Kimbrough v. O'Neil
| Decision Date | 26 September 1975 |
| Docket Number | No. 74-1870,74-1870 |
| Citation | 523 F.2d 1057 |
| Parties | 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. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Cleveland Kimbrough, for plaintiff-appellant.
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.
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 42 U.S.C. §§ 1982, 1983, 1985, 1986 and 1988, and that jurisdiction is based on 28 U.S.C. §§ 1331 and 1343.
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 Fifth, Sixth, Eighth and Fourteenth Amendments.
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 court said that while the conditions in solitary confinement "may have been restrictive," they were not cognizable under the Civil Rights Act because they lasted only three days. It also held that while the loss of the ring might be considered a deprivation of property without due process, the Fourteenth Amendment was not designed to cover the loss involved in this case. In a brief order on April 29, 1974, the court reaffirmed its earlier holding and denied a motion by the plaintiff to vacate. Plaintiff appeals from this order. Upon the record and briefs, and without oral argument, we reverse and remand for further proceedings. Rule 2, Fed.R.App.P.
The plaintiff's allegations of the conditions of his confinement state a claim for relief under 42 U.S.C. § 1983 for an unconstitutional imposition of cruel and unusual punishment. The conditions alleged are "so foul, so inhuman and so violative of basic concepts of decency," Adams v. Pate, 445 F.2d 105, 109 (7th Cir. 1971), that their existence, even for a period of three days, could constitute a violation of the Eighth Amendment. LaReau v. MacDougall, 473 F.2d 974 (2d Cir. 1972), Cert. denied, 414 U.S. 878, 94 S.Ct. 49, 38 L.Ed.2d 123 (1973). Plaintiff also alleged that he was placed in solitary confinement "after demanding use of telephone to contact attorney concerning an emergency situation." Such allegations would permit the plaintiff to attempt to prove that his confinement violated the Eighth Amendment for another reason, for being grossly out of proportion to the conduct for which punishment was imposed. Haines v. Kerner, 492 F.2d 937, 942 (7th Cir. 1974).
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 42 U.S.C. § 1983. Carroll v. Sielaff, 514 F.2d 415 (7th Cir. 1975). These facts would also state a claim for relief for tortious conversion under Illinois law. Should plaintiff wish to pursue this theory of recovery, we would consider it an abuse of discretion for the district court to decline to exercise pendent jurisdiction over the state claim. *
The order appealed from is reversed and the case remanded for further proceedings.
Reversed and remanded.
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," Ill.Rev.Stat.1973, ch. 37, § 439.8(d), and noting further that the individual defendants did not appear to possess any state immunity which would bar suit against them in a state court, Bonner at n. 23, the court concluded that the plaintiff in Bonner had failed to allege the breach of any duty derived from the Fourteenth Amendment, and that the availability of the state tort remedies, satisfied the requirements of due process. 1
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 pleadings would support proof of a willful and arbitrary taking of plaintiff's ring by a state officer. This, it seems to me, is a critical distinction. A state officer who in the course of his duties purposefully appropriates the property of another to the state or to himself may violate that other person's right to due process in two ways: first, he may violate the person's right to procedural due process by failing to provide for a prior or reasonably contemporaneous hearing; second, he may violate the person's right to substantive due process by affirmatively invoking the power of the state in a completely arbitrary 4 manner and without lawful justification in order to effect the actual deprivation. 5
In Bonner, this court was concerned with the requirements of procedural due process in the context of a simple negligent act 6 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. The very concept of procedural due process presupposes that the substantive decision-making will be based on some lawful rule or system of rules such as prison regulations, the provisions of a public employment contract, the specific proscriptions contained in a valid obscenity ordinance, or common law limitations of the police power. The purpose of the hearing is to assure that the legal rules will be applied to a full record of relevant facts. If the legal rules are themselves discarded in favor of the arbitrary desires of the decision-maker (in this case perhaps the desire of a prison official to appropriate the diamond ring to his own personal use) then procedural niceties become irrelevant. 8 Put another way, if, under all the circumstances, the state could not possibly justify the action taken by its agent, the action violates due process and the agent is liable under section 1983, regardless of the procedures used in reaching the unlawful result.
I interpret the opinion in this case to hold that Kimbrough has adequately stated a cause of action under section 1983 9 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...
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