Alonzo Bonner v. Joseph Coughlin

challenge due the absence of warranted tapes. integrity The broken BONNER, Plaintiff-Appellant, Alonzo on the boxes while the seals seals occurred envelopes which were secured

on the Although Agent Aurilio remained intact. Joseph al., COUGHLIN et statutory from the believe this deviation we Defendants-Appellees. suppression warrant requirement does not No. 74-1422. challenge integrity to the absent a evidence, allegation govern- or an United Appeals, States Court of deliberately ment to cause the break- acted Seventh Circuit. explanation ing, government’s seals were broken proximity their Argued 26, Jan. 1976. air-conditioning- for some time office 28, Decided Oct. heating system specula- vents is somewhat Amendment on Rehearing Denied tive. 18, Nov. post-interception question final by appellants raised is the failure of the

government comply with the inventory requiring of Title III

provisions govern appellants

ment to each of the wiretap days

a notice of a order within 90 the surveillance. See

of the termination 5, supra.

note The defendants did not re inventory April

ceive the notice and until

1974, years over two after termination of wiretap. example While this is another

of the nonchalant and careless attitude of government significant toward Con

gressionally procedures, mandated we be suppression

lieve that is not required inas

much as defendants received the inventory prior hearing

three months on de suppress motion to

fendants’ and further appellants preju

more have not resulting noncompliance.

dice from this Wolk, United States v.

See 466 F.2d 1143 also United States v. Cir.

John, 1134, 1975); 508 F.2d Cir. Manfredi,

United States v. 488 F.2d denied, (2d 1973), cert. United (1974); 41 L.Ed.2d 240 Iannelli,

States (3d affirmed, 1973), 95 S.Ct. (1975). 43 L.Ed.2d 616 wiretap

We hold that evidence was trial,

properly admitted at that defendants deprived

were not of the constitutional trial, speedy to a and that Lawson’s

trial on this indictment subject did not him jeopardy.

to double We affirm the convic-

tions. person or within

the United States other jurisdiction to the thereof privileges, or immunities any rights, laws, by the Constitution and secured injured in an party shall liable law, equity, suit or other action at proceeding for redress.” proper not provide, hold that 1983 does We Section remedy. Bon- panel opinion, when As stated in returned to his cell in November ner assignment, his cell door was a work- after personal belongings were and his ajar copy of his trial on the floor. A strewn defendants, transcript missing. was Meites, Flaxman, R. N. Thomas Kenneth Depart- Illinois Acting Director of the 111., plaintiff-appellant; Frank Chicago, warden, Corrections, and prison ment Assistance, Merritt, Legal Prisoners Chi- S. alle- prison guards, have not denied the two 111., the brief amicus cago, curiae. guards left the cell door gation that Scott, Atty. Gen., J. Jayne William A. they completed security after had open Carr, Gen., Atty. 111., Chicago, Asst. of Bonner’s claims for recov- search. One defendants-appellees. leaving ery guards’ negligence is that the per- open enabled an unknown his cell door FAIRCHILD, Judge, Before Chief transcript from his to remove trial son SWYGERT, CUMMINGS, PELL, posed whether Bonner cell. SPRECHER, BAUER, TONE and Circuit deprived of his Fourteenth was thus Judges.* property not to have his Amendment process by state action without due taken CUMMINGS, Judge. Circuit law. fully are stated panel The facts Davis, 699, 96 In Paul v. (517 opinion 1975)) F.2d 1311 47 L.Ed.2d the Su- need not be restated detail. The sole hold that the due Court refused to preme question before us en banc is whether Bon- of the Fourteenth Amend- process clause damages ner recover under 42 U.S.C. “make actionable ment Section copy 1983 for the loss of a his trial § government em- many wrongs inflicted transcript because guards Illinois thought had heretofore ployees which negligently left cell door open his after a tort only to law claims.” give-rise security search. Bonner that asserts guards not contend that taking Bonner does without due in vio- process deliberately took his trial meaning of law within the he of the due clause. Rather Fourteenth Amendment done under lation permitted color of state law that it their so was actionable asserts explains, under 42 take As Paul provides: U.S.C. 1983 which one else to it. some § ex- does not the Fourteenth Amendment who, “Every person any under color of Speaking for five tend such claim. statute, ordinance, custom, regulation, Court,2 Rehnquist Justice members usage, any Territory, subjects, State or out: pointed subjected, to be causes citizen of ^[*] Judge participate the time of oral Wood in the decision. argument not a member of this Court and therefore did not state law but does not show teenth Amendment was violated. why the Four- Stewart, Justice and Justices 2. The Chief suppplemental rehearing Bonner’s brief on opinion joined in the Powell Blackmun and contends acted under color of however, no, pointed prison guards’ “Respondent, conduct. It was precisely guarantee safe- specific proprio vigore such an ex extensión of the he the interest asserts has been guarding aspect substantive apparently he believes invaded. Rather Supreme rejected Court in Paul. Here Amendment’s Due Fourteenth was no state action depriving there Bonner proprío vigore should ex Process Clause property under the Fourteenth Amend- right to be injury to him a free of extend any ment because state action ended when may be characterized wherever the State left the cell after the security reading But such a the tortfeasor. as transcript search. loss of the did not of the Fourteenth Amend- would make occur until after state action had terminat- superim- a font of tort law to be ment Similarly, taking ed. of the transcript upon systems may al- posed whatever was not under color of state law because it by the We ready be administered States. encouraged was neither nor condoned by the ‘constitutional shoals’ that have noted agents. Any causation between the attempt to derive from con- confront negligence prison guards of the leaving rights gressional body civil statutes a open the cell door and Bonner’s transcript law, general federal tort Griffin v. Breck- loss was satisfy insufficient to Section 1983 88, 101-102, enridge, 403 U.S. S.Ct. [91 because it was not guards’ that the 1790, 338, 1797-98 29 L.Ed.2d 347-48] actions were either intentional or in reck- (1971); procedural guaran- a fortiori the disregard less of Bonner’s constitutional of the Due Process tees Clause cannot be rights. (424 source for such law.” at Pape, 167, 187, 207, In Monroe v. 365 U.S. 700, 1160.) 96 S.Ct. at 473, 494, 492, S.Ct. L.Ed.2d on which Similarly here the plaintiff pointed relies, plaintiff heavily held Court specific guarantee against constitutional no “insofar as creates an action [Section 1983] prison guards, of the two negligence damages, for light must be read in [it] might though they be tortfeasors un- even liability the familiar basis of tort that a dissenting Illinois law. The Justices3 in der responsible man is for the natural conse view that “intentional Paul were of the quences of his acts.” The Monroe standard infringing person’s liberty conduct” showing dealt with facts intentional con property interests without due police they legally duct (424 is within the reach of law Section deprive bound to know would Monroe of 720, They U.S. at S.Ct. went rights. further, constitutional All that nor “tort no need we. If 1983 is Section liability” language to cover of Monroe really to be extended claims based on estab negligence, Supreme mere specific Court should lishes intent to violate the way. lead rights constitutional is not required for a Section 1983 violation. But negligence We hold that general the introduction of a yard intent guards which caused the loss of Bonner’s stick into the determination of whether con deprivation was not a State performed action duct State or has been property without due of law under “under color of state law” does not mean the Fourteenth Amendment nor action “un negligence that mere is actionable under color of state law” under der Section 1983. guards’ 1983.4 culpability here alleged. No “constitutional tort” has Section essence, magnitude Bonner’s claim was not of sufficient to consti reduces to an process pro assertion that substantive due tute a under Section vides foundation for an attack on the 1983. participate McCormack, the Court. Justice Stevens did not 4. See Federalism and Section in the consideration or decision of the case. 1983: Limitations on Judicial Enforcement of Protections, I, Constitutional Part 60 Va.L.Rev. Justices White and Marshall concurred in (1974). dissenting opinion. Justice Brennan’s Rights employee. enacting the Civil by analogy to reinforced conclusion is Our 308, 322, Act, intending Strickland, Congress obviously 420 U.S. Wood type dealing offi- a deterrent 43 L.Ed.2d S.Ct. intentionally If an officer caus- proscribed. Under immunity under Section

cial loss, liability no Section Strickland, would be es there might he deter similar misconduct. On an official unless damages caused hand, extending 1983 to that he was other Section known have knew should simple negligence not deter violating claimant’s cases of injure as intent inadvertence much case rights or had malicious future then Judge Fairchild and As intentional or reckless conduct. Conse- Chief him.5 Pate, in Thomas v. Judge stated hold that quently, Stevens of Circuits 1975), certio- 891 n. not state a claim un- mere does 149, 46 denied, rari Section 1983.8 Otherwise the federal der Strickland, recover L.Ed.2d courts would be inundated with state tort officials in a damages against prison Sec- Congressional the absence of intent cases in action, 1983 tion jurisdiction drastically. so to widen federal the prove must defend- plaintiff “a decisions, prior sometimes Our while sphere of his has acted within ant Bonner, helpful containing broad dicta to the malicious responsibility, ‘with official The contrary. intentional are not deprivation of consti- to cause a intention Rowlen, F.2d 367 Joseph arrest in v. 402 injury to the other tutional 1968), charge was on a for (7th Cir. made disregard such or ‘with [plaintiff] police they did defendant knew which the constitu- clearly established [plaintiff’s] Consequently the probable cause. not have his cannot rea- rights that action tional plain arrest was in violation of warrantless being good sonably as in be characterized Amendment, activating thus the Fourth ”6 faith.’ Brishke, 466 Byrd In v. F.2d 1983. Section by complaint. test satisfied Neither 1972), the officers (7th 6 Cir. defendant carefully stop officers who beat Pape, supra, also other were Monroe v. failed ing presence. in defendants’ legislative history plaintiff Section traced the ordinarily require language of the statute intentional torts Neither While 1983.7 conduct, Congress purposeful history affirmative non its shows that some nor damages serve as the basis of liabil remedy a federal can also providing feasance by negligence ity of a state for an intentional tort if the defendant simple caused Donaldson, 210, 177; v. See also O’Connor 24 v. 5. S.Ct. L.Ed.2d Navarette Enomo- 2486, 563, 577, S.Ct. 45 396. to, 95 L.Ed.2d (9th 1976); v. 536 F.2d 277 Cir. Carter 388, 358, Carlson, U.S.App.D.C. 144 447 F.2d Bensinger, (7th v. 720 also Knell 522 F.2d 6. See grounds, (1971), 409 reversed other U.S. 365 1975). Cir. 683, 418, The Whirl S.Ct. 30 L.Ed.2d 661. 92 Pape, partially by Bryan holding v. we do not hold In view of Monroe eroded v. 7. has been inapplicable ground Section 1983 is on the Jones, (5th 1976) (en banc). F.2d 1210 Cir. 530 adequate plaintiff has an support minority pro- view Indeed Illinois courts. proposition that mere vides for gener- Section 1983 be actionable (1st 1973); Page Sharpe, v. F.2d 567 Cir. 487 ally These Vincent, (2d as dicta. cases either dismissed 508 F.2d 541 Cir. Williams v. Cataldi, (3d 1974); conduct with a v. 464 F.2d 272 Cir. intentional reckless Howell involve Florida, (5th 1972); 60 appreciate v. 432 F.2d Cir. Collins results failure to Cox, 1970); (6th 233 v. 456 F.2d Cir. Puckett negligent unconstitutional or conduct would be 284, States, 1972); 486 Brown v. United F.2d deprivation of a which results conduct Field, 1973); (8th 416 F.2d Williams v. 287 Cir. indepen- right clearly constitutional established denied, (9th 1969), U.S. certiorari 397 483 Cir. generalized claim based on substan- dent of a 431; 1016, 1252, v. 25 L.Ed.2d Daniels S.Ct. conduct, process. Negligent without tive due VanDeVenter, (10th 382 F.2d Cir. more, injury property right resulting in an to a Contra, Maryland, (4th McCray 456 F.2d 1 v. support even in seem to have direct does not Kern, 1972); Whirl v. Cir. minority subscribing to the view. those Circuits denied, 1969), certiorari U.S. gent resulting duty act. Thus owes Byrd to act in be prisoner’s reasonably defendants’ failure “fundamental characterized as “intentional.” properly rights. well-defined” constitutional Id. at Staras, Likewise, Spence v. 507 F.2d The defendants’ impeded actions not, here, 1974),plaintiff (7th Cir. did plaintiff’s right correspond through negligent supervision.” “mere allege There right mail as well as his to access to the allegedly protect the defendants failed to Bonner, however, only points courts. to a though they knew had even he deceased generalized right. again, And twenty prior least beaten on at occa- Navarette, therein, other cases cited and that he was nonverbal and unable sions cases similar cited Bonner were decided or defend himself help to call when Davis, Paul supra, before and therefore cases, three the plaintiffs attacked. all dispositive. longer are no in- relying only on an isolated were not up, right sum To negligence. of defendants’ mere stance could the subject be of Bonner’s Furthermore, prior was decided each II is his Count Fourteenth Amendment Davis, supra. Paul v. deprived not of property by Today’s holding support prior finds state action without due of law. decisions of this Court. Gutierrez person taken some Department Safety, of Public acting claimed to be under color of law. 1973), denied, certiorari acting under color of law 39 L.Ed.2d about cell allegedly their involving interplay Eighth the of the negligence facilitated taking the the of Amendment and Section the transcript by someone else. no There is was assaulted because defendants guards claim that the intended the result or prevent failed to the taking assault from even acted in reckless disregard of Bonner’s We place. recovery held there could be no rights. Given that lack of in absence of the intentional infliction of and of disregard, intent lack reckless we punishment or of cruel such callous indif- hold that in the context of Section 1983 the that an to ference intent inflict unwarrant- guards deprive did not of property him his ed harm could be inferred. Defendants’ and, therefore, did not cause him negligence was deemed insufficient. deprivation subjected to the of his Four- Sielaff, „Carroll (7th Cir. teenth Amendment not to his have 1975), the admittedly defendants confiscat- by taken the property without due State prisoner plaintiffs’ typewriter ed the process. currency. of A cause action was stated granted Insofar as the district sum- court under 1983 because of the unlawful Section judgment respect mary for defendants with deprivation property. and intentional of plaintiff’s claim on alternative based Similarly, Kimbrough O’Neil, negligence under Section is af- 1975), the deputy defendant firmed.9 plaintiff’s ring sheriff took from him $2500 jailed when he refused return it SWYGERT, Judge (dissenting). Circuit upon custody. release from his None negligence these cases held actionable un- Plaintiff Alonzo Bonner in his der Section while complaint he' was absent from cell, Enomoto, prison guards his entered the cell and Bonner relies Navarette v. pursuant regu- 1976), authorizing 536 F.2d 277 conducted a search recovery lations that negligent under 1983 for such actions for Section neg- security acts. If Navarette does concern mere reasons. Bonner asserts that the ligence, disagree. respectfully guards during we How- ransacked his cell their ever, apparently negli- Navarette concerned When found cell search. he returned he the panel’s prior judgment reaffirm remaining We as to the claims. disarray, panel ques- The therefore never reached belongings in his open,

door negli- but trial which tion of whether non-intentional transcript of the murder missing. resulting was at that gent He officials he was convicted preparing support documents property enough process loss time of that conviction. review under section 1983. to secure action in order copy original Bonner’s issue before The sole the en banc court eventually returned, although he was never viability plaintiff’s process claim. due In his com- copy. with another provided findings on panel’s the Fourth allega- presented alternative plaint Bonner issues Amendment reviewed Sixth either the incident: concerning this tions en banc. intentionally taken the defendants had majority rejected ap- The en banc leaving transcript or their panel and decided broad proach of conducting the search open cell door after negligence by whether state offi- issue of the remov- proximate cause of had been justify relief under section 1983. cials could per- some unknown transcript by al disagree I I shall first indicate where son. Second, majority opinion. I the en banc damages complaint seeking his attempt approach I shall to delineate the plaintiff advanced three section deciding type take case. his recovery: tran- separate theories my objections I shall Finally, sketch during the course of a was taken script approach panel. taken his Amendment Fourth search that violated rights, taking that the was a due without law property en banc holds “that Amendment, of the Fourteenth violation negligence of the which caused interfered with his and that defendants transcript was not a of Bonner’s State loss protected by the access to the courts Sixth deprivation of without due Amendment. under' the Fourteenth Amendment of law granted the defend- The district court law’ ‘under color nor action summary judgment on the ants’ motion for my 1983.” With deference to Section deprivation to grounds that Bonner colleagues, compelled say esteemed feel his copy when substitute of ended is indicative of the this statement transcript furnished him and that court generalized analysis vague and mode cognizable injury been no there had By majority lump- has which the utilized. deprivation. plaintiff as result ing together requirements the two for stat- majority panel A reversed the of the dis- ing of action under section 1983— a cause court, finding dispute trict a factual of constitutional and ac- temporary depri- existed as whether color of state law—the tion under transcript an im- vation of constituted the issues in this case. This con- confuses pairment of Bonner’s Sixth Amendment ceptual pervasive is a undertone confusion right The panel to access to courts. throughout majority opinion. The two prisoner “enjoys protec- that a also held are, fact, concepts quite different and against the Fourth Amendment un- tion of separately. The first should be treated searches, at to some mini- reasonable least plaintiff’s with whether the interests deals had stated a mal extent” and that Bonner violated, regardless of who vio- have respect Amendment claim with Fourth plaintiff Only when the lated them. transcript. the seizure his court protected that his interests are established re- the Constitution does the second portion panel’s opinion

The second in- important: that the quirement become rejected plaintiff’s Amend- Fourteenth of state involvement jury was result it found that the exist- ment claim because within the ambit of and therefore falls avoided adequate ence of language of section any process due clause. color” violation “under Thus, concept second revolves The around en banc majority also states that conduct rather pointed the defendant’s than the Bonner has specific to no constitu- guarantee interests. Dombrowski against tional plaintiff’s negligence guards, Dowling, 459 and therefore has no protected right Supreme under the Court’s

construction of the Fourteenth Amendment in Paul v. Davis. This is incorrect. Bonner A. specific relies on the language in the Four- majority, relying banc on Paul v. en teenth Amendment prohibiting the state Davis, S.Ct. depriving from him of his property—the (1976), L.Ed.2d holds that Bonner’s in- transcript process of law. —without transcript protected his was not terest in Moreover, supports Paul rather than un- right under the Fourteenth Amendment be- Paul, dercuts Bonner’s claim. In the Court cause, asserts, that amendment does not held that an individual’sinterest attains the protect interests through which are violated constitutionally protected status of “liber- negligence. holding illogical. mere This is ty” “property” or if it has “been initially Bonner’s interest in transcript Whether his recognized protected by state law.” protected right completely is a unrelated at S.Ct. at 1165. Davis had agency impaired to whether the protected no liberty interest in reputa- did so intentionally negligently. interest tion because state law did not extend to protects The Fourteenth depri- Amendment legal “any guarantee present him enjoy- “life, liberty, property, vations of with- reputation ment of . . . .” Id. at determining out due law.” In contrast, 1166. In Bonner’s protected right, Bonner had a whether possession right personal of his property, sole to be decided is whether the prisoner, even while a is a creature of state transcript loss of the any falls within law, law. prison regu- State in the form of categories. those Bonner still will not be lations, guaranteed him right posses- prove able to a section 1983violation unless sion, against at least prisoners, other he can also show that the state was in- personal effects such transcript. as the His impairment volved in the of his interests. interest in the pro- is therefore a separate But that is a inquiry, irrelevant to property right tected under the due protected whether a interpreted clause as in Paul. at stake. event, In whether or not Bonner has problems aspect of the ma protected right nothing under Paul has jority’s opinion can be demonstrated con with the do distinction between sidering the facts Kern, in Whirl v. and intentional conduct which the en banc (5th Cir.), denied, cert. majority draws. That distinction is useless 210, 24 (1969). Whirl, L.Ed.2d 177 in this context. negligence in the County, Harris Texas sheriff’s office caused imprisonment the of B. the for nine following months the The en banc also finds that the charges dismissal of all against him. It guards had taken no action under color of would be ludicrous to assert that Whirl did trigger state law sufficient to relief under protected not have a right under the Four suggests negligent 1983 and section that teenth case, Amendment—in right this enough conduct can never be state action deprived not be liberty proc without due purposes of that disagree statute. ess of simply wrongful because his law— propositions. with both imprisonment was negligence the result of rather than an intentional act. The Fifth majority’s holding narrow that the had Circuit no difficulty ruling that he negligence guards of the was not sufficient- protected had a right despite the lack of to ly transcript connected the loss of the intentional by conduct the sheriff. be considered state action breaks down into had was under guards’ him been dismissed action the conduct that

a contention Similarly, guards if the cause of Bon- color of law. proximate legal the not law, I find searched Bonner’s cell had seized cer- tort who a matter loss. As ner’s the loss items because Bonner not allowed surprising, because tain conclusion this regulations, have occurred have them under transcript would not of the the negligently to lock seized failure “but for” the well, undisputed a foresee- it would be that the loss of cell and was of Bonner’s the door transcript resulted from under generally action that failure. See result of able Torts, law. of the Law of of state Prosser, color Handbook W. (4th ed. correct, finding, if

Moreover, even C. neg- that the court’s thesis support not does between The distinction support will not conduct ligent conduct therefore has no ex- intentional no there was If under section action power determining either planatory guards’ negligent ac- between causation which he plaintiff’s whether interest open cell leaving door tion infringed is un- alleges protected no transcript, there would be loss the Constitution or whether the defend- der deliberately the act of between causation conduct action under of state ants’ is color and the theft leaving unlocked the door upon by law. It is relied the en banc ma- Whether or not the cell. property from prevent jority to of the fed- inundation they were do- aware of what guards were tort eral courts with state claims. There do with either how direct nothing to ing has performs no but that it that can be their action was between the causal chain admirably. task The same function entry inmates subsequent by other served, however, by every sec- rejecting entry if the foreseeability that or the plaintiffs brought by 1983 case with tion unlocked. door left come beginning last names letters that holding majority’s broad alphabet. efficiency The en banc after “K” Mere negligent by enough state officials justify dichotomy that conduct is not that law for under color of state are obviously never be action out cases which with- screens from injuries suffers ambit purposes of section for which Con- constitu- action in difficulty. State intended to sec- gress same similar concept law is tional is a tion in tort law. legal or cause proximate Moreover, majority’s despite the en banc great of the state presence

Whether the otherwise, proposition attempt imply section enough to the sanctions of justify only covers intentional section 1983 much must how be decided Supreme supported acts related was in fact the state Pape, Monroe v. decision in Court’s plaintiff’s injury by wheth- rather than (1961). 473, 5 L.Ed.2d 492 81 S.Ct. er the state intended conduct. the acts in Monroe were themselves While intentional, Therefore, that all it is a to hold the Court indicated that wilful- mistake negligent color required conduct is not was not section action ness law, just as would be a mistake stating: “Section ^[1983] should be read background liability to hold that all is state tort against intentional conduct natural responsible action. a man for the The formulaic of this makes application 187,81 consequences his actions.” Id. at many distinction would lead to results too addition, in the obviously nothing are at 484. In wrong unjust. that For S.Ct. example, the legislative history of section 1983 that deny it would be .difficult that developed negligent carefully the indicates that conduct of in the officials Court per se keeping negligent sheriff’s in in conduct is nonactionable office the prison against in after that statute. charges Whirl the

573 II majority by also relies The en banc analo- Strickland, 308, 420 gy on v. U.S. 95 Wood A. 992, (1975), 43 L.Ed.2d 232 in which S.Ct. difficulty An initial with this is case that that Court held school officials Supreme the within the prison it arose context of a set- were immune from suits under section 1983 ting. It has often been stated that good taken in major- for actions faith. The federal courts barrage cannot host a only that intentional ity asserts acts can be insignificant frequently prisoner’s com- good faith, lacking state in therefore plaints. necessity, Of they have always immunity officials have limit their consideration to only the most on brought section 1983 suits basis litigated “serious” violations pris- state negligent conduct. addition, oners. system our argument collapses upon This examina- federalism, justifi- the federal courts are underlying premise good tion. Its is that ably intruding reluctant upon about state nothing but faith is absence of bad activities. faith, and since an official can act wisely While the federal courts have re- acting intentionally, bad faith when he is a by day the role of day supervisors fused act never nonintentional be in bad prison systems, the Supreme Court it true may faith. While be that a nonin- has, time, at the unequivocally same indi- faith, cannot bad tentional act be in it is not prisoners that are deprived cated not to be good simply true that faith is the absence protections of constitutional which are con- requires Good faith of bad faith. with the sistent fact their confinement. acting sincerely himself official [is] “[t]he McDonnell, 539, v. 418 Wolff 94 U.S. S.Ct. doing right.” belief that he is and with a 2963, (1974); 41 L.Ed.2d 935 Procunier v. Wood, 321, 95 U.S. at S.Ct. at 1000. 420 Martinez, 396, 1800, 94 S.Ct. is only possible belief Such affirmative (1974); Beto, L.Ed.2d Cruz v. 405 U.S. acts. non- respect with intentional It is (1972); 92 S.Ct. 31 L.Ed.2d 263 speak committing negligent sensical Wilwording Swenson, v. 404 U.S. good faith. The who left the act (1971). S.Ct. L.Ed.2d 418 cell unlocked not door to Bonner’s could presented thus is how to good were they have done so faith unless prisoners ensure that state are not unconsti- were they doing, hy- conscious of what tutionally rights by affording denied their pothesis .assumption inconsistent with the litigation them the benefits of section 1983 they merely negligent. Since preserving while at the same time the in- good between and bad dichotomy faith tegrity position courts’ federal within conduct, negligent majori- irrelevant this, system To do federalism. inapposite. on ty’s reliance Wood is courts should construct a frame- doctrinal litigation prohibits such work for them maintain that therefore distinction delving from too main- far into detailed between and intentional conduct prison systems. of state tenance determining ac- whether section 1983 brought logical is neither nor tion can be appropriate analysis I believe that en just. pointed As the banc has to differentiate civil out, on split the circuits are this issue. according eases to whether intentional or opinion it is a mistake for the my court negligent conduct is involved in the actions adopt simply pro- this distinction because it officials but rather to look to keep- and efficient method of hardship vides neat im- the nature and extent noted, ing litigants posed out of courts. As I have federal inmate.1 espoused by (1969), opinion 1. This in Rowlen conclusion L.Ed.2d cited past. Joseph Rowlen, subsequent approval. decision circuit Cf. A en banc F.2d 367 Other circuits have Fifth indicates Circuit Kern, Cir.), agreed. moving approach F.2d 781 similar to one I Whirl toward an denied, cert. believe, I provide will a workable us difficulties because method presents before case complaint pris- differentiating of a state those cases which are deals with for a initially perceived as jurisdiction.2 for section 1983 appropriate oner. What however, key difficulty, role proper for analysis B. considering When section courts. federal Supreme Court’s decision in Monroe to paid must be complaints, attention Pape expli- is instructive. v. That decision setting in which factual particularized congressional purpose enacting cated inquiry fo- type This arise. the claims Court, According section 1983. a the actions involved arose cuses on whether state official acts “under color of law” of state law.” As under “color engages when he in a power misuse of pointed out, panel the crucial decision possible only made because he is clothed the officials’ questions revolves around authority with the of the state. In 1871 conduct, involving prisoners, in instances Congress sought to redress the violations duty nature of the the offi- around the

but against rights the civil of black citizens charges. their also assume toward See cials perpetuated were O’Neil, by which the Ku Klux Kimbrough 1975) J., Klan. addition to situations where (Stevens, concurring). actually problem by states furthered the activity beyond con- Prisons house mere sanctioning the malfeasance of their offi- fed, exercised, giv- finement. Inmates are laws, by maintaining discriminatory cials or counselled, educated, care, medical en Congress perceived problem a whereby also among they As things. prisoners other difficulty enforcing had their the states interacting existence spend their entire own, just, response, presumably laws. prison system in with the some fashion. 1983 was enacted to allow citizens to section completeness agents with which state state laws. carry force state officials to out prisoners could be involved with their are wronged remedy may to a This be available of a clothing every movement viewed if the failure on an official’s individual even activity life sufficient prisoner's with judg- to a “mere error in part only is due equate prisoner status confinement n. ment.” 365 U.S. If purposes. state action for section important to note that focus of It case, authority was on the misuse of concern open left is whether there would be agents by legitimately conferred its right a constitutional violated in order state. a maintain civil action. This approach by panel in this followed employs person the state a When however, panel, no action case. The found carry particular gov- authorizes him out be maintained was no could because there functions, his not all of activities ernmental Amendment violated. Fourteenth solely objective. None- are directed theless, his the nature of second second agree allega- if Bonner’s cannot exactly would not be the same activities de- that he has not been tions are correct state authori- were it not for his function of in violation of prived of differentiation those ac- ty. between But Some prohibition. Amendment’s Fourteenth accomplishing directed toward tivities assumption disagree panel’s with the I also objective inciden- and those which are prison officials consti- that all conduct police A tal or individual must be made. purposes. tutes state action section squad negligent- driving might officer car necessary analyze the term “state It is ly pass through injure This applied stop sign context. action” as Bryan Jones, suggesting. adequacy am (5th F.2d 1210 attention was called to the claim 1983 on “state under section grounds. and “under color of law” action” Judge 2. concurrence Fairchild’s Chief panel opinion, in which 517 F.2d at intersection, right occurs, but in an in this a section 1983 action should pedestrian be be regard differently viewed no he should maintainable. ordinary an civilian driver. It is true

than analysis for activities within the authority might state he that but for his second classification is not as clear. Prison driving place time or have been not custodians, personnel food, act as providing carrying out may he have been shelter, facilities, safety measures, exercise scanning at the the streets for duties time — and a host of other incidentals. These serv- robbery suspect, example for I be- a —but consequence ices must be offered as a an fairly that such instance cannot be lieve imprisonment. primary prisoner fact of A a power” “misuse of which characterized cannot, example, for private physician call a acting “under color of occurred while charge when he is ill those in of his law.” confinement must therefore assume that contrast, a By illegal false or an arrest responsibility. Cf. Shappell, Fitzke v. prototypical search constitutes instances of (6th 1972). Cir. Nothing authority. misuses of state such these inherently peculiarly governmental oc- I believe that constitutional cases violations curs in the exercise of these functions. resulting negligence” from even “mere However, if there a misuse of the custodi- be actionable under should section 1983. relationship allowing al such as conditions to exist which amount to the infliction of reasoning applied pris- This can be cruel punishment, and unusual a section First, setting. a distinction must be 1983 claim be could maintained. In that prison per- between those activities of made instance, Eighth Amendment, rather partake governmental sonnel Amendment, than the Fourteenth would system of prison role a and those remaining provide prohibition against the activity. flow inexorably activities which from the of confinement. falling fact Activities into Inquiry falling into activities within the category always first occur under color focuses, then, category second on whether law, but certain of the activi- they may be termed “cruel unusual group in the latter can be so character- ties punishment.” Simple negligence could ized. ever, rarely, if result in such a situation.3 example, negligent For failure to feed a inherently govern- The activities prisoner on one occasion would not suffice category having include those mental do extraordinary absent per- discipline, security, with and commerce be- circumstances — haps knowledge that he suffered from ane- and between inmates and tween inmates Sullivan, McCray mia. 509 F.2d 1332 the prison. outside Also encom- persons (5th 1975) (safety prisoner); Cir. Wil- passed category regula- within this is the Vincent, (2d 1974) liams v. 508 F.2d 541 Cir. of a First prisoner’s tion Amendment activi- (medical care). Continued failure to feed undertaken a manner ties consistent with however, inmate, an authority probably would involve state’s incarcerate. Conse- cell, negligence. event, more than mere quently, censorship the search a mail, process whereby prison if prisoner appropriate a officials received noti- incident, discipline concerning considered fication such pris- in- rules all fractions be re- oner’s claim should be received more occurring garded as sympathy by color court even if such notice did during If law. course of finding these kinds of of “intent.” In this activities of a category, neglect “obvious and intentional Negligence point or lack of reasonable previous care in assump later to reevaluate the carrying by prison duties out the owed officials punishment tion that cruel and unusual can charge conceivably trig- to inmates in their except intentionally. be inflicted never Ben ger appropriate complaints Eighth Gutierrez, singer v. sub S. ex nom. U. rel. Miller Amendment. See Woodhous Common- Twomey, 479 F.2d v. 1973). Virginia, wealth v. 487 F.2d 889 regard, may necessary In this at some necessity inherently nature, governmental under- indicate the mistreatment” Cirrone, prison. Cates v. Under intervention. taken order secure for federal 1970). (8th developed Cir. F.2d 926 I have the offi- 422 the framework acting of were therefore under color cials I have set forth do examples The law.5 state involving negligence cases anticipate all litigation, but I believe section 1983 and Ill classify be used to approach this for; fed- provided a Judge Cummings should the en cases which Although those rights under the civil acts. issue a only eral forum discussed the in banc analysis is the rela- my footnote, in in primary panel factor this case held that person seeking section tionship adequate remedy between state of an existence —an oper- power whose the state 1983 relief and of in the Illinois Court Claims— action relationship is It this on him. process may ates violation that any due avoided monitored the federal properly be may Because of the otherwise occurred. have authority civil courts under holding, a I importance of such potential power, whether of state rights Misuse acts. my necessary register to feel intentional, subject should be negligent or panel’s disagreement with the conclusions. federal courts. redress in the to (then Judge) state- Mr. Justice Stevens’ frame- that the doctrinal I do not believe opinion was there is panel in the ment 1983 suggested I section work have chal- important difference between a “[a]n departs significantly from of action causes procedure as to established state lenge an circuits. in this or other existing law a lacking process property dam- in due con- Many courts have reached conclusions arising of out of the misconduct age claim though, analysis this admitted- sistent with agree, and the cited officers.” cases state rationales they set forth different ly, have opinion support the conclusionthat in the for their results.4 adequate an situations where some remedy replace retrieve is sufficient to or rea- necessary apply it is to this Finally, alleged negligently to have been property loss soning specific issue bar. The to the action, wrongfully plain- taken a by state occurred a result or as of Bonner’s meaningful a not be able to state pursuant of to a tiff his cell search procedural as due to denial Department of Correc- claim regulation activity of an under the Fourteenth Amendment. process search was an tions. The inmates, com- As to medical care afforded enees in these doctrines is illustrated in the Cullen, (2d pare F.2d Cir. Startz v. Estelle, eclectic case of Gamble v. 516 F.2d 937 1972) (is shocking to lack of care so 1975). (5th Cir. process as to constitute a denial of due punishment cruel and unusual for- constitute the seizure of to in the 5. Were occur Eighth Amendment), Page bidden residency, an arrest course of or a transfer of (1st 1973) (mere Sharpe, v. 487 F.2d 567 Cir. analysis apply, consistent with same negligence, which absence Cardell, (8th 1973), v. 486 F.2d 550 Cruz Cir. conscience, giving failing shocks the May, (9th and Hansen v. 502 F.2d 728 Cir. supply prisoners, medical does not treatment Lester, 1974). also Shannon v. F.2d See violation), Bishop v. section 1975), (6th proc- Stoneham, (2d 1974) (delib- where a due Cir. substantive 508 F.2d 1224 Cir. analysis personnel indifference of erate medical used liable for ess to find sheriff was. action). states a section 1983 cause of These refusing plaintiff hospital to take a subse- approach to the of sec- cases take arresting quent auto- him at the scene of an jurisdiction tion 1983 which not unrelated accident, part because the mobile apply those a Fourteenth Amend- cases Boyd suspected being drunk. See also analysis. ment substantive due Brishke, (7th 466 F.2d Cir. Con- Shappell, Fitzke 468 F.2d 1072 Cataldi, (3d Cir. tra Howell v. Pate, 1972), Thomas v. 157- 1972), it was that an assault where held 1973) (mere pris- dissatisfaction investiga- by police of an officers the course treatment, adequacy with- oner with of medical result in a civil violation tion would more, out insufficient to maintain section 1983 “culpable negligence or intention.” if there was action). practical degree of differ- The small cases, however, in those ing The results state interest which would allow the relationship on the between the grounded requirements procedural due urgency importance and of the state activi- aby be satisfied subsequent hearing. A procedural process. due ty involved retrospective remedy, therefore, cannot be legal was a different There factual and conceptualized as resolving type dep- process analysis to which due context rights. rivation la- “[N]o presumption applied, and was that hearing ter and no damage award can undo legitimate interest invoked fact that arbitrary taking that was taking. procedural (no- subject procedural proc- then hearing) provided tice and the citizen already ess has occurred. ‘This Court has dispute the or opportunity an factual . general not . . embraced the propo- during made legal presumptions the state’s wrong may sition that a be done if it can be ” implementation its legitimate of interest. Shevin, 67, undone.’ Fuentes v. 407 U.S. of the state interest nature 82, 1983, 1995, 92 32 S.Ct. L.Ed.2d 556 action in order imple- need for immediate (citation (1972) omitted.) depri- When the subject is from ment it evident matter wrongful, arbitrary, is vation or serves no cases. involved those North American governmental legitimate interest a state 306, Storage Chicago, v. 211 Cold Co. U.S. remedy reparation must be viewed as an 101, (1908) (seizure 53 195 of 29 S.Ct. L.Ed. process to brought alternative actions consumption); for Central food unfit Trust Pape, 167, section 1983. Monroe v. 365 U.S. 214, Garvan, 554, 254 U.S. 41 S.Ct. 65 Co. v. 473, 482, 183, 81 (1961), 5 L.Ed.2d 492 (1921) (seizure property of L.Ed. this clear: “It made is no answer that the Act); Trading Enemy with the Corn Ex- has a law which State if enforced would Coler, 218, change Bank v. 280 U.S. 50 S.Ct. give supple- relief. The federal is 94, (seizure (1930) of of 74 L.Ed. 378 assets mentary remedy, to the state and the latter husband); absconding Phillips v. Com- not sought need be first and refused before missioner, 589, 608, 75 51 S.Ct. U.S. is the federal one To invoked.” hold that (1931) (collection tax); of L.Ed. 1289 a provide if the state fails to an ade- Willingham, Bowles U.S. 64 S.Ct. quate remedy could section 1983 be utilized (1944) (setting L.Ed. price of rights be to civil jurisdic- emasculate Mallonee, regulations); Fahey v. over all deprivations tion (1947) 67 S.Ct. L.Ed. 2030 subject properly be of state tort (appointment of of conservator assets of suits. savings association); and loan Ewing My- Casselberry, tinger addition, & note, 70 S.Ct. I it logi- that would be (1950) (seizure 94 L.Ed. 1088 of mis- cally inconsistent to reach the conclusion commerce). branded articles in in- such involving negligence that cases were ex- stances, may legitimately the state act first cluded from section 1983 due to the state’s procedural protection and provide subse- provision for a tort suit while allowing taking of quent property. involving takings cases intentional to be instances, in federal court. In both heard Negligent officials, by of a property. there loss of If a contrast, partake does a legitimate of subsequent suit in one case suffi- Rather, governmental repre- interest. it law,” “due process cient of it sents misuse power.6 of A adequate pres- should the other. The such a case is a denial the citizen’s consti- ence “intent” should not alter the tutional treat- defined the Fourteenth ment citizen’s claim to power Amendment. The afforded a access to misuse represents a completed upon act which lia- the federal courts for relief from the misuse bility predicated. no authority. There is extenuat- degree culpabili- large meaning power” 6. The term “misuse of connotes includes deviation from the nor- spectrum expected governmental is not confined to conduct. It mal furtherance of Its conduct which or deliberate. is malevolent functions. appropriate consider- may be an ty involved setting damage purposes

ation establishing a substantive cause

award pro-

action, act as selection but it cannot jurisdic- of section 1983 purposes

cedure

tion. majority has indicated

The en banc agrees with this conclu-

footnote analysis be- suggested I have

sion. fuller believe the issue deserves

cause I majority gave it. than the

treatment grant district court’s also, D.C., would reverse F.Supp. judgment plaintiff’s on the summary claim. Amendment

Fourteenth America, STATES of

UNITED

Plaintiff-Appellant, FITZGERALD, Defendant-Appellee.

Jesse America, STATES

UNITED

Plaintiff-Appellant, Evelyn

DuWayne ROMENESKO

Romenesko, Defendants-Appellees. 75-1467, 76-1057.

Nos. Appeals, Court of

United States Circuit.

Seventh Sept.

Argued 3, 1976.

Decided Nov.

Rehearing Denied Dec.

Case Details

Case Name: Alonzo Bonner v. Joseph Coughlin

Court Name: Court of Appeals for the Seventh Circuit

Date Published: Nov 18, 1976

Citation: 545 F.2d 565

Docket Number: 74-1422

Court Abbreviation: 7th Cir.