Cleveland KIMBROUGH, Plaintiff-Appellant, v. Dave O‘NEIL, Individually and in his official capacity as Sheriff of St. Clair County, Illinois, et al., Defendants-Appellees.
No. 74-1870
United States Court of Appeals, Seventh Circuit
Submitted June 18, 1975. Decided Aug. 14, 1975.
Rehearing En Banc Ordered Sept. 26, 1975.
523 F.2d 1057
Robert H. Rice, State‘s Atty., Robert L. Craig, Asst. State‘s Atty., Belleville, Ill., for defendants-appellees.
Before SWYGERT, CUMMINGS and STEVENS, Circuit Judges.
CUMMINGS, Circuit Judge.
Plaintiff, a prisoner at the United States prison at Atlanta, Georgia, brought this civil rights action for declaratory relief and compensatory and punitive damages against the Sheriff of St. Clair County, Illinois, and two of his deputies. Plaintiff alleges that his cause of action arises under
Plaintiff alleges that while awaiting trial on federal charges, he was committed to the custody of the county jail from March 9 to April 14, 1972. Upon entering the jail, defendant Johnson took a ring and watch from the plaintiff and issued a receipt therefor. Upon the plaintiff‘s release to federal custody, the ring, which plaintiff claims was a diamond ring valued at approximately $2,500, was not returned to him. A note indicating failure to return the ring was signed by defendant Johnson. Plaintiff states that twelve letters from him requesting the Sheriff‘s office to return his ring were unanswered.
Plaintiff further alleges that on March 25, 1972, he was summarily placed in a solitary confinement cell where he remained for three days. Plaintiff alleges that the cell had “no toilet; no water for drinking or washing; and no mattress, bedding, or blankets.” He further claims that for that period of time he was “forced to eliminate on the floor, and water was brought at the whim of the guard, which was infrequent.” He states that he was denied “rudimentary implements of personal hygiene such as toilet paper, soap, washing water and towels“; and that “[t]hroughout the nights the Plaintiff was subjected to water being thrown upon him by unknown guards after requesting drinking water, and did eventually cause Plaintiff to suffer a severe cold and fever and denial of any semblance of medical treatment.” He alleges that during this period of confinement he was denied the right to communicate with his attorney, family and friends by mail or visits.
It is alleged that the defendants “acted deliberately, maliciously and with the motive and intent of punishing Plaintiff because of his Race, social, political, religious and moral views.” Plaintiff claims violation of his constitutional rights under the
Defendants filed a motion to dismiss the complaint for failure to state a claim upon which relief may be granted. The district court granted the motion to dismiss on March 26, 1974. In its order the
The plaintiff‘s allegations of the conditions of his confinement state a claim for relief under
Plaintiff‘s allegation that the ring which was taken from him by defendants was not returned to him upon his release from their custody is sufficient to state a cause of action under
The order appealed from is reversed and the case remanded for further proceedings.
Reversed and remanded.
SWYGERT, Circuit Judge (concurring).
While I agree with the result we reach in this case, I do not believe we can avoid some discussion of this court‘s recent decision in Bonner v. Coughlin, 517 F.2d 1311 (7th Cir., 1975). In Bonner we dealt with the sufficiency of a complaint brought under section 1983 which alleged in part that prison guards who had entered the plaintiff‘s cell to conduct a routine prison search had upon completing the search left the cell door open, allowing other persons to enter plaintiff‘s cell and remove his property. Though one of the questions briefed and argued in that case was whether “mere negligence may support a recovery under section 1983,” our court did not answer this question, but focused instead on the content of the Fourteenth Amendment right not to be deprived of property by the state without due process. Our Court held in Bonner that in claims arising out of the “misconduct” of state officers resulting in property deprivation or damage, due process is satisfied if state law provides an adequate tort remedy by which the person whose property is taken or damaged can be made whole for his loss. Noting that Illinois has abolished sovereign immunity in “claims against the State for damages in cases sounding in tort,”
Unless limited in some way, the foregoing rationale might apply as well to the present facts.2 This is an Illinois case, and Kimbrough would appear to have the same remedies at his disposal as did Bonner.3 Here, however, the
In Bonner, this court was concerned with the requirements of procedural due process in the context of a simple negligent act6 by a state officer resulting in loss of property. In footnote 24 of that opinion we noted that a prior hearing in the case of a negligent act would be impossible since neither the state nor its agent could anticipate such an act. I agree with this proposition as a logical matter.7 Where willful acts are involved, however, I do not think such an analysis is sufficient. A state officer who uses his office and the power of the state to lawlessly confiscate, damage, or destroy the property of another deprives that person of due process regardless of any consideration concerning hearings.
I recognize the validity of much of the criticism directed at the unrestrained use of the rubric of due process to invalidate state laws deemed to represent “unwise” or “bad” policy in the eyes of a particular judge. Yet I cannot avoid the conviction that however much “standards of ‘irrationality’ or ‘arbitrariness’ vary from time to time and from judge to judge,” none would disagree with the proposition that some justification of some kind is required to legitimize state interference with the ownership and enjoyment of property, and that considerations of race, or an individual‘s views on social, political, religious, or moral subjects, or indeed, the individual desire of a state agent to take for himself the property of another—which amounts to no justification at all—, cannot pass muster as constitutional predicates for such interference. I believe a fundamental purpose of the Due Process Clause is to prevent such arbitrary state action whenever life, liberty, or property may be thereby adversely affected.
I interpret the opinion in this case to hold that Kimbrough has adequately stated a cause of action under section 1983 based on deprivation of his property without due process.10 If my interpretation is a correct one, our decision today and our recent decision in Bonner can only be reconciled if Bonner is limited to cases involving simple negligence. Since I am unable to conclude that Bonner is so limited on its face, I note my own view that it has been restricted to cases involving simple negligence by today‘s decision.
STEVENS, Circuit Judge (concurring).
The Eighth Amendment claim requires reversal. The property claim is plainly sufficient as a matter of Illinois law. Since it arises out of the same transac-
However, in view of the decision to rely on
There are myriad situations in which the acts of State agents cause harm to private citizens. Arguably every such harm is a deprivation of either liberty or property, and every such act is the responsibility of the agent‘s principal; therefore, again arguably, in every such situation the Fourteenth Amendment is violated unless the citizen is accorded “due process of law.” And, of course, every person subjected to a violation of the Fourteenth Amendment is entitled to redress in a federal court under the Civil Rights Act,
The outer limits of the area of § 1983 litigation are yet to be defined. In our search for those boundaries Judge Swygert suggests that we may find helpful guidance in the concept of “substantive due process.” As applied to this case, that concept may have two different meanings. It may refer to a deprivation of the plaintiff‘s property motivated by the defendants’ hostility to the plaintiff‘s “race, social, political, religious and moral views“;2 alternatively, it may merely refer to any deprivation by an agent of the State which the State is unable to justify.3
There is a vast difference between these two interpretations of the concept. Most obvious is the difference in the burden of proof imposed on a plaintiff who is merely seeking the return of his ring or compensation for its loss. Under the impermissible motivation theory, he has the burden of proving not only that the defendants committed the wrong intentionally, but, in addition, that they did so for the reasons alleged in the complaint; mere proof that the ring was not returned would not discharge that burden. On the other hand, under the “absence of any legitimate justification” theory, I would suppose that liability should attach whether the loss of the ring was the consequence of negligence, gross negligence, or a deliberate theft by a guard or even by another prisoner. Under the second substantive due process approach, therefore, plaintiff need merely prove that he surrendered his ring to defendants and it has not been returned; logically the burden of justification should then rest on the State even if plaintiff did not prove an intentional taking.
In legal theory there is also an important difference between the two interpretations of substantive due process.
Before we try to take direction from such an inscrutable signpost as “substantive due process,” I believe our analysis of novel § 1983 claims should focus on the precise constitutional duty which has allegedly been breached. With respect to the property claim in this case, at least three different constitutional violations may be involved. The theory of the complaint, which presumably Judge Cummings’ opinion accepts, is that the retention of the ring in response to an expression of plaintiff‘s political or religious views, or as an act of racial discrimination, violated the
Although I by no means suggest that the Due Process Clause may be understood by simply reading it, it is nevertheless appropriate to consider its text.6 The language of the clause identifies three limitations on its coverage. First, the harm suffered by the plaintiff must be a deprivation of life, liberty or property; second, the deprivation must be effected by the State; and third, it must have occurred “without due process of law.”
When a deprivation of liberty is claimed, the Supreme Court has required a showing of “grievous loss” as a predicate for holding that the claimant was entitled to due process of law. Parallel reasoning might lead to the conclusion that a harm to property is not a deprivation actionable under § 1983 unless it is sufficiently grievous to satisfy some minimum standard.7 The majority of the
The focus shifts when we ask whether there is sufficient state involvement to justify § 1983 liability. That question is easily answered when, as in Lynch v. Household Finance Corp., 405 U.S. 538, 92 S.Ct. 1113, 31 L.Ed.2d 424 (1972), the harmful conduct is expressly authorized by the State. It is more difficult when the agent‘s action is not so authorized, but his office has placed him in a position to cause a harm which a private citizen might not have an opportunity to perpetrate. Thus, in Bonner, the majority of the panel had no doubt that the prison guards who ransacked the cell were acting under color of state law within the meaning of § 1983. This conclusion would seem equally valid regardless of whether the guards negligently damaged Bonner‘s property or deliberately appropriated it.9 Their private motivation would hardly seem controlling on the state action issue.10
If we assume a deprivation of property by the State, or by persons acting under color of state law, we must then decide whether the deprivation was “without due process of law.” It is elementary, of course, that the phrase mandates greater safeguards in some situations than in others; generally speaking, the more grievous the loss, the more elaborate the appropriate procedure must be. Deprivations of liberty may require greater procedural safeguards than deprivations of property. Thus, for example, the rule that an adequate hearing must precede the deprivation is subject to various exceptions when only property interests are at stake.11 The Supreme Court has repeatedly held in property cases that the demands of due process may be satisfied by an appropriate hearing and award of compensation after the initial deprivation has taken place. In property cases, the timing of the hearing is merely one factor affecting the fairness of the State‘s remedial process.
In the present case, the original taking of Kimbrough‘s ring was unquestionably authorized by the State. At that time I suppose the State assumed a constitu-
Kimbrough‘s complaint, however, does not question the original taking of his ring. He challenges the unauthorized acts of the agents who may have stolen or lost, or permitted someone else to steal or to lose, his ring. Since the conduct of those agents was unauthorized, they surely did not contemplate offering plaintiff any procedural safeguards in advance of the taking or any remedial process for compensating him after the taking occurred. The State, however, does provide a remedy against the culpable agents. If we assume the adequacy of that remedy, there is no more reason to conclude that the deprivation resulting from the guard‘s unauthorized conduct was “without due process of law” than that due process was lacking at the time of the original, authorized taking of the ring. In sum, if we put the allegations of discrimination to one side and focus only on the plaintiff‘s due process claim, I would conclude that the deprivation of plaintiff‘s property by the unauthorized acts of the prison guards, although attributable to the State because the guards were acting under color of state law, was not action taken by the State “without due process of law.”
This conclusion is not foreclosed by Lynch v. Household Finance Corp., 405 U.S. 538, 92 S.Ct. 1113, 31 L.Ed.2d 424 (1972), which held that
In a variety of situations the Supreme Court has found that the Due Process Clause did not require that a hearing be held in advance of any deprivation of property. In such cases the Court has made a practical evaluation of the particular interests involved and concluded that the Constitution merely required that property not be taken without a meaningful hearing at an appropriate time.
Bonner holds that in cases involving negligent harm to property the federal interest in fair procedure is vindicated by an adequate state process to redress the wrong. Apart from violations of other constitutional safeguards such as the Fourth Amendment, I would strike the same balance in cases involving intentional trespasses against property interests. The mere fact that the plaintiff is the victim of a tort committed by a state official rather than a private party does not, in my judgment, provide an adequate basis for affording him a federal remedy. The federal interest in conserving federal judicial resources for litigation in which significant federal questions are at stake favors a construction of the Civil Rights Act which will not enlarge it to provide an alternative means of processing ordinary common law tort claims.12
Because this area of the law has yet to develop, I think we must be cautious about extrapolating broad general rules from particular holdings. It is significant that despite the divergent analyses reflected in Judge Swygert‘s concurring opinion in this case, Chief Judge Fairchild‘s concurrence in Bonner, and the majority opinion in Bonner, we all agree that harms to property resulting from the mere negligence of state employees are not actionable under § 1983. Future cases will require us to define the standard of care for state agents in a variety of situations. I doubt that we will adopt a rule as simple as one which never imposes liability for mere negligence and always sustains an allegation of gross negligence, for example. On the contrary, I firmly believe that standards of care will be defined differently for different constitutional duties.13
Notes
On the issue of state involvement, I believe the law to be equally clear. With regard to the Fourteenth Amendment itself, it has been established since the decision of the Supreme Court in Ex Parte Virginia, 100 U.S. 339, 25 L.Ed. 676 (1879) that
“[w]hoever, by virtue of a public position under a State government, deprives another of property, life, or liberty without due process of law . . . violates the constitutional inhibition, and as he acts in the name and for the State, and is clothed with the State‘s power, his act is that of the State. This must be so, or the constitutional prohibition has no meaning. Then the State has clothed one of its agents with power to annul or evade it.” Id. at 347.
Similarly, liability under section 1983 cannot properly be conditioned on express state authorization, as for example, by statute. “Misuse of power, possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law, is action taken ‘under color of state law.‘” United States v. Classic, 313 U.S. 299, 326, 61 S.Ct. 1031, 1043, 85 L.Ed. 1368 (1941); Monroe v. Pape, 365 U.S. 167, 183-87, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961). Here again, the fact that the alleged deprivation was intentional precludes the argument that the facts in this case fall outside the scope of the “under color of” requirement of section 1983, or the state action requirement of the Fourteenth Amendment.
We are plainly left, I believe, with the single question of whether a state deprivation of property based on one‘s “race, social, political, religious and moral views” (complaint, p. 4) is violative of the Due Process Clause of the Fourteenth Amendment. “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.”
The claim that a person is entitled to “substantive due process” means, as we understand the concept, that state action which deprives him of life, liberty, or property must have a rational basis—that is to say, the reason for the deprivation may not be so inadequate that the judiciary will characterize it as “arbitrary.” Since standards of “irrationality” or “arbitrariness” vary from time to time and from judge to judge, applications of the concept—indeed, the concept itself—have generated serious criticism of the judiciary and the judicial function. In this case we need not appraise the viability of the concept . . . Id. at 3-4 (footnotes omitted). In Lynch v. Household Finance Corp., 405 U.S. 538, 544, 92 S.Ct. 1113, 1118, 31 L.Ed.2d 424 (1972), the Court quoted the following from Shelley v. Kraemer, 334 U.S. 1, 10, 68 S.Ct. 836, 92 L.Ed. 1161 (1948):
“It cannot be doubted that among the civil rights intended to be protected from discriminatory state action by the Fourteenth Amendment are the rights to acquire, enjoy, own and dispose of property. Equality in the enjoyment of property rights was regarded by the framers of that Amendment as an essential precondition to the realization of other basic civil rights and liberties which the Amendment was intended to guarantee.”
“[N]or shall any State deprive any person of life, liberty, or property, without due process of law; * * *”
“that as long as a property deprivation is not de minimis, its gravity is irrelevant to the question whether account must be taken of the Due Process Clause. Sniadach v. Family Finance Corp., 395 U.S. 337, 342 [89 S.Ct. 1820, 23 L.Ed.2d 349] (1969) (Harlan, J., concurring); Boddie v. Connecticut, 401 U.S. 371, 378-379 [91 S.Ct. 780, 28 L.Ed.2d 113] (1971); Board of Regents v. Roth, supra, [408 U.S. 564] at 570 n. 8 [92 S.Ct. 2701, 33 L.Ed.2d 548]. A 10-day suspension from school is not de minimis in our view and may not be imposed in complete disregard of the Due Process Clause.”
At the cited pages in Boddie v. Connecticut, the Court discussed the necessity for a hearing before an individual is deprived of “any significant property interest.” 401 U.S. at 378-379, 91 S.Ct. 780. Of course, the fact that “account must be taken of the Due Process Clause,” even though the amount involved is trivial, does not foreclose the possibility that the due process requirement would be satisfied by providing compensation after the event rather than a hearing in advance of the taking.