Secret v. Brierton

• Citation: 584 F.2d 823
• Decision Date: 05 December 1978
• Docket Number: No. 77-1653,77-1653
• Parties: Charles Edward SECRET, Plaintiff-Appellant, v. David BRIERTON et al., Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 823

584 F.2d 823

47 A.L.R.Fed. 1

Charles Edward SECRET, Plaintiff-Appellant, v. David BRIERTON et al., Defendants-Appellees.

No. 77-1653.

United States Court of Appeals,

Seventh Circuit.

Argued May 26, 1978.

Decided Oct. 13, 1978.

Rehearing and Rehearing En Banc Denied Dec. 5, 1978.

Jed Robert Mandel, Chicago, Ill., for plaintiff-appellant.

Joseph M. Cotugno, Ill. Dept. of Corrections, Chicago, Ill., for defendants-appellees.

Before FAIRCHILD, Chief Judge, PELL, Circuit Judge, and HARPER, Senior District Judge. ^*

PELL, Circuit Judge.

This is an appeal from a summary judgment for the defendants, prison officials, in a prisoner's suit based on 42 U.S.C. § 1983. The plaintiff, a state prisoner incarcerated in the Stateville Correctional Center, Joliet, Illinois, filed this action alleging that his The stereo equipment apparently was taken from him originally because of a rule against recording devices in the prison. The defendants filed an affidavit of defendant Robert Kapture, Assistant Warden for Operations, which stated that certain modifications were made to the radio/recorder to prevent it from recording and that it was returned to the plaintiff. The district court dismissed the complaint as moot because the plaintiff did not challenge the State's rule against recording devices within the prison and did not dispute that the recorder had been returned to him. The court added that insofar as the plaintiff's complaint sought recovery for the negligent acts of a guard, it failed to state a claim. This statement apparently was in response to the plaintiff's allegation that he had a written statement from a prison guard accepting responsibility for at least some of the damage. The signed statement of the guard, a defendant, states:

personal property was unlawfully confiscated from him without due process of law. Specifically, the plaintiff alleged that when he was transferred to Stateville, prison officials confiscated his AM-FM radio/cassette recorder, accompanying adaptor plug and AC power cord, and stereo headphones (hereinafter stero equipment). He also alleged that his stereo equipment was damaged ¹ and he asked that it be repaired or replaced and then returned to him.

This is to advise that on (April 2, 1976) I accidently knocked over a table which contained resident Secret's radio tape player. The tape player sustained some serious damages, this was the result of a defective chair in which I sat.

If the State will not pay for the repairs I will pay for them personally.

After oral argument before this court, we ordered the parties to submit supplemental briefs on the issue of whether the plaintiff had any obligation to attempt resolution of the dispute by making use of and exhausting an internal grievance procedure at the prison before instituting this action. Because our disposition of the case turns on this issue, we need not address the other issues raised by the plaintiff.

Although the Supreme Court has addressed the requirement of exhaustion of state remedies in § 1983 cases, ² it has never squarely confronted the issue now before us: whether a state prisoner, alleging deprivation, without due process, of tangible items of personal property of no great monetary value, should be required to utilize readily available prison grievances procedures before making it a federal case by resorting to § 1983 litigation. Nevertheless, the Supreme Court pronouncements in this area have been interpreted by a majority of the courts of appeals as establishing a broad, inflexible rule that exhaustion of state remedies is never required in § 1983 The case often cited as the origin of the no-exhaustion rule is Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961). The plaintiffs filed a § 1983 suit alleging that police officers violated their Fourteenth Amendment rights during an unreasonable search of their home. The court of appeals held that the plaintiffs had not stated a cause of action and that they had a remedy in the state courts. The Supreme Court reversed holding that the plaintiffs had stated a cause of action. More importantly for our analysis, however, the Court stated that "the federal remedy is supplementary to the state remedy, and the latter need not be first sought and refused before the federal one is invoked." 365 U.S. at 183, 81 S.Ct. at 482. Although this statement clearly suggests that § 1983 plaintiffs need not seek redress in the state courts before filing their federal action, it does not in terms prohibit a federal court from requiring a § 1983 plaintiff to exhaust state Administrative remedies. The distinction between exhaustion of state judicial remedies and administrative remedies is not a meaningless one. One of the important purposes of § 1983 was to provide a federal forum for an evenhanded enforcement of the law that was not always available in the state courts. That purpose would be frustrated if plaintiffs were forced to sue first in the state court where the resulting judgment would create collateral estoppel effects. This same problem does not arise with the exhaustion of state administrative remedies. See Lane v. Wilson, 307 U.S. 268, 274, 59 S.Ct. 872, 83 L.Ed. 1281 (1939). The principal cost of requiring administrative exhaustion is the delay preceding access to federal court. See Comment, Exhaustion of State Administrative Remedies in Section 1983 Cases, 41 U.Chi.L.Rev. 537, 551 n. 68 (1974).

                actions.  3 Because we are of the opinion that the plaintiff in the instant case should have utilized available prison grievance procedures before filing this action, we turn to the relevant Supreme Court cases to determine their applicability to the instant case
                

The Supreme Court, however, in a subsequent § 1983 case, confronted the issue of exhaustion of administrative remedies. McNeese v. Board of Education, 373 U.S. 668, 83 S.Ct. 1433, 10 L.Ed.2d 622 (1963), was a school desegregation case in which the primary administrative remedy available was that the residents of the school district could file a complaint with the Superintendent of Public Instruction alleging racial segregation. He would then set a hearing and, after the hearing, if he decided that the allegations were substantially correct he would Request the Illinois Attorney General to file suit. The Supreme Court outlined at length the inadequacies of this administrative remedy, noting for example that the Superintendent could provide no independent remedy; he could only "investigate, recommend and report." 373 U.S. at 675, 83 S.Ct. 1433. It then concluded that "(w)hen federal rights are subject to such tenuous protection, prior resort to a state proceeding is not necessary." Id. at 676, 83 S.Ct. at 1438.

McNeese does not establish a rule that exhaustion of state administrative remedies is never required in § 1983 cases. We agree with the Second Circuit that the case "held only that there was no administrative remedy by which plaintiffs could have any assurance of getting the relief they wanted an The futility exception to the exhaustion requirement also explains Damico v. California, 389 U.S. 416, 88 S.Ct. 526, 19 L.Ed.2d 647 (1967). The plaintiffs in that case filed a § 1983 suit challenging the constitutionality of the state welfare laws. A three-judge district court dismissed for failure to exhaust adequate administrative remedies, and the Supreme Court reversed in a short per curiam opinion. The Court quoted McNeese as holding that "relief under the Civil Rights Act may not be defeated because relief was not first sought under state law which provided (an administrative) remedy." 389 U.S. at 417, 88 S.Ct. at 526 (brackets in original). The portion of the McNeese opinion that the Court quoted, however, dealt with a state judicial, not administrative remedy. Moreover, we do not read this statement as establishing a broad rule, especially in light of the context. The administrative remedy available in Damico would not have been a likely source for relief because the state agency could not declare the challenged law unconstitutional. The futility exception to the exhaustion requirement would appear to have been applicable in this context.

end to segregation even if they were clearly entitled to it." Eisen v. Eastman, 421 F.2d 560, 569 (2d Cir. 1969), Cert. denied, 400 U.S. 841, 91 S.Ct. 82, 27 L.Ed.2d 75 (1970). Thus McNeese may be explained as simply following the well-settled doctrine that the courts will not require a futile act, I. e., here that resort need not be had to the administrative remedies which are inadequate, either facially or as applied.

Houghton v. Shafer, 392 U.S. 639, 88 S.Ct. 2119, 20 L.Ed.2d 1319 (1968), follows similar reasoning. In that case, prison authorities had confiscated the petitioner's legal materials because they were found in the possession of another inmate. The petitioner's efforts to obtain the confiscated materials were unsuccessful so he filed a § 1983 suit. The district court dismissed his complaint on the sole ground that he had not alleged exhaustion of state administrative remedies. The Supreme Court noted that he did seek relief from the Deputy Superintendent of his prison, but did not appeal to the Deputy Commissioner of Correction, to the Commissioner, or to the Attorney General. Because the Attorney General had submitted to the Court that the prison rules were validly and correctly applied to the petitioner, the Court recognized that requiring an administrative appeal to that same officer "would be to demand a futile act." Id. at 640, 88 S.Ct. at 2120. The Court added that "(i)n any event, resort to these remedies is unnecessary in light of our decisions in Monroe v. Pape, . . . McNeese v. Board of Education, . . . and Damico v. California . . . ." Id. (page citations omitted). We read these cases, consistently with Houghton, as holding that the requirement of exhaustion of administrative remedies has no applicability where those remedies...