Cleveland Kimbrough v. Dave O'Neil (O'neal), Etc.

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Cleveland KIMBROUGH, Plaintiff-Appellant, v. Dave O‘NEIL [O‘Neal], etc., et al., Defendants-Appellees.

No. 74-1870.

United States Court of Appeals, Seventh Circuit.

Argued Jan. 26, 1976 En Banc. Decided Oct. 29, 1976.

1059

of fiduciary duties and do not depend (con- trary to the trial judge‘s findings) on the noncompetition covenants. Additionally, it is argued that the covenants are lawful when tested by antitrust standards.

In the first place, defendant‘s at- tack is overbroad. As we said in

Bath Industries v. Blot, 427 F.2d 97, 111 (7th Cir. 1970), “[I]t is not necessary that the trial court find the certainty of a wrong, a likeli- hood is sufficient.” Furthermore, since the grant of a temporary injunction rests with- in the sound discretion of the trial court,

Prendergast v. New York Telephone Co., 262 U.S. 43, 43 S.Ct. 466, 67 L.Ed. 853 (1923), appellate review is narrow.

Scherr v. Volpe, 466 F.2d 1027 (7th Cir. 1972).

Secondly, when the Supreme Court of Illinois affirmed the judgments on the unadvanced theory that Stoner had violated his fiduciary duties, it did not consider or decide any of the antitrust issues presented here. It did not and could not evaluate Vendo‘s alleged monopolistic scheme which included the enforcements of the noncom- petition covenants. The district court found that the covenants were “overly broad” and that there was substantial evi- dence that Vendo had the “required specific intent to monopolize” in a relevant market. Given the limitations of our review, we cannot say the trial court erred.

The judge states in his memorandum opinion:

On the record as a whole, the Court finds that a preliminary injunction will prevent irreparable harm, protect the public interest, and will benefit plaintiffs more than it will burden Vendo. Contin- ued efforts at collection will prevent Lek- tro-Vend Corporation from marketing a promising, newly-developed vending ma- chine. The state court collection process places insurmountable barriers in the way of raising capital for any expansion pro- gram. Moreover, collection of the state judgment will effectively place Lektro- Vend in the hands of—or at least at the disposition of—Vendo. Stoner Invest- ments is controlled by Mr. Stoner; 78.57% of Lektro-Vend is owned by Stoner In- vestments. Needless to say, Vendo would also control Stoner Investments. The case or controversy requirement con- tained in Article III then would require dismissal of Lektro-Vend and Stoner In- vestments. Continued collection thus would eliminate two of the plaintiffs herein. Moreover, Mr. Stoner‘s ability to effectively prosecute this action would be severely limited by further execution of the state court case. This also amounts to irreparable harm. (Citations omitted.)

We are not prepared to say that the court erred in reaching these conclusions.

Defendant‘s last contentions are that laches, waiver, and collateral estoppel bar injunctive relief. Issues not raised in the trial court cannot be presented for the first time on appeal.

United States v. Tyrrell, 329 F.2d 341, 345 (7th Cir. 1964). As we noted in

Hamilton Die Cast, Inc. v. United States F. & G. Co., 508 F.2d 417, 420 (7th Cir. 1975): [A] trial court should not be reversed on grounds that were never urged or argued below. Defendant failed to raise these issues in the trial court. Regardless of this procedural defect, we are convinced that these contentions are without merit.

The grant of interlocutory relief is af- firmed.

William T. Huyck, Chicago, Ill., for plain- tiff-appellant.

Robert H. Rice, State‘s Atty., Robert L. Craig, Asst. State‘s Atty., Belleville, Ill., for defendants-appellees.

Before FAIRCHILD, Chief Judge, and SWYGERT, CUMMINGS, PELL, SPRECHER, TONE and BAUER, Circuit Judges.^*

CUMMINGS, Circuit Judge.

The facts are fully stated in the previous panel opinion.

523 F.2d 1057. The facts pertinent to the rehearing en banc are as follows: Plaintiff is a federal prisoner at Atlanta, Georgia. While awaiting trial on federal charges, he was committed to the County Jail in St. Clair County, Illinois, from March 9, to April 14, 1972. Upon his entering the jail, Sergeant Johnson, one of Sheriff O‘Neal‘s¹ deputies, took a $2500 diamond ring from him and issued an in- ventory receipt therefor. However, when plaintiff was transferred to federal custody, the ring was not returned to him since it was missing from his personal property in- ventory envelope. On the transfer date, April 14, 1972, Johnson signed a note indi- cating failure to return the ring. The com- plaint states that twelve letters from plain- tiff requesting Sheriff O‘Neal‘s office to return the ring went unanswered. Kim- brough‘s complaint, fairly construed, goes on to allege that his “missing” ring had actual- ly been intentionally confiscated by some member of the Sheriff‘s office. For differ- ent reasons, the panel in Kimbrough held that plaintiff‘s allegations were sufficient to state a cause of action under 42 U.S.C. § 1983, so that the district court had im- properly granted defendants’ motion to dis- miss the complaint. The petition for rehearing en banc was granted so that the full Court could consider the various views on Section 1983 liability expressed by the panels here and in

Bonner v. Coughlin, 517 F.2d 1311 (7th Cir. 1975).

In Bonner, over Judge Swygert‘s dissent, this Court recently held en banc that a prisoner may not recover damages under 42 U.S.C. § 1983 for loss of his prop- erty because of prison guards’ negligence.

545 F.2d 565 (7th Cir. 1976). But in this case, we again hold that the intentional taking and retention of Kimbrough‘s prop- erty by a deputy sheriff is actionable under 42 U.S.C. § 1983. By the use of the term “deputy sheriff,” we do not mean to imply that only an allegation that Johnson confis- cated the ring would be actionable.² Under Section 1983, the identity of the confiscator would become relevant only if his access to the plaintiff‘s ring was not occasioned be- cause of his employment by the State. In

Carroll v. Sielaff, 514 F.2d 415 (7th Cir. 1975), we had previously held that the con- fiscation of prisoners’ typewriter and cur- rency was subject to redress under Section 1983. We continue to adhere to that hold- ing which was the direct precedent in this Circuit for our initial decision in Kim- brough. See

523 F.2d at 1059, 1060 n. 2, 1067.

Kimbrough has alleged that a State offi- cer intentionally took his ring under color of state law and failed to return it upon demand. He has charged that this deliber- ate taking was in violation of the Due Proc- ess Clause. Because defendant Johnson as- sertedly acted within the sphere of his offi- cial responsibility with the malicious inten- tion of causing a deprivation of Kim- brough‘s constitutional rights, plaintiff has adequately stated a claim under 42 U.S.C. § 1983.

Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492;

Lynch v. House- hold Finance Corp., 405 U.S. 538, 92 S.Ct. 1113, 31 L.Ed.2d 424;

Thomas v. Pate, 516 F.2d 889, 891 n. 2 (7th Cir. 1975), certiorari denied,

423 U.S. 877, 96 S.Ct. 149, 46 L.Ed.2d 110.³ As in Monroe and Bonner, it is immaterial that Kimbrough might have an adequate remedy in the Illinois courts.

As shown in

Monroe v. Pape, supra, at 172-183, 81 S.Ct. 473, the legislative history of Section 1983 disclosed that Congress was intending to provide a deterrent for official misconduct. If Kimbrough can prove that Johnson or another employee of the Sher- iff‘s office either intentionally or with reck- less disregard⁴ caused his property loss, the remedy afforded under Section 1983 may deter similar misconduct. Our conclusion that a taking with intent (or reckless disre- gard) of a claimant‘s property by a State agent violates the Due Process Clause of the Fourteenth Amendment and is actiona- ble under Section 1983 is in harmony with the decisions in other Circuits.⁵ Indeed de- fendants have cited no contrary authority.

Paul v. Davis, 424 U.S. 693, 96 S.Ct. 1155, 47 L.Ed.2d 405, does not support them because there the police chiefs did not deprive Davis of any “property” within the prohibition of the Fourteenth Amendment.

Reversed and remanded.⁶

SWYGERT, Circuit Judge (concurring).

I concur in the reversal and remand in light of my dissent in

Bonner v. Coughlin, 545 F.2d 565 (7th Cir. 1976). The “tak- ing” by the sheriff or his deputies of Kim- brough‘s diamond ring was pursuant to the inherently governmental activity of holding the personal property of a prisoner while he is incarcerated. Whether the sheriff or one of his deputies failed to return the ring because he had converted it to his own use or had lost it through carelessness—for ex- ample, a third person‘s theft of the ring from an exposed depository—a section 1983 action should be permitted.

In simple terms, the original taking of the ring was action under color of state law. Its unexplained nonreturn constituted a deprivation of property without due process of law. The illogic of the intentional tort- negligence dichotomy erected by the major- ity in Bonner is graphically illustrated by the instant case. Judge Cummings writes for the court:

If Kimbrough can prove that Johnson or another employee of the Sheriff‘s office either intentionally or with reckless disre- gard caused his property loss, the remedy afforded under Section 1983 may deter similar misconduct. Our conclusion that a taking with intent (or reckless disre- gard) of a claimant‘s property by a State agent violates the Due Process Clause of the Fourteenth Amendment and is ac- tionable under Section 1983 is in harmony with the decisions in other Circuits. (footnotes omitted).

I am uncertain what “reckless disregard” means in this context. Is it something less than an intentional act, yet something more than negligence? The majority‘s failure to supply a standard for this amorphous term will continue to leave borderline cases in doubt.

Moreover, Kimbrough should not be put to the probably impossible task of proving that there was an intentional conversion or “confiscation” of his property. The defend- ants were responsible for the safekeeping of the ring. They should be responsible for its return or its value regardless of whether the loss was occasioned by an intentional conversion or negligence.

Notes

1

1. The proper spelling of the surname of the Sheriff of St. Clair County is “O‘Neal.” How- ever, when this action was filed, the plaintiff mistakenly spelled it as “O‘Neil.”

2

2. Of course, Kimbrough would have to amend his complaint if he wishes to prove that some- one other than the presently named defendants confiscated his ring. Such an amendment would be permissible.

Hansen v. May, 502 F.2d 728, 730 (9th Cir. 1974).

3

3. See also

Gutierrez v. Department of Public Safety, 479 F.2d 701, 719-720 (7th Cir. 1973), certiorari denied,

414 U.S. 1146, 94 S.Ct. 900, 39 L.Ed.2d 102.

4

4. Under our en banc opinion in Bonner, culpa- bility at the reckless disregard level is sufficient to maintain a Section 1983 action. While Kimbrough‘s complaint does not allege a reck- less disregard of his constitutional rights, that may be shown by evidence at trial, in which case he could amend to conform to the proof.

5

5.

Russell v. Bodner, 489 F.2d 280 (3d Cir. 1973);

Carter v. Estelle, 519 F.2d 1136 (5th Cir. 1975);

Cruz v. Cardwell, 486 F.2d 550 (8th Cir. 1973); and

Hansen v. May, 502 F.2d 728 (9th Cir. 1974).

6

6. We reaffirm the panel‘s prior holding that plaintiff‘s allegations concerning the conditions of his confinement and why he was placed in solitary confinement also state a claim for re- lief under 42 U.S.C. § 1983. See

523 F.2d at 1059.

*

* Wood, Circuit Judge, was not a member of this Court at the time of the oral argument and therefore did not participate in the decision.

Case Details

Case Name: Cleveland Kimbrough v. Dave O'Neil (O'neal), Etc.

Court Name: Court of Appeals for the Seventh Circuit

Date Published: Oct 29, 1976

Citation: 545 F.2d 1059

Docket Number: 74-1870

Court Abbreviation: 7th Cir.