the opinion states that “mere conclusory allegations of conspiracy cannot, absent reference to material facts, survive a motion to dismiss.” Majority opinion at p. 978. Thus, the court may be imposing a strict pleading requirement upon § 1983 conspiracy actions in order to avoid a barrage of groundless claims. Indeed, at least one judge in the Seventh Circuit has suggested that abolishing the immunity rule and replacing it with a “particularized pleading” rule is the proper solution to the present quandary.11
A particularized pleading requirement, however, is at odds with a basic policy underlying federal civil procedure — notice pleading. See Rule 8, Federal Rules of Civil Procedure.
Furthermore, erecting a pleading barrier between the courtroom and ungrounded lawsuits is likely to be an unsatisfactory means of avoiding frivolous litigation, since persons disposed to bring such litigation would probably have little difficulty explicating their alleged grievances with particularity.
*990The majority is seemingly unaware of the inroads it has made into the doctrine of judicial immunity, or of the impact its decision could have on the respective roles of state and federal courts. “All authorities,” the majority states, “recognized that when a judge acts in a ‘clear absence of all jurisdiction’ he is not protected. But any broader or less explicit inroad upon the robe’s immunity in an attempt to reach its wearer would invite recurring attempts at enlargement, ruinous in terms of judicial time and funds expended to defend — even successfully — against them.” Majority opinion at p. 980.
In our view it is unwise to encroach upon the robe’s immunity. The court now abandons a rule of law that has served this and other Circuits well for over a decade, and replaces it with a formulation corrosive to the doctrine of judicial immunity, harmful to the proper functioning of our federal system, and fraught with the possibility of providing the means for frivolous litigation.
We suggest that this decision will not be the last word on this subject and we respectfully dissent.
. Nothing is to be gained by commenting at any great length on the highly strained manner by which our Court has taken this case under its en banc wing. The extended apologia at the outset of the majority opinion is comment enough. Suffice it to say, nobody appeared here for any state judge. The sword is now suspended over their heads in a case in which only some, but not all, private parties appeared by counsel. If a criminal defendant were to be given this kind of short shrift we undoubtedly would be shrieking that it was “fundamentally unfair” — devoid of the most elementary “due process”.
This case ought to be remanded to the docket. Briefs and oral argument ought to be had on behalf of state judges and state prosecutors. They are the real defendants in this case.
. See, also, the extensive array of cases cited in the panel opinion, 588 F.2d at 126, footnote 2.
Since Imbler held that state prosecutors have the same absolute immunity as judges, the en banc majority necessarily includes them in the net now being devised for judges.
. The panel opinion pointed out, 588 F.2d at 125, that the Texas Court of Civil Appeals dissolved the allegedly corrupt injunction involved in this case; moreover, the judge who issued it *985has been removed from the bench. We would be surprised to learn that the jurisprudence of Texas is so deficient that the damages available under 42 U.S.C. § 1983 are unavailable under Texas law against the private individuals guilty of the kind of conspiracy alleged here.
It has been said, however, that rights guaranteed by Texas law are “no good in Duval County”. Conditions in one county in six states cannot possibly justify abrogation of the absolute immunity of hundreds of judges and prosecutors who have absolutely nothing to do with what goes on in Duval. Verily, the hair on the tail is now to be allowed to wag the dog.
. Slotnick v. Staviskey, 1 Cir., 1977, 560 F.2d 31, cert. denied, 434 U.S. 1077, 98 S.Ct. 1268, 55 L.Ed.2d 783 (1978); Kermit Const. Corp. v. Banco Credito Y Ahorro Ponceno, 1 Cir., 1976, 547 F.2d 1.
. See, e. g., Hazo v. Geitz, 3 Cir., 1976, 537 F.2d 747; Guedry v. Ford, 5 Cir., 1970, 431 F.2d 660; Kurz v. Michigan, 6 Cir., 1977, 548 F.2d 172; Hansen v. Ahlgrimm, 7 Cir., 1975, 520 F.2d 768; Haldane v. Chagnon, 9 Cir., 1965, 345 F.2d 601.
The position of the Seventh Circuit is presently somewhat unclear, following the highly fractionated en banc opinion in Sparkman v. McFarlin, 7 Cir, 1979, 601 F.2d 261. The per curiam opinion in that cáse affirmed the district court’s dismissal of a § 1983 conspiracy against private defendants after the state actor (a judge) was held to be immune from suit. Four concurring opinions were filed along with the per curiam order. Two judges wrote that the question of whether a § 1983 suit may be brought when the state actor is immune was not properly before the court. Id. (Pell, J., and Bauer, J., concurring). Three judges, on slightly divergent rationales, would allow § 1983 suits even when the state actor is immune, provided the plaintiff meets the burden of a *987particularized pleading requirement. Id (Fair-child, C. J., concurring), (Sprecher, J., concurring) (Tone, J., concurring).
Two cases from the Second and Third Circuits contain language broad enough to negate the rule stated in the text; i. e., that a private actor cannot be held liable for conspiracy under § 1983 if the state actor is immune. Jennings v. Shuman, 3 Cir., 1977, 567 F.2d 1213; Fine v. New York, 2 Cir., 1975, 529 F.2d 70. However, these cases, which state generally that a private citizen can be liable under § 1983 if he conspires with a state official, never explicitly considered the question of whether the private actor is liable when the state actor is immune from suit.
. Note that Judge Choy’s opinion in Briley refers to the holding in Haldane as “dicta.” 564 F.2d at 858 n. 10. Classifying the Haldane rule as “dicta”, however, is dubious at best. The holding that private parties cannot be liable under § 1983 when the state actor is immune from suit was necessary to the Ninth Circuit’s • affirmation of the lower court’s disposition in Haldane and that ruling is certainly not “dicta”. Haldane v. Chagnon, 9 Cir., 1965, 345 F.2d 601.
. The recent case of Jennings v. Shuman, 3 Cir., 1977, 567 F.2d 1213, has been cited for the proposition that the Third Circuit has abandoned the majority rule. However, a careful reading of that case demonstrates that the court was not presented with the question of whether a private defendant can be held liable under § 1983 when the state actor is immune from suit. See Hazo v. Geltz, 3 Cir., 1976, 537 F.2d 747; Waits v. McGowan, 3 Cir., 1975, 516 F.2d 203.
. As noted in footnote 5, the current position of the Seventh Circuit is somewhat uncertain due to the recent en banc opinion in Sparkman v. McFarlin, 7 Cir., 1979, 601 F.2d 261. The per curiam opinion in that case affirmed the lower court’s dismissal of § 1983 conspiracy charges against the private defendants after the state was held immune from suit. Whether this result was reached based on the Seventh Circuit’s earlier adoption of the majority rule, Hansen v. Ahlgrimm, 7 Cir., 1975, 520 F.2d 768; French v. Corrigan, 7 Cir., 1970, 432 F.2d 1211, or upon a new rule that the conspiracy was not alleged with sufficient particularity is difficult to ascertain. See Sparkman v. McFarlin, 7 Cir., 601 F.2d 261, 1979 (Fairchild, C. J., concurring), (Pell, J., concurring), (Sprecher, J., concurring), (Tone, J., concurring).
. As noted by the majority: “Every trial (or appeal) in state courts, civil or criminal, carries the potential for a conspiracy claim, one that the judge (or judges) and whatever other participants the pleader’s fancy may light upon acted in knowing concert to deny federal rights protected by section 1983.” Majority opinion p. 980.
. Judge Sprecher also lists policy considerations militating for the rule adopted en banc by a majority of this court:
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.
Sparkman v. McFarlin, 7 Cir., 1979, 601 F.2d 261 at 267.
Judge Sprecher, for his part, favored abolishing the immunity rule. In its place, he suggested a rule requiring particularized pleading of § 1983 conspiracy claims. This solution, which seeks to avoid a barrage of conspiracy actions, creates difficulties of its own — the particularized pleading requirement runs contrary to the general federal philosophy of notice pleading.
. Sparkman v. McFarlin, 7 Cir., 1979, 601 F.2d 261. (Sprecher, J., concurring).