Jones v. Preuit & Mauldin

HILL, Circuit Judge: This case involves the question of whether qualified immunity may be asserted by private individuals who are defendants in an action under 42 U.S.C. § 1983, and, if so, whether the defendants in this case are entitled to qualified immunity. A panel of this court issued an original opinion, 808 F.2d 1435 (1987), and a later opinion on rehearing, 822 F.2d 998 (1987). The two opinions concluded that qualified immunity is available to such defendants, but, on disposition of the case, came to different results. We have taken the case in banc to examine and resolve the issues. We find that private individuals may assert a good faith immunity defense in a section 1983 action, and that these defendants have established a claim to such immunity. I. FACTS Samuel Jones, the plaintiff, was a cotton farmer in Alabama in 1981. He produced his own crop and, using his mechanical cotton picking equipment, harvested cotton for others. In July of that year, Jones employed Preuit and Mauldin (P & M) to repair three of his cotton pickers. P & M deals in and services International Harvester cotton pickers. The total cost of the repairs was over $10,000, and Jones represented that he would pay for the repairs out of the proceeds from his harvesting work during the coming fall season. In February of 1982, the repair bill had not been paid, in part because Jones also owed money to the Farmers Home Administration (FHA) and checks he received for his cotton were made out jointly to Jones and the FHA. After repeated efforts to have Jones pay, P & M’s manager, Preuit Mauldin, contacted an attorney, D.L. Martin, about the possibility of collecting on the debt. Alabama law provides equipment repairers with a mechanic’s lien against vehicles upon which they perform work. Ala.Code § 35-11-110 (1975). Equipment of the kind involved here is subject to such a lien. P & M’s attorney thus prepared documents and pleadings necessary to file an action to foreclose the liens asserted by P & M against Jones’ three cotton pickers. In addition, he prepared an application for writs of attachment as provided for under Alabama law. Ala.Code § 35-11-111. The pleadings and documents named Jones’ other creditors as involuntary plaintiffs because they had potential interests in the cotton pickers.1 On February 15, 1982 P & M filed three separate actions in the Circuit Court of Laurence County, Alabama to foreclose on the mechanic’s liens against Jones’ three cotton pickers. At the same time P & M filed the affidavits for attachment of the equipment and, bonds to secure Jones against a wrongful attachment. It is not disputed that the attachment proceedings were in conformity with Alabama law. While the state law appears to allow a clerk of court to issue the writ of attachment (Ala.Code § 6-6-43), these affidavits were presented to the judge of the circuit court, who authorized the issuance of a writ for each of the three pieces of equipment. Jones was served with process in the lien foreclosure actions on April 8, 1982 and, on the same day, the writs of attachment were executed upon the equipment which was thereafter stored by the sheriff. Further, — 1323 — on that day, two of the involuntary plaintiffs filed a motion for dissolution of the writ and requested a hearing. Jones did not join in this motion.2 Jones also failed to respond to the summons and complaint in the three foreclosure actions, and a default judgment was entered against him on May 19, 1982.3 The circuit court held a hearing on the involuntary plaintiffs’ motion for dissolution on June 15, 1982. The hearing involved the relative priority of P & M’s liens as against the claims of the other, involuntary, plaintiffs. Jones did not appear as an interested party at the hearing, but, as a witness, he testified for Citizens Bank as to the bank’s interest in his equipment. His testimony supported the bank’s position. On July 2, 1982 the judge denied the motion for dissolution,4 confirmed the default judgments, and ordered the cotton pickers sold. The equipment was ultimately sold at auction on September 13, 1982. Jones first took formal action as a party in court in this case on August 16, 1983 when he filed a motion pursuant to Rule 65.1 of the Alabama Rules of Civil Procedure seeking a forfeiture of P & M’s attachment bond.5 He alleged that the attachment was wrongful, vexatious, and without legal authority. A hearing was held, and the motion was denied on November 29, 1983. Jones apparently took no further action in state court.6 Jones filed the present action in federal district court on February 24, 1984. In his complaint under 42 U.S.C. § 1983 Jones alleged that the prejudgment seizure of his cotton pickers violated his rights under the due process clause of the Fourteenth Amendment. The district court initially dismissed the suit as barred by the applicable statute of limitations, but a panel of this court reversed that decision. 763 F.2d 1250 (11th Cir.1985). Subsequently, Jones moved for partial summary judgment seeking a declaration that the Alabama attachment procedure was unconstitutional. The defendants then moved for summary judgment on Jones’ section 1983 claims. The district court denied Jones’ motion and granted summary judgment in favor of the defendants. II. DISCUSSION A. Qualified Immunity The district court found that P & M acted in good faith reliance upon laws which were not clearly unconstitutional. This finding raises the question of whether private defendants in a section 1983 action are entitled to assert the defense of qualified immunity. If they are, private defendants would be free from liability “as long — 1324 — as their actions could reasonably have been thought consistent with the rights they are alleged to have violated.” Anderson v. Creighton, — U.S. -, 107 S.Ct. 3034, 3038, 97 L.Ed.2d 523 (1987). Stated otherwise, immunity attaches unless the defendants reasonably should have known that their actions violated clearly established constitutional rights. Harlow v. Fitzgerald, 457 U.S. 800, 818-19, 102 S.Ct. 2727, 2738-39, 73 L.Ed.2d 396 (1982). The Supreme Court held that private defendants may be subject to liability under section 1983 in Lugar v. Edmondson Oil Co., 457 U.S. 922, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982). The Court, however, expressly reserved the question of whether such defendants are entitled to qualified immunity. Id. at 942 n. 23, 102 S.Ct. at 2756 n. 23.7 We find that private defendants are entitled to a defense of qualified immunity in wrongful attachment actions under section 1983. While section 1983 itself is silent as to immunities, the Supreme Court has held that the provision incorporates immunities which were well established at common law and which are consistent with the purposes of the statute. Owen v. City of Independence, 445 U.S. 622, 638, 100 S.Ct. 1398, 1409, 63 L.Ed.2d 673 (1980); Pierson v. Ray, 386 U.S. 547, 554-55, 87 S.Ct. 1213, 1217-18, 18 L.Ed.2d 288 (1967).8 Thus, we must determine whether the good faith reliance on law claimed here was well established as a defense at common law and whether strong policy reasons support its application in section 1983 actions. Two of our fellow circuits have undertaken this analysis and have held that qualified immunity attaches to private defendants under section 1983. See Butter v. Buechler, 706 F.2d 844, 850-53 (8th Cir.1983); Folsom Investment Co. v. Moore, 681 F.2d 1032, 1037-38 (5th Cir. Unit A 1982). Two other circuits have held that private defendants are not entitled to qualified immunity. See Downs v. Sawtelle, 574 F.2d 1 (1st Cir.), cert. denied, 439 U.S. 910, 99 S.Ct. 278, 58 L.Ed.2d 255 (1978); Howerton v. Gabica, 708 F.2d 380, 385 n. 10 (9th Cir.1983). At the time of section 1983’s enactment, the common law provided an action for the tort of malicious prosecution, which was used as a remedy for wrongful attachment. Some jurisdictions also recognized an independent tort of wrongful attachment. The plaintiffs in such suits were required to prove that the attachment proceedings had been instituted by defendants with malice and without probable cause. Butter, 706 F.2d at 851; Folsom Investment Co., 681 F.2d at 1038. See also W. Prosser, Handbook of the Law of Torts, § 120 (4th ed. 1971). By requiring proof of malice and lack of probable cause as an element of the claim, the common law recognized a defense of good faith and probable cause in wrongful attachment suits. The Supreme Court has held that the existence of a defense of good faith and probable cause at common law supports the availability of qualified immunity in present day section 1983 suits. See Wood v. Strickland, 420 U.S. 308, 318-19, 95 S.Ct. 992, 999, 43 L.Ed.2d 214 (1975) (liability of public school officials under state tort law for malicious acts only establishes good faith immunity under section 1983); Pierson, 386 U.S. at 555-57, 87 S.Ct. at 1218-19 (police officers entitled to good faith immunity under section 1983 where good faith and probable cause were a defense in common law suits for false arrest or false imprisonment). Thus, the existence of a good faith and probable cause defense in common law actions for wrongful attachment supports a — 1325 — finding that qualified immunity is available to a private defendant in a section 1983 suit. We turn then to the policy reasons supporting the availability of qualified immunity. Public officials have been accorded immunity in order to ensure a willing supply of public servants. Similarly powerful policy considerations support granting qualified immunity to private individuals in wrongful attachment suits. When a citizen undertakes in good faith to utilize a proceeding at law provided by his state legislature, he should do so with confidence that he need not fear liability resulting from the legislature’s constitutional error of which he was unaware. Indeed, our system encourages citizens to employ existing lawful mechanisms to resolve their claims and disputes. What we encourage we ought not seek to punish. In the same way that we wish to encourage citizens to undertake public service, so must we encourage them to settle their differences and assert their claimed rights through the employment of legal mechanisms which they believe, in good faith, are constitutional. The opportunity to employ extant legal procedures is not, however, without limits. The available immunity is thus qualified by the requirement that the defendant must act in good faith. More specifically, in the present context the defendant is immune unless he knew or reasonably should have known that his actions violated clearly established constitutional rights. This qualification preserves the full deterrent force of section 1983 by excluding from liability only those who could not reasonably have known that their conduct violated the federal constitution. No additional deterrence can be achieved by punishing individuals who could not reasonably have known that their actions were improper. Moreover, when an individual takes action that he should know violates constitutional rights, the individual is not immune. We thus find that strong policy considerations support the availability of qualified immunity for private defendants. Providing private citizens with qualified immunity is also supported by the general development of section 1983 law. Prior to Lugar, the elements of a 1983 claim and the available defenses were addressed in terms of state officers, agents, or employees as defendants. The Supreme Court found that such public defendants were entitled to various types of immunity. See e.g., Wood, 420 U.S. at 318-19, 95 S.Ct. at 999; Pierson, 386 U.S. at 555-57, 87 S.Ct. at 1218-19. Section 1983 provides for claims to redress only state action, and prior to Lugar private individuals were not considered proper defendants in such suits. Lugar thus represents a significant change in the course of section 1983 law in that it renders private citizens liable as state actors for constitutional violations. The holding in Lugar is premised, however, on the finding that, in certain circumstances, private individuals may be equated with public actors for section 1983 purposes. Since Lugar rests on the premise that private and public actors may sometimes be equated, there is little reason to deny to private defendants the type of immunity which has been granted to public defendants. Indeed, the logic of Lugar compels the conclusion that while private individuals may sometimes be liable equally with public defendants under section 1983, they should never be held more liable. To deny private individuals such immunity as public actors enjoy would render private individuals more liable than public actors. This result would be inconsistent with Lugar. We therefore hold that private defendants are entitled to qualified immunity in wrongful attachment suits under section 1983.9 — 1326 — B. P & M’s Qualified Immunity Having determined that private defendants are entitled to qualified immunity in wrongful attachment actions under section 1983, we must now address whether P & M acted in good faith and is therefore not liable. More specifically, our inquiry is whether P & M reasonably should have known that its actions violated Jones’ clearly established constitutional rights. This inquiry requires an objective analysis of the law as it existed at the time of P & M’s action. See Anderson, 107 S.Ct. at 3038 (The inquiry “turns on the ‘objective legal reasonableness’ of the action.”). It is therefore a question of law. Jones contends that in 1982 he had a clearly established right to notice and a hearing before his property could be attached. In addressing this contention we must evaluate the constitutional jurisprudence extant at the time that his property was attached. There were four Supreme Court cases on the books in 1982 dealing directly with the constitutionality of attachment provisions. In Sniadach v. Family Finance Corporation of Bay View, 395 U.S. 337, 340, 89 S.Ct. 1820, 1822, 23 L.Ed.2d 349 (1969), the Supreme court struck down a Wisconsin statute which authorized the prejudgment garnishment of wages, which the court noted were “a specialized type of property presenting distinct problems in our economic system.” The statute did not provide for pregarnishment notice or a hearing. Furthermore, the creditor could garnish the debtor’s wages without demonstrating a lien or prior interest in the property attached, and the attachment could be accomplished without judicial supervision. In the absence of more restrictive safeguards, the Court held the statute unconstitutional for failure to provide pregarnishment notice and a hearing. The Supreme Court then struck down the replevin statutes of Florida and Pennsylvania in Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972). These provisions suffered from several fatal inadequacies. First, they authorized a seller of goods to obtain repossession of their wares without judicial order or participation. Second, the writ could be issued by a court clerk on “the bare assertion of the party seeking the writ that he is entitled to one.” Id. at 74, 92 S.Ct. at 1991. And finally, the debtor’s only post-deprivation remedy was the potential to be heard as the defendant if the creditor commenced an action to determine his rights to repossession. Given these procedural inadequacies, in addition to the absence of preseizure notice and a hearing, the court declared both statutes unconstitutional. The pathway along which the Supreme Court had been travelling in Sniadach and Fuentes took an abrupt turn when, in Mitchell v. W.T. Grant Co., 416 U.S. 600, 94 S.Ct. 1895, 40 L.Ed.2d 406 (1974), the Court upheld a Louisiana sequestration provision which allowed attachment without preseizure notice or a hearing. The opinion so limited the principles enunciated in Fuentes that several Justices concluded that Fuentes was essentially overruled. See 416 U.S. at 623, 94 S.Ct. at 1908 (Powell, J., concurring) (“I think it fair to say that the Fuentes opinion is overruled.”); 416 U.S. at 635, 94 S.Ct. at 1913 (Stewart, J., dissenting) (“[T]he court today has unmistakably overruled a considered decision of this court that is barely two years old, without pointing to any change in either societal perceptions or basic constitutional understandings that might justify this total disregard of stare decisis."). Nevertheless, the Court distinguished the Louisiana provision from the statutes struck down in Fuentes, and found that the Louisiana law was redeemed by several alternative safeguards. First, the writ of sequestration was authorized “ ‘only when the nature of the claim and the amount thereof, if any, and the grounds relied upon for the issuance of the writ clearly appear from specific facts’ shown by verified petition or affidavit.” Mitchell, 416 U.S. at 616, 94 S.Ct. at 1904. Second, in the particular district involved, the requisite showing had to be made to a judge, and only a judge was authorized to issue the writ. Id. — 1327 — Third, the statute provided that “[t]he defendant by contradictory motion may obtain the dissolution of a writ of attachment or of sequestration, unless the plaintiff proves the grounds upon which the writ was issued.” Id. at 622, 94 S.Ct. at 1907. The Supreme Court interpreted this section to provide for an immediate hearing to determine whether the writ was appropriately issued. Id. at 618, 94 S.Ct. at 1905. Finally, the debtor was protected by a provision in the statute which allowed for damages for wrongful issuance of the writ, and for attorneys’ fees, “whether the writ is dissolved on motion or after trial on the merits.” Id. at 617, 94 S.Ct. at 1905.10 In the fourth Supreme Court case, North Georgia Finishing v. Di-Chem, Inc., 419 U.S. 601, 95 S.Ct. 719, 42 L.Ed.2d 751 (1975), the court struck down a Georgia attachment statute which did not provide several of the safeguards approved of in Mitchell. First, the Georgia law provided the following with respect to the affidavits: “[t]he writ of garnishment is issuable on the affidavit of the creditor or his attorney, and the latter need not have personal knowledge of the facts. The affidavit, like the one filed in this case, need only contain conclusory allegations.” Id. at 607 (citation omitted). Second, the writ could be issued by a court clerk without judicial participation. Id. Finally, the debtor could dissolve the garnishment only by filing a bond to protect the creditor, and there was no provision for a prompt post-seizure hearing at which the creditor would be required to demonstrate the grounds upon which the writ was issued. Id. Without such alternative safeguards, the statute was held unconstitutional for failure to provide preseizure notice and a hearing. Having traversed this somewhat tangled trail of Supreme Court cases, we cannot say that P & M should have known that it was violating any clearly established constitutional rights. The Supreme Court justices themselves strained to reconcile Fuentes, Mitchell and Di-Chem, and in a case such as the present one, where the creditor’s actions fall somewhere in the interstice, a reasonable person would have been hard put to identify any clearly established constitutional rights or violations. As the Supreme Court has stated, “[t]he contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right. This is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful, ... but it is to say that in light of preexisting law the unlawfulness must be apparent.” Anderson, 107 S.Ct. at 3089. Under a qualified immunity analysis, of course, we need not rule upon the actual constitutional validity or invalidity of the creditor’s actions or of the state statute under which he proceeded. We need only examine whether the creditor should have known that the actions violated clearly established constitutional rights. Thus, so long as P & M’s actions were arguably commensurate with the protections approved of in Mitchell, P & M is entitled to good faith immunity. P & M’s actions included the following. First, P & M presented a sworn affidavit indicating the specific facts entitling P & M to an attachment of Jones’ equipment. The affidavit was made upon personal knowledge and it indicated that Jones was justly indebted to P & M in a specific amount for — 1328 — labor and materials; that Jones had failed to pay for the repairs after lawful demand; and that the attachment was not for the purpose of vexing or harassing Jones. Second, P & M presented the applications to a judge and it was the judge who authorized the writ. Third, Jones was properly served and notified of the attachment. Fourth, P & M posted bonds to protect Jones against loss due to wrongful attachment. Finally, Alabama law provided Jones with an opportunity to challenge the attachment in a timely manner.11 Based upon this record, we cannot say that P & M should have known that its actions violated Jones’ clearly established constitutional rights. P & M’s efforts were arguably commensurate with the safeguards required by Mitchell. At best, one may argue that P & M’s actions fall somewhere in the nebulous area that lies between Mitchell and Di-Chem. In either case, however, a reasonable person could have believed that the actions were constitutional. We do not hold that P & M’s actions were constitutional, but only that the actions did not violate clearly established constitutional rights of which a reasonable person should have known. P & M is thus entitled to immunity insofar as the seizure of Jones’ cotton pickers may have violated his constitutional rights.12 C. Declaratory Relief Jones also moved the district court for a partial summary judgment declaring the Alabama attachment statute unconstitutional. The district court denied the motion, and Jones now contends that this was an abuse of discretion. We readily agree with Jones that the Alabama statute stands on highly questionable constitutional footing insofar as it authorizes a nonjudicial officer to issue a writ of attachment. See Ala.Code § 6-6-43.13 This authorization — 1329 — may indeed be contrary to Mitchell’s mandate that judicial control exist in order “to minimize the risk that the ex parte procedure will lead to a wrongful taking.” 416 U.S. at 616-17, 94 S.Ct. at 1905. See also Johnson v. American Credit Co., 581 F.2d 526, 534 (5th Cir. Unit A 1978) (writ must be issued by a judge with discretion to deny the writ).14 It is clear, however, that Jones was not affected by the portion of the law which authorizes nonjudicial officers to issue writs of attachment. P & M presented its application to a circuit court judge, and the judge authorized the issuance of the writs of attachment against Jones’ equipment. Hence, Jones lacks standing to challenge the offensive portion of the law, and we do not hold the law invalid.15 When a plaintiff seeks a declaratory judgment that a state statute is unconstitutional, the requirements for standing must be strictly enforced. See Griswold v. Connecticut, 381 U.S. 479, 481, 85 S.Ct. 1678, 1679, 14 L.Ed.2d 510 (1965). We may not declare a law unconstitutional based upon hypothetical situations which have not, in fact, occurred. See County Court of Ulster County v. Allen, 442 U.S. 140, 155-56, 99 S.Ct. 2213, 2223-24, 60 L.Ed.2d 777 (1979). Because Jones lacks standing to challenge the portion of the Alabama law which authorizes court clerks to issue writs of attachment, he is not entitled to a declaration of the law’s unconstitutionality. We therefore affirm the district court’s denial of Jones’ motion for partial summary judgment. III. CONCLUSION For the foregoing reasons, the decision of the district court is AFFIRMED. Footnotes [1] The involuntary plaintiffs were Dan Gilchrist, Jr., an individual, the Small Business Administration, a federal agency, and the Citizens Bank, an Alabama bank. The Small Business Administration was never served and did not take part in the state court action. [2] On the day of the attachment, Jones contacted and conferred with his lawyer, J.G. Speake, whose firm also represented Citizens Bank, which filed the motion for dissolution. This relationship is discussed further at infra n. 5. [3] In this case Jones challenges only the prejudgment attachment procedures. It is clear that the attachment mechanism became inconsequential on May 19, 1982. As of that date, as between Jones and P & M, the equipment was subject to levy and sale to satisfy the judgment of the circuit court, and P & M no longer needed to rely upon the prejudgment attachment provisions. [4] Citizens Bank appealed this decision to the Alabama Court of Civil Appeals, which agreed with the bank's position that it had a superior interest in the farming equipment. The court reversed the county court’s denial of the Bank’s motion to dissolve the writs of attachment. See Citizens Bank v. Preuit Estate, 425 So.2d 470 (Ala.Civ.App.1982). [5] In filing this motion; Jones was counseled by J.G. Speake of Speake, Speake and Reich of Moulton, Alabama. A.P. Reich of that same firm represented Citizens Bank. The record suggests that Citizens Bank may have been attempting to effectuate the favorable decision of the Court of Civil Appeals by standing aside while the motion was filed on behalf of Jones. The bank was unable to effectuate the decision more directly because it had failed to file a bond to stay the circuit court judgment and sale of the cotton pickers pending the appeal. The Supreme Court of Alabama ultimately held that the sale of the cotton pickers could not be the basis of a damage action by the bank because of its failure to stay the sale. See Citizens Bank v. Mauldin, 476 So.2d 103 (Ala. 1985). [6] Jones’ state court proceedings concluded with no evidence on the record which would call into doubt his indebtedness to P & M, the existence of P & M's mechanic's liens, or P & M’s right to satisfy Jones’ debt with the three cotton pickers. [7] The Supreme Court viewed the question in terms of a choice between providing defendants with a good faith defense and incorporating a requirement of bad faith as an element of the plaintiff's claim. The court expressed a preference in favor of establishing good faith as a defense. Lugar, 457 U.S. at 942 n. 23, 102 S.Ct. at 2756 n. 23. When good faith is posited as an affirmative defense, of course, the burden of proof is on the defendant rather than on the plaintiff. [8] Judge Tjoflat’s special concurrence provides a thorough analysis of the foundation for the courts’ authority to establish and define immunities. Because the Supreme Court in Owen and Pierson has provided an analysis through which qualified immunity may be derived in the present case, we do not undertake the more fundamental analysis in this opinion. [9] Our conclusion that qualified immunity is available to private defendants in this context is supported by the Supreme court’s discussion of the issue in Lugar. In response to Justice Powell’s concern that private individuals might be held liable for innocently relying upon state laws, the court stated: ”[i]n our view, however, this problem should be dealt with not by changing the character of the cause of action but by establishing an affirmative defense. A similar concern is at least partially responsible for the availability of the good-faith defense, or qualified immunity, to state officials." Lugar, 457 U.S. at 942 n. 23, 102 S.Ct. at 2756 n. 23. While the court did not decide the question of whether — 1326 — qualified immunity is available to private defendants, the implication is strong. [10] It is important to note that nothing in the Supreme Court's opinion in Mitchell required that the judge issuing the writ have the authority to determine the veracity of the creditor's allegations. Under the Louisiana statute upheld in Mitchell, the judge issued the writ "if the nature of the claim and the amount thereof, if any, and the grounds relied upon for the issuance of the writ clearly appeared from specific facts shown by verified petition or affidavit.” Id. at 616. Our reading of Mitchell requires that the issuing judge be convinced that if what the creditor alleges is true, the creditor is entitled to a writ of attachment. The judge must have the authority to make sure that the affidavit alleges the necessary grounds for issuing the writ. Requiring any further investigation at that point would vitiate Mitchell and essentially require a preseizure hearing in every case, which is plainly not required. Further, as in Mitchell where the attachment was based on a vendor’s lien, the specific facts necessary to establish grounds for a mechanic’s lien are easily established by documentary proof, thus decreasing the likelihood that a seizure will prove to have been a mistake. See Mitchell, 416 U.S. at 612, 94 S.Ct. at 1902. [11] While appellant disputes that Alabama law provides a reasonably prompt opportunity to challenge the attachment, the facts of this case are to the contrary. On the day of attachment, April 8, 1982, two of the involuntary plaintiffs filed a motion to dissolve the attachments and requested a hearing. Jones was certainly entitled to do the same. As stated, he was apparently counselled by the same law firm that filed the dissolution motion on behalf of the Citizens Bank. He could not have been unaware of the opportunity to take such action. While the hearing on the involuntary plaintiffs' motion was not held for approximately two months, the delay may be attributed to the fact that the involuntary plaintiffs had little reason to push for the prompt release of equipment which was safely held by the sheriff. We also note that a portion of the delay was caused by a death in the family of one of the attorneys involved in the case. The statute upheld in Mitchell provided no time frame within which a dissolution hearing was to be held, and the actual post-seizure hearing in that case was held more than five weeks after the writ was issued. See Mitchell, 416 U.S. at 6Ó2-603, 622, 94 S.Ct. at 1897-1898, 1907. P & M could reasonably have believed that Alabama law was at least as generous as the Louisiana statute with respect to this post-seizure remedy. [12] Given our disposition of the case, we need not address P & M’s arguments regarding waiver, res judicata, and respondeat superior. It is just as well that we need not address the res judicata issue. The record regarding Jones’ and Citizens Bank’s state court proceedings is confusing and apparently incomplete. While Citizens Bank appealed the denial of its motion to dissolve the attachments, it is not clear whether Jones took an appeal when his motion was denied. Sometime after Jones' motion was denied, the Supreme Court of Alabama issued an opinion in the Citizens Bank case, and, as noted above, see supra n. 5, the record indicates that there was a close relationship between the bank and Jones in the state proceedings. Thus, it is unclear which issues were litigated and resolved on behalf of which party in the various Alabama courts. We would certainly be hard put to accurately assess the res judicata issues given this record. Jones also claims that an employee of P & M attempted to "rig" the judicial sale which was ultimately held after P & M obtained a default judgment against Jones. This claim, however, suffers from a fatal flaw. Lugar clearly states that a private party may be liable under section 1983 only if he acts in concert with state officials or acts pursuant to, or under color of, state law. 457 U.S. at 937, 102 S.Ct. at 2753. Jones fails to allege collusion with any state official overseeing the sale and does not assert that the P & M employee who allegedly rigged the sale was acting under color of state law. Thus, the district court properly dismissed this claim. [13] This section reads: § 6-6-43. By whom issued. In the first and second cases mentioned in section 6-6-41 [where a defendant lives out of state or absconds] an attachment may be issued by any judge of the circuit court, returnable to any county in the state, or by the clerk — 1329 — of the circuit court, judge of probate or any district court judge, within their respective counties; in the third and fourth cases, only by a judge of the circuit court or judge of probate, returnable to any county. [14] Under Alabama code § 6-6-143 a judge must permit the plaintiff to amend any defect of form or substance in an affidavit, bond, or attachment. However, we have not discovered any Alabama law which indicates that the reviewing court must allow a questionable writ to go forward. Thus, we conclude that Alabama law does not suffer from the same flaw which rendered the Georgia attachment statute unconstitutional in Johnson. In Georgia, a judge, magistrate, justice of the peace, or clerk of any court of record, when presented with a creditor’s affidavit and bond, had the “duty” to issue an attachment against the defendant. Johnson, 581 F.2d at 534. We find nothing in Alabama law to indicate that the issuing officer’s discretion is so limited. [15] Jones also intimates that the Alabama statute is unconstitutional because it allows seizure without a showing that the property to be seized is in imminent danger of destruction. However, in Mitchell, the Louisiana statute which was approved as constitutional did not require that the party seeking the writ make such a showing. All that statute required was that it be “within the power” of the defendant to dissipate or move the assets sought to be seized. 416 U.S. at 623, 94 S.Ct. at 1907. Proof of imminent dissipation does not appear to be a constitutional prerequisite for attachment.