                                                                    [DO NOT PUBLISH]

                      IN THE UNITED STATES COURT OF APPEALS
                                                                           FILED
                                   FOR THE ELEVENTH CIRCUITU.S. COURT OF APPEALS
                                    ________________________ ELEVENTH CIRCUIT
                                                                      MARCH 2, 2011
                                            No. 10-14127               JOHN LEY
                                        Non-Argument Calendar            CLERK
                                      ________________________

                                D.C. Docket No. 2:09-cv-14357-DLG

SIEGFRIED G. CHRISTMAN,
PAMELA A. CHRISTMAN,

llllllllllllllllllllllllllllllllllllllll                         Plaintiffs-Appellants,

                                               versus

HONORABLE THOMAS J. WALSH, JR.,
CHRIS DZADOVSKY,
EDWARD W. BECHT, PA,
DOMINICK PAGANO,

                                                                 Defendants-Appellees.

                                     ________________________

                           Appeal from the United States District Court
                               for the Southern District of Florida
                                 ________________________

                                           (March 2, 2011)

Before HULL, MARTIN and FAY, Circuit Judges.

PER CURIAM:
      Siegfried G. Christman and Pamela A. Christman, proceeding pro se, appeal

the district court’s order denying their motion to amend their complaint in a civil

rights action brought pursuant to 42 U.S.C. § 1983 and Florida state law. On

appeal, the Christmans argue that the district court erred by concluding that their

proposed amendment was futile. The Christmans also contend that the clerk of the

district court should have entered a default against Judge Thomas Walsh because

he failed to answer their complaint. For the reasons stated below, we affirm.

                                          I.

      The Christmans filed a pro se complaint against: (1) Thomas J. Walsh, Jr., a

county judge in Saint Lucie County, Florida; (2) Chris Dzadovsky, a county

commissioner; (3) Edward W. Becht, an attorney, and (4) Dominick Pagano, an

individual who had filed a lawsuit against the Christmans. The complaint set forth

the following factual allegations. Pagano hired Becht to represent him in a lawsuit

against the Christmans. The state court entered a monetary judgment in favor of

Pagano, but the Christmans did not pay the judgment immediately. Becht then

engaged in ex parte communications with Judge Walsh and convinced Walsh to

enter a criminal contempt order against the Christmans. Walsh refused to hold a

purge hearing as required by Florida law. The Christmans were arrested and

imprisoned for ten days. The original complaint raised seven different causes of


                                          2
action.

          Commissioner Dzadovsky and attorney Becht moved to dismiss the

Christmans’ original complaint under Fed.R.Civ.P. 12(b)(6) for failure to state a

claim upon which relief could be granted. On March 13, 2010, the district court

dismissed the Christmans’ complaint without prejudice.

      The Christmans then moved for leave to file an amended complaint. Their

amended complaint was based on the same facts as the original complaint, but

added another county judge, Kathryn Nelson, as a defendant. The Christmans

explained that, after Judge Walsh recused himself, Judge Nelson followed up on

Walsh’s contempt order and directed that Pamela Christman be arrested and

imprisoned for ten days without a purge hearing. The Christmans clarified that

they were bringing suit against Commissioner Dzadovsky because he represented

the voters who had elected Walsh and Nelson, and because he was responsible for

providing executive and judicial services to the judges. The Christmans also noted

that Becht was a city councilman and an officer of the court. They explained that

Becht had “used his political influence with local law enforcement” to have

Pamela Christman arrested.

      The amended complaint set forth two causes of action. First, the

Christmans raised a claim under 42 U.S.C. § 1983. They maintained that the


                                         3
defendants had violated their rights to procedural due process, substantive due

process, and equal protection by imprisoning them without holding a purge

hearing. Second, the Christmans asserted a state law claim for intentional

infliction of emotional distress against all five defendants.

      The Christmans also filed a “Request for Entry of Default,” asking the clerk

of the district court to enter a default against Judge Walsh. The record reflects

that Walsh was served with process on February 25, 2010, and that Walsh’s

answer was due on March 16, 2010, three days after the district court dismissed

the Christmans’ original complaint.

      The district court concluded that the Christmans’ amended complaint would

not survive a motion to dismiss, and, therefore, denied the motion to amend as

futile. The court explained that the Christmans had not stated a claim under

§ 1983 because the allegations in the complaint did not show that Becht was a

state actor or that Dzadovsky was involved in the constitutional violation. The

court also concluded that the amended complaint did not state a claim for

intentional infliction of emotional distress because it did not establish that the

defendants had engaged in outrageous conduct or that the Christmans had suffered

severe emotional distress. Because the amended complaint did not include

sufficient factual allegations as to entitle the Christmans to relief on either of their


                                           4
claims, the court concluded that the proposed amendment was futile.

                                          II.

      We review a district court’s denial of a motion to amend a complaint for an

abuse of discretion. Coventry First, LLC v. McCarty, 605 F.3d 865, 869 (11th Cir.

2010). A district court’s determination that an amendment to the complaint would

be futile is a legal conclusion that we review de novo. Id. We may affirm a

district court’s decision on any ground supported by the record. Brown v.

Johnson, 387 F.3d 1344, 1351 (11th Cir. 2004).

      A district court may deny leave to amend a complaint if it concludes that the

proposed amendment would be futile, meaning that the amended complaint would

not survive a motion to dismiss. Coventry First, LLC, 605 F.3d at 870. A

complaint must be dismissed if it fails to state a claim upon which relief could be

granted. Fed.R.Civ.P. 12(b)(6). In determining whether a complaint states a claim

for relief, the reviewing court must “accept[] the factual allegations in the

complaint as true and construe[] them in the light most favorable to the plaintiff.”

Speaker v. U.S. Dep’t of Health and Human Services Centers for Disease Control

and Prevention, 623 F.3d 1371, 1379 (11th Cir. 2010). The complaint must “state

a claim for relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550

U.S. 544, 570, 127 S.Ct. 1955, 1974, 167 L.Ed.2d 929 (2007). “A claim has facial


                                          5
plausibility when the plaintiff pleads factual content that allows the court to draw

the reasonable inference that the defendant is liable for the misconduct alleged.”

Ashcroft v. Iqbal, 556 U.S. ___, ___, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868

(2009). The complaint need not include detailed factual allegations, but it must set

forth “more than labels and conclusions, and a formulaic recitation of the elements

of a cause of action will not do.” Twombly, 550 U.S. at 555, 127 S.Ct. at

1964-1965.

      In order to state a claim under § 1983, the plaintiff must show “(1) a

violation of a constitutional right, and (2) that the alleged violation was committed

by a person acting under color of state law.” Holmes v. Crosby, 418 F.3d 1256,

1258 (11th Cir. 2005). Section 1983 does not permit recovery under a theory of

respondeat superior or vicarious liability. Keating v. City of Miami, 598 F.3d 753,

762 (11th Cir. 2010). Therefore, a defendant may be held liable under § 1983 only

if he personally was responsible for the constitutional violation. See id.

(explaining that a supervisor is liable under § 1983 only if he actively participated

in the constitutional violation, or if there was a causal connection between his

conduct and the alleged constitutional violation).

      “Not all actions by state employees are acts under color of law.” Edwards v.

Wallace Community College, 49 F.3d 1517, 1523 (11th Cir. 1995). A state official


                                          6
acts under color of law when he exercises the authority that he possesses by virtue

of his position with the state. Id. A private individual, or a state official acting in

his capacity as a private individual, may be held liable under § 1983 only under

limited circumstances.

      This Court employs three distinct tests for determining whether a private

individual acted under color of state law: (1) the public function test, which asks

whether the private actor was performing functions that have traditionally been

the exclusive prerogative of the state; (2) the state compulsion test, which asks

whether the government coerced or significantly encouraged the unconstitutional

actions at issue; and (3) the nexus/joint action test, which asks whether the state

and the private party were joint participants in a common enterprise. Focus on the

Family v. Pinellas Suncoast Transit Authority, 344 F.3d 1263, 1277 (11th Cir.

2003). A private individual also may be held liable under § 1983 when he

conspires with state actors to violate the plaintiff’s constitutional rights. Rowe v.

City of Fort Lauderdale, 279 F.3d 1271, 1283 (11th Cir. 2002). To establish a

§ 1983 conspiracy, the plaintiff need not produce a “smoking gun,” but he must

provide “some evidence of agreement between the defendants.” Id. at 1283-84.

      “Judges are entitled to absolute judicial immunity from damages for those

acts taken while they are acting in their judicial capacity unless they acted in the


                                           7
clear absence of all jurisdiction.” Bolin v. Story, 225 F.3d 1234, 1239 (11th Cir.

2000) (quotation omitted). “This immunity applies even when the judge’s acts are

in error, malicious, or were in excess of his or her jurisdiction.” Id.

      Florida courts have explained that a claim for intentional infliction of

emotional distress has four elements: (1) deliberate or reckless infliction of mental

suffering; (2) outrageous conduct by the defendant; (3) the conduct caused the

emotional distress; and (4) the emotional distress was severe. See, e.g., Thomas v.

Hospital Bd. of Directors of Lee County, 41 So.3d 246, 256 (Fla. 2d Dist. Ct. App.

2010); Stewart v. Walker, 5 So.3d 746, 749 (Fla. 4th Dist. Ct. App. 2009). To

demonstrate that the defendant engaged in outrageous conduct, the plaintiff must

show that the defendant’s actions were “‘so outrageous in character, and so

extreme in degree, as to go beyond all possible bounds of decency, and to be

regarded as atrocious, and utterly intolerable in a civilized community.’”

Metropolitan Life Ins. Co. v. McCarson, 467 So.2d 277, 278-79 (Fla. 1985)

(quoting Restatement (Second) of Torts § 46 (1965)).

      In this case, the district court correctly concluded that the Christmans’

amended complaint would not have survived a motion to dismiss. The factual

allegations in the complaint did not state a claim under § 1983 against any of the

five defendants. First, the amended complaint failed to show that Commissioner


                                           8
Dzadovsky was personally connected to any of the asserted constitutional

violations. Therefore, he was not a proper defendant under § 1983. See Keating

598 F.3d at 762. Next, the amended complaint did not show that Becht was acting

under color of state law. Although Becht apparently was a city councilman, he

was involved in the state court proceedings as a private attorney, rather than in an

official government capacity. The complaint’s conclusory assertion that Becht

used his political influence to have Pamela Christman arrested was insufficient to

show that Becht had invoked his state authority. See Twombly, 550 U.S. at 555,

127 S.Ct. at 1964-1965 (noting that a complaint must set forth “more than labels

and conclusions”). Moreover, the mere fact that Becht engaged in ex parte

discussions with Judge Walsh and asked him to issue a criminal contempt order

did not establish that Becht and Walsh were engaged in a joint enterprise or that

they had entered into an agreement to violate the Christmans’ constitutional rights.

See Focus on the Family, 344 F.3d at 1277; Rowe, 279 F.3d at 1283-84.

      In addition, the amended complaint failed to state a claim against Pagano

because it did not include any allegations showing that Pagano had acted under

color of state law. See Holmes, 418 F.3d at 1258. Finally, Walsh and Nelson were

entitled to absolute immunity because they were engaged in judicial activity when

they entered and enforced the criminal contempt order. See Bolin, 225 F.3d at


                                          9
1239.

        The district court also did not err in finding that the amended complaint

failed to state a claim for intentional infliction of emotional distress. The facts

described in the complaint—that the state court cited the Christmans for criminal

contempt and ordered them to be imprisoned for ten days without affording them a

hearing—did not rise to the level of extreme, outrageous conduct that was utterly

intolerable in a civilized community. See Metropolitan Life Ins. Co., 467 So.2d at

278-79. Because the amended complaint would not have survived a Fed.R.Civ.P.

12(b)(6) motion to dismiss, the district court properly concluded that the

Christmans’ proposed amendment was futile.

                                          III.

        Under the Federal Rules of Civil Procedure, “[w]hen a party against whom a

judgment for affirmative relief is sought has failed to plead or otherwise defend,”

the clerk shall enter a default against that party. Fed.R.Civ.P. 55(a). In this case,

Walsh’s answer was due on March 16, 2010. However, the district court

dismissed the Christmans’ original complaint without prejudice on March 13,

2010. Once the complaint was dismissed, Walsh was no longer under any

obligation to respond to it. Thus, no entry of default was warranted.

        Accordingly, after review of the record and the parties’ briefs, we affirm.

        AFFIRMED.

                                           10
