                                                       [DO NOT PUBLISH]

            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT           FILED
                     ________________________ U.S. COURT OF APPEALS
                                                        ELEVENTH CIRCUIT
                            No. 11-12018                   APRIL 2, 2012
                        Non-Argument Calendar               JOHN LEY
                      ________________________               CLERK


                  D.C. Docket No. 1:10-cv-00424-RWS

STEPHEN COX,


                                                          Plaintiff-Appellant,


                                 versus


HON. FRANK MILLS, III,
HON. ELLEN MCELYEA,
HON. N. JACKSON HARRIS,
ALISON DANACEAU,
M. DEREK HARRIS, et al.,

                                                        Defendant-Appellees.



                     ________________________

               Appeal from the United States District Court
                  for the Northern District of Georgia
                     ________________________
                             (April 2, 2012)
Before TJOFLAT, EDMONDSON and MARCUS, Circuit Judges.

PER CURIAM:

      Stephen Cox, proceeding pro se, appeals the district court’s dismissal of his

civil rights complaint and its denial of his motion to amend his complaint. On appeal,

Cox argues that: (1) the district court erred in dismissing his claims against state court

judges; (2) the district court erred in dismissing his claims against Carlton Fields, a

private law firm; (3) the district court abused its discretion in dismissing without

prejudice his claims against his former counsel Firester; and (4) the district court

abused its discretion in denying his motion to amend his complaint. After thorough

review, we affirm.

      We review de novo a district court’s dismissal of a complaint based on absolute

immunity. Woods v. Gamel, 132 F.3d 1417, 1419 (11th Cir. 1998) (discussing a

denial of absolute legislative immunity). We also review de novo a dismissal for

failure to state a claim. Cunningham v. Dist. Attorney’s Office for Escambia Cnty.,

592 F.3d 1237, 1255 (11th Cir. 2010). We review for abuse of discretion a sua sponte

dismissal for failure to timely serve a summons and complaint under Federal Rule of

Civil Procedure 4(m). Richardson v. Johnson, 598 F.3d 734, 738 (11th Cir. 2010).




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We also review a district court’s denial of a motion to amend for abuse of discretion.

Bryant v. Dupree, 252 F.3d 1161, 1163 (11th Cir. 2001).

      First, we reject Cox’s claim that the district court erred in dismissing his claims

against state court judges. A judge is entitled to absolute judicial immunity from

damages arising from those acts taken in her judicial capacity, unless she acts in the

clear absence of all jurisdiction. Sibley v. Lando, 437 F.3d 1067, 1070 (11th Cir.

2005). Whether an act is done within a judge’s judicial capacity is determined by

reference to “the nature of the act itself, i.e., whether it is a function normally

performed by a judge, and to the expectations of the parties, i.e., whether they dealt

with the judge in his official capacity.” Mireles v. Waco, 502 U.S. 9, 12 (1991)

(quotation omitted). Further, a judge does not act in the “clear absence of all

jurisdiction” when she acts erroneously, maliciously, or in excess of her authority, but

rather when she acts entirely without subject matter jurisdiction. Dykes v. Hosemann,

776 F.2d 942, 947-48 (11th Cir. 1985) (en banc). Generally, a judge will retain her

immunity even if it is alleged that she conspired with other parties to bring about a

deprivation of another’s rights. Dennis v. Sparks, 449 U.S. 24, 30-31 (1980).

      Here, the district court did not err in dismissing Cox’s claims for damages

against the state judiciary defendants based on absolute judicial immunity. Nothing

in the record suggests, and Cox does not now argue, that the state court generally

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lacked subject matter jurisdiction over Cox’s suit against the recreation center.

Additionally, the misconduct that Cox alleged below and now argues on appeal -- that

the state court judges held hearings, disposed of motions, and made recusal decisions

-- are all, by their nature, normal judicial functions.

      We are also unpersuaded by Cox’s claim that the district court erred in

dismissing his claims against Carlton Fields, a private law firm. In reviewing a

dismissal under Federal Rule of Civil Procedure 12(b)(6), we view the complaint in

the light most favorable to the plaintiff and accept the well-pleaded facts presented

therein as true. Am. United Life Ins. Co. v. Martinez, 480 F.3d 1043, 1057 (11th Cir.

2007). Although the complaint need not set forth detailed factual allegations, the

plaintiff must allege sufficient facts to render the claim “plausible on its face.” Bell

Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007).

       Under 42 U.S.C. § 1983, a plaintiff must sufficiently allege (1) that an act or

omission deprived him of a right, privilege, or immunity secured by the Constitution

or laws of the United States; and (2) that the act or omission was committed by a

person acting under color of state law. 42 U.S.C. § 1983; Hale v. Tallapoosa Cnty.,

50 F.3d 1579, 1582 (11th Cir. 1995).




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      An otherwise private person acts under color of state law when he is “a willful

participant in joint action” with a state actor. Harvey v. Harvey, 949 F.2d 1127, 1133

(11th Cir. 1992) (quotation omitted). In this respect, the plaintiff must “plead in

detail, through reference to material facts, the relationship or nature of the

conspiracy” between the private person and the state actor. Id. It is insufficient to

“merely string together” discrete events, without showing support for a reasoned

inference that the private and state actors agreed to violate the plaintiff’s rights. Id.

      Section 1985 does not itself create any substantive rights, but instead serves

only as a vehicle for vindicating specific federal rights and privileges which have

been defined elsewhere. Great Am. Fed. Sav. & Loan Ass’n v. Novotny, 442 U.S.

366, 376 (1979). Under Section 1985(2), a plaintiff must allege that two or more

people conspired to impede, hinder, obstruct, or defeat the “due course of justice,”

with the intent to deny the plaintiff the equal protection of the laws. 42 U.S.C. §

1985(2). Under Section 1985(3), a plaintiff must allege that two or more people

conspired to deprive any person or class of persons of the equal protection of the

laws. 42 U.S.C. § 1985(3). A claim under Section 1985(3) also requires an

allegation of invidious discriminatory intent. Trawainski v. United Tech., 313 F.3d

1295, 1299 (11th Cir. 2002). Finally, as long as an attorney’s conduct falls within the



                                           5
scope of the representation of his client, his conduct is immune from an allegation of

a Section 1985 conspiracy. Farese v. Scherer, 342 F.3d 1223, 1232 (11th Cir. 2003).

      Relatedly, under Section 1986, the plaintiff must allege that a person had

knowledge of a conspiracy in violation of Section 1985 and, despite having the power

to prevent or aid in preventing the violation, neglected or refused to do so. 42 U.S.C.

§ 1986; Park v.City of Atlanta, 120 F.3d 1157, 1159 (11th Cir. 1997). Therefore,

where there is no underlying conspiracy to support a Section 1985 claim, the

derivative Section 1986 claim must also fail. Farese, 342 F.3d at 1232 n.12; Park,

120 F.3d at 1159-60.

      In this case, the district court did not err in dismissing Cox’s claims against

Carlton Fields for failure to state a claim, pursuant to Federal Rule of Civil Procedure

12(b)(6). Cox’s complaint did not contain a sufficient factual basis for the court to

proceed toward a finding that Carlton Fields, a private law firm, and the state court

judges agreed to violate Cox’s civil rights. Instead, Cox merely pointed to instances

where he believed that the judges favorably disposed of Carlton Fields’s allegedly

improper pleadings, particularly its motion for a rule nisi hearing.

      This failure to sufficiently allege a conspiracy is fatal to each of Cox’s claims,

as Carlton Fields thus neither qualified as a state actor under Section 1983 nor



                                           6
engaged in a conspiracy in violation of Section 1985 and, derivately, Section 1986.

Further, with respect to Cox’s claims under Sections 1985 and 1986, Carlton Fields’s

allegedly improper conduct, including improperly serving a defective and untimely

motion for a rule nisi hearing, was fully within the scope of its representation of the

recreation center.

      Nor do we find merit to Cox’s argument that the district court abused its

discretion in dismissing without prejudice his claims against his former counsel

Firester. In federal court, an individual defendant may be served: (1) in accordance

with Georgia law, (2) by personal service, (3) by leaving a copy of the complaint at

the defendant’s dwelling with a resident of suitable age, or (4) by serving the

defendant’s agent to receive service of process, whether authorized by appointment

or by law. Fed.R.Civ.P. 4(e). Similarly, under Georgia law, if service is not waived

by the defendant, it must be made “to the defendant personally, or by leaving copies

thereof at the defendant’s dwelling house . . . or by delivering a copy of the summons

and complaint to an agent authorized by appointment or by law to receive service of

process.” Ga. Code Ann. § 9-11-4(e)(7). The plaintiff must effect such service

within 120 days after filing his complaint, or, absent a showing of good cause, the

court must dismiss the action without prejudice against the defendant or order service

to be made within a specified time period. Fed.R.Civ.P. 4(m).

                                          7
      In this case, the district court did not abuse its discretion in dismissing without

prejudice Cox’s claims against Firester for failure to serve under Rule 4(m). The

record indicates that, after two failed attempts to serve Firester at a U.P.S. P.O. Box,

Cox instead delivered the complaint and summons to the Attorney General and to an

unnamed U.P.S employee. Even assuming that Fireseter had a contract with U.P.S.

to maintain a P.O. Box, nothing in the record indicates that Firester authorized any

U.P.S. employee to act as his agent to receive service of process, and Georgia law

does not create such an agency. Moreover, nothing in the record indicates that

service on Firester was otherwise accomplished in any permissible manner.

      Finally, we do not agree with Cox’s claim that the district court abused its

discretion in denying his motion to amend his complaint. Under Federal Rule of Civil

Procedure 15(a)(2), the district court should freely grant the plaintiff leave to amend

his complaint where justice so requires. Fed.R.Civ.P. 15(a)(2); Bryant, 252 F.3d at

1163. However, the court need not grant leave where the amendment would be futile.

Bryant, 252 F.3d at 1163. An amendment is futile where the complaint as amended

would still be subject to dismissal. Hall v. United Ins. Co. of. Am., 367 F.3d 1255,

1262-63 (11th Cir. 2004).

      Here, the district court did not abuse its discretion in denying Cox’s motion to

amend his complaint because the complaint, as amended, would still be subject to

                                           8
dismissal. The district court found, after reviewing the merits of the proposed

amendment, that Cox again failed to state a claim for relief. Specifically, Cox’s

amended complaint, substantively similar to his original complaint, failed to

overcome absolute judicial immunity, to sufficiently allege a conspiracy between

Carlton Fields and the state court judges, or to remedy the fact that Firester was not

timely served with the original complaint. Accordingly, we affirm.

      AFFIRMED.




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